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Domestic Drones and the Fourth Amendment

By Realizingresonance @RealizResonance


Photo courtesy of iStockphoto.

Senator Rand Paul of Kentucky, son of Presidential candidate Ron Paul of Texas, has proposed legislation that would limit the use of drones in the domestic United States. He contends that using drones for general and widespread surveillance is a breach of the Fourth Amendment’s provisions against unwarranted searches. The Preserving Freedom from Unwarranted Surveillance Act of 2012 (Paul) seeks to limit drones to patrolling the US border, addressing imminent threats to national security, and dealing with situations in which someone’s life is in imminent danger. For all other cases of drone use a judge must issues a warrant based on probable cause. The rights to privacy and autonomy are great American sentiments, and Rand Paul is a Libertarian leaning Republican like his father, so his stance against drones is not at all surprising. However, it is my expectation that this anti-drone legislation will gain little traction in the Congress, nor will the Supreme Court interpret the Constitution quite the same way Senator Paul has on this issue. The implication is that domestic drones flying above our heads will be commonplace before too long.

In a CNN article explaining the bill, Senator Paul accuses President Obama of violating the Constitution by giving approval to the integration of drones into American airspace. In February, Obama signed the Federal Aviation Administration Modernization and Reform Act of 2012 (Hershaw), which included an amendment to facilitate the integration of drones for military, commercial, and private use into the current regulatory framework. However, it will be interesting to see how the GOP establishment reacts to Paul’s legislation. I am convinced that there would not have been widespread Republican opposition to domestic law enforcement drones under the administration of President George W. Bush, or would be under a potential future Romney administration. In fact, the drone amendment was sponsored by Republican Congresswoman Candice Miller of Michigan (Hershaw), and the aviation bill received considerable GOP support in the Senate with only Republicans voting against it (“Senate Vote 15”). Senator Paul may not end up garnering much support for the cause on his side of the aisle. While it’s possible that a bipartisan group might agree on drone restrictions it is doubtful that many Democrats will join with Senator Paul as long as he is attacking Obama on this issue during an election year.

Rand Paul’s sentiments are hard to disagree with nevertheless. It will surely feel like Big Brother is watching when there are 30,000 camera equipped drones hovering in the skies over America (Herrmann). Local law enforcement agencies can’t wait to start deploying drones, and this will likely become a matter of course. Paul has described a scenario in which a drone could spy on him to make sure he separates his recyclables from his garbage according to government regulation. Others are worried about weaponized military drones being turned on American civilians. This concern is not completely paranoid. Some law enforcement agencies have expressed desires to have drones equipped for crowd control, with the ability to fire tasers and rubber bullets (Freeman). So is Senator Paul correct that warrantless drones violate the Fourth Amendment? The Bill of Rights reads:

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.

The Supreme Court will surely need to rule on whether surveillance drones violate privacy rights at some point in the not so distant future. The first domestic arrest that used a drone occurred last year in the town of Lakota, North Dakota. Randy Brossart refused to return six cows that had wandered onto his farm, believing that he had a right to keep them since they were on his property. He and his family backed authorities off of the property with weapons drawn. The Grand Forks Police then obtained a warrant for Randy’s arrest, and in order to break a 16-hour stand-off they employed a Predator drone on loan from the Department of Homeland Security. Brossart is now claiming that his Fourth Amendment rights were violated (Koebler). Based on the facts in this case it is doubtful that the Supreme Court will even grant it a hearing. An arrest warrant had been issued prior to the use of an unmanned aerial vehicle (UAV), so its provision was for tactical surveillance and not to establish the initial probable cause. However, I believe it’s only a matter of time before a surveillance drone case is granted certiorari by the Court. Forecasting their potential ruling requires a consideration of past Fourth Amendment decisions.

