Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment
48 Pages Posted: 7 Nov 2013 Last revised: 1 Apr 2014
Date Written: February 3, 2014
By the end of this decade it is estimated that 30,000 drones will occupy national airspace. President Obama has set a deadline of September 2015 for the Federal Aviation Administration to promulgate new regulations for safely integrating drones into the national airspace. Law enforcement agencies around the country have purchased drones and are testing the new technology. On June 19, 2013, FBI Director Robert Mueller told Congress that the FBI has deployed drones for surveillance on domestic soil and is developing guidelines for their future law enforcement use.
The very essence of drone surveillance is that it is less expensive and more efficient than conventional aircraft at tracking the movements of large numbers of people without their knowledge. The capabilities of onboard instruments like high-resolution cameras, infrared devices, facial recognition systems, and other sensory enhancing technologies will make it virtually impossible to shield oneself from government watch. Fourth Amendment privacy jurisprudence has yet to grapple with drones and their unprecedented surveillance capabilities. In the short term, legislative action will likely provide more substantive protection for individual privacy interests. Although there is bipartisan concern in Congress for how unmanned aerial surveillance may erode expectations of privacy, legislators are yet to reach consensus on a regulatory approach. States have responded more quickly to privacy concerns raised by drone use. More than eighty bills and resolutions have been introduced in forty-two states. Since January 2013, eight states have enacted drone surveillance legislation. This article is concerned with government use of unmanned aerial surveillance and the limits the Fourth Amendment and legislative action can place on this new technology. How will courts evaluate whether unmanned aerial surveillance in navigable airspace constitutes a search under the Fourth Amendment? Supreme Court jurisprudence on aerial surveillance is limited to cases dealing with manned aircraft flying at low altitudes. Is there a permissible length of time that surveillance may be used without triggering Fourth Amendment protections? Justice Alito, along with three other justices in United States v. Jones cautioned that some government surveillance does not implicate the Fourth Amendment. Who will be allowed to access the information the drones collect and how long can it be stored? In a digital age where such large quantities of data are transmitted to third parties, lawmakers are concerned about the dissemination and retention of information collected from drone surveillance. This article explores these challenging, largely unexplored questions and offers constitutional and legislative prescriptions for regulating drones.
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