So, I had to do it eventually. I knew that I couldn’t put it off forever, not addressing the myriad of questions that so define the topic of drones. Privacy is the main issue that seem to get everyone in an uproar – not safety – so for today’s article I turn to that. What is privacy? Well, this will likely be the first post in a series of posts about privacy since it is such a hot topic and so much speculation has been thrown around on the topic.
How, in an age of Facebook, Instagram, Snapchat, Pinterest, and any other social media site signaling your location, status, activity, and plethora of other information, can there be a reasonable expectation of privacy? What are we keeping private? How does the law protect us from invasion? Is this just another law enforcement power to be abused alongside search engine history caching?
Well the short and long of it, is that while this new technology inarguably makes it easier, cheaper, and a whole lot more effective – the case law developed over decades of privacy law cases is not simply thrown out of the window and the same legal tests and arguments can be applied to Unmanned Aircraft Systems.
In this article I will point out the main Legal precedents that have established the privacy debate for the use of drones. Of course, I am not a lawyer and I don’t play one on TV, but I have been around this game long enough to recognize and understand the cases presented over, and over, and over, ad nauseum and what they represent. If you are interested in this topic, pick up a book and read about it. Don’t listen to some blow hard on the internet in order to make up your mind, but do take these cases as a beginning outline as to how to approach the technology debate on privacy as it applies to drone technology and go from there.
Let’s begin with probably the least understood, but most hated, piece of legislation of the 21st century. No, not the Puget Sound Water Shed Act, I am of course taking about the PATRIOT Act, and for this instance we’re looking at the ten sections, Title I – Title X. These sections enhanced significantly the authority of law enforcement and intelligence agencies and went unchecked until 2012 when H.R. 5925 was introduced in order to reign in the overreaching, privacy violating groups that Congress believed may be running willy-nilly over the Constitution. Of course, these “conspiracy nuts,” clearly belonging in the pseudo-nut house, was defeated. The verbiage in this Resolution was the following:
“To protect individual privacy against unwarranted governmental intrusion through the use of unmanned aerial vehicles commonly called drones and for other purposes…”
“…shall not use a drone to gather evidence or other information pertaining to criminal conduct… except to the extent authorized in a warrant issued…”
Now as you can imagine, great lobbying efforts were brought forth on the part of the Sheriffs, Police, Customs and Border Protection, National Guard, Coast Guard and many other law enforcement organizations who felt strongly that this legislation actually went beyond how other technologies are utilized, and rightfully so.
At the Federal level, H.R. 6199 – Preserving American Privacy Act of 2012 – was introduced and again it was defeated. This resolution stated that drones could not be used domestically by law enforcement or surveillance of a U.S. national except pursuant to a warrant and in the investigation of felony. So, in this instance it would have put more restrictions – the lobbyist won again – and the resolution ended for lack of support.
Something seems to be going on and the Federal government has not been able to come to a consensus on how far privacy concerns need to be protected; the question being asked is whether or not there is a functional difference between manned and unmanned aircraft surveillance tools. As to the law that exists? Well, functionally, the Justice System seem to treat them as the same.
The Constitution and Case Law
The 4th Amendment is your friend. Do you know what it says? Everyone knows the 1st amendment has 6 parts – right? You are a Constitutional Scholar of note I am sure, and know that it protects your right to most religious type things, prevents infringing on speech and tasteful press, interfering from your right to protest and petition the government for redress of grievances. You knew that though, and of course the second amendment protects your right to chop off some bear’s arms and wear them around as in this picture. The third amendment you’re a little fuzzy on, and rightfully so, because quartering of soldiers doesn’t happen anymore as our military bases are bigger, nicer, and better stocked than that small apartment you own on Grand Avenue and 7th Street..
The 4th amendment though, may have some sticking points that have become unclear and I am here to help navigate this scummy water. Let me dust off my pre-law degree and throw down some educative case law.
The 4th amendment is your protection of privacy and it is under this auspice that Roe V Wade was decided among other cases. Now, abortions aren’t important for this discussion unless you’re looking to film a celebrity’s abortion via IR camera from 400 feet in the air and sell that tape to the Enquirer. No, the fourth amendment for this discussion protects against unreasonable search and seizure (See Stop and Frisk in New York) and requires any warrant to be sanctioned and supported by probable cause (See NSA vs Just About Everyone). Until now, the US Supreme Court has held that individuals do not generally have Fourth Amendment rights with respect to Aerial Surveillance because of “the ability that anyone might have to observe what could be viewed from the air.” Essentially, because it is difficult to hide aerial surveillance, you don’t have protection from it. Well, Drones sort of turns this on its head – drones can be small, very small. Very, really, itty-bitty small and very easy to purchase and fly. The same level deference, to say a helicopter, being unattainable by the general public simply doesn’t, ahem, fly.
