It's a race to see which state will be the first to pass legislation governing domestic drone use. Coming out of the gate first was Florida, which passed a bill through several committees in the Senate back in January. This is notable since the Florida legislature didn’t officially convene until March 5—they thought this issue was so important that they moved the bill during their committee organizing sessions. Then Montana pulled up from behind, passing two drones bills all the way through their Senate by mid-February. But, , sending two bills to their governor’s desk by the beginning of March, where they currently await signature.
Drone legislation has been proposed in at least 30 states so far. As part of my job working with ACLU affiliates nationwide to analyze and respond to the various proposals, I have read every single one of these bills, and I thought it would be useful to summarize what we’re seeing in this legislation.
The good news is that the vast majority of the bills require a in order for law enforcement to use drones to collect information to use against someone in court. This list includes bills in , , , , , , , , , , , , New Hampshire, , , , , , , , , , and .
There are, of course, variations among these bills:
- Some ban weaponization of drones (Georgia, Illinois, Massachusetts, Montana, New Hampshire, Oklahoma, and North Dakota).
- Some explicitly provide special protections from aerial surveillance for farmers or ranchers (rural states like Idaho and Missouri).
- Some require reporting on law enforcement agencies’ drone usage so the legislature can find out how drones work in practice. (That list includes , Illinois, , Massachusetts, Rhode Island, and Washington).
- A subset of the bills also require law enforcement to justify to their city councils or other local governing body their need for a drone before acquiring one (California, Hawaii, Maine, Oregon, Rhode Island, , and Washington).
- Georgia’s bill allows drone use only to investigate felonies—not misdemeanors.
Then there are the states that take a particularly high road when it comes to protecting privacy. Massachusetts and Rhode Island are the leaders here. Both states’ bills prohibit law enforcement from identifying anyone or anything other than the target that justified the warrant and drone deployment. And, they further ensure that wherever drones are used—whether in criminal investigations, searching for missing persons, fighting forest fires, or whatever—information that is incidentally collected cannot be used in court. This is very important. Unlike many traditional searches that can be narrowly tailored to collect information only on a particular target, drones can be equipped with a host of technologies that can suck in information on not just the target, but everyone else who happens to be nearby, or underneath the drone as it travels to the target area. Rhode Island’s bill requires that incidentally collected data be deleted within 24 hours, and we’d like to see others follow their lead.
Meanwhile, Massachusetts and North Dakota bills make explicit that drones cannot be used to conduct surveillance solely based on an individual’s First Amendment-protected activities. So, no parking a drone over a mosque, an Occupy protest, or a Tea Party rally unless law enforcement first obtains a warrant based on facts that are independent from the First Amendment activities in question.
Of course, there are also bills that take the low road:
- North Dakota’s bill explicitly allows incidentally collected information to be introduced in court. So, if a drone on the way to fight a forest fire happens to record you engaged in private activities, the police would not be required to delete that information and could actually use it in court against you, no warrant required—before or after the fact. This could create some dangerous incentives.
- The bill introduced in Arizona, home of SB 1070, only protects US citizens from being spied on by drones and explicitly exempts investigations of drug crimes and human smuggling from warrant requirements in the bill.
And then there are bills, like Montana’s, that prohibit private use of drones, or like Texas’s, that prohibit drone photography, raising concerns.
A smaller subset of bills almost completely ban drone use for evidence collection—even with a warrant. That list includes one of the bills, (except if there’s a risk of a terrorist attack), and (for two years, with emergency exceptions). and have bills that would prohibit *anyone* from using a drone domestically, except with permission from the person whose property is being surveilled (and, in the case of Indiana, except for hobbyists).
There are also a couple of states that have introduced a middling approach. Their bills require a probable cause warrant for drone use in most investigatory situations, but Maine allows law enforcement to use a drone for less than 48 hours with a court order based on reasonable suspicion, and Hawaii allows surveillance of public spaces based on a similar court order.
And then there’s , where the bill synopsis says the intent of the legislation is to require “that police obtain warrant to conduct aerial surveillance utilizing drones,” but the bill text, perplexingly, refers only to court orders and says nothing about probable cause.
Finally, there are bills that just take a different road altogether. urging the creation of a committee to study drone use. had a bill (which has died) prohibiting the use of drones to monitor hunters on private lands. has a bill providing tax breaks for drone manufacturers. And Georgia has passed in praising the aerospace industry and honoring drone development in their state.
Suffice it to say, the drones are coming, and state legislatures are gearing up for them and testing out what protections will fly in their states. It’s great to see so many legislators taking the privacy threat from drones so seriously; now we must work to ensure that as a result of this concern, strong language that will actually have an effect makes it over the finish line.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.