When EFF analyzes state legislation regulating the operation of drones, we look for a few elements. How will the bill affect law enforcement use of drones? And how will the bill impact private drone use, whether for recreation, journalism, or innovative new business applications? Will the legislation protect the public from undue surveillance? Could it restrain the public’s ability to control its own technology?

Two bills before the California legislature this session—A.B. 1820 and S.B. 868—failed our test on all counts. Not only would the legislation have harmed our civil liberties, the bills could have criminalized certain drone sports, such as the aerial dogfights that have become one of the most popular attractions at Bay Area Maker Faire.

Now, we’re happy to announce that, after months of opposition from unlikely bedfellows—including the civil liberties community, law enforcement, and business groups—these drone bills have been grounded.

Both proposals passed through their originating houses (the Assembly and Senate respectively). But later in the legislative session, the bills died in committee. S.B. 868 failed on a vote in the Assembly Privacy and Consumer Protection Committee, while A.B. 1820 was voted down by the Senate Judiciary Committee.

Regulating Law Enforcement Drones

EFF strongly believes that police should obtain a warrant anytime they want to use a drone (with narrow emergency exceptions), but A.B. 1820 would only have required a warrant when police wanted to use a drone to surveil private property. As we told the legislature:

Given the inexpensiveness of UAS [unmanned aircraft systems or drones] and their ease of deployment (as well as continued innovation in the development of lighter-than-air UAS, which can stay aloft for days or weeks at a time), law enforcement would be perfectly free under AB 1820 to continually monitor public spaces or inexpensively track the public movements of individuals indefinitely without probable cause. Further, given the nature of aerial surveillance it would be almost impossible to ensure that any data gathered by a drone comes solely from public property (except, perhaps, deep inside a state park). As a result, warrantless use of drones to surveil public property is likely to result in a tremendous amount of “incidental” collection, while simultaneously placing public spaces under a never-ending shadow of surveillance and monitoring.

EFF was also opposed to the bill because it did not include language to ensure that information collected by drones in violation of state law would be suppressed in court.

Double Standards for Private Drone Use

With S.B. 828, EFF opposed the way the legislation would have treated “commercial” and “non-commercial” drone operators unequally. As we told the author, Sen. Hannah-Beth Jackson:

From a safety and privacy perspective, this approach makes absolutely no logical sense. It is true that this distinction usually makes sense when applied to manned aircraft, since commercial manned aircraft typically carry passengers or cargo, and thus the primary risk (and thus reason behind regulation) is to those passengers or cargo. However, the major risk from drones is typically only to people and property not onboard the drone. As such, whether or not the operator is being paid is a poor proxy for the potential risk to the public, and is thus also a poor proxy for whether or not the operation should be regulated to promote safety and privacy.

Further, due to the way S.B. 868 is written, this artificial distinction makes operations by non-commercial operators illegal when the very same operations would be legal if they were commercial in nature.

We also raised questions about how the bill would affect watchdogs, including news media and non-profit government accountability organizations, since it would allow the state’s Office of Emergency Services to declare no-drone zones where there is “critical infrastructure.” We explained:

However, as a result of S.B. 868, any non-profit that wishes to document, for example, a hazardous chemical spill or violation of environmental regulations would be forbidden from doing so via a drone. Similarly, the requirement that pilots obtain a permit before flying over state parks or waterways could stifle any effort by independent non-commercial operators to expose improper use of state lands.

Drone Combat Games

Both bills would have outlawed “arming” or “weaponizing” drones. While the authors may have intended their language to prohibit drones from being armed with lethal projectile weapons, the legislation was written so vaguely that it would also have criminalized harmless hobbyist activities.

To defeat the bill, EFF teamed up with the Aerial Sports League (ASL)—an organization that runs drone combat games at events like Bay Area Maker Faire and at the Innovation Hangar at San Francisco’s Palace of the Fine Arts. At these competitions, drone pilots engage in dogfights involving rudimentary weapons, such as net guns or dangled pieces of wire meant to jam an opponent’s drone’s propellers. These overbroad bills could have outlawed these activities.

Ultimately, this was an issue about the right to control your own devices, and we were concerned about prosecutorial overreach. We’ve seen police around the country arrest and suspend students for activities like bringing a homemade clock to school or chewing a toaster pastry into the shape of a gun. It’s not hard to imagine overzealous law enforcement or school officials going after a student for simply attaching a ping-pong ball catapult to a drone.

As ASL wrote in its letters:

Aerial Sports League and Game of Drones is a three-time winner of the “Best in Show” for Maker Faire and have developed a STEM educational program with drone combat games at the core of the curriculum. ASL is currently partnered with Hiller Aviation Museum, The Innovation Hangar at the Palace of Fine Arts, and other institutions to provide ongoing drone build-a-thon workshops for youth and adults, sharing the skills needed to build, safely fly—and register your drone with the FAA. These ASL initiatives are due in part to drone combat games’ accessibility for enthusiasts young and old as a gateway to computer programming, math, science, engineering and so many other beneficial skills. In fact, many of our competitors are youth who see drone sports as a way to pursue larger educational futures in aviation, engineering, and technology. While we understand the intent of your proposed prohibition on weaponized drones, this legislation should not criminalize innocent hobbyist activities that promote positive innovation, education and an interest in technology and engineering.

Looking Toward the Future

Like any other technology, drones can be used for a variety of innovative and exciting purposes while at the same time posing a danger to privacy and safety. The trick is striking the right balance—ensuring that new laws and regulations protect our privacy and safety without restricting the technology’s use any more than necessary. Unfortunately, these bills were an overreaction to some of the hysteria about private use of drones and didn’t strike that balance. Also, they did not sufficiently limit police use of drones. Fortunately, they were defeated.

The next time legislators want to try to regulate a new technology, we invite them to reach out to us before drafting their legislation. EFF would be happy to work with any lawmaker, educate legislators on the facts, share examples of positive and negative uses, and help write legislation that protects people’s privacy and safety without hindering innovation.