Virginia to Mull Strictest Drone Law in U.S.

The ACLU and Tea Party are unlikely partners in what may be the country's strictest drone privacy law.

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An unlikely coalition, including a Tea Party member of Virginia's General Assembly and the American Civil Liberties Union, are crafting what could be the nation's strictest domestic drone-use legislation.

The bill comes as a direct response to Virginia Governor Robert McDonnell's comments in May, when he told a radio show that drones flying high over Virginia's skies would be "great" and "absolutely the right thing to do."

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The thought of flying cheap, reusable drones to monitor traffic, conduct surveillance, and aid in other police investigations has many law enforcement officers drooling. The ACLU-Tea Party bill, which will be introduced by Virginia delegate Todd Gilbert in early 2013, when Virginia's legislative session resumes, looks to put strict limits on when and how drones can be used.

"Our governor went on WTOP Radio and said that he thought using police use drones was a pretty good idea," says Claire Gastanaga, ACLU Virginia's executive director. "We want to be sure we put some basic protections in place so that folks can go ahead with their lives and make sure they're not being surveilled."

Although the coalition has yet to draft the bill, an ACLU press release says the legislation will prohibit law enforcement from using drones without a specific warrant, prohibit the retention of data, video, and photos that are not related to an ongoing police investigation, and require law enforcement to alert the public that drones are flying in their area.

"What the legislation is intended to do is to place strict scrutiny on ability of government to use [drones] to monitor our citizens," Gilbert says. "We want to make sure we live in the kind of world envisioned by our founding fathers, not one envisioned by George Orwell."

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The left-leaning ACLU and far-right Gilbert are uneasy allies on this project—they disagree on essentially every other issue—but both parties say their collaboration on privacy legislation proves that political cooperation is possible.

"We're not normally seen as folks who hold hands and skip happily," says Gastanaga. "But just because we disagree on some issues doesn't mean we're disagreeable."

Both Gastanaga and Gilbert say it's important to pass a drone privacy law now, before courts are forced to determine the legality of drone use by law enforcement. In North Dakota, a district court upheld the warrantless use of a Department of Homeland Security drone during the investigation and arrest of an American citizen. Under their proposed legislation, such a use would become illegal in Virginia.

"We're moving to put a statute in place so we don't have to leave it to the courts to interpret," Gastanaga says. "Law enforcement will need an appropriate civil warrant [to use a drone]."

In Congress, Massachusetts Democrat Rep. Edward Markey recently released a draft of a bill that would impose some of the restrictions that are expected to be included in the Virginia bill, but Gilbert's draft is likely to be more restrictive.

Gilbert says he's received wide support from his fellow delegates and is confident the law will be passed early in the legislative session.

"I've had both extremely conservative members of the General Assembly and very liberal members contact me about wanting to work on this together," he says. "There are all kinds of reasons to rein this in before it starts."

Although the framework of the bill seems to be mainly targeted at law enforcement, the FAA hasn't yet authorized any Virginia police departments to operate a drone.

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In April, Fairfax County police chief David Rohrer told WTOP that drones would "certainly have a purpose and a reason to be in this region in the next coming years," but he quickly backed off that statement. A public information officer for the county says the police department hasn't made any arrangements to obtain a permit allowing them to fly drones.