Relevant Supreme Court Case History

In 1924 the open fields doctrine was applied for the first time in Hester v. United States. The Supreme Court unanimously judged that a warrant was not needed to investigate private property if the area was in the open. Walking onto private property was not a search as defined by the Fourth Amendment. The uncontroversial opinion of the Court was delivered by Justice Holmes who wrote, “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects’, is not extended to the open fields.” When all nine Justices line up on the same side of an issue, and the opinion is written by “The Great Dissenter” Oliver Wendell Holmes, the precedent is powerful. As far as I know the open fields precedent still holds today.

Another early precedent for surveillance law, but one which has since fallen out of fashion, was set by Chief Justice Taft in Olmstead v. United States, decided in 1928. The Court found that wiretaps were not covered by the Fourth Amendment since listening to a phone conversation was not a search or a seizure in the traditional understanding. The Fourth Amendment protected against physical and intrusive searches, and listening to a phone conversation is essentially only eavesdropping, a common human activity. The Olmstead decision was a very close vote of 5-4, but it is the famous dissent by Justice Brandeis that most reflects the current precedent, and his sentiments are more indicative of our modern understanding of privacy.

Brandeis thought that the majority had gotten it wrong when they took such a literal reading of the Fourth Amendment’s privacy protections and found phone conversations were not covered. The fact that a sealed letter belongs unequivocally within the definition of people, houses, papers, and effects, while the as-yet-to-be-invented telephone was not mentioned within the Bill of Rights, does not lead to the conclusion that the spirit and intention behind the Fourth and Fifth Amendments are limited only to colonial era communications technology. Brandeis articulated the right to privacy as the right to be let alone, “the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”

In 1967, the Fourth Amendment’s protections against unreasonable searches was upheld in relation to electronic surveillance by a 7-1 Supreme Court decision in the case Katz v. United States. In the case, federal agents had obtained incriminating evidence against Charlie Katz by bugging a phone booth where he placed calls from. Katz argued that the Fourth Amendment protected his conversations, and since a warrant was not obtained to bug the phone booth, the evidence should not be admissible. The government countered that the language of the Fourth Amendment refers to specific places where searches are unreasonable, and a phone booth is not one of them. The majority opinion of the Court found that Katz’s Fourth Amendment rights had indeed been violated, overturning the previous precedent from Olmstead of limiting the definition of a search as a trespass on private property. The protections of the Fourth Amendment were found to require a warrant for searches where there is a reasonable expectation of privacy, such as a personal phone conversation within an enclosure and behind a closed door so that one may presume that eavesdropping by the general public is not a normal expectation. Justice Black cast a lonely dissent on the grounds that the Fourth Amendment only protected against physically intrusive searches.

Justice Harlan’s concurring opinion in Katz left us with the legacy of the reasonable expectations doctrine and its two-pronged test. For something to be defined as a search in terms of the Fourth Amendment, it must first be established that a citizen has a reasonable subjective expectation that the location observed is private, and then it must be determined whether society is prepared to recognize these expectations of privacy as objectively reasonable. A private residence is an example of a location where one might have a reasonable expectation of privacy subjectively and objectively. However, an open field on private property that is observable to the naked eye from a public vantage point does not enjoy the same expectation of privacy.

In 1979 the Supreme Court ruled 6-3 in Smith v. Maryland that when seeking the phone records from a phone company the government was not bound by the Fourth Amendment. Justice Blackmun wrote for the majority that the use of a pen register located at the phone company, in order to collect data on the outgoing phone numbers dialed by a suspect, did not require a warrant. The reasoning behind this is that a pen register at the phone company is not a search because the information has been passed on to a third party nullifying any reasonable expectation of privacy. This helped establish the Court’s third party doctrine, that privacy expectations were weakened once information has been willingly shared with a witness, including a company employee or computer system.

In the 1984 case of Oliver v. United States the open fields doctrine from Hester was reaffirmed and further justified on the grounds that reasonable expectations of privacy do not extend to open fields beyond the curtilage, the “area immediately surrounding the home”. Even when there is a sign that says “no trespassing”, since these signs do not prevent the general public from viewing open areas from high vantage points or aerial surveys, and thus do not provide a reasonable expectation of privacy. The 6-3 vote came with a dissent written by Justice Marshall. He argued that the area searched had not actually been viewable from any public vantage point, and the no trespassing sign indicated a desire to maintain privacy. He also called out the arbitrariness of including curtilage in the Fourth Amendment’s definition of persons, homes, papers, and effects, but not open fields.

