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HB 1065: Johnson Cracks Down on Drone Eavesdropping on Homes, Businesses, Properties

Mayor Schaunaman is not going to be happy: some Republican legislators are actually trying to crack down on drone snooping!

Representative David Johnson (R-33/Rapid City) offers House Bill 1065, a measure to revise the law on drone surveillance. HB 1065 revises our statute on trespassing to eavesdrop by changing the section banning eavesdropping by drone from this:

Intentionally uses a drone to photograph, record, or otherwise observe another person in a private place where the person has a reasonable expectation of privacy; [SDCL 22-21-1]

…to this:

Use a drone for aerial surveillance, observation, technological imaging, photography, videography or any other type of sensory recording to gather, collect, disseminate, or retain data of persons, homes, businesses, or properties, where there is a reasonable expectation of privacy, without the written consent from the person, the property owner, or the manager; [2020 HB 1065, Section 1, as introduced 2020.01.17].

David Johnson Ron Swanson Drone Killer
This is a flying robot I just shot out of the sky… no one is safe from these bastards.

Johnson’s language clarifies “otherwise observe” to make clear that eavesdropping by drone applies to collecting any kind of sensor data—visual, audio, infrared, gravitic, tachyonic…. It expands eavesdropping to apply not just to snooping on people but gathering any information about homes, businesses, or properties…

…which makes me think right away we’ve found one avenue by which Governor Noem may try to crack down on Keystone XL protestors, opponents of CAFOs, or others who may try to gather evidence of violations of environmental law done by the beneficiaries of Noem’s business-über-alles approach to government. Pipeline protestors may want to use drones to monitor pipeline construction and mancamp sewage-handling practices to identify violations of their permit conditions. CAFO watchdogs may want to use drones to survey manure dumping and sewage lagoon maintenance. HB 1065 criminalizes such aerial surveillance against property, even if no people are present.

Hmm… maybe Mayor Schuanaman won’t mind that much.

HB 1065 also eliminates exemptions to the eavesdrop-by-trespass statute. Right now, it’s not eavesdrop by drone trespass if the snooper is “operating a drone for commercial or agricultural purposes pursuant to or in compliance with federal aviation administration regulations.” HB 1065 strikes that exemption and leaves it so that the only folks not subject to a Class 1 misdemeanor for unauthorized drone overflies are cops, folks droning under cops’ orders, and emergency management workers managing emergencies.

Wait—an exemption overriding federal regulations? Mayor Schaunaman won’t like that!

HB 1065 doesn’t have a committee hearing yet. It will be interesting to hear Representative Johnson testify to the motivation for his anti-drone-snooping bill.

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By the way, now that he doesn’t have to put up with Lynne DiSanto’s foolishness anymore, Johnson is running for District 33 Senate. He’s only in his second term in the House, but District 33’s regressive Senator Phil Jensen is in his fourth term and has to step away from Senate after this year, leaving an opening for possibly more sensible Senatorializing from District 33 (which is kind of like saying removing Donald Trump opens the door for more sensible Presidenting).

16 Comments

  1. mike from iowa 2020-01-21 08:08

    First thought come to mind was moar protections for environmental disaster makers like pipelines and cafos.

  2. Kathy Tyler 2020-01-21 08:31

    My thoughts too. So does that mean that we own the air over our property? So bad air from polluters over our property is trespassing?

  3. Donald Pay 2020-01-21 08:35

    The law is unconstitutional. Your property has no expectation of privacy. The grass in your front lawn and the chair on which you are sunbathing nude have no rights. If you walk around nude on your front lawn, expect people to look, and report you.

    You have a right to graze on your property, but if I drive by and see your cattle have gotten onto someone else’s property, you have no right to say I had no right to see that, and report it.

    Not only that the bill is anti-science. There is no difference between a drone photo and a photo from a low-flying airplane, and photogrammetry and sensing from airplanes and now drones are used all the time in science. Back in the 1970s I used old Soil Conservation Service photos in my research, and people are using much more sophisticated methods now.

    The bill is anti-business. There are many applications for drones, including use in precision agriculture, law enforcement, search and rescue, delivery, and on and on. All of these will require cameras or some sort of sensing.

  4. bearcreekbat 2020-01-21 10:49

    Donald is correct that, a least from from a law enforcement perspective, normally “Your property has no expectation of privacy.”

    . . . the Fourth Amendment protection does not extend to open fields. Governmental intrusion and information collection upon open fields do not constitute searches or seizures under the Fourth Amendment. Expectation of privacy in an open field is not considered as reasonable or legitimate, even if there are fences or “no trespassing” signs around the field. Open fields may include any unoccupied or undeveloped area outside the curtilage.

    https://www.law.cornell.edu/wex/open_field_doctrine

    State law, however, can sidestep this doctrine with state statutes or constitutions, rather than the 4th Amendment, that restrict or prohibit warrantless law enforcement surveilence and searches of areas under the “open fields doctrine.”

