Drones delivering contraband to (or carrying messages from) prisoners is a huge problem, but federal law prohibits states from establishing “no drone zones” around prisons and from deploying counter-drone measures to intercept or disable drones once they are spotted. Senate Bill 6, signed by Governor Kemp, appears to be an attempted work around that could permit law enforcement to monitor and prevent drone operations around prisons.
Georgia law already makes it a crime to give anything to persons in custody without the warden’s permission, including the usual list of contraband: weapons, alcohol, pharmaceuticals, communications devices, tobacco (without authorization), and “any other article or item without the authorization of the warden.” Separately, Georgia law also punishes any act which constitutes a substantial step toward providing contraband. Casing or conducting surveillance of the location of the planned crime is one of many, though not exclusive, factors tending to evidence criminal intent and that the defendant has taken a substantial step toward a crime.
Senate Bill 6 makes it a crime to intentionally use an unmanned aircraft system to violate the anti-contraband law. The existing statute was already technology neutral so nothing was gained by singling out unmanned aircraft, and the new language may be a wedge for the argument that future technologies are not covered by existing law.
The statute also criminalizes “intentionally recording images of a place of incarceration through the use of an unmanned aircraft system for purposes of committing a criminal offense.” As automation and artificial intelligence take over more aspects of flight, what amounts to “intentional” operation may be unclear. Because the law makes using an unmanned aircraft an element of the crime, the law may be useless if photographs are made through more mundane apparatus.
The statute provides that obtaining prior authorization from the warden to photograph the “place of incarceration” is evidence of noncriminal intent,” but also states that lack of prior authorization is not evidence of criminal intent. No process is in place for these requests. So presumably at trial, a defendant can introduce into evidence that he obtained the warden’s prior consent, but the prosecution is barred from bringing up lack of consent. It is anyone’s guess what the effect would be if the defendant sought but was denied permission (or more likely, never obtained a clear answer within a reasonable time), yet took the photographs anyway. In that scenario, the prosecution might assert that the taking of the photographs standing alone was evidence of criminal intent.
Another unintended problem arises from the term place of incarceration which includes any prison, probation detention center, jail, or institution used for the purpose of incarcerating criminals or detainees. Naturally, residential facilities come to mind, but the existing statute against providing contraband would surely apply when an inmate or detainee was incarcerated temporarily at a courthouse, on a prison van, or in a hospital. So suddenly, the new drone law allows law enforcement to investigate suspected drone photography of any place where inmates or detainees are being held, possibly running afoul of the First Amendment.
The best solution to drones and prisons is for the federal government to acknowledge sensible no-fly zones around prisons and jails and to authorize effective counter-UAS activities by state law enforcement. Currently only the Departments of Justice and Homeland Security have that authority. Change is expected but no soon enough.
Many new laws will become effective in Georgia on July 1, 2019. When a new law, such as Senate Bill 6, affects large parts of one or more industries, having counsel review it and identify unintended consequences can avoid trouble down the road. During an enforcement action or a lawsuit is not the optimal time to understand how new laws affect one’s business.