Oklahoma lawmakers consider risks, rewards of drones during interim study

by Randy Ellis, The Oklahoman  - 

Drones have tremendous potential for good, but they also create risks to privacy and public safety, Oklahoma lawmakers were told Wednesday during an interim study at the state Capitol.

Developing legislation that can effectively maximize the societal and commercial benefits of unmanned aircraft while minimizing risks to privacy and safety will be a challenge, experts said.

“This is an emerging technology that raises concerns about property rights, privacy and more, but there is also the potential for economic development and other positives," said state Sen. Frank Simpson, R-Springer, who requested the interim study.

"It's important for us to take a comprehensive look at the issues, current regulations and policy, and determine what may need to be done at the state level to better address the potential for problems without stifling the ability to take advantage of those positives.”

Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma, said his organization's interest in drones is aligned with its long-standing interest in protecting citizens from "unnecessary and unwarranted intrusion by the government."

Drones create a massive shift in the ability of governmental entities to use aerial surveillance techniques to intrude into people's private lives, because they are so much smaller and cheaper to operate than helicopters or airplanes, he said.

"We have a very distinct interest in the regulation of drones, primarily from the point of view of regulating the government — the state's use of drones to make sure we are able to balance both public safety needs and the right to privacy," he said.

Use of drones to deliver lethal or nonlethal weapons should be prohibited, Kiesel said.

He suggested that the Legislature and municipal governments should consider setting limits on the authority of law enforcement agencies to use drones in situations where residents normally would have an expectation of privacy. Warrants should be required in those situations, except in emergencies, he said.

Openness and transparency

Kiesel also recommended that law enforcement agencies only be able to retain images gathered by drones when there is a reasonable suspicion that they contain evidence of a crime or are relevant to an ongoing investigation.

Openness and transparency in governmental discussions about drone regulations and the public's ability to know how drones are being used is important, he said.

Kiesel cautioned lawmakers about moving too quickly to regulate the private use of drones, warning that they could infringe on the First Amendment rights of private individuals and news organizations to gather information about public events, like protests and riots.

Stephen Henderson, a University of Oklahoma law professor, told lawmakers that in contemplating drone legislation, they must consider constitutional restrictions and the balance between the First Amendment rights of citizens to gather and disperse information and their Fourth Amendment right to privacy.

Lawmakers more concerned about the right to privacy than the right to free speech might consider legislation that would ban all nonconsensual drone flights over private property below a certain height threshold, such as 250 feet, he said.

Lawmakers who place a higher value on free speech than privacy might consider more vague restrictions, such as prohibiting conduct "offensive to a reasonable person" or that intrudes upon a "reasonable expectation of privacy," he said.

George Geissler, state forestry director for the Oklahoma Department of Agriculture, said he has already seen how drones can hinder forestry officials and firefighters.

There have been times in Oklahoma when manned aircraft summoned to help fight wildfires had to be sent back because drones were spotted in the area, Geissler said.

"We've come across these more and more in our state as private individuals who want those great photographs" increasingly fly drones near wildfires, he said.

"If you fly, we can't," Geissler said, noting that drones occupy the same airspace as low-flying manned aircraft brought in to make water drops on fires, creating the risk of a fatal collision.

Watch OETA summary of the issues