The Tennessee General Assembly has passed a number of new statutes to preserve personal privacy as technology continues to intersect with criminal law.

A. Drones.

The Tennessee General Assembly took an early interest in the criminal law implications of the use of drones.[1] In 2013, the legislature passed the “Freedom from Unwarranted Surveillance Act.”[2] The Act prohibits any law enforcement agency using a drone to gather evidence.[3] The Act, which passed the Senate unanimously, was patterned after a Florida Statute.[4]

Notably, the Act defines the use of a drone to gather evidence as a “search.” This legislative pronouncement removes any doubt as to whether gathering evidence using a drone requires compliance with the fourth amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution. Whether drone surveillance constitutes a search would have been a debatable question under previous case law holding helicopter surveillance did not implicate the fourth amendment.[5] The Tennessee statute explicitly invokes the constitutional provisions against unreasonable search and seizure.[6] Further, the exclusionary rule applies: evidence obtained in violation of the statute may not be used in any criminal prosecution in Tennessee courts.[7]

The Act contains commonsense exceptions. Most importantly, drones can be used when law enforcement obtains a search warrant signed by a judge based on probable cause.  Drone surveillance may also be used when there is a specific credible threat of terrorism (but only if the United States Homeland Security secretary determines that credible intelligence indicates the risk). The statute also authorizes drone surveillance when swift action is necessary to protect life and during a search for a fugitive or missing person.[8]

The legislature also explicitly created a private right of action for anyone aggrieved by a violation.[9]

In 2014 the legislature turned to the problems that can be caused by private citizens using drones to interfere with privacy.[10] In general, Tenn. Code Ann. § 39-13-903 sets forth a blanket prohibition against the use of drones for surveillance or image capturing purposes, unless one of the statutory exceptions to the prohibition applies.[11] The law makes it a crime to use an “unmanned aircraft to capture an image of an individual or privately owned real property [Tennessee] with the intent to conduct surveillance on the individual or property captured in the image.”[12] The law also prohibits a person from using an image that was lawfully acquired by a drone for “any purpose other than the lawful purpose for which the image was captured.”[13]

Likewise, drones can photograph public property or people on public property.[14] The United States military, state or local law enforcement (for the reasons noted above), utility companies, institutions of higher education, and mappers may use drones under certain circumstances.[15] Individuals can also consent to the use of drones to photograph their real property, and licensed real estate brokers may use such images in connection to the marketing or sale of property, provided no people are photographed.[16] Any photographs or video evidence obtained in violation of Tenn. Code Ann. § 39-13-903 are inadmissible in court and cannot be used as evidence in any criminal or civil action or administrative proceeding.[17] Such images or video are also exempt from “discovery, subpoena, or other means of legal compulsion for its release.”[18] The broad statutory exclusionary rule bars not only illegally obtained evidence, but also evidence that was obtained legally, but used for an unauthorized purpose.

Another 2014 amendment creates a C misdemeanor to interfere with hunting or fishing or to “conduct video surveillance of private citizens who are lawfully hunting or fishing” without first obtaining written consent of the surveyed persons.[19]

B. Voice Stress Analysis Tests

In 2014, the legislature turned its attention to a practice whereby experts can purportedly tell when people are lying. “Voice stress analysis” is defined as the “use of a device that has the ability to electronically analyze the responses of an individual to a specific set of questions and to record the analysis, both digitally and on a graph.”[20] Voice stress analysis, along with any testimony regarding voice stress analysis, is not admissible in any type of criminal proceeding.[2]1 The statute prohibiting this type of evidence contains no exceptions or limiting factors concerning the acquisition of the evidence. This per se ban appears to exclude evidence more broadly than the general exclusionary rule.

In addition, voice stress analysis tests results cannot be introduced at any hearing or other employment procedure in which an employee is entitled to due process.[22]

C. Electronic Tracking of a Motor Vehicle

1. Government Tracking
Tennessee law concerning the government’s acquisition of electronic location data was amended in 2014. SB/HB 2087 (Public Chapter 991) added Tenn. Code Ann. §39-13-610, which established rules concerning when the government can and cannot obtain location information from an electronic device without a warrant.[23] In general, law enforcement cannot obtain location information from an electronic device without a warrant.[24] Law enforcement may only obtain location information from an electronic device without a warrant when: (1) the device is reported stolen, (2) if necessary to respond to the user’s call for emergency services, (3) to prevent imminent danger to the life of the owner, user, or the public, (4) with the informed consent of the owner of the device, and (5) when the user has posted the user’s location within the last twenty-four hours on a social media web site.[25]

Evidence gained from an unwarranted seizure of location information from an electronic device obtained in violation of Tenn. Code Ann. § 39-13-610 “is not admissible in a civil, criminal, or administrative proceeding and shall not be used in an affidavit of probable cause in an effort to obtain a search warrant.”[26]

Here, our state is more protective that the federal government. The United States Department of Justice has taken the position that one has no reasonable expectation of privacy in location information transmitted by a telephone.