California v. Ciraolo was decided in 1986 by a close vote of 5-4, with Chief Justice Burger writing the opinion of the Court. He suggested that a police operation which used an airplane flying at 1,000 feet in order to spot marijuana plants with the naked eye did not need a warrant, because the action of flying and looking, in an area already generally accessible by the public, does not constitute a search or a seizure. Justice Powell dissented on the grounds that the two part test formulated on Katz had not been truly applied by the majority. The defendant should be presumed to have had a reasonable expectation of privacy, because the chances were small that a commercial or private aircraft would fly over and observe the plants. The close vote shows how the problem of defining a search can split the Court, confusing our Fourth Amendment jurisprudence.

The 1989 case of Florida v. Riley is very similar to Ciraolo, with another slim 5-4 majority in favor of unwarranted aerial police surveillance to spot marijuana plants. Yet this time it was a helicopter at 400 feet and Justice White wrote for the Court. Another twist was the concurring opinion by Justice O’Connor, which suggested that the frequency of public flights was a key consideration and the defendant missed an opportunity to demonstrate that this was rare. The frequency of public use of the relevant airspace featured prominently in a dissent by Justice Brennan, except he concluded that the burden was on the prosecution to demonstrate that the general use of the airspace at 400 feet above the defendant’s home was not rare.

The Supreme Court decided Kyllo v. United States in 2001 by a narrow 5-4 vote, finding that surveillance of a person’s home using thermal imaging requires a warrant, even if from a public vantage point. Justice Scalia, writing for the Court, made the case that thermal imaging cameras that are able to see heat signatures through walls are a technology not widely used by the public, so the defendant had a reasonable expectation of privacy in this regard. The use of thermal imaging by law enforcement should thus be defined as a search under the Fourth Amendment, with all that this entails. In a dissenting opinion Justice Stevens contended that an intrusive search had not taken place, because the heat emanating from a home is no longer contained in the home, and could be detectable to the naked eye, such as when snow accumulates on cold surfaces but melts on warm ones. Even when members of the same court accept the same doctrine, in this case the reasonable expectations doctrine, they may still disagree about what those reasonable expectations are.

Earlier this year in United States v. Jones the Supreme Court unanimously ruled that the physical attachment of a GPS tracking device to a suspect’s motor vehicle without a warrant violated the Fourth Amendment. This case is informative because the Justices were split on how to apply doctrine to their ruling. Justice Scalia was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, and Sotomayor, in saying that the Fourth Amendment violation in Jones was the physical trespass to place the device on the defendant’s car. Justice Alito wrote a concurring opinion, joined by Justices Ginsberg, Breyer, and Kagan, which found that reasonable expectations of privacy were violated in the case, and that relying only on the physical trespass ignored the need for a modern application of the Fourth Amendment in the digital age. Scalia agreed with Alito’s opinion generally, but thought the case only needed the narrower ruling.

The Fourth Amendment case history relevant to surveillance by drones is fairly controversial, with many close votes of 5-4. However, the open fields doctrine from Hester has remained in force. The reasonable expectations doctrine from Katz continues to guide the Court in privacy cases, but the problem of how to define “reasonable” remains, with Justices disagreeing about which sorts of privacies we should expect society to find reasonable. Court doctrine by itself does not indicate the outcome of a Supreme Court case over warrantless surveillance drones, rather the interpretation of that doctrine by the individual Justices is the real determinant, and this is difficult to predict.

