By Rob Port | WatchDog.org North Dakota Bureau
BISMARCK, N.D. — In November 2011, Nelson County Sheriff Kelly Janke called in a Predator drone, owned by the U.S. Border Patrol, to assist in the arrest of a North Dakota farmer.
The farmer, Rodney Brossart, and members of his family were involved in an armed stand-off with law enforcement. Earlier this week, Brossart was found not guilty of cattle rustling, the accusation that brought law enforcement to his door step, but he was sentenced to three years in prison, with all but six months suspended, for the stand-off.
This was the first criminal case in American history in which a drone was used in an arrest and conviction.
Brossart’s case, along with serious efforts by state leaders to woo the unmanned aircraft system industry to the state, has sparked a debate over privacy that looks to continue in the upcoming session of the state Legislature.
During the 2013 legislative session, lawmakers appropriated $5 million to the Commerce Department to promote the UAS industry, part of $14 million the state invested in the effort, according to a news release. Those efforts resulted in a strategic partnership agreement signed between Northrup Gruman and the Grand Forks Base Realignment Impact Committee, the University of North Dakota, UND Aerospace Foundation and Northland Aerospace Foundation.
Economic development before privacy
In the 2013 session, Rep. Rick Becker, R-Bismarck, introduced HB1373 to require state law enforcement to get a warrant before using a drone in a criminal investigation. The bill passed the state House but faced heavy opposition in the Senate, particularly from supporters of efforts to get North Dakota named as a UAS test site by the Federal Aviation Administration. That happened last year.
Becker thinks opponents of his bill put the cause of economic development above privacy. “It should have passed,” he said this week. “During the whole process throughout the debates and committee meetings I did not hear one cogent argument against it. There was emotion, some diversion, but there was really not a strong argument against it. ”
The campaign to bring the UAS industry to North Dakota may have been the bill’s undoing, according to Becker. “It could be that if UND hadn’t been up for one of the six test sites that it would have passed,” he said. “That’s saying we’re not going to put civil liberties ahead of economic gain.”
He said he introduced the bill to address privacy concerns posed by drones through the legislative process, before it’s settled in the courts. “The idea that it’s a new technology — and it really is kind of a gray area,” he said. “We can wait for it to go through the courts, or we can admit that it’s a gray area.” An argument that frustrated Becker during the 2013 session was his legislation was a “solution in search of a problem.”
“A lot of legislation is derived at preventing problems, especially when it comes to incursions on civil liberties,” he said. “If you take that approach, I guess you could wait for people’s rights to be infringed upon.”
Asked to respond to the conviction of Brossart through the use of a drone, Becker said he’s ambivalent. “I don’t have a strong feeling one way or another.
“I strongly believe that drones are going to become part of our lives, whether it’s Amazon delivering packages or law enforcement using them. It doesn’t change my mind about it. It doesn’t change the potential abuse.”
Broad privacy protections needed
Sen. Kelly Armstrong, R-Dickinson, agrees that the privacy threat posed by drones needs to be addressed in the Legislature, but said the use of a drone in Brossart’s arrest and conviction was appropriate. “They didn’t have a warrant for the use of the drone, but they did have a warrant for arrest,” said Armstrong, a former defense attorney. “If it keeps officers safer and reduces the chance of shots fired, I don’t have a huge problem with the technology being used in that regard. They didn’t use the drones to build the case against him. They used the drones to effectuate an arrest after they already had a warrant for him.”
But the potential for abuse is real. “If we’re talking about using drones for warrantless surveillance, that’s a problem,” said Armstrong. “The scariest thing about drones are the small ones, not the big ones that fly real high. As technology increases, those invasive things, we’re going to have to address.”
Armstrong says legislative efforts to protect privacy shouldn’t focus on drones, specifically, but instead focus on broad initiatives that “transcend technology.”
“We need to be very careful about technology-specific legislation,” he said. “If you’re concerned about the Fourth Amendment and privacy, bone that up. Make sure new laws transcend technology advances … Hopefully you can write it in a manner that addresses any specific technology.”
North Dakota protections in place
The man charged with leading North Dakota’s oversight of the use of drones agrees. Lt. Gov. Drew Wrigley, a Republican, heads the Northern Plains Unmanned Aircraft Systems Authority, a “six-member commission assembled to advance the state’s UAS opportunities,” according to a news release. An executive order from Gov. Jack Dalrymple created it.
Wrigley said that commission is also charged with oversight of how drones are used in the state.
“One of the things we talked about a lot with the FAA is that North Dakota has the first and only one of its kind in the nation privacy oversight committee,” he said. “If you want to test in the airspace in North Dakota, you have to vet your plan through the committee.”
But Wrigley isn’t insensitive to privacy concerns and says he plans to invite Becker to discuss them with his commission. “It’s real. This is a very serious concern. We should be concerned about this just like we’re concerned with what the NSA is doing with our phones.”
Yet, according to Wrigley, the protections the state already has in place are strong and worthy of emulation by other states. “I really think North Dakota is going to be a model for a lot of these other test sites,” he said. “I want my community to be proud of what’s going on here.”
He looks forward to Becker’s participation. “I know he’s passionate about it,” he said. “I think he can help us drive toward making that committee even better.”
Looking forward to 2015
“I haven’t decided,” Becker said when asked if he planned to introduce another bill to address drones and privacy. “To me it’s a no-brainer that it’s good legislation. There are a lot of things on my horizon that I’d like to see moved, and we’ll have to see how it goes.”
Armstrong said he might support legislation, depending on how it’s written, but said he’s more concerned about the use of drones by the private sector than the government.
“I would say with regard to private use of drones, I think I would support legislation to restrict that more so than government. He supports the UAS test site designation granted by the FAA, which has opened the door to research and development opportunities at the University of North Dakota in Grand Forks.
“The technology is going to exist, and it’s gonna be here. That’s the reality of the situation, whether it was set in North Dakota or it was set in Montana,” he said. “For a lot of reasons, given our connection to aviation, I think Grand Forks made a lot of sense.”
Wrigley said he hopes the debate over privacy continues.
“I think that it is clear across many, many decades that the protections of the Constitution do transcend advancements in technology,” he said. “That said, I think it’s an important part of the debate to discuss privacy, ethical, community norms when it comes to intrusions by law enforcement. The Fourth Amendment still provides the same protections. You have to have these discussions every time the technology moves forward.”
You can reach Rob Port at email@example.com