It seems certain that drones are the future of surveillance in America. They are about to be used in Oklahoma. And a new federal law is paving the way and cutting the red tape for drone use in America. However, there are also some localities that have abandoned drone programs (like Seattle). Some states, like Washington and Virginia are considering banning their use. But their use will inevitably spread across the United States, especially considering one drone company is about to launch a PR campaign aimed at changing public perception. And before anyone says, “what is the harm of one drone?” Be aware that the government has already developed a drone with a 1.8 gigapixel camera that is the same at 100 normal drones all watching the same city at once.It is possible that no significant courts will hold that the use of drones is a search in violation of the 4th Amendment ot the United States Constitution. When courts determine whether government action is a search the starting point is Katz v. United States. Katz was a bookie making wagers via a phone booth near his house. The FBI caught wind of this and decided to record the calls. The Supreme Court said the calls were recorded in violation of Katz’s right to be free from unreasonable searches and thus, inadmissible. The Court in
Katz created a new test that is still good law today. This two-prong test ask first, whether there was an actual, subjective expectation of privacy by the person alleging an illegal search; did that person expect privacy? Next, the test asks whether that expectation of privacy is one society is prepared to recognize as reasonable. If the answers to both questions are “yes,” any search implicates the 4th Amendment and its limitations and requirements. Here are some examples of what the Supreme Court has said when using this test that may be used to decide a drone case:
- There is no expectation of property in “open fields”; fields don’t provide settings for intimate or private activities (Oliver v. U.S.)
- Helicopter surveillance at 400 feet to view marijuana growing in an open greenhouse was not a search. The rationale is that any member of the public could fly over and see the same thing. (Florida v. Riley)
- An aerial photograph of the company’s industrial complex does not constitute a search. The rationale is that it did not reveal any intimate activities and can’t see through walls. (Dow Chemical Co. v. U.S.)
- Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search
where the technology is not in general public use (Kyllo v. U.S.)
While the Supreme Court would certainly look beyond these four cases in determining any drone issue, it is likely that using drones would be constitutionally permissible so long as they’re not used to reveal intimate activity.
The American Civil Liberties Union (“ACLU”) states on their website a proposed set of guidelines for drones:
- USAGE LIMITS:Drones should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act.
- DATA RETENTION: Images should be retained only when there is reasonable suspicion that they contain evidence of a crime or are relevant to an ongoing investigation or trial.
- POLICY: Usage policy on domestic drones should be decided by the public’s representatives, not by police departments, and the policies should be clear, written, and open to the public.
- ABUSE PREVENTION & ACCOUNTABILITY: Use of domestic drones should be subject to open audits and proper oversight to prevent misuse.
- WEAPONS: Domestic drones should not be equipped with lethal or non-lethal weapons.
For all the heat the ACLU takes on a host of issues, looking at their guidelines and the above case law, they’re simply trying to protect the Constitution and the privacy of U.S. citizens. On one hand, it’s not hard to imagine the wide range of illegal uses for drones. Drones simply give police another way to violate your rights. They are also ripe for police misconduct. On the other hand, police will likely argue that drones can be used to find evidence of drug crimes, marijuana cultivation operations, find fugitives or people with outstanding warrants, and track fleeing suspects. They will argue they make us safer.
I argue we’ll soon be living in a country where nearly all public activity is recorded by Big Brother. When thinking of what can be done with drone technology, one can’t help but think of George Orwell’s famous novel 1984 where the narrator cryptically says, “Nothing was your own except the few cubic centimeters inside your skull.”