by  Impreza54/ CC BY-SA 3.0
by Impreza54/ CC BY-SA 3.0

By: Tiffany Sommadossi

Drones have captured the news. Increasingly, the impact of domestic surveillance drones on American privacy interests is being discussed and debated. The government’s use of unmanned aerial vehicles (UAVs) in the United States is particularly contentious because of possible Fourth Amendment implications and a growing public distrust of modern-day surveillance programs.

Unmanned aerial vehicles are sometimes remotely piloted but increasingly autonomous. They come in a variety of sizes, carry sophisticated technology, and can travel significant distances and loiter for long periods. High-power zoom lenses and tracking capabilities can be attached to drones today, but new attachments are constantly under development. The American Civil Liberties Union (ACLU) reports that future technology drones are likely to carry include see-through imaging and video analytics that “watch” people in order to rapidly recognize and respond to specific individuals, events, and objects.

There has only been one reported case of law enforcement using a surveillance drone to assist in an arrest of a suspect. The Department of Homeland Security, in agreement with local police, offered an unmanned predator drone to assist in a raid. A North Dakota District Court upheld the use of the drone in this case because there was “no improper use of [the] unmanned aerial vehicle” and it seems to have “had no bearing on [the] charges being contested.” As a result, the rancher—arrested after a 16-hour standoff with police for refusing to return cattle to his neighbor—was unsuccessful in getting his case dismissed based on the warrantless use of an unmanned surveillance aircraft in his arrest.

A number of bills have been introduced at the state and federal level which seek to mandate that law enforcement get a probable cause warrant before using a drone in an investigation. Legislation proposed after the Snowden NSA revelations also seeks to implement restrictions on what can be done with incidentally drone-collected information, how long drone-collected data may be kept, and how much access the government may have to third-party drone-collected information. Bills addressing how drone-collected data is retained and shared are likely responses to what has come to light over the past year about what happens to surveillance data collected by the NSA under Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act. Civil liberty and privacy groups, as well as legislators, seem eager to preemptively block drone-collected data from being gathered in databases subject to “back door searches,” as “foreign intelligence” gathered under Section 702 has been thus far.

The FAA Modernization and Reform Act of 2012 is a federal mandate requiring the Federal Aviation Administration (FAA) to develop a plan to safely integrate UAVs into U.S. airspace by 2015, but there is not a single enacted federal law that deals with the implementation of rules specifically designed to safeguard privacy interests. The ACLU reports that laws relevant to drone surveillance were enacted in thirteen states between 2013 and 2014. In other words, our state citizenship, rather than our national citizenship, dictates the degree to which the government may conduct and share surveillance information on us using drone technology.

Under existing jurisprudence the government may use UAVs for domestic surveillance purposes without a warrant or any judicial order, except in states with legislation requiring that law enforcement use surveillance drones only pursuant to a warrant. The Supreme Court has so far only considered three cases involving manned aircrafts. All three cases were decided in the 1980’s just after Smith v. Maryland, a landmark case that has been the Rosetta Stone for understanding what constitutes a “reasonable expectation of privacy” under the Fourth Amendment for search or surveillance purposes. In California v. Ciraolo, Dow Chemical v. United States, and Florida v. Riley, the Court held that the use of manned aircrafts to conduct warrantless surveillance was not a search under the Fourth Amendment because evidence gathering occurred in a “public, navigable airspace.” Yet some, like John Villasenor at Forbes, have opined that a careful read of the opinions would suggest that the Fourth Amendment may provide more protection in cases involving UAVs than is often assumed.

Besides the fact that those cases were decided over three decades ago and did not address unmanned aerial systems or the evolving technology that is being attached to them, the recent, unanimous holding in Riley v. California suggests it may be time to reconsider outdated notions of what privacy is and how much privacy protection we expect the Fourth Amendment to provide us. The government likes to assert that it can, without violating the Constitution, use UAVs without a warrant for domestic surveillance purposes, but there is a growing trend in statutory law to ban the warrantless use of drones and the courts may soon follow.

There is no doubt UAVs and the technology they can carry are cost-effective and efficient tools for local law enforcement and federal agencies to use in carrying out their missions. Soon, it could be commonplace for drones to assist with disaster relief, immigration control, environmental monitoring, and border protection. Although reports of UAVs interfering with airport airspace have convinced the FAA and others that comprehensive safety rules are needed to govern the private use of UAVs, the real battle is going to be over privacy rules. Federal rules requiring the government to use domestic surveillance drones responsibly are needed to ensure that as we modernize our government we do so without sacrificing our constitutional rights and privacy interests.

There is a handful of pending federal legislation related to drones. Notably, the Drone Aircraft Privacy and Transparency Act of 2013 seeks to amend the FAA Modernization and Reform Act of 2012 by requiring the government to make more transparent how it will use drones and the information collected by them. Such measures include requiring governmental entities to only use a drone system pursuant to a warrant, except in exigent circumstances described in the bill. The bill also makes approval of UAV use contingent on submission of a data collection statement that explains such things as the kind of information the system will collect and how it will be retained.

While pending federal legislation is an excellent sign that Congress is taking steps to address privacy concerns related to drone surveillance, the question of what to do until federal laws pass remains. The absence of drone privacy restrictions represents a gaping hole in American privacy protections, and also puts law enforcement offices in a predicament. A growing number of law enforcement offices, like the LAPD, are voluntarily refusing to integrate drone technology into its investigations because of public disapproval. The public has made clear that unless strict privacy rules are in place to govern surveillance drones, the benefits they can provide are not worth the significant privacy implications. Therefore, the lack of federal drone law focused on privacy is simultaneously threatening American privacy interests and preventing law enforcement from taking advantage of new technologies. As the Supreme Court’s interpretation of the Fourth Amendment slowly transforms and Congress remains suspicious of government surveillance programs, it will be interesting to see where the pendulum settles on what constitutes a reasonable expectation of privacy in the United States when it comes to government surveillance, particularly from the air.