By: Chris Sexton*
February 17, 2016
Justice Scalia once opined, “there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Society allows some criminal activity to occur because, in some instances, we value privacy more than we value safety or crime control. Until recently, Unmanned Aerial Vehicles (“UAVs”) used to be a technology of tomorrow—a concept that once seemed completely farfetched, improbable, and even a bit eerie. Yet, very soon they could potentially pose formidable issues to our Fourth Amendment, which protects our right to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures.”
Currently, UAVs are emerging as a cutting-edge, state-of-the-art technology for law enforcement agencies. Many of us know these technological devices simply by the name of “drones.” Several law enforcement entities around the country have been considering the use of these semi-autonomous devices for purposes of conducting surveillance. In many areas around the country, law enforcement officials are already authorized by the Federal Aviation Administration (FAA) to utilize drones. In North Dakota, a man was actually found guilty with admissible evidence obtained from a drone. This new dynamic begs the question presented above: Are we willing to trade off our privacy for the use of these all-seeing-eyes of the sky for the sake of our safety and security? From an economic standpoint, do the marginal social benefits of drone use outweigh the marginal social costs that they impose?
Reality is beginning to set in that drones could pose a considerable privacy issue in the near future. One of the main areas of conflict is whether or not a warrant should be required to use a UAV or drone. Generally, a “search” without a warrant is considered unreasonable and in violation of the Fourth Amendment unless it falls under an exception. However, the use of drones may actually not be considered to be a “search” at all, which explains the growing concerns. As is the case with many states, policymakers in Pennsylvania, New Jersey, and Delaware are considering this very issue.
The objective of this note is to analyze this issue from an economic standpoint, by considering the social costs and benefits in using drones and the policy purposes they could potentially serve. Following an analysis, this note argues that, with a lack of current laws governing the use of drones by law enforcement, future regulations and legislation should be enacted to permit law enforcement to utilize drones without a warrant.
I. What Exactly Is A Drone?
Drones are high-tech aircraft, controlled by a crew potentially miles away from any dangers and are amply equipped for the task of reconnaissance. Not only are these devices cost-effective in comparison to helicopters and other mobile aerial surveillance vehicles, but drones and UAVs are, without question, strongly effective in their surveillance and reconnaissance abilities, which would suggest why the military uses them to conduct these very tasks. A bird’s-eye view of a given situation is often times much more effective than a ground view. Drones make a new kind of surveillance possible because they can be relatively quiet, have hovering and stealth capabilities, can be solar powered, can fly autonomously, can cover a very wide area in a short time, and are mounted with high-resolution cameras and capable of holding other technologies. Drones could revolutionize law enforcement in ways that were impossible to do before.
To one, this may provide an incredibly secure safety blanket over us. To another, however, a semi-autonomous machine comparable to modern day police officers is alarming. Lawmakers in favor of drones would argue law enforcement officials would save a great deal of money, and possibly lives, by deploying more drones for both surveillance and other operations, like a modern day patrol officer. Those against using drones for anything but emergencies would argue that flying machines that can watch, record, and transmit our every move are an excessive breach of personal privacy. “Can you imagine? You’re sitting in your backyard enjoying some quiet time with your family, and the government’s there photographing and recording what you’re saying.” This note provides analysis on this very concern.
II. The Issue
“The legal issue of domestic drone deployment in the context of law enforcement is itself a little like a drone: it has stolen up on us and is now hovering noiselessly overhead.” The interesting thing about the equilibrium between privacy and security is that both interests are quite difficult to put a value on. However, the Supreme Court of the United States has tried to draw a line where it believes that the balance ought to be, but has yet to address an issue regarding drones in the law enforcement context. Nonetheless, drones seem to circumvent the current doctrines that would govern them, effectively allowing law enforcement agencies to utilize these machines to conduct surveillance, just as a patrol officer would, without a warrant so long as they are in compliance with other regulations and legislation. Therefore, drones may actually disrupt this balance that the Supreme Court has imposed in an unprecedented way. The following should illustrate this point.
Under Supreme Court precedent, drones would circumvent the current doctrines that would deem their use as a “search” for Fourth Amendment purposes. Under what is known as the trespass doctrine, police would have to physically trespass on one’s property in order for a “search” to be deemed to have occurred, and a warrant be required. In other words, they would have to land a drone on someone’s property in order for the action to constitute a search and thus require a warrant. But in this era of “big data,” the line between public and private can no longer be delimited by physical boundaries. A unique ability that drones possess is that they hover, which would not constitute a trespass, and thus not constitute a “search” for Fourth Amendment purposes. Unlike helicopters or airplanes, drones can safely operate at very low altitudes with very little interference to their surroundings. Only a small handful of laws address conflicts over low-altitude air space trespass through governance rules, and even they are not very reconcilable.
Under what is known as the reasonable expectation of privacy doctrine, warrantless drone use would not be a violation either because there is no reasonable expectation of privacy over something that is observable to the public in legally navigable airspace.
The only doctrine that could deem drone use a “search” is the general public use doctrine, and even this doctrine would likely fail to offer any protection to privacy. Under this doctrine, use of technology by law enforcement focuses not on the capabilities of the equipment or the intimate details the equipment may reveal, but rather on whether the technology in question was in the “general public use.” This still would likely not suffice to deem drone use as a “search” under the Fourth Amendment: drones are now available in many department stores and even your local 7-Eleven.