The Forecast is Drones

I don’t expect Senator Paul’s drone legislation to pass, especially given that there is a “drone caucus” in Congress (Hershaw), so the limitations on surveillance drones will likely be determined by the Supreme Court. How might the Court view the scenario feared by Rand Paul in which his local law enforcement in Kentucky uses a drone to monitor his curbside in order to ensure he separates his recyclables from his garbage? If Paul’s particular hypothetical were to be realized I suspect the majority of Justices would find that drone surveillance of his curb for this purpose to be not a search under the Fourth Amendment. Officers could watch from a surveillance van, or they could just go through his garbage after the fact, and these activities do not currently need warrants, so the there is no greater expectation of trash privacy just because a drone is now involved. I also suspect that Senator Paul’s trash police scenario is unlikely to be the focus of law enforcement drones to begin with, and doubt this will be the kind of situation the Court ends up ruling on.

The open fields doctrine will likely permit drones to be used for general surveillance in the same way that police helicopters have been allowed to do this. The use of new drone technology is particularly troubling though because it would permit law enforcement to put many more eyes in the sky, for longer periods of time, with better and better surveillance technologies, and the ability to hover out the public’s view. This is different than helicopters with humans observing the ground with the naked eye. Considering the Court’s ruling in Kyllo, a future majority may draw the drone surveillance line where new optical technology allows drones to spy in ways that are not available to the general public.

Yet, what does it truly mean to have a reasonable expectation of privacy if or when civilian drones become more commonplace? The website DIY Drones is a place for amateurs to share information about building and using UAVs demonstrating that drones are already a hobby. The membership on the site is already above 26,000 and likely to increase as drone technology becomes more widespread, cheaper, and innovative. As private drones become more ubiquitous the expectations of privacy from them will diminish. The Supreme Court’s doctrine of reasonable expectations may not be sufficient to prevent the general use of drones by law enforcement if the drones are employed within the same airspace as a proliferation of civilian drones. It is not clear how the Court would view the use of specialized optics by law enforcement drones, but if these technologies are widely available features on civilian drones then presumably a warrant will not be needed for high powered surveillance.

I predict that not only will there be police drones in our future, but also paparazzi drones, rescue drones, life-logging drones, and plenty more specialties beyond my imagination. The societal forces in favor of using drones involve a powerful conflagration of governmental and commercial interests. I don’t think the Congress nor the Supreme Court will stop the spread of UAVs, and we should probably adjust our reasonable expectations of privacy accordingly. I share Senator Paul’s sentiments about privacy and I believe that ubiquitous surveillance drones will be degradation of our rights in a practical sense. Nevertheless I think it is future we should brace ourselves for, and a sentiment shared by other futurist thinkers (Docksai). There are many myths surrounding drones, and some argue that the benefits outweigh the downsides (Calo, Villasenor), so it behooves a diligent public to understand these new technologies and the laws that will govern their use. And remember, you’re only alone at home in a future full of drones.

Jared Roy Endicott

Works Cited

Calo, Ryan and John Villasenor. “Ten Myths About Drones”. The Huffington Post. 22 May 2012. Web. 12 Jun 2012.

Docksai, Rick. “Unmanned Aerial Drones—Not Just for Battlefields Any More”. World Future Society, Blogs. 7 Apr 2012. Web. 12 Jun 2012.

Freeman, Elliot. “Death from Above: US Police Drone may Fire Tasers, Rubber Bullets”. Digital Journal. 24 May 2012. Web. 18 Jun 2012.

Herrmann, Lynn. “30,000 drones in American skies, civil liberties in jeopardy”. Digital Journal. 3 Feb 2012. Web. 12 Jun 2012.

Hershaw, Eva. “Send in the Drones”. Texas Observer. 2 May 2012. Web. 12 Jun 2012.

Paul, Rand. “Don’t Let Drones Invade Our Privacy”. CNN. 15 Jun 2012. Web. 12 Jun 2012.

Koebler, Jason. “First Man Arrested With Drone Evidence Vows to Fight Case”. US News and World Report. 9 Apr 2012. Web. 12 Jun 2012.

Wolverton, II, Joe. “First American Arrested by Aid of Drone Argues 4th Amendment Violation”. The New American. 6 Jun 2012. Web. 12 Jun 2012.

“Senate Vote 15 - H.R.658: On the Conference Report”. The New York Times, Inside Congress. 6 Feb 2012. Web. 12 Jun 2012.

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