THE SKY POLICE: DRONES AND THE FOURTH AMENDMENT.

Author:Dwyer-Moss, Jessica
 
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In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people's windows. --George Orwell, 1984 (1) I. INTRODUCTION

Unmanned drones have proven an integral part of the fight against terrorism overseas. The Trump, Obama, and Bush Administrations have relied upon drones to target extremists, particularly in Pakistan and Yemen. (2) "Drone strikes" involving the targeted killing of terrorist suspects have garnered media attention, (3) but drones need not be equipped with weapons. Many drones, used for reconnaissance purposes, are outfitted with instant-feed cameras, infrared scanners, and telescopes. (4) The military has used unmanned aerial vehicles ("UAVs," or simply "drones") for reconnaissance missions since 1959; (5) UAVs present attractive alternatives to the risks that accompany traditional human-operated planes for surveillance purposes. (6) Varied in size as well as application, drones can be as large as business jets or small enough to fit into the palm of someone's hand, rendering them virtually undetectable. (7)

Drones have become increasingly popular domestically. Since 2005, Customs and Border Patrol ("CBP") has used UAVs to police the Canadian and Mexican borders. (8) The program has been successful; in 2015 alone, drones helped CBP interdict several tons of both marijuana and cocaine. (9) When they are not needed to patrol the border, CBP sometimes allows local law enforcement agencies to use drones in their investigations, though it is unknown how frequently this happens. (10) In December of 2011, a CBP Predator B drone helped a North Dakota sheriff pinpoint the location of three gunmen on a 3,000 acre parcel of land. (11) This was the first known occasion of U.S. citizens being arrested with the assistance of a Predator drone. (12)

In 2012, the Los Angeles County Sheriff's Department used aircraft to record high-resolution video of the entire city of Compton. (13) One of the participants in the program remarked that "[w]e literally watched all of Compton during the times that we were flying, so we could zoom in anywhere within the city of Compton and follow cars and see people." (14) The experiment seems to have been a success. In October 2017, the Los Angeles Board of Police Commissioners decided to allow the police department to start a one-year pilot program for drone surveillance. (15)

Drones have extraordinarily wide applicability. They can be used to perform search and rescue operations, to monitor natural resources, to assist in wildlife conservation efforts, (16) to minimize risks in law enforcement activities, or even to conduct traffic reports. (17) Drones also have a lot of potential uses in criminal cases. For instance, drones could be used to track the movements of suspected drug dealers or human traffickers. Police could use them to observe robbery suspects or trespassers. Indeed, the possible applications of drones, sometimes called "plane[s] with brain[s]," (18) are virtually limitless. (19)

Drones also have the advantage of being cheaper in the long run than traditional surveillance techniques--before the advent of computer technology, practicality concerns would have prevented extended surveillance of suspects. (20) Once drones become commonplace, a single government agent can control a single drone remotely, potentially limited only by the drone's range and battery life. (21) As one of the purveyors of drone technologies remarked, "[o]ur whole system costs less than the price of a single police helicopter and costs less for an hour to operate than a police helicopter,... [b]ut.. it watches 10,000 times the area that a police helicopter could watch." (22) Drones have made surveillance cheaper, easier, and more effective.

Advances in technology have greatly relieved the burden of more traditional surveillance techniques. In recent terms, the Supreme Court has grappled with how technological innovations have impacted traditional privacy considerations. In United States v. Jones, the Court held that the attachment of a Global Positioning System ("GPS") tracking device to an individual's vehicle and the subsequent tracking of that vehicle's motion over the course of four weeks was a search under the Fourth Amendment. (23) The Court's opinion in Jones was explicitly rooted in the doctrine of trespass, emphasizing that law enforcement officials had physically attached the GPS device to Jones's Jeep; (24) the majority opinion did not address potential searches that might be conducted without physical contact. Two years later, in Riley v. California, (25) the Court acknowledged the necessity of cell phones in the modern era and held that law enforcement officers need a warrant to search their digital contents. (26) Implicit in the Court's decision was the understanding that new technologies are sometimes accompanied by changing public perceptions of privacy interests. (27) In November 2017, the Court heard oral arguments in Carpenter v. United States, (28) another case that requires the Justices to confront how the Fourth Amendment applies to technology that is far beyond the wildest dreams of the Founders. The central question in Carpenter is whether historical cell phone location records are entitled to Fourth Amendment protection. (29) A decision may not be issued until the end of the spring term, but even then, the Court may not articulate a rule that neatly applies to police use of UAVs. The question, then, remains: would drone surveillance of an individual constitute a search under the Fourth Amendment? Given law enforcement agencies' interest in acquiring drones, (30) this issue is of great importance.

This article focuses on the Fourth Amendment concerns raised by government drone surveillance31 in light of the Supreme Court's recent decisions in cases dealing with new technologies. The Court's Fourth Amendment jurisprudence has taken an interesting turn of late, with troubling implications for privacy rights in an age of rapidly advancing technology. While drones do, of course, have significant applications in areas that do not necessarily threaten traditional privacy rights, (32) on the whole, drones pose a significant risk to the rights guaranteed by the Fourth Amendment. (33) Current Supreme Court precedent does not adequately address these risks. Recognizing this legal void, this article considers a legislative solution that would allow the government to use UAV technology while still preserving some level of privacy for individuals.

  1. THE FOURTH AMENDMENT AND CHANGING SURVEILLANCE TECHNOLOGY

    The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (34) The Supreme Court has clarified and expanded its Fourth Amendment jurisprudence in the last century. (35) It is important to note that not all government searches occur under the authority of a warrant. (36) Many traditional investigation techniques, such as constant surveillance by government agents and pen registers, have no Constitutional warrant requirement. (37)

    1. What is a Search? Olmstead, (38) Katz, and Kyllo (39)

      Hearkening back to seventeenth century common law, the Supreme Court has repeatedly emphasized the importance of the distinction between the curtilage of one's home and an open field. (40) While the curtilage ("the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.") (41) is sheltered from government surveillance, an open field has no such protection. (42) Three cases in particular highlight the evolution of the Court's interpretation of the Fourth Amendment --Olmstead, Katz, and Kyllo. In Olmstead, the Court held that a physical trespass is an integral part of a search under the Fourth Amendment. (43) Although police officers performed a wiretap by installing devices to telephone wires, the devices were installed in the basement of a shared office building and telephone poles near the defendants' houses. (44) "The insertions were made without trespass upon any property of the defendants," (45) and even though the officers listened to conversations for a matter of months, (46) the Court found the trespass issue to be dispositive. (47)

      Taken literally, Olmstead would lead to rather absurd results. Some courts justified their finding of a search in remote computer investigations because of the brushing of electrons involved in the transmission of the information. (48) And a listening device inserted through the walls of a residence constituted a search (because of the intrusion of the device on the house's integrity), (49) but the same device installed in an outer office would not be a search if the device never made physical contact with the subject's property. (50) Recognizing that strict adherence to the trespass-based standard was illogical, the Court announced a new rule nearly forty years later.

      In Katz, the Court moved away from its trespass-based approach to defining searches. The Court held that attaching an electronic listening and recording device to the outside of a phone booth in order to obtain information about a target's phone conversations violated the Fourth Amendment. (51) "[T]he reach of [the] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure;" rather, "the Fourth amendment protects people --and not simply 'areas'--against unreasonable searches and seizures." (52) The Court also emphasized the importance of judicial oversight. "Searches conducted without warrants have been held unlawful 'notwithstanding facts unquestionably showing probable cause,' for the Constitution requires 'that the deliberate, impartial judgment of a judicial officer... be interposed between the citizen and the police.'"...

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