2. Individual Tracking
Be sure your divorce clients know about this one. Tenn. Code Ann. § 39-13-606, effective July 1, 2014, makes it “an offense for a person to knowingly install, conceal, or otherwise place an electronic tracking device in or on a motor vehicle without the consent of all the owners of the vehicle for the purpose of monitoring or following an occupant or occupants of the vehicle.[27] Since the law only requires the consent of “owners” of the vehicle, it may be possible for an owner to trace a non-owner. Any violation of this law is a Class A misdemeanor.

It is notable that this law does not apply to parents who place trackers on their children’s vehicles or to police officers who are placing a tracker, in accordance with applicable state and federal law. Finally, planting a tracker on a motor vehicle for the purpose of tracking the location of the vehicle if it is stolen is not a violation.[28]

D. Cell Phone Searches

For several years, courts have struggled to determine whether law enforcement can examine all the data of an electronic device seized during a valid arrest. While the United States Supreme Court ultimately decided that a warrant is required,[29] Tennessee beat the Court to that rule legislatively.

Tenn. Code Ann. § 40-6-110, effective July 1, 2014, states that no “law enforcement officer shall search, examine, extract or duplicate any cellular telephone data, even if incident to a lawful arrest,” unless: (1) the officer obtains a search warrant, (2) the owner gives informed consent, or (3) “exigent circumstances exist at the time of the seizure requiring the officer to search the cellular telephone.”[30]

The statute creates a broad exclusionary rule that provides, “no cellular telephone data that is obtained in violation of this section may be used in any court of law or administrative board as evidence, nor may other evidence that is derived from the illegally obtained data be used as evidence in any such proceeding.”[31] Thus law enforcement is barred from even using leads obtained from an illegally examined phone.

E. Conclusion

Technology is creating complex issues regarding privacy and criminal law. In many instances the Tennessee General Assembly has taken a leading role in attempting to protect individual privacy.

Notes

1. A drone is defined as an aerial vehicle that does not carry a human operator and is operated without the possibility of direct human intervention from within or on the aircraft. Tenn. Code Ann. 39-13-609(b)(1).
2. 2013 Pub.Acts, c. 470, § 1, eff. July 1, 2013; Tenn. Code Ann. § 39-13-609 .
3. Tenn. Code Ann.§ 39-13-609(c). The sponsors were Senators Beavers, Gardenhire, Kelsey, Bell, Crowe, and Niceley.
4. Tennessee News Release, S. Rep. 4/16/2013.
5. Florida v. Riley, 488 U.S. 445 (1989).
6. Tenn. Code Ann. § 39-13-609(g)(1).
7. Tenn. Code Ann. § 39-13-609(g)(2).
8. Tenn. Code Ann. § 39-13-609(d)(1-5).
9. Tenn. Code Ann. § 39-13-609(e).
10. 2014 Tennessee Laws Pub. Ch. 876 (S.B. 1892).
11. Tenn. Code Ann. § 39-13-903 (setting forth a blanket prohibition against the use of drones for surveillance purposes).
12. Id. (emphasis added).
13. Tenn. Code Ann. § 39-13-902(b).
14. Tenn. Code Ann. § 39-13-902(a)(13).
15. Id.
16. Id. at (a)(6) and (a)(12).
17. Tenn. Code Ann. § 39-13-905.
18. Id.
19. Tenn. Code Ann. § 70-4-302(a)(6). This is a Class C misdemeanor. Id.
20. Tenn. Code Ann. § 40-17-126; Tenn. Code Ann.§ 50-1-311.
21. Tenn. Code Ann. § 40-17-126.
22. Tenn. Code Ann. § 50-1-311.
23. Public Chapter 991 (Senate Bill 2087/ House Bill 2087).
24. Tenn. Code Ann. § 50-1-311.
25. Tenn. Code Ann. § 50-1-311(c)(1)-(7).
26. Tenn. Code Ann. § 50-1-311(d).
27. Tenn. Code Ann. § 39-13-606.
28. Tenn. Code Ann. § 39-13-606.
29. Riley v. California, 134 S. Ct. 2473 (2014).
30. Tenn. Code Ann. § 40-6-110.
31. Tenn. Code Ann. § 40-6-110(c)

WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.

William N. Lay is a second-year law student at the University of Tennessee.