Privacy Issues,
Completely safe and secure unmanned systems may be the inevitable result of
technological advancements. Safety is less cause for alarm in the public eye than the potential
privacy issues associated with drone operations. Successful drone missions operated by the CBP
and U.S. Southern Command, a joint military command agency, have highlighted the
applicability of UAVs in targeting drug smugglers and imply potential local law enforcement
uses. In 2006, the Los Angelos police department tested a small UAS (sUAS), the SkySeer, for a
variety of local functions, including hovering and watching a crime scene, tracking drug dealers,
searching for lost children or Alzheimer’s patients in difficult terrain, aiding police in pursuits
and detecting speeders at a fraction of the cost of operating a helicopter (Bowes 2006). Since
2006, a handful of police departments all over the country have loaded up on a smorgasbord of
different UASs while the drone industry is preparing to offer more than 18,000 police
departments new UAS technologies (Bennet 2012). Many of the departments have not yet
received a Certificate of Authorization (COA) and thus cannot operate their new machines.
Following mass FAA authorization and before the swarm inhabits the skies, serious privacy
concerns must be addressed to ensure that “Big Brother” does not become invasive and
overbearing in violations of the Fourth Amendment.
The Fourth Amendment of the U.S. Constitution (Bill of Rights) guarantees that “(t)he
right of the people to be secure in their persons, houses, papers, and effects of unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” Some interpret this to say that people’s privacy cannot be
violated for any reason unless a warrant with probable cause is issued. Others believe that
privacy is not expressly protected by the Fourth Amendment. Fourth Amendment cases are
common before the Supreme Court as innovations in technology and novel circumstances require
deliberation by the ultimate judicial authority.
In examining case history relevant to drone surveillance and the Fourth Amendment, Katz
v. United States (1967) established a standard that has withstood successive jurisprudence and
been applied to emerging technologies. The Katz decision stated that a conversation
inadvertently taped by law enforcement surveillance in a phone booth without a warrant that
captured incriminating evidence was not admissible in court because “what a person knowingly
exposes to the public, even in his own home or office is not a subject of Fourth Amendment
protection. What he seeks to preserve as private, even in an area accessible to the public, may be
constitutionally protected” (Katz v. U.S.1967). In what has become the standard Fourth
Amendment litmus test, Justice Harlan “articulated a two prong test to determine when Fourth
Amendment protection is appropriate: [1] a person must have exhibited an actual (subjective)
expectation of privacy and … [2] the expectation must be one that society is prepared to
recognize as ‘reasonable’” (Troy 2009).
The first prong was subsequently struck down in Smith v. Maryland, an important
implication for how future courts will decide UAV Fourth Amendment cases. In Smith, the Court
upheld that a pen register that recorded the phone calls of a criminal did not qualify as a
warrantless wiretap because he had no expectation of privacy since the calls could be accessed
by the phone company (Smith v. Maryland). The case essentially struck down the subjective
expectation of privacy and replaced it with an assumption that we are always being watched.
Using the Smith logic, is a person’s expectation to privacy in his or her
personal back yard or curtilage illegitimate because, if a private third party
could notoriously observe these areas, one must be "assuming" the risk of
intrusive law enforcement observations? As aviation has advanced and has
become more accessible to the public, the logical answer according to
Smith is "yes." Also, could citizens lose their subjective expectation of
privacy because the state gives them notice of no expectation of privacy in
their backyard? Published post-Smith cases dealing with the collision
between manned aviation, improved technology, and the Fourth
Amendment unfortunately also answer "yes." (Troy 2009)
The cases following Smith included Oliver v. United States, when the Court upheld the open field
doctrine, stating that which can be seen in plain sight is not protected by the Fourth Amendment
and United States. v. Dunn, where the Court ruled that the Fourth Amendment applied to a
person’s curtilage based on “(1) the proximity of the area to the home; (2) whether the area is
within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and
(4) the steps taken by the resident to protect the area from observation by passersby” (Oliver v.
