W. Sam Lauber, CHHS Research Assistant
Most people know of drones in the context of the U.S.’s latest strategy to kill targets in hotspots like Yemen, Pakistan, and Afghanistan. Soon they may know them personally as U.S. federal and state agencies utilize the advantages of that technology, such as longer flight time with less fuel, the ability to hover in one spot, and less expensive maintenance, in their jurisdictions to fight crime. To prevent abusive use of drones requires directly-applicable law. Currently there is none, and while the courts are capable, they are too slow. The most prudent step forward is legislation, some of which has already been introduced in the U.S. Congress.
A SWAT team in North Dakota recently used a drone to apprehend a cattle farmer who chased the sheriff away at gunpoint. The cattle farmer’s challenge to his arrest led to what is deemed by many to be the first court decision upholding the use of drones by law enforcement. But if that case was the first, on what law can the courts rely to decide whether the use of a drone by law enforcement is legitimate? What, if anything, limits drone use in the U.S.?
The Fourth Amendment protects people from unreasonable searches and seizures. To determine whether the government violates that amendment we ask two questions: Did the individual show his or her expectation of privacy? If so, was it one that society is willing to recognize as reasonable? Cases featuring similar tactics as drones may provide some guidance.
Two Supreme Court cases upheld the use of a plane and a helicopter, respectively, to sneak a peek in backyards and use what they saw to arrest the residents on drug charges. Initially, it would seem drones are therefore acceptable surveillance tools. But, a drone can hover in one spot for hours, while a plane cannot. Also, you can hear and see a helicopter, but drones can operate out of sight and out of earshot. Such distinctions between planes and helicopters and drones limit the guidance these cases offer. They suggest only that flying above the target does not automatically violate the Fourth Amendment. So, if flying is okay, what about the technology used by drones? A few cases provide guidance on this point, but still no answers.
Kyllo v. U.S. is clear that law enforcement cannot use advanced technology such as thermal imaging to peer into homes, provided that the technology is not available to the general public. Drones are currently available to private users. A couple in Baltimore, MD makes and flies its own drones to take aerial photos of Baltimore landmarks. Two national security experts recently held a small-scale drone battle in Washington, D.C. Additionally, Katz v. U.S. conditioned the legality of surveillance on society’s recognition of the means as reasonable, and scarce is the person today who has not used Google Maps, Google Earth or Bing to obtain aerial views of neighborhoods. Society’s access to and acceptance of technology similar and identical to that used by drones is fast approaching. If we become too comfortable with the technology available on drones, should that validate its use to monitor citizens? A conventional reading of Kyllo suggests precisely that result.
So far we have considered separately the ability of a drone to fly and hover, and the technology it can use to surveil. Does anything suggest that the combination of the two violates the Fourth Amendment? The Fifth Circuit in U.S. v. Cuevas-Sanchez found that a camera mounted on a pole by police to monitor a suspected drug dealer constituted a search that required a warrant. It was not like a flyover or the temporary observation of a passerby. Drones that hover above a city operating various types of cameras are the same.
U.S. Supreme Court Justice Samuel Alito’s concurring opinion in Jones v. U.S. presents another interesting theory. Dubbed the mosaic theory, it contends that the ability to continuously monitor movements of a suspect in public spaces would render that surveillance unreasonable. The reasoning goes that the impracticality of constant surveillance owed to human and institutional limitations would no longer provide the relief from ever-vigilant law enforcement that society has come to expect. Sustained surveillance in public made possible by a drone that can fly, hover and constantly record would violate the modicum of privacy expected in public.
Yet, drones have a real world value. As demonstrated by the North Dakota case, they can protect law enforcement and citizens. Once officers learned from the drone’s infrared cameras that the ranchers were heavily armed, they called off the operation for the night. A safe arrest was executed the next day. That use can hardly be assailed, but to ensure that all uses are as acceptable requires a standard, a guide for law enforcement to follow.
As demonstrated here that guide cannot come from previous cases alone. It must come from a new case or controversy, but that requires waiting for the right one to arise. Legislation recently introduced into the U.S. Congress presents a quicker route to establishing guidelines for domestic drone use.
Representative Austin Scott and Senator Rand Paul, in House Resolution 5925 and Senate Bill 3287, impose an automatic warrant requirement on federal law enforcement with certain exceptions. Both create a right to sue based on a violation. Representative Ted Poe in H.R. 6199 limits use of drones to investigations of felonies and pursuant to a warrant, subject to the limitations and exceptions applicable in the jurisdiction of the search. Other proposals include area-wide warrants, and creating a right of action for privacy violations.
That legislation would set standards for domestic agencies to abide by in the meantime, and challenges brought against it would kick-start the courts’ treatment of the issue, leading more quickly to developed law capable of addressing the issues we are likely to confront. Capable though the courts are, the span of time to institute a standard for drone use purely through the courts leaves room for abuse and distracts from the potential positive uses of drones domestically.