Domestic Drone Surveillance: The Court's Epistemic Challenge and Wittgenstein's Actional Certainty

• Author: Robert Greenleaf Brice - Katrina L. Sifferd
• Position: Robert Greenleaf Brice is a lecturer in the Sociology, Anthropology, and Philosophy Department at Northern Kentucky University. He holds a PhD in philosophy from Michigan State University. - Katrina Sifferd is Associate Professor and Chair of Philosophy at Elmhurst College. She holds a J.D. and a PhD in philosophy from King's College London.
• Pages: 805-831

Domestic Drone Surveillance: The Court’s Epistemic Challenge a nd Wittgenstein’s Actional Certainty Robert Greenleaf Brice  and Katrina L. Sifferd  TABLE OF CONTENTS Introduction .................................................................................. 805 I. The Fourth Amendment: Searches and Privacy ........................... 808 A. Reasonable Searches and Probable Cause ............................. 808 B. Reasonable Expectation of Privacy ....................................... 812 II. The Court’s Epistemic Challenge: Common Sense Knowledge and Actional Certainty .............................................. 815 A. Common Sense Philosophy ................................................... 815 B. Wittgenstein’s On Certainty .................................................. 817 C. Objections .............................................................................. 821 D. Wittgenstein’s Actional Certainty and Expectations of Privacy ............................................................................... 822 III. The Fourth Amendment: A Wittgensteinian Approach ............... 824 A. Reasonable Expectation of Privacy and Actional Certainty .. 824 B. The Mosaic Theory of the Fourth Amendment ..................... 827 Conclusion .................................................................................... 830 INTRODUCTION According to the Washington Post, between 2010 and 2012, unmanned aerial vehicles (“UAVs”), commonly known as “drones,” were deployed nearly 700 times by U.S. Customs and Border Protection on behalf of local and state law enforcement agencies. 1 In 2015, the Federal Copyright 2017, by ROBERT GREENLEAF BRICE AND KATRINA L. SIFFERD.  Robert Greenleaf Brice is a lecturer in the Sociology, Anthropology, and Philosophy Department at Northern Kentucky University. He holds a PhD in philosophy from Michigan State University.  Katrina Sifferd is Associate Professor and Chair of Philosophy at Elmhurst College. She holds a J.D. and a PhD in philosophy from King’s College London. 1. Craig Whitlock & Craig Timber, Border Patrol Drones Being Borrowed by Other Agencies More Often Than Previously Known, WASH. POST (Jan. 14, 2014), http://www.governing.com/news/headlines/Police-Agencies-Using-Border-Patrols-Drones-More-Often-Than-Thought.html [https://perma.cc/KNW8-HEAG]. 806 LOUISIANA LAW REVIEW [Vol. 77 Aviation Administration (“FAA”) began accepting applications for drone licenses by law enforcement agencies. 2 Given the number of different ways drones can now aid departments in gathering intelligence, the number of applications will likely only increase. Drones can be equipped with facial recognition software, 3 heat sensors, and other high-tech features, such as microphones capable of detecting gunshots and even personal conversations. 4 Some military grade drones are equipped with “Wi-Fi crackers” and bogus cell phone towers that allow law enforcement to pinpoint a suspect’s location while simultaneously intercepting text messages and phone calls. 5 Some of these drones can remain airborne for hours, even days. Tiny drones, also known as “insect drones” or “micro-drones,” are currently in development and are said to be capable of going completely undetected. 6 Although drones can be used for a wide range of positive and beneficial objectives—for example, crop and land surveys, power line and pipeline inspections, forest fire detection, and search-and-rescue missions 7 —some agencies have used drones in ways that raise serious privacy concerns. For example, in 2011, the Los Angeles Times reported that police in Grand Forks, North Dakota had used a Predator B Drone— 2. Ben Wolfgang, FAA Chief Says Drones Will Force Change at Agency, WASH. TIMES (Aug. 7, 2012), http://www.washingtontimes.com/news/2012/aug/7 /faa-chief-says-drones-will-force-change-at-agency/ [https://perma.cc/WM3B-RP BK]. 3. Amanda Ziadeh, Drones Get Sightline Tracking, Facial Recognition Tech, GCN (Nov. 7, 2016), https://gcn.com/articles/2016/11/07/drone-partnership.aspx [https://perma.cc/Q9F5-EEJP]. 4. Tina Moore, NYPD Considering Using Drones and Gunshot Detectors to Fight Crime, N.Y. DAILY NEWS (May 20, 2014, 11:45 PM), http://www.nydaily news.com/new-york/nyc-crime/nypd-drones-fight-crime-article-1.1799980 [https: //perma.cc/VQ62-AAXS]. 5. Andy Greenberg, Flying Drone Can Crack Wi-Fi Networks, Snoop on Cell Phones, FORBES (July 28, 2011), http://www.forbes.com/sites/andygreenberg/2011 /07/28/flying-drone-can-crack-wifi-networks-snoop-on-cell-phones/#55284a2f66f9 [https://perma.cc/8SGL-QLJ7]. 