    Some states reject open field doctrine and confirm protection under state law of privately owned open lands from warrantless searches and seizures, where a reasonable person should know that the occupant intends to exclude public and precautions have been taken. For instance, in State v. Dixon, the Supreme Court of Oregon held that Article I, Section 9 of the Oregon Constitution, i.e. the search and seizure provision, applies to privately owned lands outside the curtilage of a residence.

    In 2005 the South Dakota Senate passed a bill (SB 122) that limited the “open fields” authority of game wardens. Apparently, however, that bill was defeated in the House.

    http://sdlegislature.gov/sessions/2005/122.htm

    Thus, to the extent a citizen’s “reasonable expectation of privacy” is based on 4th Amendment law, this new drone proposal would not seem to prohibit drones from obtaining data over fields and open areas, even if fenced and posted with “no trespassing” type signs.

  5. Donald Pay 2020-01-21 12:42

    Security cameras are now attached outside of many businesses and homes. Law enforcement officials often ask to view the images from nearby, and not so nearby, businesses to get descriptions of perpetrators, license plates, make of cars, escape routes, etc. Recently, they have been used to track down abducted children.

    My feeling about how important this is comes from tracking down the illegality occurring at the Gilt Edge Mine, which ended up as a Superfund Site because the authorities didn’t do their job adequately. We had pilots taking photos to document the breaching of engineered structures and the leaking of pollution from that mine into the environment. The company tried to hide the problems from the regulators. Thanks to those photos, the company couldn’t deny the major problems at the mine. These were violations of their permit and the law.

    I’m not really at all sorry if criminals can’t get away as easily when they violate the law in any way, whether it’s child kidnapping or polluting other people’s land and water. because can people fly airplanes or drones and see and document their criminality. Whether it’s a child abduction, a mining permit violation or a pipeline spill, the crook shouldn’t be able to hide in plain sight.

  6. Jeff Barth 2020-01-21 16:56

    If I can hit it with a golf club it is too close.

  7. grudznick 2020-01-21 17:44

    There are those, like grudznick, who like to sunbathe in our yards, and there are those who like to watch those like grudznick through little flying droners. And, there are those who have robot miniature droners who follow Ms. Hubbel everywhere she goes. Which is the greater atrocity?

  8. Debbo 2020-01-21 18:32

    I’d like to see something like no drones within X yards of an inhabited home, or something like that. It feels awfully invasive to have a drone fly over one’s back or front yard. Same with security cameras pointing into the neighbor’s yard.

  9. Marvin Kammerer 2020-01-21 19:49

    i have warned the wheeler dealers of our area that my long barreled shotgun is waiting with a load of bb’s for their invasive flights.especially my friends south over the ridge.

  10. Donald Pay 2020-01-21 21:58

    The current statute takes care of the peeping Tom situation. It comports with the Constitution. I’m fine with the current statute. No one wants these things hovering outside the bedroom window.

    The problem is HB 1065 completely changes the statute. By placing unconstitutional language in the statute it runs the risk of invaliding that parts of the current statutory protections that are for the protection of privacy of individuals. That’s a scary thought. Best to leave it alone.

  11. Cory Allen Heidelberger Post author | 2020-01-22 19:59

    I’m intrigued by the discussion of the open fields doctrine. If I can have a camera on my house or garage and capture images of open neighboring properties, does that mean those visible areas are equally open to drone surveillance? We could pass HB 1065 and apply it constitutionally… but that would mean it would apply only to those enclosed spaces that aren’t covered by existing open fields doctrine. HB 1065 would thus apply only to folks flying drones close enough to peer in windows.

    How does the open fields doctrine apply to other censor data beyond visual? Do I still have an expectation of privacy in, say, a thick shelterbelt where I can’t be seen by the naked eye but where an infrared camera could pick out my body heat and the heat of my moonshine still?

  12. Cory Allen Heidelberger Post author | 2020-01-22 20:01

    I would like to build on Kathy’s standard: if we can’t invade the neighbor’s CAFO airspace with a camera drone, why can’t we ban the neighbor from invading our airspace with the stink of his 2,000 hogs? Can we equate stink and flying gear?

  13. Porter Lansing 2020-01-22 20:23

    Can’t do it in California. The main thrust of the California drone laws revolve around privacy issues. If you knowingly enter the airspace over private property without permission with the intention of taking photos or video, you are guilty of invading someone’s privacy.
    There are some exceptions and exceptional circumstances, but in general if you have people or property in your footage you should have permission from those people and the owner’s of the property to own and use that footage.
    https://www.droneguru.net/california-drone-laws/

  14. Debbo 2020-01-25 13:36

    Bwahahahahaha!!

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