SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 303

52nd legislature - STATE OF NEW MEXICO - first session, 2015

AN ACT

RELATING TO PRIVACY; ENACTING THE FREEDOM FROM UNWARRANTED SURVEILLANCE ACT; PROVIDING PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Freedom from Unwarranted Surveillance Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Freedom from Unwarranted Surveillance Act:

          A. "drone" means a powered aerial vehicle that:

                (1) does not carry a human operator;

                (2) uses aerodynamic forces to provide vehicle lift;

                (3) can fly autonomously or be piloted remotely;

                (4) can be expendable or recoverable; and

                (5) can carry a lethal or non-lethal payload, including data or image collecting or transmitting devices;

          B. "law enforcement agency" means any federal, state, tribal, county or municipal law enforcement agency in the state;

          C. "surveillance" means the observation of a place, person, group or ongoing activity; and

          D. "unmanned aircraft" means aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

     SECTION 3. [NEW MATERIAL] PROHIBITION AGAINST SURVEILLANCE BY DRONE OR UNMANNED AIRCRAFT.--

          A. A person, state agency, law enforcement agency or political subdivision of the state shall not use a drone or unmanned aircraft with the intent to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation on private property in which the property owners have a reasonable expectation of privacy, except to the extent authorized in a warrant. Data or information collection incidental or unrelated to a lawful activity shall not be used to obtain a warrant.

          B. A person, state agency or political subdivision of the state shall not use a drone or unmanned aircraft to conduct surveillance of a person or of property owned by a person, a farm or an agricultural operation without the consent of that person, property owner, farm or agricultural operation.

     SECTION 4. [NEW MATERIAL] USE OF DRONES OR UNMANNED AIRCRAFT UNDER EXIGENT CIRCUMSTANCES.--The Freedom from Unwarranted Surveillance Act does not prohibit the use of a drone by a law enforcement agency when exigent circumstances exist. For the purposes of this section, exigent circumstances exist if a law enforcement agency possesses reasonable suspicion that, under particular circumstances, swift action is necessary to prevent imminent danger to life.

     SECTION 5. [NEW MATERIAL] WARRANTED SURVEILLANCE INFORMATION--CHAIN OF CUSTODY.--Any image, data or other material acquired by a state agency, political subdivision of the state or a law enforcement agency in compliance with the Freedom from Unwarranted Surveillance Act shall be maintained together with a complete and unbroken record of chain of custody consistent with law enforcement procedures.

     SECTION 6. [NEW MATERIAL] REMEDIES--PENALTIES.--

          A. An aggrieved person may in a civil action obtain all appropriate relief to prevent or remedy a violation of the Freedom from Unwarranted Surveillance Act. The aggrieved person shall be exempt from prosecution or liability for engaging unilaterally in removing an offending drone or unmanned aircraft operating in violation of that act unless that unilateral action is otherwise prohibited by law.

          B. No information obtained or collected in violation of the Freedom from Unwarranted Surveillance Act shall be admissible as evidence in a civil or criminal proceeding in any court of law of the state or in an administrative hearing except to establish a violation of that act. Any such information shall be made available only for in-camera review and shall be released only to the aggrieved party.

          C. A person who violates Section 3 of the Freedom from Unwarranted Surveillance Act is guilty of a petty misdemeanor and is punishable pursuant to Section 31-19-1 NMSA 1978 and shall forfeit and relinquish all images, data and information collected to the aggrieved party. If a violator uses or disseminates any material collected in violation of the Freedom from Unwarranted Surveillance Act, that person is guilty of a misdemeanor punishable pursuant to Section 31-19-1 NMSA 1978, and, for a second or subsequent violation, a violator is guilty of a fourth degree felony punishable pursuant to Section 31-18-15 NMSA 1978.

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