Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy

56 Pages Posted: 22 Mar 2017 Last revised: 24 Aug 2017

See all articles by Rebecca L. Scharf

Rebecca L. Scharf

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2017

Abstract

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such as the use of photography, audio recording, heat sensors, or GPS violated an individual’s Fourth Amendment right to privacy. But now, one of the most complex and innovative technological advances in recent years, the unmanned aerial vehicle, or drone, has created an especially difficult issue for courts. Because a single drone can be fitted with multiple technologies, courts need to employ a multidimensional analysis to determine whether an individual’s Fourth Amendment rights have been violated. Thus, with technology advancing quicker than the Court can address, lower courts are left without direction on how to handle this important constitutional quandary, leaving individual right to privacy vulnerable. This Article builds on other scholars’ work promoting a “technology-based” definition of what constitutes a search, by creating a three-factor test for courts to utilize when faced with a drone privacy issue. Specifically arguing that courts should apply a presumption that a warrant is necessary absent exigent circumstances when law enforcement uses drones to survey an individual’s home or curtilage by considering: 1) What type of technology is the drone employing in the search, 2) What is the extent of the surveillance?; and 3) What is the extent of the privacy interference? No longer are the days of addressing the use of a singular technology, as courts will soon, if not already, be inundated with cases involving the intersection of multiple technologies through the use of drones and privacy.

Although other scholarship explores drones and privacy concerns, this Article is novel in that it offers a practical approach for courts and law enforcement to utilize, while offering the historical framework for each factor. Guiding courts and law enforcement to handle privacy concerns with the use of drones will provide a structured and approachable analysis that can apply regardless of the drone-in-question’s capabilities and the amount of technologies used.

Keywords: drones, unmanned aerial vehicles, UAV, UA, UAS, FAA, Fourth Amendment, surveillance

Suggested Citation

Scharf, Rebecca L., Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy (2017). Utah Law Review, 2018, Forthcoming; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2929104 or http://dx.doi.org/10.2139/ssrn.2929104

Rebecca L. Scharf (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States
(702) 895-2356 (Phone)

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