______________________________________________________________________________________________________________________________ Synopsis: Emerging technologies in drone surveillance create unique philosophical and legal decisions about 4th and 1st Amendment protections. This paper discusses the issues inherent in surveillance, how drones magnify those issues, and what can be done to mitigate the potential harms to privacy and freedom of speech. ______________________________________________________________________________________________________________________________
Introduction The world has witnessed a dramatic increase in the use of Drones, or unmanned aircraft, over the past decade. What was once the substance of science ction books and movies has sprung to life in the form of ight capable robots that are warfare, law enforcement, and surveillance ready. The earliest conception of a drone started in Austria. Austria tried to bombard Italy by oating bomb carrying balloons over the enemy lines into Venice. Many other countries tried similar tactics. Rudimentary 1 1 Remote Piloted Aerial Vehicles : An Anthology, http://www.ctie.monash.edu/hargrave/ 1 rpav_home.html#Beginnings balloons were followed by the invention of radio control technology. In 1897 Ernst Wilson was given a patent for wirelessly controlled torpedoes. 2 The U.S. government uses drones in many contexts; the military, law enforcement, and the CIA. Unmanned ariel vehicles, or UAVs, were rst used to spy on 3 the Soviet Union and were heavily used in Vietnam for intelligence gathering purposes. 4 Many of the UAVs were shot down, but they were used to minimize the loss of pilots on dangerous missions. Cruise missiles became another form of drone because they are navigated remotely into their targets. The US also used surveillance drones in Afghanistan as early as the year 2000. New innovations in the militarys surveillance capability are completely staggering. The ARGUS (Autonomous Real-Time Ground 5 Ubiquitous Surveillance Imaging System) is a drone that is equipped with a camera capable of tracking specic object movement over a 36 square mile area! 6 As technology has advanced the price of drone technology has dramatically decreased and drones have become a consumer item and are being used for photography, video production, recreation, and inspection. Some drones are small enough to navigate through the inside of a house with precision and can still be 2 Benjamin Franklin Miessner, Radiodynamics: The Wireless Control of Torpedoes and Other 2 Mechanisms 83 (New York, D. Van Nostrand company, 1916) Kimberly Dvorak, Homeland Security increasingly lending drones to local police, Washington Times, 3 http://www.washingtontimes.com/news/2012/dec/10/homeland-security-increasingly-loaning-drones-to-l/ Ian G. R. Shaw, The Rise of the Predator Empire: Tracing the History of U.S. Drones, Understanding 4 Empire, http://understandingempire.wordpress.com/2-0-a-brief-history-of-u-s-drones/ Argus Panoptes is a hundred-eyed giant found in Homers Iliad. He is the inspiration for Benthams 5 Panopticon and apparently the militarys ARGUS. Ryan Gallagher, Could the Pentagons 1.8 Gigapixel Drone Camera Be Used for Domestic 6 Surveillance?, Slate, http://www.slate.com/blogs/future_tense/2013/02/06/ argus_is_could_the_pentagon_s_1_8_gigapixel_drone_camera_be_used_for_domestic.html equipped with sensory equipment. Other drones are being acclaimed for their ability to 7 stay airborne for very long periods of time, including drones that can theoretically stay airborne for years at a time. Amazon, the massive online marketplace, is currently 8 trying to nd a way to implement drones in the way they deliver products to their customers. There are even some private companies that have equipped consumer 9 drones with the ability to re a taser at a target. 10 All of this drone use and emerging drone technology begs the question of how this new technology will be used domestically for law enforcement purposes. Can it be used domestically and for law enforcement purposes at all? And if it can be used, under what circumstances will it be allowed? Drones bring up many privacy issues that force us to reevaluate our understanding of 4th Amendment protections. What is a reasonable search when a constant surveillance would effectively result in a perpetual search? Additionally, the cost-effective nature of drones brings up questions about the ubiquity of surveillance and how that will effect 1st Amendment protections. Does a citizen feel comfortable speaking freely about his government when he is concerned that he could be watched at all times? These questions of privacy and constitutional protections become especially acute when it comes to the governments plans using these drones 3 Think Geek, This tiny robotic dragony drone only costs $119, http://www.geek.com/news/this-tiny- 7 robotic-dragony-drone-only-costs-119-1533241/ Popular Science, A Solar-Powered Drone Designed to Fly for Five Years Nonstop, http:// 8 www.popsci.com/article/technology/solar-powered-drone-designed-y-ve-years-nonstop Amazon, Amazon Prime Air, http://www.amazon.com/b?node=8037720011 9 Kyle Chayka, Watch this Drone Taser a Guy Until He Collapses, Time, http://time.com/19929/watch- 10 this-drone-taser-a-guy-until-he-collapses/ for law enforcement and surveillance purposes. The difculty arises in the compelling nature of both privacy and protection arguments.
