Tuesday, February 12, 2013

The Eye in the Sky: Domestic Aerial Drone Surveillance and the Fourth Amendment

The watchful eye of the American public has recently placed the Obama administration’s drone program in its sights.  The release of the Justice Department’s plan for targeted drone strikes on American citizens allegedly working for al-Qaeda has garnered considerable attention.  The staggering development of drone technology has dramatically increased the administration’s capabilities to execute strikes on specific targets abroad.  However, while the focus of most Americans is on drone surveillance and deadly strikes in distant countries, U.S. law enforcement agencies have been quietly expanding the use of drones for domestic surveillance. 

In February 2012, Congress passed the $63 billion FAA Reauthorization Act, part of which is designed to allow for the increased use of government and private drones in airspace previously reserved for passenger planes.  The FAA estimates that around 30,000 drones will be flying in U.S. airspace by 2020.

While most large metropolitan police agencies have helicopters and stationary cameras that are used for surveillance, drone capabilities far exceed those of the average traffic camera or police helicopter.  First, many drones are cheaper than helicopters, which will allow more police forces access to surveillance technology.  Second, some drones have powerful high-resolution cameras that can track people from extremely high altitudes, are capable of surveillance recording for long periods of time, and can record property details that are not visible to the human eye.

Generally, police are required to have a certain level of suspicion or probable cause before obtaining a search warrant.  But fear now stems on police abusing the extraordinary drone surveillance technology and overrunning Fourth Amendment protections against unreasonable search and seizures.  It often seems as though the legislature and judiciary are the tortoise in the race against the technological hare.  New technology often develops at a rate that exceeds the justice system’s capabilities to keep up.  But despite their tortoise-like reputation, many state legislatures are getting ahead by taking action against possible infringements by government agencies on citizens’ Fourth Amendment rights.  In its pre-session committee organizing meetings, the Florida legislature has been working hard to push a bill placing restrictions on the extent to which drones can be used for domestic surveillance in the state.  The urgency of the Florida legislature can likely be attributed to the Miami-Dade Police Department being the first domestic police agency to finalize a deal with the FAA for permission to fly drones for surveillance purposes.  But other states are catching on as well; legislators in Maine, Nebraska, Oklahoma, Oregon, Texas, Missouri, and Virginia have already introduced bills designed to place restrictions on drone usage. 

Moreover, if history is any indication of the future, it is unlikely that the Supreme Court will let the federal government trample on citizens’ Fourth Amendment protections.  John Villasenor, a UCLA Professor and Brookings Institute Fellow, looks to three Supreme Court cases from the 1980s to illustrate that the government’s use of drones for surveillance will not be without limits. 

In 1989, the Supreme Court in Florida v. Riley found that a police officer’s observation of marijuana plants in the defendant’s partially covered backyard green house did not constitute a search for which the officers needed a warrant under the Fourth Amendment.  The Riley decision came on the heels of another Supreme Court decision, three years earlier, in which the Court made a similar finding.  In California v. Cirolo, the Supreme Court held that observation of marijuana plants by a police officer in a private airplane, without a warrant, at an altitude of 1,000 feet, did not violate the defendant’s Fourth Amendment rights.  However, the Supreme Court maintained that Fourth Amendment violations occur when police officers violate a person’s “reasonable expectation of privacy.”  Finally, in Dow Chemical v. United States, the Environmental Protection Agency (EPA), upon being denied access to a Dow Chemical plant complex, took to the air by hiring a commercial areal photographer to generate an aerial map of the complex.  The Supreme Court held the photographs did not violate the Fourth Amendment since the images were of an industrial complex taken in publicly navigable air space.

While all three of these rulings favor the government, the Supreme Court did not grant the government a free pass to disregard the Fourth Amendment when it comes to aerial surveillance.  In Dow Chemical, the court noted that the expectation of privacy that accompanies a commercial industrial complex is not the same as the expectation of privacy in an individual’s home.  The Court went on to scrutinize the level of detail in the images of the Dow Chemical complex and emphasized that the pictures did not reveal enough intimate details to raise Fourth Amendment concerns.  The Court also distinguished between a unique high-resolution camera not available to the public and a conventional camera like the one used by the EPA, a distinction the Court will likely consider in a future case on drone surveillance.  Furthermore, as Professor Villasenor notes, the use of drone surveillance at high altitudes can easily be distinguished from Cirolo and Riley where warrantless police observations were made at relatively low altitudes with the naked eye.

But a January 2012 Supreme Court case, United States v. Jones, may be more indicative of how the current Supreme Court would treat a drone surveillance case.  In Jones, the Court was presented with the issue of whether the attachment of a GPS tracking device to an individual’s vehicle, without a proper warrant, then using the device track the movements of the vehicle for one month, constitutes an unreasonable search or seizure under the Fourth Amendment.  The Court held that the respondent’s Fourth Amendment rights were violated.

However, the Court skirted many thorny issues regarding electronic surveillance by considering governmental trespass while placing the GPS device.  Nevertheless, in his concurring opinion, Justice Alito addressed the difference between short and long term electronic surveillance.  He concluded that in an age where technology is constantly changing citizens expectations about privacy, short-term surveillance might not infringe on our reasonable expectation of privacy, where secret monitoring for a long period of time­­­­––in this case four weeks––does infringe on our Fourth Amendment rights.  He wnt on to note that “where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.”  Justice Alito’s reasoning may be a sign of the Court’s reluctance to accept long-term drone surveillance, and is certainly an indication that the Supreme Court recognizes the tension between the Fourth Amendment and new surveillance technology like drones.

The Supreme Court has no easy task.  With technology constantly evolving, it is hard to gauge what society’s “reasonable expectation of privacy” actually is.  Additionally, state legislatures need to be careful not to restrict the use of drones so much that police can not take advantage of the drones’ capacities to aid in search and rescue operations, diagramming crime scenes, or hostage situations.  However, with an informed electorate, the Supreme Court on notice, and state legislatures already taking action, it is unlikely that the United States will become the police state that some people fear.

Jared Engelking
Blogger, Criminal Law Brief  



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