Katz v. United States (1967)
Okay, so Katz is an illegal bookie. He’s making tons and tons of illegal gambling wagers all over the country. The FBI, knowing he is breaking Federal Law decides to wire tap his phone. Wait, no, scratch that. They wire tap a phone booth that Katz frequently uses to take these wagers, and having recorded his phone calls, proceed to use the evidence to prosecute him. Well, after long court battles, the Supreme Court finds 7 – 1 that the FBI essentially committed an unlawful search and seizure and violated Katz 4th Amendment Rights.
Why is this important? The test employed to determine a constitutional violation – now dubbed the Harlan Test – originated from this case. This test is used to determine if privacy protection is constitutionally afforded to the person in question and requires that 1) A person must have an actual expectation for privacy and 2) That the expectation is reasonable. This test is used today, and actually frames the discussion of the case law moving forward.
Kyllo v. United States (2001)
Well what happened in Kyllo is interesting and is much more specific to the topic of drones – but no, sadly we still aren’t quite there yet to the actual drones. No, in Kyllo, what we have is law enforcement utilizing a new technology not readily available to the public (thermal imager) to determine if Kyllo was breaking the law (growing 100 separate marijuana plants) in a garage. Basically, without a warrant, the Department of the Interior identified heat signatures emanating from the house that reflected an area where many lights were being used to accelerate the growth of the marijuana plants. Based on this evidence, the Department of the Interior obtained a search warrant and went on to arrest Danny Lee Kyllo.
The Supreme Court would eventually say that this use of this advanced technology – because it was not readily available to the public (for cost, and availability) – was beyond the scope of what is allowable to law enforcement and constituted to some degree a search without warrant. This limited the use of and application of technology without search warrant and made law enforcement weary of advanced technology for surveillance.
United States v. Hester (1924)
Okay, look, this isn’t fun for me either. 1924? Really? How can this possible apply to current case law? Well, you don’t have privacy protections in an open field. Duh! But, wait, you might ask, what defines an open field? Well, let me tell you something interesting that may apply. Curtilage! That’s what Jerk!
Curtilage is what allows certain activities or objects to be afforded protection by the 4th Amendment to some observers, but not all. For example, those areas that are defined as Curtilage are adjacent to homes – backyards, fenced in areas, etc. Those areas, when properly hidden by a fence, or wall, or beautiful foliage are afford 4th Amendment protection from ground observers, however they are NOT afforded protection from air.
Wait a second… why not? Well, planes and helicopters that are flying are thought to be using public areas, and since you have not built a roof above your yard, then they are viewable from a public area. They can be seen, goes the thought, by anyone from the general public who is flying.
Oh, well, that puts my mind at rest… wait no, it doesn’t? Didn’t you just say in Kyllo v. United States that advanced technology that isn’t readily available and in use by the general public can’t be employed unless you have search warrant?
Yes, I did… but people can fly planes.
Well, what, less than 1% of the population has a plane? There are only about 225,000 general use planes in the United States. How is that the general public?
California v Ciraolo
Dow Chemical Company v. United States
Florida v. Riley
Colorado v. Pollock
All four cases above establish and identify that the “typical” detection technologies employed from above to observe in clear sight things from a reasonable altitude/observation are acceptable. Reasonable means that it must viewable from above a certain height, not below, so don’t think satellites or high altitude spy planes are included.
And, now we’re on a role so we’ll keep moving.
United States v. Knotts
United States v. Karo
Both of these cases allowed for the tracking of individuals and, from Justice Rhenquist, he’s not too concerned that twenty-four hour surveillance, though a reality, won’t be abused. Good one Rhenquist – I am sure tracking, surveillance, and otherwise 24 observation won’t be utilized at all, nope, never…
Are Drones A New Reality?
So, there you have it folks. The question really becomes: Are drones a new reality or are they just a better, more efficient version of the same?
I posit that the case law controlling aerial surveillance still applies and that there isn’t much of a difference between a manned and unmanned aircraft snooping. The courts (well the ones we know about at least) have generally stymied the use of surveillance techniques upon the general public where there is a reasonable expectation of privacy. Granted, most recently, lawmakers in Congress have agreed that there may NOT be ANY reasonable expectation of privacy and that the government as a societal interest in protecting the public by any means necessary… but I am sure that won’t affect everyone; just the bad guys.
I wrote this so that those seeking to ban drones in general airways should understand that the entirety of what drones do is make it smaller, quieter, and ultimately more cost effective to snoop. The technology isn’t much different than a small helicopter with a camera on it, the locations haven’t changed from previous cases, and ultimately the courts won’t differ much from previous precedents. Before we over react to new technologies let’s look at the facts, discuss the differences between manned and unmanned craft, and realize that what we have is not a new problematic technology to be outlawed, but an opportunity to define the current legal guidelines through aviation surveillance.