To Chairman Johnson, Vice Chair Wilson, Ranking Member Weinstein, and members of the Senate Armed Services, Veterans Affairs & Public Safety Committee, thank you for this opportunity to provide opponent testimony on Substitute House Bill 251.
First, I would like to acknowledge the ACLU of Ohio was officially “interested party” on HB 251 when this bill was in the House. In short, that position was based on strategy, not policy, in the hopes HB 251 would be further amended to remove especially troubling provisions. That did not happen, so we are back as “opponent” to more clearly illustrate the harms passage of HB 251 will cause.
Overall, HB 251 is advertised as preserving privacy and constitutional rights by regulating unmanned aerial vehicles, otherwise known as drones. However, the current version of HB 251 does the opposite, rubber stamping intrusive government surveillance of all kinds.
SURVEILLANCE & WARRANTS
HB 251 requires law enforcement to obtain warrants in several situations when using drones. This is ordinarily a positive development in drone regulation legislation. But the exceptions make the search warrant requirement in this bill essentially moot.
That is, HB 251 allows warrantless surveillance for activity and presence of people that is “otherwise visible to the naked eye.” (Lines #183-183).
However, from a privacy advocate’s perspective, one of the primary purposes of drone regulation laws is for warrant requirements to be a default requirement with few exceptions. We do not want law enforcement and government using drones, surveilling everything and anything, simply because they have the resources and interest to do that.
“Otherwise visible to the naked eye” is dream language for those intent on surveilling us as almost everything we do outside of our homes is visible to the naked eye.
Under HB 251, law enforcement also does not need a warrant when patrolling within 50 miles of a national border to “prevent or deter the illegal entry of any individual, illegal substance, or contraband.” (Lines #165-167). In other words, as long as law enforcement cites deterring illegal substances or contraband as one of the reasons for their use, they will be able to utilize drones without warrants even if such a use is not the primary purpose, or is one of many purposes, for drone operations.
DRONES & PUBLIC RECORDS
Even worse, HB 251 makes all the surveillance data recorded and captured by drones public record. (Lines #231-235). So, not only will government and law enforcement be surveilling us, nearly everything they record will be available to everyone who cares to submit a public records request. This is not protection of privacy, it is its destruction.
DRONES & THE FIRST AMENDMENT
HB 251 also prevents the surveillance of another person by drone without the surveilled person’s written consent and the written consent of the property owner where the activity occurs. (Lines#195-204).
Typically, the ACLU of Ohio might applaud such a restriction as further protecting the privacy of Ohioans. However, this particular section is so extremely broad it will inevitably lead to numerous First Amendment problems. Most obvious is the impact on news media as it appears HB 251 will jeopardize news gathering if of all sorts because the news media in question has not obtained the required permission of its target.
What about someone who records a crowd with their drone? Will they need written permission from every single person present? What if someone is experiencing repeated theft or vandalism at their property and uses a drone to surveil their property hoping to record the next offense?Under HB 251, are they legally allowed to record that person? It appears not.
There are numerous other examples. Suffice to say, this particular section is a First Amendment minefield.
I hope members of this committee agree statewide legislation to regulate numerous types of surveillance technologies is necessary and badly needed. The ACLU of Ohio is ready to assist however wanted with model bills, talking points, research on other states, and much more.
But HB 251 is not one of these helpful, positive bills. In many ways, it is a blank check for law enforcement and government to continue warrantless surveillance limited only by their financial resources. Pass HB 251 and almost all the problems that arise from government surveillance will increase, not decrease.
For these reasons and more, the ACLU of Ohio encourages this committee’s rejection of Substitute House Bill 251.