Fourth Amendment Considerations During the colonial era and in response to the growing smuggling problem the King of England authorized Writs of Assistance or search warrants to those who were in charge of searching shipping vessels. Writs of Assistance gave their owners the power to search anything at anytime and was not held responsible for anything that was damaged during the search. The colonists were repulsed by the abuses that stemmed from the Writs of Assistance. In large part, the Fourth Amendment was created in response to the Kings abuses of power. It 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 afrmation, and particularly describing the place to be searched, and the persons or things to be seized. 11 This amendment was created to protect citizens of the United States from the overwhelming police power of the government. Functionally, it prohibits police searches and seizures and requires the state to attain a warrant by showing that there is probable cause to search an individual or the individuals property and to seize a person and/or their property. The police power of the colonies pales in comparison to the police power of the United States Government today. Fourth Amendment protections are more 4 U.S. Const. amend. IV. 11 important now than they were when they were constructed because the balance of power weighs so heavily on the side of the government and its monopoly on police power. Furthermore, the ready availability of technological enhancements and replacements (drones) for law enforcement tasks destroys most historical natural barriers to surveillance. The Fourth Amendment enshrines privacy and Katz v. United States demonstrates that privacy is protected by the constitution. Katz represents the gold standard for privacy concerns in the legal realm. This case established that the right of 12 privacy is in the person and not in the place and coined the phrase, reasonable expectation of privacy. The court has applied the reasonable expectation of privacy 13 test to many cases that have followed. Included in those cases is a series of cases involving manned ights over the tops of individuals property and whether someone has a reasonable expectation of privacy in those things that can be seen from above. These types of cases provide the closest analogy to the use of drones for law enforcement purposes. In California v. Ciraolo, the police received a tip that someone was growing marijuana in their backyard. The police were unable to corroborate the tip 14 because of the fence that surrounded the home. The police ew an aircraft 1,000 feet over the backyard and conducted an inspection. The ofcers were able to spot the marijuana in the backyard and the individual was convicted. The court held that the owner of the home did not have a reasonable expectation of privacy in his backyard 5 Katz v. United States, 389 U.S. 347, 351 (1967). 12 Id. 13 Ciraolo, 476 U.S. at 213. 14 area that was visible from above because anyone that ew in a plane over his house could have looked down and seen his backyard. In a similar case, Florida v. Riley, the police were informed that someone was growing marijuana in a greenhouse near his mobile home. The inside of the greenhouse could not be seen from outside and the 15 police decided to y a helicopter at an altitude of 400 feet over the greenhouse. The police were able to see the marijuana through a hole in the roof and the suspect was convicted. The court found that this was not a search because the air above the greenhouse was navigable airspace. Finally, in Dow Chemical v. United States the 16 EPA hired a professional ariel photographer to take photos of an industrial plant and its surrounding area. The court found that areas surrounding industrial complexes do not 17 have the same protection as the curtilage surrounding a home. In other words, an industrial complex carries less of an expectation of privacy in its curtilage than the curtilage of a home. Given these cases and their reasoning it seems highly unlikely that the court would suggest that the use of a drone or UAV for a law enforcement search would be unconstitutional. The previous paragraph speaks only to manned aircraft ights and does not speak to drones and how they will inform our understanding of privacy. In order for privacy to be protected in United States courts drones must be distinguished from manned ights. Otherwise it is very unlikely that the court will hold that drones used for law enforcement purposes are any different than manned ights. A court decision such as that would lead to the evisceration of the Fourth Amendment and we would live in an 6 Florida v. Riley, 488 U.S. 445, 448 (1989). 15 Id. 16 Dow Chemical co., 476 U.S. 227. 