Drones: A New Front in the Fight Between Government Interests and Privacy Concerns.

• Author: Fischer, Amy Sherry

IN 1889 the Eastman Dry Plate and Film Company rolled out the first portable camera, stunning the public and revolutionizing the world of photography forever. However, a year later the same camera was a source for countless scandals, as unscrupulous journalists used it to take pictures of celebrities and the country's wealthiest citizens. (1) Today we find ourselves in a similar situation, not from the Kodak, but the unmanned aerial vehicle. Unmanned aerial vehicles, commonly called drones due to the similarities between the humming sounds they emit and the worker bee, (2) have become almost omnipresent in our society, and while some champion them for their countless uses, in others they instill a sense of dread.

1. Big Brother is Watching: Usage of Drones at the Federal Level

   The federal government itself uses drones to conduct a variety of tasks from scientific research to predicting weather, inspection of power lines, and even coordinating humanitarian aid. Unsurprisingly, drones also have military and intelligence purposes. On its face the concept isn't malicious, the government isn't watching us like big brother to stamp out dissent. Rather, drones are used in the fulfillment of legitimate goals like stopping crimes or solving missing person cases.

   However, rights and interests do not exist in a vacuum and must be weighed against each other to achieve a just result. In this instance, the counterbalance with the government interest is the right to privacy. The main issue when dealing with government interest versus the right to privacy at the federal level is that there is no central federal omnibus regarding aerial privacy in the United States. While the federal government defers to the FAA on aviation matters and the FAA has issued guidelines on operation of drones, the FAA has not issued guidelines on drones with respect to privacy. (3) As a result, any guidance we can glean on aerial privacy is contained in a mish-mash of precedent and inferences drawn from other statutes.

   Compounding the problem is the notable lack of precedent from federal case law. The Supreme Court has not dealt with a case involving aerial tracking. (4) Most cases involving drones have dealt instead with foreign nationals suing the government or companies suing each other for copyright claims, and the remainder are frivolous claims. In order to examine where we stand, we have to examine how case law has carved out the current status quo.

   The bedrock of the right to privacy is the Fourth Amendment, which states:

   "The Right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (5)

   Initially the Fourth Amendment applied only to personal property and trespassing on land, but it was expanded considerably in Katz v. United States. (6) In Katz v. United States that the right to privacy was extended to protect people in places with a reasonable expectation of privacy. Charles Katz, a gambler, entered a phone booth to make several wagers unaware that the FBI had placed eavesdropping devices in the booth. (7) Mr. Katz was arrested and filed suit, arguing that the recordings violated his privacy and the FBI's actions constituted a search under the Fourth Amendment. (8) The Supreme Court agreed and held that a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a "reasonable expectation of privacy." (9)

   However, this right is not absolute. The "plain view" doctrine allows an officer to search for and seize evidence without a warrant if the evidence is found in plain view during a lawful search or observation. (10) In Terry v. Ohio, a limited search of a suspect to check for weapons when the officer had reasonable suspicion that a crime had either occurred or was about to occur, was found reasonable. (11) In Smith v. Maryland, the Supreme Court held there is no expectation of privacy when a person voluntarily shares information with a third party. (12) In United States v. Knotts, the Supreme Court held that individuals do not have an expectation of privacy when driving a car on public roads. (13) "A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [Defendant] travelled over the public streets he voluntarily conveyed to anyone who wanted to look, the fact that a person is travelling on a particular road in a particular direction, the fact of whatever stops he made, and his destination when he exited public roads onto public property." (14) In California v. Ciraolo, the Supreme Court ruled that the defendant's yard was not constitutionally protected from observation from a public vantage point, such as public airspace. (15)

   While these cases would seemingly have little relevance to drones, they are actually vital. The ruling in Ciraolo could be interpreted to allow unrestricted usage of drones in public airspace over any surface. As a result of the ruling in Knotts, it may be found that drones can surveil moving targets and continue to track their location in public. Finally, the warrant exception established in Terry may be interpreted to allow law enforcement to use drones to search areas to protect officers.

   But for every push in one direction, there is a pull in the opposite. In Kyllo v. United States, the police used thermal imaging to see inside the defendant's house to determine if he was growing marijuana. (16) The Supreme Court ruled that this was a search as it constituted an intrusion into the defendant's home. (17) In United States v. Jones, the Supreme Court held that the police attaching a GPS tracker to the defendant's car also constituted a search. (18) The Court found that the GPS tracker constituted a trespass on the defendant's personal effects and thus was a search per se. (19)

   While not impacting the usage of drones directly, these opinions nevertheless affect them indirectly. As a result of Kyllo, the government cannot equip drones with devices that can see inside homes. The ruling in Jones may make certain types of drones, particularly miniature drones that can closely follow people, unavailable to law enforcement.

   While these cases deal with privacy generally, we must also look to other cases that illustrate how privacy and drones have clashed. Unfortunately, most of those cases have...