The Homeowner Privacy Protection ActAB 239

Assemblyman Elliot Anderson

Source: Cumberlink.com Source: ivn.us

Source: Katu.com

Goals of The Homeowner Privacy Protection Act

Balance our privacy with the economic and physical security of our state by:

-Protecting the privacy of Nevadans;

-Providing clarity of rights and responsibilities to businesses and hobbyists operating in our state;

-Allowing law enforcement to utilize this technology to keep Nevadans safe;

-Making Nevadans comfortable with this technology.

Why Nevada Needs The Homeowner Privacy Protection Act

UAVs can be a very valuable technology for our state.

Current law does not address UAVs well.

Many states have already regulated.

The public is concerned about abuse of this technology.

Graphic Source: Sakiyama, Mari et al., “Nevada vs. U.S. Residents’ Attitudes Toward Surveillance Using Aerial Drones.” UNLV Center for Crime and Justice Policy. December 2014. Web. 17 March 2015

With technology developing at such a rapid pace, it is becoming more affordable to own a small UAV.

A small UAV can actually be purchased for about the price of an Ipad 3 Mini at any Apple Store.

Definitions Section 23

TERM DEFINITION Aircraft [Sub. 1] Includes an unmanned aerial vehicle under the definition of

“aircraft” alongside a balloon, airplane, hydroplane.Critical Facility [Sub.2] Facilities involved in energy or chemical production,

transportation, storage, or processing, a power station, plant, or transmission line, jail, and facilities and institutions under control of the Department of Corrections.

Department [Sub. 3] The Department of Public Safety.

Law Enforcement Agency (LEA) [Sub. 4]

An agency, office, bureau, board, commission, department or division of this State, the primary duty of which is to enforce the law.

Operator [Sub. 5] A person who operates an unmanned aerial vehicle.

Passenger [Sub. 6] A person riding in an aircraft having no part in its operation.

Public Agency [Sub. 7] An agency, office, bureau, board, commission, department or division of this State, other than an LEA.

Unmanned Aerial Vehicle (UAV) [Sub. 8]

A powered aircraft of any size without a human operator aboard the vehicle, that is operated remotely or autonomously

Provision Regarding Weapons Section 18

• Section 18 prohibits the weaponizing of UAVs and operating a weaponized UAV.

• Lethal or non-lethal weapons attached to a UAV are left for combat zones, not a civilian environment.

• A person in violation of Section 18 will be guilty of a Category D felony.

• If the weapon is discharged, it becomes a Category C felony.• This has actually happened...

Provision Regarding Critical FacilitiesSection 18.5

• Persons may not operate a UAV within 500 horizontal distance, or 250 vertical distance, of a critical facility without written consent of the facility owner

• A UAV cannot be operated within 5 miles of an airport unless:– the person has consent of the airport authority or operator– the person has a waiver or exemption pursuant to FAA

regulations• Violation of this section is punishable by a misdemeanor

Provision Regarding Trespassing Section 19

• A UAV flying less than 250 feet over a property may be considered to be trespassing the over the property. The owner or occupant may then file a cause of action for trespass against the owner or operator of the UAV, only if they have warned the trespasser.

• Exceptions: It will not be considered ‘trespass’ if (1) the UAV is lawfully in the flight path for landing at an airport, airfield, or runway, (2) the UAV is taking off or landing, or (3) the UAV was under the lawful operation by a law enforcement agency (4) FAA licensed business exception that does not interfere with the reasonable use of real property

Homeowner Protections from the GovernmentSection 20

• Abrogates the plain-view doctrine for the curtilage of a residence for aerial observation by a UAV. A warrant is required for any UAV surveillance of place a person has a reasonable expectation of privacy (current 4th Amendment law) or curtilage of a residence (stronger than 4th Amendment law).

• This generally will only apply to a residence or the backyard of a residence.

• Warrants may NOT be authorized for more than 10 days.• Images, photos, or recordings taken by an LEA, public agency, or

Federal Government agency in violation of Section 20 will NOT be admissible as evidence in state court and may NOT be used to establish suspicion or probable cause.

Exceptions (no warrant required)Section 20 Subsection 3

Section 20 is designed to prevent abusive dragnet surveillance operations. It is not meant to allow criminals to escape liability on mere technicalities:

EXCEPTION DESCRIPTION(a) Probable Cause No warrant required if LEA has probable cause that a person has

committed, is committing, or about to commit a crime.

(b) Written Consent No warrant required if person gives written consent to LEA, specifying time, place, manner, and information that may be gathered.

(c) Search and Rescue No warrant required if persons or property are in distress, operations may be conducted without a warrant.

(d) Imminent Threat to Life or Safety

No warrant required if LEA believes imminent threat exists (including act of terrorism). LEA must file sworn statement to a judge with the basis for the imminent threat within 2 business days of beginning the operation.

(e) State of Emergency or Disaster

No warrant required if the Governor declares state of emergency or disaster. LEA may only use within the designated area for the purposes of public safety, protection of property, or assessment of disaster.

Provisions Regarding Public Agencies Sections 21-22

Section 21 • A public agency may

operate a UAV after registering it with the Department of Public Safety (DPS). The UAV must be operated according to the regulations adopted by the Department.

• Public agencies may NOT use UAV's for the purpose of law enforcement

Section 22

• To the extent resources are available, The DPS shall maintain a registry of UAVs being operated by public agencies. The registry must be made available on its public website.

• Transparency.

• The DPS shall adopt regulations for UAV operation by public agencies including: – fire services– emergency medical services– protection of critical facilities– search & rescue operations

Conforming SectionsSections 22.5, 24.2, & 24.6

• Section 22.5 - Adds Sections 18-22 of this act to NRS 493.010, or Uniform State Law for Aeronautics

• Section 24.2 - Flight of an aircraft, including a UAV, is lawful unless specifically prohibited by Sections 18-22

• Section 24.6 - Provisions of this bill defer to federal laws and regulations, within the scope of federal constitutional authority

Provisions Regarding Responsible UseSections 24.4 & 24.8

• Section 24.4 - prohibits trick/acrobatic flying, low-level flying, or dropping an object over a heavily populated area or public gathering with willful indifference and reckless disregard for safety – Punishable by a misdemeanor– Exception for Hobbyists: Provision does NOT apply to parks unless

reckless disregard for safety of other persons– Exception for Businesses: Dropping only problematic if done in a reckless

manner• Section 24.8 - prohibits operation of an aircraft while intoxicated

or in a reckless manner which endangers life or property of another– Punishable by a gross misdemeanor

New Rules for New Technology• “Modern [forms of] technology are making it easier and easier

for both government and private entities to amass a wealth of information about the lives of ordinary Americans...”

• “In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future. ” (emphasis added)

-Justice Samuel Alito, George W. Bush Appointee to the Supreme Court of the United States. Riley v. California, 134 S. Ct. 2473, 2497-98, (2014)