The rising use of drones in general and by law enforcement agencies in particular understandably causes great discomfort. While surveillance and killer drones are robustly used by the military in foreign countries, enabling the NSA to surveil and attack terrorists by using a drone that is operated from thousands of miles away and flying over ten thousand feet in the air, the use of the same methods by the local Police Department in search for Marijuana fields seems less intuitively acceptable – and rightfully so. Luckily, for the most part, the drones used by local law enforcement officials cannot attack and do not possess the ability to surveil from such a significant distance and altitude. Rather, they use drones that are more similar to the ones used in movies or can be bought online for approximately $1000. So why do they still seem to pose a threat to our privacy? and how should Courts protect our privacy when their use is becoming more common?
First, some technicalities. Commercial drones, such as the ones used by law enforcement agencies, can fly for less than 30 minutes at a time, with the ability to hover over an object and online video stream what is captured by their cameras. They can be quite easily operated from several miles away as they are usually equipped with stabilizing gyros, GPS, ground sensors and other user-friendly features. Recent developments allow some automated flying and video features such as following objects, automatic terrain flying and flying in a predetermined route, simplifying their use. In terms of video quality, as a thumb rule, drones will have more or less the same video capabilities of the most advanced smartphone in the market. Needless to say, advancements in video capabilities, such as enhanced resolution and zoom, are emerging and will rapidly find their way to drones. These drones can be used to search a certain backyard, surveil suspects, receive a bird’s view of demonstrations or other dynamic events such as marathons, assess ongoing and spreading fires, etc.
In light of the above abilities, and driven in part by public weary associated with drones, states are legislating laws that are meant to limit law enforcements’ abilities to use drones. Some of these laws categorically require law enforcement agencies to seek a warrant before any use of drones, utterly disregarding the array of abilities and uses these systems possess, treating their use as one may treat an intrusive search into a household. It is debatable whether drones have the ability record faces due to their video angle, which can be detrimental in terms of their use in the context of online facial recognition surveillance. That being said, by virtue of their flying nature, drones introduce new questions that crystallize the ineptness of the Fourth Amendment to safeguard privacy in an era of new technologies.
As Gregory McNeal points out, in California v. Ciraolo, when local police used an aircraft to fly over a 10-foot fenced yard in order to search for Marijuana, the Court stipulated that it was unreasonable for Ciraolo to expect privacy when a routine overflight, or an observation “by a power company repair mechanic on a pole overlooking the yard” would reveal exactly what the police discovered in their overflight. The Court stated that “The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares”, thus, in essence, absolving the police from requiring a warrant for observing the public’s backyards in overflight. In Florida v. Riley, the Supreme Court held that “the Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant in order to observe what is visible to the naked eye”. As Riley refers to the means of surveillance, i.e. the naked eye, one can argue that using a camera with a X100 zoom would have made a difference in the Court’s analysis, an argument that has yet to be tested. That being said, the Court did refer to flying over 400 feet, which although able to, drones are not permitted to fly over that altitude; which essentially creates a gap of about 300 feet in which drones can operate without the need for a warrant. McNeal argues that if drones would be restricted to fly over 350 feet, there will be no invasion of privacy as a proxy to the right to property (which was held in U.S. v. Causby to end at approximately 80 feet). When the police want to use drones in lower altitudes, they should require a warrant. I find this suggestion fails exactly where states fail in looking beyond the platform. While flying at 350 feet does not seem intrusive in terms of property, the drone is equipped with cameras that are able to compensate with a robust zoom and high video resolution (if not in the present, then in the near future), achieving almost the same effect as walking in the subject’s backyard, which normally would require a warrant.
Therefore, the key is not setting arbitrary altitudes for drones to legally fly without a warrant, which is useless given advancements in cameras and optics; rather, by analyzing the product of each surveillance method regardless of the means utilized, and by applying an objective-subjective test in order to determine whether the surveilled person rightfully expected this situation to be private from the authorities. This will better safeguard the right to privacy while allowing the police to utilize drones and their unique capabilities in order to benefit the public.