17 almost complete surveillance state. Drones can be distinguished from manned ights in a number of ways. First, drones are much less expensive than a police ofcer and a patrol car, a police helicopter, or any sort of airplane that could be used for law enforcement purposes. This distinction is important because, historically, privacy was protected by the sheer practical aspects of police work. There were natural economic and manpower barriers to full-scale perpetual surveillance. Searches were limited to the amount of resources available to law enforcement. In the past, police departments were forced to carefully choose how they allocated their resources. A similar distinction was made in United States v. Jones. In Jones law enforcement placed a tracking device on the 18 suspects vehicle without a warrant. The case described that the GPS device could track the vehicles location within 50 to 100 feet of its actual location and the device relayed more than 2,000 pages of data over a 4-week period. The court held that placing the 19 tracking device on the vehicle was search because it constituted a trespass on the private property of the suspect. Justice Sotomayer, in the concurring opinion commented that the inexpensive nature of the GPS tracking device, evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility. With the advent of inexpensive drones, small 20 camera sizes, and other advances in surveillance technology the natural barriers that protected privacy have all but disappeared. The debate must now shift to discuss the competing values of privacy and the merits of surveillance as a means of protection. 7 United States v. Jones 132 S. Ct., 945, 181 L.Ed.2d 911 (2012) 18 Id. 19 Id. at 956 (Sotomayor, J., Concurring) 20 How much privacy are we willing to give up for the promise of protection? How much protection are we willing to give up for the sake of privacy? These questions bring a new reality with them as total surveillance has never before been an option for law enforcement. Second, drones will be traveling much closer to their intended targets than the manned ight Supreme Court cases. Ciraolo, Riley, and Dow Chemical were all manned ight cases where the observation took place at altitudes of 1,000 to 400 feet above the ground and the court held that they were not searches. The altitude of ight sustained by a drone is much different than manned aircraft. The exibility provided by drones would allow them to y at altitudes well below 100 feet and, in some cases, into homes. This is much closer than most manned ights would ever be willing to go. If altitude of ight or proximity to the target subject become a factors in the use of drones for law enforcement how will the court draw a line between what is close enough to be considered a search and when is it far enough away that it is no longer a search. Additionally, in light of rapidly expanding technology capabilities the altitude of the ight may be an irrelevant question. Advanced Photographic lenses, LIDAR (reects a laser at a target and measures the distance from the point of origin to its target by using the reection of the laser), and thermal sensors can easily be attached to drones and can make the question of altitude completely irrelevant. 21 Third, drones also carry the potential capability to stay in constant ight. In addition to their constant ight capabilities drones can maintain a xed position in the air. This is radically different than observing something in plain sight while merely 8 National Ocean Service, LIDAR - Light Detection and Ranging - Is a remote sensing method used to 21 examine the surface of the Earth, http://www.webcitation.org/6H82i1Gfx passing by or ying over someones property. This is more akin to building a tower next door and setting up a watch-post. This is reminiscent of the Fifth Circuit Court of Appeals case United States v. Cuevas-Sanchez. In Sanchez the police suspected 22 that an individual was using his home as a drop off location for drug dealers. The police were able to get a court order to place a video camera on a utility pole that overlooked the individuals 10-foot fence. Because of the video camera footage, the ofcers were able observe as the individual removed drugs from cars gas tanks. The individual was later arrested and tried to suppress the evidence arguing that the warrant was defective. The court rst addressed the question of a search. The court decided that there was a search and stated that this was not a one-time overhead ight or a glance over the fence by a passer-by . . . it does not follow that Ciraolo authorizes any type of surveillance whatever just because one type of minimally-intrusive aerial observation is possible. A stationary oating drone shares many characteristics with the camera that 23 has been placed on a fortuitously situated utility pole and should be treated the same way by the law. While the court must interpret the 4th Amendment, Congress has the ability to extend its protections as long as they are constitutional. Congress has made efforts to do just that by drafting bills that would apply strict rules to the use of drones for surveillance purposes. First, There is the Preserving Freedom from Unwarranted Surveillance Act. This bill would require law enforcement to get a warrant before using 24 drones. There are specic exceptions to the requirement laid out in the bill including, (1) 9 United States v. Cuevas-Sanchez, 821 F. 2d 248 (5th Cir. 1987). 22 Id. at 251. 