Lawmakers were right to delay funding for state-owned drones – commentary

A drone flying above barbed wire

“Members of the committee were right to seek additional information from the department about how its use of drones would respect the constitutional protection of individual privacy.” (Getty Images)

As reported in the New Hampshire Bulletin, the Joint Legislative Fiscal Committee this month put off a request by the New Hampshire Department of Safety to obtain drones for use in disaster situations. Currently, the department relies on helicopters and planes for such operations, but the department argued before the committee that unmanned aircraft systems would enable it to “perform many conventional aerial missions in a safer, more expeditious, and cost-effective manner.”

Lawmakers expressed concerns about the privacy implications in the use of drones in these situations, notwithstanding the department’s insistence that it would comply with the dictates of both Part I, Article 19 of the New Hampshire Constitution, and the Fourth Amendment to the U.S. Constitution. Both of those provisions protect individuals from unreasonable searches and seizures by government agents.

Members of the committee were right to seek additional information from the department about how its use of drones would respect the constitutional protection of individual privacy. Indeed, concerns about privacy extend beyond the context of the criminal investigations in which the prohibitions on unreasonable searches and seizures are most relevant, as the New Hampshire Constitution contains, in Part I, Article 2-b, a separate and potentially more robust protection of privacy than may be found in its federal counterpart.

New Hampshire voters adopted Article 2-b in 2018. The provision states that “[a]n individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.” At this writing, the New Hampshire Supreme Court has yet to interpret or apply this provision, other than to conclude that the provision applies only prospectively. But the language of the provision suggests that its protections extend beyond the criminal context that is the focus of Part I, Article 19 and the Fourth Amendment.

By its terms, Article 2-b is not limited to searches and seizures, but applies to any “governmental intrusion.” Further, the provision states that the right of individuals to control the disclosure of private or personal information “is natural, essential, and inherent.” Finally, the history of the amendment suggests its framers intended it to protect the expectation of privacy shared by “ordinary people,” as one of its sponsors, Rep. Neal Kurk, put it.

In light of the capacity of unmanned aircraft systems to go places that planes and helicopters cannot go, and to record all that their cameras might observe when in flight, when the department comes back before the committee, lawmakers should consider whether the department’s policies governing the use of such devices will allow undue “governmental intrusion” into the expectations of privacy held by most people.

Even though the New Hampshire Supreme Court has not authoritatively addressed the meaning and scope of Article 2-b, the committee is not without guidance as to how the court will do so. The court has explained in many decisions how it approaches the interpretation of state constitutional provisions in cases of first impression. In a case called Judicial Retirement Plan v. Secretary of State, for example, the court stated that it must look at a provision’s “purpose and intent,” give “the words in question the meaning they must be presumed to have had to the electorate when the vote was cast,” and, when necessary, pay attention to the circumstances in which those words were adopted by the people.

Accordingly, following the New Hampshire Supreme Court’s approach to interpreting state constitutional provisions, the committee can rely on the contemporary meaning of the text of Article 2-b in determining whether the department’s proposed use of drones may illegally intrude upon individuals’ private and personal information. Indeed, to the extent the committee considers the question of the provision’s scope in a manner consistent with the analysis that state courts would undertake, its work might prove influential in the inevitable litigation over the meaning of Article 2-b.

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Lawrence Friedman
Lawrence Friedman

Lawrence Friedman teaches and writes about state constitutional law at New England Law | Boston.

Erin Fitzgerald
Erin Fitzgerald

Erin Fitzgerald is a faculty fellow at New England Law | Boston and a former New Hampshire prosecutor.