“Hey! Look up in the sky! It’s a bird! It’s a plane! It’s Superman!” No, it is not Superman, and it is not fighting for “truth, justice, and the American way.” It is a domestic unmanned aerial surveillance aircraft, commonly referred to as a “drone.” Earlier this year, the U.S. Congress paved the way for the domestic use of unmanned drones by federal, state, and local law enforcement agencies as well as by civilians. The prospect of hundreds or thousands of domestic unmanned aerial surveillance aircraft flying over American soil has prompted serious privacy and constitutional concerns and raised the specter of a “surveillance society.”
The concept of unmanned aircraft was widely popularized by the War on Terror. In 2005, the Central Intelligence Agency implemented the predator drone program, whereby unmanned aerial surveillance aircraft were used to hunt down and kill Al-Qaeda terrorists in the mountains of Afghanistan. These predator drones, among other things, included surveillance technology like video cameras, radar, infrared thermal imagers, and wireless network detectors. The predator drones were helpful in executing the War on Terror and, even today, remain an effective and efficient tool in the U.S. arsenal.
Although the unmanned drones have been used primarily in a military context, many civilian tasks can be performed by unmanned drones. For example, a real estate developer may want to use an unmanned drone to survey a large tract of land, or a farmer may want to employ an unmanned drone to keep track of his livestock. The technology associated with unmanned drones has advanced rapidly over the past seven years, and the increasing civilian capabilities of unmanned drones make them very marketable and useful for potential consumers. However, the use of unmanned drones for civilian purposes has been greatly out shadowed by their military origins.
Indeed, the introduction of the unmanned drones in the domestic market has generated images of spies in the sky and the beginnings of a surveillance society. In “Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft,” the American Civil Liberties Union (ACLU) observes, “Based on current trends—technology development, law enforcement interest, and the lack of legal safeguards—it is clear that drones pose a looming threat to Americans’ privacy.” Despite their civilian purposes, unmanned drones, nevertheless, raise constitutional and privacy concerns, particularly when used by federal, state, and local law enforcement agencies for routine surveillance.
The Fourth Amendment to the United States Constitution provides, in pertinent part: “The right of the person to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated[.]” In its latest addition to Fourth Amendment jurisprudence, the U.S. Supreme Court in U.S. v. Jones addressed the issue of whether the installation of a Global Positioning System (GPS) tracking device by police officers to a private citizen’s vehicle constituted a search. The Court held that “the Government’s installation of [the GPS tracking] device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.'”
Similar to GPS devices, the unmanned drones, using facial recognition technology, can be used to record and track the actions of a targeted individual. Although the Fourth Amendment guarantees a citizen’s right against unreasonable searches and seizures by state actors, the U.S. Supreme Court has not expanded its Fourth Amendment jurisprudence to expressly include unmanned drones being used by law enforcement agencies to track, monitor, or record a citizen’s actions.
Even when Jones is viewed in the context of Fourth Amendment jurisprudence, the legal framework for protection against unreasonable search and seizure is incomplete and inconsistent. In California v. Ciraolo (1986), the police, acting on an anonymous tip, flew in an airplane at 1,000 feet over the backyard of a house and saw with their naked eyes what they believed to be marijuana plants growing in the backyard of the house. Based on this information, the police obtained a search warrant, and marijuana plants were found. The U.S. Supreme Court held that “[t]he Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a search warrant in order to observe what is visible to the naked eye.” In 1989, the Ciraolo decision was upheld by Florida v. Riley, which presented similar factual circumstances. However, both of these cases involved surveillance by manned aircraft as opposed to unmanned aircraft like unmanned drones. In addition, these cases did not address the issue of whether an extended period of surveillance would be constitutional without a warrant.
Moreover, in Dow Chemical Co. v. United States (1986), the U.S. Supreme Court noted in dicta that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.” An unmanned drone would undoubtedly constitute “sophisticated surveillance equipment,” but the equipment is increasingly being made available to the public. Under Dow, it is unclear if the use of unmanned drones by law enforcement agencies would violate the Fourth Amendment.
In Kyllo v. United States (2001), the Court held that the use of a thermal imaging device constituted an unlawful search. In particular, the Court relied on the availability of thermal imaging devices to the general public and the amount of privacy compromised by the use of such devices. Unmanned drones, at present, are not widely available to the public, but their availability will become more prominent in the next couple of years. The amount of privacy compromised by the use of an unmanned drone would be a fact-specific inquiry of the surrounding circumstances as well as the associated surveillance technology of the particular drone. When the Fourth Amendment precedents are viewed conjunctively, the legal framework does not provide a single test or set of standards to determine if there is a Fourth Amendment violation. Further, the rapidly changing technology will likely outpace the changes in jurisprudence to reflect the new technological realities. For this reason, perhaps the best solution for protection of Fourth Amendment rights lies not in the hands of the highest court but with the legislature.
On June 12, 2012, U.S. Senator Rand Paul introduced Senate Bill 3287 entitled “Preserving Freedom from Unwarranted Surveillance.” As the bill’s title clearly indicates, the goal of the bill is “[t]o protect individual privacy against unwarranted governmental intrusion through the use of the unmanned aerial vehicles commonly called drones.” According to Senator Paul, the bill “will restate the Fourth Amendment and protect American’s privacy by forcing police officials to obtain a warrant before using domestic drones.” Specifically, the bill prohibits the use of drones to gather evidence or other information pertaining to criminal conduct except as authorized by a warrant. However, several exceptions are provided to the warrant requirement including exigent circumstances, “the use of a drone to counter a high risk of terrorist attack,” and “the use of a drone to patrol national borders to prevent or deter illegal entry of any persons or illegal substances.” If the provisions of the act are violated, two remedies are provided including the exclusion of evidence from criminal prosecution if the evidence was obtained in violation of the act, or an aggrieved party may pursue a civil action for a violation of the act. Senator Paul’s bill would address the principal constitutional and privacy issues raised by the proliferation of domestic unmanned drones in the United States and would restore greater protection under the Fourth Amendment.
While the U.S. Supreme Court or the U.S. Congress could establish the cohesive legal framework to protect the privacy rights of Americans from the peeping spies in the sky, the legislature is, perhaps, the best suited to strengthen Fourth Amendment protections and limit the encroachments of the surveillance society. Moreover, the rapid technological advancement in unmanned drones will outpace the ability of the judiciary to expand the Fourth Amendment jurisprudence to provide meaningful privacy protections to Americans, but the legislature would be able to craft comprehensive public policy that would strengthen the protection of privacy. In the meantime, the next time you look up into the sky and see what appears to be a bird or a plane. It’s probably Uncle Sam watching you!