23 H.R. 972, 113th Cong. (1st Sess. 2013). 24 preventing entry of illegal persons or substances into the United States; (2) when a law enforcement ofcer has reasonable suspicion to believe that action must be taken to protect someone from harm, prevent damage to property, or stop the destruction of evidence or escape of suspect. Second, the Preserving American Privacy Act restricts government drone use by regulating the surveillance of information that would likely identify an individual or reveal things about the individuals property that are not in plain view. This act would make all 25 evidence obtained as a result of an illegal drone search inadmissible in court. Finally, there is the Drone Aircraft and Transparency Act, which amends the previously enacted FAA Modernization and Reform Act of 2012 to regulate all government actors use of drones. This bill would rst require government agencies 26 planning to use drones to study any potential threats to privacy that would result from drone use. It then requires the potential drone user to create a data collection statement that includes, (1) a list of the people who will be operating the drones; (2) the geographic location where the drone will be used; (3) the amount of time that the drone will be used; and (4) what kind of information the drone will be collecting (making it explicit if the drone will be used to collect information about individual people). If the drone will be collecting personal information about individuals then the statement must include, 10 H.R. 637, 113th Cong. (1st Sess. 2013). 25 H.R. 1262, 113th Cong. (2d Sess. 2013). 26 (1) how the information will be used; (2) what kind of information will be collected; (3) how the agency will minimize the data that will be collected; (4) whether the information will be sold; (5) the length of time that the information will be stored; (6) how the agency will destroy data that is not relevant to their use. The statement must also include a section that details the privacy ramications of their specic drone usage. Additionally, it is required that the FAA post the data collection statement online. This bill is probably the most comprehensive and was given the most teeth in that an individual/agency that does not comply with the standards can have their drone license revoked. It would also create a private right of action for someone who is injured as a result of a violation of the legislation. All of these bills seem to be very helpful in the battle for privacy, but one must keep in mind that the bill must be passed by congress and become law in order to become effective. Which may be a tall order for our current legislative body.
First Amendment Considerations 27 In the late 18th century Jeremy Bentham wrote a series of letters describing a theoretical prison. The prison was called the Panopticon. Inside the panopticon it was 28 possible that a single guard could see any of the inmates at any given moment, but the 11 The author is aware that drone use could potentially increase freedom of the press in its ability to equip 27 reporters and news agencies with inexpensive and efcient ways to gather and disseminate information. There is a tension within the First Amendment that will not be discussed in this paper. Jeremy Bentham, Panopticon (1787) 28 inmates were not able to see where the singular watchmen was looking. The whole idea and purpose was to create an atmosphere where the specter of being watched was ever-present in the mind of each inmate. Bentham described the panopticons effects on both the inmate and the observer as, a new mode of obtaining power of mind over mind, in a quantity hitherto without example. Furthermore, he went on to describe the 29 Panopticon as a mill for grinding rogues honest. For Bentham the grinding and 30 power of mind over mind that took place for the prisoners was the result of a culture where one can potentially be watched at all times. Drones are one way that the United States could effectively become a nation-sized or worldwide panopticon. Ubiquitous use of drones to surveil citizens of the United States would necessarily have a similar grinding effect. The fascinating distinction between the United States and Benthams panopticon is that the panopticon is a prison, whereas the United States, for the most part, is populated by law abiding citizens. If the the threat of perpetual surveillance grinds a rogue into an honest man, what does the grind produce when an honest man is perpetually surveilled or under threat of perpetual surveillance? Whos power of mind will have power over the minds of law-abiding individuals as a result of surveillance? The First Amendment protects our ability to communicate. It states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 31 12 Id. at 2 29 Jeremy Bentham, The Correspondence of Jeremy Bentham, iv 342 (J.R. Dinwiddy, Oxford 1988) 30 U.S. Const. amend. I. 31 There are three interconnected costs to surveillance and the protection that is claimed to be had through its use; privacy, autonomy, and trust. The First Amendment seeks to 32 protect all of those things. Privacy consists