Joe Wolverton, II, J.D
September 20, 2013

Earlier this month a bill limiting the use of drones in the skies over Texas went into effect. Although it would appear that this would be a good thing for the Fourth Amendment and the civil liberties it protects, key exemptions in the bill allow for constitutionally suspect surveillance.

Texas Governor Rick Perry signed the measure into law June 14.

HB 912 — the Texas Privacy Act — charges with a Class C misdemeanor any private or public entity that “uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.”

The bill was passed by an impressive majority of state legislators. On May 10, the state House of Representatives approved the measure 119-11. The state Senate followed suit a week later, passing the bill by a vote of 29-1.

While the bill is a laudable attempt to shore up the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” as protected by the Fourth Amendment to the Constitution, there are numerous exceptions to the drone prohibitions.

Law enforcement, for example, may deploy drones in the “immediate pursuit of a person” that officers have “reasonable suspicion or probable cause to suspect has committed an offense.”

Other exceptions protect images captured by drone “by or for an electric or natural gas utility”; “for purposes of professional or scholarly research”; and as permitted by the lawful owner of the property under surveillance.

While those exceptions are arguably reasonable, there are others that seem to leave a very large loophole in the law that military and spy drones can fly through to the detriment of Texans’ privacy.

This is especially troublesome in light of the Federal Aviation Administration’s plan to open the domestic skies to government drone traffic by 2015. It is estimated that by the end of that year, there could be 30,000 eyes in the sky capable of monitoring the movements of every American.

Section 423.002 exempts from the law all drone flights and surveillance conducted by the Federal Aviation Administration “for the purpose of integrating unmanned aircraft systems into the national airspace”; as well, any drone deployment that is “part of an operation, exercise, or mission of any branch of the United States military.”

Given recent revelations of the immense scope of the surveillance state and the transformation of citizens into suspects, it seems that the Texas bill, while commendable, fails to sufficiently nullify the frequent unconstitutional federal assaults on the fundamental liberties protected by the Constitution.

With the enforcement of HB 912, Texas now joins Idaho, Virginia, Florida, Montana, and Tennessee on the list of states that have enacted laws regulating the use of drones in their sovereign skies.

As The New American has reported, the Idaho law reinforces “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” by amending the Idaho code. Specifically, the law imposes new restrictions on the use of drones by government or law enforcement, particularly when it comes to the gathering of evidence and surveillance of private property.

Should police in Idaho try to submit in court evidence illegally obtained by drone, they would find themselves running headlong into Section 5, which directs that “no information obtained or collected in violation of the provisions of this act may be admissible as evidence in a criminal proceeding in any court of law in the state or in an administrative hearing.”

In April, Governor Rick Scott of Florida signed into law the Freedom From Unwarranted Surveillance Act. The law in the Sunshine State forbids federal agents “from using a drone to gather evidence or other information” on citizens of Florida. Should a state citizen be the target of an unlawful search and seizure in violation of this bill, he or she would be authorized “to initiate a civil action in order to prevent or remedy” that violation.

As The New American reported earlier, the language of the Florida law is not perfect. Section 4(a) of the bill carves out a dangerous exception to its otherwise commendable constitutional protections.

Section 4(a) authorizes the Secretary of the Department of Homeland Security to launch a drone over Florida (and seemingly violate the Fourth Amendment’s protection of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”) “to counter a high risk of a terrorist attack by a specific individual or organization.”

As is the case with the Texas anti-drone bill, Section 4(a) of the Florida bill leaves an enormous loophole in the law — one just large enough for a Hellfire missile.

Such an occurrence is not unthinkable in this era when the United States has been declared a battleground and Congress has given the president the power to indefinitely detain any American he believes to be aiding enemies of the state. Ostensibly, drones would be the perfect tool to accomplish such a round-up of potential prisoners. (See, for example, the comments made by Senator Lindsey Graham [R-S.C.] regarding the search for the suspected Boston marathon bomber.)

Although the Texas bill suffers from these unfortunate flaws, it is an otherwise commendable attempt to push back against the federal government’s constant assault on the Bill of Rights.

If freedom is to be protected and if the fundamental liberties protected by the Constitution are to be preserved, Texas and all her sister states must quickly recognize that they have “have the right, and are in duty bound, to interpose for arresting the progress of the evil” resulting from the federal government’s habitual disregard for the constitutional limits on its power. The states’ duty to thwart the federal government’s attempts to break the constitutional chains on its power is called nullification.

Simply stated, nullification is a concept of constitutional law that recognizes the right of each state to nullify, or invalidate, any federal measure that exceeds the few and defined powers allowed the federal government as enumerated in the Constitution.

Nullification is founded on the assertion that the sovereign states formed the union, and as creators of the compact, they hold ultimate authority as to the limits of the power of the central government to enact laws that are applicable to the states and the citizens thereof.

In The Federalist, No. 33, Alexander Hamilton declared that any act of the federal government exceeding the limited powers granted it by the Constitution is not a law at all:

If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed…. But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. [Emphasis in original.]

Hamilton is not alone. The undeniable truth is that not a single one of our Founding Fathers, not even the most ardent advocate of a powerful central government, would have remained even one day at the Philadelphia Convention if he had believed that the government they were creating would become the instrument of tyranny that it has become.

All state legislatures have an obligation to liberty and to their citizens to follow the example of Texas and to stop all unconstitutional acts of the federal government at the state borders. They can accomplish this by enacting state statutes nullifying those acts, based on the 10th Amendment and their natural right to rule as sovereign entities. On the other hand, should these states fail to fearlessly oppose federal overreach, the day may rapidly come when the Constitution and individual liberty will be nothing more than remarkable relics of a once-free republic.

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