6. Adam Piore, Rise of the Insect Drones, POPULAR SCI. (Jan. 29, 2014), http://www.popsci.com/article/technology/rise-insect-drones [https://perma.cc/T3CJVTZG]. Insect drones were recently depicted in the 2015 movie, Eye in the Sky. EYE IN THE SKY (Entertainment One & Raindog Films 2015). 7. Some agencies have used drones for the very purpose of search and rescue. Dee J. Hall, Fitchburg Man Found Alive, WIS. ST. J. (Jul. 19, 2014), http://host.madi son.com/wsj/news/local/crime_and_courts/fitchburg-man-found-alive-unharmed-af ter-nearly-three-days-outside/article_f6274133-90b6-5282-98d8-1304bb6d1f8d.html [https://perma.cc/DU43-KGNE]. 2017] DOMESTIC DRONE SURVEILLANCE 807 equipped with “heat sensors and [a] sophisticated radar”—to help locate three individuals suspected of cattle rustling. 8 The drone was fitted with a live-feed camera, enabling law enforcement officials to pinpoint the suspects’ exact location. 9 In 2009, the Texas Department of Public Safety launched a bird-sized drone called a “Wasp” over a suspect’s house while waiting to execute a search warrant. 10 The drone offered law enforcement officials an aerial view of the property before they raided the residence. In light of increased drone use, there has been a bipartisan effort in Louisiana to pass legislation regulating drones. 11 These measures are important, and lawmakers are correct in their attempts to clarify what citizens can and cannot do with these machines. In 2016, Governor Edwards signed into law two bills restricting drone use. 12 The first restricts drone use near schools, school property, or correctional facilities. 13 It includes exceptions for police and for situations in which the landowner grants permission. 14 The second subjects drone usage to criminal trespassing laws. 15 Notably, however, neither of these bills regulate the use of drones by police. Although the use of drones will undoubtedly provide law enforcement agencies with new means of gathering intelligence, these unmanned aircrafts bring with them a host of legal and epistemic complications. This Article examines the domestic use of drones by law enforcement to gather 8. Brian Bennet, Police Employ Predator Drone Spy Planes on Home Front, L.A. TIMES (Dec. 10, 2011), http://articles.latimes.com/2011/dec/10/nation/la-na-drone-arrest-20111211 [https://perma.cc/CV4L-R5ET]. 9. Id. 10. Peter Fin, Domestic Use of Aerial Drones by Law Enforcement Likely to Prompt Privacy Debate, WASH. POST (Jan. 23, 2011, 12:56 AM), http://www.wash ingtonpost.com/wp-dyn/content/article/2011/01/22/AR2011012204111.html?sid=S T2011012204147 [https://perma.cc/AJ3G-N95K]. 11. Louisiana Lawmakers Want to Get Drones Under Control, TIMES-PICAYUNE (April 26, 2016, 9:46 AM), http://www.nola.com/politics/index.ssf/2016/04/louisiana _lawmakers_want_to_ge.html [https://perma.cc/VP4G-CFAB]. 12. Edwards Agrees to New Restrictions on Drones in Louisiana, WDSU NEWS (June 22, 2016, 8:59 AM), http://www.wdsu.com/article/edwards-agrees-to-new-restrictions-on-drones-in-louisiana/3608454 [https://perma.cc/3UVA-R7 U9]. 13. H.B. 19, 2016 Leg., Reg. Sess. (La. 2016) (codified at LA. REV. STAT. §§ 14:337(A), (D), (E), 14:377(B)(3)(d)) http://www.legis.la.gov/legis/ViewDocument .aspx?d=1012765 [https://perma.cc/6J7R-BV88]. 14. Id. 15. S.B. 141, 2016 Leg., Reg. Sess. (La. 2016) (passed and signed into law 2016), http://www.legis.la.gov/legis/ViewDocument.aspx?d=1012711 [https://perma.cc/QD Z4-EJWZ]. 808 LOUISIANA LAW REVIEW [Vol. 77 information. First, Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II then explores philosopher Wittgenstein’s notion of actional certainty. Part III discusses how the theory of actional certainty can apply to the Supreme Court and its epistemic challenge of determining what is a “reasonable” expectation of privacy. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment. I. THE FOURTH AMENDMENT: SEARCHES AND PRIVACY “The purpose of the probable-cause requirement of the Fourth Amendment [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed.” 16 A search passes constitutional muster, then, if law enforcement has probable cause to think a crime has or is occurring 17 or if the search does not constitute an unreasonable intrusion into a constitutionally protected area 18 or does not violate a person’s reasonable expectation of privacy. 19 In light of this constitutional framework, this Section first discusses the standard of probable cause as applied to law enforcement use of drone surveillance and then whether drone surveillance violates a person’s reasonable expectation of privacy. A. Reasonable Searches and Probable Cause The Fourth Amendment has two clauses. First, citizens are protected against unreasonable searches. 20 Second, warrants may be issued only when they describe with particularity the place to be searched and the persons or things to be seized. 21 In U.S. v. Leon, the U.S. Supreme Court noted that “[a] Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless ‘reasonable’ within the meaning of the first.” 22 If a...