of our ability to dene ourselves through giving us a degree of autonomy and protecting our dignity. Autonomy is dened as 33 the opportunity one possess to present himself in the manner that he chooses. And trust pertains to the trust that the individual has towards the person, or organization, that surveils him. These ideals are balanced against other important interests. From a law enforcement standpoint the benet to be derived from surveillance is the benet of protection. This makes sense, if law enforcement can see more then it will be able to prevent more crime and provide thorough investigations of crimes that have already been committed. The idea is that the more a person is watched the less likely they are to commit a crime. This was exactly what Bentham had in mind as he ponticated on the merits of the Panopticon, it is the oppressive burden of being watched that grinds the inmates honest. Therefore it is important to weigh the costs and benets of surveillance. Additionally it is important to analyze the context in which the surveillance is taking place. The costs of surveillance are inextricably linked to the rights of association, speech, assembly, and free exercise of religion. Benthams panopticon provides an interesting thought experiment, but it may be wrong. It may be wrong because it consists solely of the philosophical musings and observations of Bentham himself, which isnt exactly scientic. Psychologists have found that people react differently when they are being observed. When this occurs, the 13 Internet Encyclopedia of Philosophy, Surveillance Ethics http://www.iep.utm.edu/surv-eth/ 32 Id. 33 subject of an experiment will alter their behavior in order to match the expectations of the observer. An interesting example of this phenomena is the Hawthorne effect, 34 which causes the individual being observed to work more effectively because they know they are in a special group and are watched by those conducting the study. The 35 analogy between psychologist observing their subjects and the government observing its citizens breaks down at a certain point. Unfortunately, the breakdown only tends to highlight the dire nature of citizen/government relationship in the context of surveillance. The scientist only has authority over the subject of the experiment insofar as he is an expert and is trusted by the subjected. On the other hand, the governments authority over the individual is much more intense. The government represents the states monopoly on police power. If the subject of a simple experiment is likely to change their behavior in order to produce results desirable to the researcher, simply based on the researchers position of authority, then it is innitely more likely that a citizen will change their behavior in order to match the expectations of a police ofcer carrying a gun. The overwhelming surveillance force posed posed by future drone capabilities combined with the police power of the state (guns, tear gas, and bullet-proof vests) has the enormous potential of chilling speech. It is not hard to think of a scenario in which specic people, groups, and ideas are deemed a threat to the state or some ideas are held to be better than others by the government. Through surveillance the state effectively takes power of mind over the minds of its citizens. 14 Barry Kantowitz, Henry Roediger, III, David Elmes, Experimental Psychology, 371 (Rebecca Rosenberg 34 et al. eds., 9th ed. 2008). Id. at 69. 35 There must be a framework informing the government about when it is appropriate to use drones for the use of surveillance. Obviously there are occasions when law enforcement must be able to observe people that they reasonably suspect to have committed a crime. It is of little debate as to whether the United States can surveil and observe its enemies. But dragnet and widespread use of drones for the purposes of domestic surveillance would effectively rob United States citizens of their First Amendment rights. There are a few factors that must be taken into account and analyzed when making these decisions. First, who is carrying out the surveillance. Here, the observer is the government as represented by law enforcement agencies. Where does the state gather authority to carry out the surveillance? The states authority springs from the justifying cause to use it in the rst place. In this case the justication for using the surveillance is protecting 36 individuals. But the state loses its authority when it goes beyond the scope of its original justication. For example, if the state is patrolling a dangerous neighborhood in order to protect the individuals that live there the states use of surveillance is justied. But if the state is patrolling the neighborhood in order to spy on all individuals in the neighborhood then the surveillance is not justied. Therefore the authority of the state to carry out surveillance is not the result of the states status or from the states unique obligation to protect its citizens, but from the specic purpose for surveillance. Second, the necessity of the surveillance must also be scrutinized. Showing necessity is important in that it does not allow for arbitrary drone surveillance of all people. In order to carry out surveillance missions law enforcement must show that 15 Internet Encyclopedia of Philosophy, Surveillance Ethics http://www.iep.utm.edu/surv-eth/ 36 there is a specic need that must be lled. Article 8 of the European Convention on Human Rights includes a necessity requirement in the context of privacy, There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well- being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (emphasis added). 