Bernie Giusto: When It Comes to Big Brother: Is Oregon Legislature Droning On…And on…and on…??

March 5, 2013

When sDRONE HAND HELDomething is sold as being a creative, forward looking and effective public policy that will serve the best interests of Oregon citizens,  I’m a show-me kind of guy. That attitude comes from 35 years of experience with Oregon lawmakers. Lawmakers often are driven by a compelling need to do something. They tell cops what they want them to enforce–think cellphones and speeding–which are fairly straight forward.  And then sometimes they get in over their heads such as when they tweak language in statutes–think crosswalks and school zones–leaving everything worse and people more confused. 
Why does this happen? Too little public policy foresight and too much regulatory testosterone.  Most public safety policy,  both at the statutory legislative and agency policy levels,  sadly lacks operational and tactical savvy. The result is bad public perception leading to poor results and bad case law. Instead of assessing what the damage of a particular program may be,  law enforcement agencies often first create the damage on the way to trying to find a fix. Despite the flaw law enforcement agencies, getting little legislative policy guidance, still turn on the enforcement testosterone without appreciating the public perception. 
But when it comes to the newest and perhaps the most potent of the all the public safety programs on the horizon, the Oregon Legislature is doing the right kind of fly over when it comes to the use of unmanned drone aircraft generally and specifically in the case of law enforcement operations.  The current Senate Bills 71 and 524 along with House Bill 2710 address the limited allowable and much broader prohibited “possession or control” of drone aircraft within Oregon or Oregon airspace .  Senate Bill 71 deals with drones operated by anyone or any agency generally. While Senate Bills 524 and House Bill 2710 deal very specifically with the law enforcement component of drone use for the purpose of surveillance, capturing both audio and video recordings for any purpose or as  weaponized air support.
So where are the winners and the losers and what’s missing?
I don’t know about the winners, but the Oregon State Police and Oregon Department of Aviation become the responsible parties under this legislation. The Department of Aviation is permitted to license drones and the State Police is charged with establishing a required “Registry” of Drones possessed within Oregon.  The penalties for certain crimes committed under Senate Bill 71 range from a Class C Misdemeanor to Class A Felony from operating a drone over the property of another without permission to taking a shot at an aircraft with a drone. Civil awards start at $5,000 in civil damages and the State Police can impose civil fine of $10,000 if you decide not to register your drone. And if my guess is right, and it will be, there will not be one penny of support for creating the position(s) to actually accomplish another mandated task assigned to an already over-committed, understaffed and over achieving police agency. That makes them a  loser but a silent one you can bet.
As far as spying on us with an eye in the sky,  it’s not that the legislature doesn’t trust the cops, it’s just that they don’t trust the cops.  Now I have no problem with curbing the powers of law enforcement and providing legislative guidance, especially in a new frontier of enforcement technology. But the statutory language contained in SB 524 and HB 2710 stomps the potential of all drones with all the enforcement negatives that can be imagined or conjured up instead of  considering the positive potential of drones surrounded by limiting language. After reading the statute one might wonder if the cops can use drones for “Search and Rescue” operations without a warrant! On the other hand, a broad enough reading of  “the risk of serious physical injury” might allow the cops to use a drone to find a child. Who knows?  drone smallAs an added bonus the legislation also takes a swipe at prosecutors, better known as the District Attorneys, by defining them into both statutes and subjecting them to the same restrictions.
It would help if the list of those who are pushing the statutory restrictions were not primarily a list of the usual suspects always ready to control– if not crush– enforcement innovation. Sadly, the cops were asleep at the drone controls.  It should have been a who’s who of Chiefs and Sheriffs who brought this legislation forward.  They should have been leading instead of asking when it was too late, “hey, what about this idea…” and bristling when the legislature asks “what idea?” 
But all in all the legislation is on the right track. It is a good idea to register drones and generally to limit their use by requiring warrants to go airborne, to adopt policies prior to implementing drone surveillance or enforcement, to limit the retention of drone recordings unless those recordings support active criminal investigation and to impose heavy penalties when the civil rights or the safety of those exposed to drone use is compromised.
The legislation needs more careful definition.  Not every airborne vehicle that flies unmanned that can record visual or audio record should be considered a drone for the purpose crushing some creative uses.
But that is for another legislative session.  For now let’s hope that the cops and prosecutors take the hint and take the lead back and that the final legislation requires the cops to do what they do best, report back.
Bernie Giusto is the former Multnomah County Sheriff, former Gresham Police Chief, former OSP Trooper, Gresham City Councillor and Tri Met Board Member. He’s also a member of the Victoria Taft Blog Force.