United States, United States v. Dunn). The progression of interpretation of the Fourth
Amendment has already moved toward usurping an individual’s rights over the burden of the
state to provide evidence for searches in technologically enhanced situations.
Five important cases following United States. v. Dunn established additional precedents
that will be important to the future discussion of an individual’s right to privacy. California v.
Ciraolo advanced the Smith logic and established that an individual’s private property is not
protected by the Fourth Amendment as long as the aircraft is in navigable airspace. The
defendant in Ciraolo had built a privacy fence around his property but a pilot flew over his house
and observed marijuana plants which led to a warrant and arrest. The Court ruled that even
though the plants were in his curtilage he had no expectation of privacy and that a “police officer
does not have to shield his eyes when passing by and could traverse the airways like a typical
aviator” (Troy 2009). The Court echoed this decision in Florida v. Riley, which concerned a
helicopter instead of a fixed-wing aircraft, finding that curtilage was not protected from aerial
view assuming that the aircraft was operating within established flight safety guidelines (Troy
2009). The third important case is Dow Chemical Co. v. United States, which challenged the
legality of using aerial photography as incriminating evidence (Dow Chemical Co. v. United
States). The Court found that use of photographic equipment was acceptable as long as the
equipment was readily available to the public and that the enhanced photographic capabilities did
not excessively intrude on privacy rights (Dow Chemical Co. v. United States). The fourth
important case is United States v. Torres, which established that broad and indiscriminate video
surveillance, like oral and wired communications, is a "hyper-intrusive search," and warrants
greater scrutiny because: "[ 1] they are overbroad…; [ 2] they occur without notice; [ 3] they are
ongoing; and [ 4] they pose an unusual threat to human dignity. Legislatures have taken notice,
creating various statutes to control such searches” (Troy 2009). The fifth important case
following United States. v. Dunn was Kyllo v. United States, in which the Court held that extrasensory
equipment like a thermal imaging device constituted an invasion of privacy but left open
a loophole allowing equipment available to general public to be used without a warrant (Troy
2009, 15).Together, these Fourth Amendment cases give some indication of what will be
constitutionally allowable in regard to where UAS surveillance ends and privacy intrusion
begins.
A number of questions still need to be answered before it becomes clear where UAS
flights will fall within the spectrum of possible procedures and policies. The most important
question revolves around whether or not UASs will be mandated by the FAA to fly Visual Flight
Rules (VFR) or allowed to fly solely based on its GPS and electronic navigation and not a pilot’s
direct vision. Given the credible current security risks that have been uncovered (Humphrey
hacking a drone in July 2012), it would seem likely that the FAA would err on the safe side and
require UAVs to fly with constant visual contact with the ground and/or important navigation
reference points. If this is the case then the operators of UASs will not be forced to divert their
attention from private curtilage because FAA rules will dictate continuous sensory visual cues
from the ground, thus creating a higher likelihood of infringement on United States citizens’
Fourth Amendment rights. If UAV operators are allowed to operate their vehicles solely by the
guidance of satellite and ground communications, a UAV “will have the ability to ‘power down’
its visual surveillance sensors until it reaches its target area, whether it is to execute an aerial
search on a private residence or evaluate a forest fire” (Troy 2009, 12). Even if they must fly
VFR, widespread fear about an overzealous big brother may keep any photographic and video
evidence obtained by a UAV out of the courtroom.
Privacy watchdogs like the American Civil Liberties Union and members of Congress
have been sounding the alarm with the growing reality of a drone inundation above our skies.
"Rep. Ted Poe, a Texas Republican and former judge, will introduce the ‘Preserving American
Privacy Act,’ which sets strict limits on when, and for what purpose, law enforcement agencies
and other entities can use unmanned aerial vehicles … The measure … would require judicial
warrants before any agency could employ a drone. It also restricts the use of UAVs by any state
or local entity ‘except in connection with the investigation of a felony’”(Wolfgang 2012). Similar
bills have been introduced by Rep. Austin Scott (R-Ga