37 Many factors can be taken into account when discussing necessity. How large is the threat? Is the threat imminent? Are there alternative means of gathering the same information? Should drone surveillance be regarded as a last resort? How reliable is the source that is feeding information to law enforcement about the threat? Necessity would most likely become a totality of the circumstances type of test. Currently, the United States faces particularly difcult questions about necessity. In the aftermath of 9/11 an argument can be made that the devastation of a single terrorist act makes it necessary to surveil for all potential threats. Advancement in technology has given law enforcement the capability for a virtually complete surveillance system. The United States sits at a philosophical junction and must choose between the promise of protection through surveillance and privacy. 38 Third, the question of who is being surveilled is very important. Warrant requirements and a showing of probable cause to execute a search have been ways to 16 European Convention on Human Rights art. 8, Sept. 3, 1953, E.T.S. 5, 213 U.N.T.S. 221. 37 It is important to note that surveillance is not equal to protection. 38 narrow the pool of people that can be searched by law enforcement. Much ink has been spilled dening a search and creating exceptions to the warrant requirements. People are usually comfortable with the idea of searching someone who law enforcement has probable cause to believe is the suspect of a crime. It is when law enforcement begins to search everyone that there is an issue. This can easily be seen in the United States reaction to random and thorough TSA searches in airports. Fourth, the government must analyze how they will carry out their surveillance. This is probably the most applicable step in the analysis because drones are one way in which surveillance can take place. This paper has already distinguished drone surveillance from other types of surveillance, including manned ight surveillance. Drone surveillance has the potential to be highly invasive and incredibly pervasive.
Conclusion Growth in technology has never come without growing pains. With the massive growth of drones and surveillance technology the growing pains are and have been particularly painful because they needle at some of the most cherished values enshrined in the Constitution. The 4th amendment was created to protect us from searches that are unreasonable and without warrant. It is meant to narrow the focus of police searches and seizures to those people that are suspected of crimes. In the history of the world, a complete surveillance state was never a realistic option. It simply cost too much. We are now faced with a world where the option for a total surveillance state is a reality. 17 The technology is sufcient to equip law enforcement with tools that would allow them to maintain a consistent and steady surveillance of every individual in the country. In fact, it may even be less expensive to do that than it would to continue hiring ofcers and buying patrol cars. Furthermore, it would keep law enforcement safer. But are we willing to submit ourselves to a perpetual search? Are we prepared to shoulder the onerous burden of lidless government eyes? The answer is no. The cost is too high and the benets will not outweigh the costs. The use of drones by the government to watch its citizens must be highly regulated and cannot become commonplace. If drone surveillance were to become ubiquitous the very notion of an unreasonable search would lose all meaning for we would constantly be searched. There wouldnt be a time when you would not be the subject of a search. The First Amendment allows for a vibrant and productive marketplace of ideas. The health of the marketplace absolutely depends on the willingness of those who participate to be honest and communicate without fear of reprisal. The more ideas that are shared the better the marketplace will be. The nation-wide Panopticon created by loose use of drones for surveillance purposes would grind at the very foundation of this marketplace. It would have the effect of making all ideas the same and many of those ideas would tend to match those of the armed observer. Again, the products of the rst amendment are too precious to be sold for the promise of protection. The use of drones by the government to observe its citizens should be highly regulated and narrowed with the use of legislation and court decisions.
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