Likewise, while there are some states that have legislation barring the use of law enforcement drones without a warrant, many federal agencies and states including New Jersey, Pennsylvania, and Delaware, are struggling with drafting or adopting such legislation. This note argues that, from a policy standpoint, it is problematic to require the use of a warrant to use a drone because the social benefits outweigh the social costs of domestic drone use by law enforcement. I will provide an example to help illustrate this point, based off of another example introduced by Professor Gregory McNeal of Pepperdine University Law School. Consider the following:
Imagine a police officer was on patrol in her patrol car with her dash cam on. While driving, she witnesses a passenger a few cars in front of her lean out and commit a drive-by shooting on an individual. The car speeds off and the officer becomes engaged in a hot pursuit, endangering the lives of not only herself, but also innocent bystanders. Until witnessing the crime, the officer did not have probable cause or even reasonable suspicion to believe the person in the vehicle in front of her would be involved in a crime. Nonetheless, that dash cam video may be used as evidence against the driver in a subsequent criminal proceeding.
Now imagine the same situation, but instead of a police officer in a patrol car, a drone was patrolling the area. With rules requiring a warrant, the same piece of evidence gathered by that drone that was patrolling a wide area from the air, in lieu of a policeman in a police car with a dash cam, which can only see what is directly in front of it, would be inadmissible in court because no warrant was obtained. In addition to providing a bird’s-eye view of the crime that took place, the drone could follow the suspect and even help in making the identification. Furthermore, there would be less of a risk of endangering the lives of either law enforcement personnel or innocent bystanders due to the suspect’s attempt to evade the police because they would likely not even know a drone was above patrolling the area in the first place, whereas they would very likely be aware if a police officer were present.
The next section provides further insight on the economic analysis on drone use by law enforcement by weighing the marginal costs and benefits of it.
III. Economic Analysis and Considerations
The critics of drone use mainly argue that these devices will infringe upon privacy rights. In this day and age, the marginal privacy cost seems very overvalued and the marginal benefits of safety are undervalued. This does not mean that police should be able to use drones to roam around places without a warrant with free reign. Drones should have some restrictions, but a balance in social costs and benefits could be met without going so far as requiring a warrant.
A. The Devaluation of Privacy With Law Enforcement Drone Use
Regardless of whether you are doing something unlawful or not, there is still something bothersome about law enforcement, or anyone for that matter, watching you. Imagine yourself at a sports event and you look up to see a law enforcement drone circling the area like a hawk. For some reason many individuals find that thought, despite the safety it may provide, to be very uncomfortable. In a statement by Christopher Calabrese, a member of the legislative counsel for the ACLU, he explained:
The prospect of cheap, small, portable flying video surveillance machines threatens to eradicate existing practical limits on aerial monitoring and allow for pervasive surveillance, police fishing expeditions, and abusive use of these tools in a way that could eventually eliminate the privacy Americans have traditionally enjoyed in their movements and activities.
Advocates of placing warrant restrictions on drones would likely concede that drones are unquestionably effective at surveillance. Indeed, it is that aspect alone that probably justifies their fear and privacy concerns with drones in the first place. These advocates feel that these “machines,” with their hover-and-stare capabilities are going to ruffle some feathers, and give us this uncomfortable feeling of being watched on an everyday basis.
Surveillance, in its inherent nature, is going to tread on at least some privacy rights of individuals. It is advocated that drones and UAVs tread much more on privacy rights than others because they have extraordinary surveillance capabilities and are relatively inexpensive, which could lead to a greater quantity of them. Thus, while they are effective at conducting these tasks, critics are worried that they will be so effective that they will put us in to an Orwellian world where the only thing that is safe from exposure is “the few cubic centimetres inside your skull.”
This, however, seems like an over-reaction. It is acknowledged that privacy is valuable, but there are doubts that drones will make a significant negative impact on the invasion of our privacy. Most of us would agree with a quote made by Professor Jeffrey Rosen, the President and CEO of the National Constitution Center:
[B]efore September 11th, the idea that Americans would voluntarily agree to live their lives under the gaze of a network of biometric surveillance cameras, peering at them in government buildings, shopping malls, subways and stadiums, would have seemed unthinkable, a dystopian fantasy of a society that had surrendered privacy and anonymity.
“Cameras on every corner, Google, Facebook, cell phones: the data-mining regime is well entrenched, for good or ill, and a few aerial shots from drones, the thinking goes, are not going to change much.” If it is strictly our privacy that we are so worried about, then drones will not make much of a negative impact. Not too long ago, to be on camera, one would have to rob a bank; now cameras are on street corners and everyone has one in the palm of their hand. Think about how many times you are on camera on a daily basis, whether it is from a traffic light or a surveillance camera in the local bank. Many of these mechanisms are not used by law enforcement, but they still invade our privacy to a great extent.
One who is not naïve certainly has to acknowledge that while privacy is not necessarily gone, it has been drawn back severely since the age of the Internet. It is almost contradicting to mark our privacy as so high and yet use, or at least not oppose, all of these technologies that invade it. As Mark Zuckerburg, the CEO of Facebook, said, privacy is no longer a "social norm." Our information is already out there in some way and regardless of how badly we want it back or want it to be completely secure, it is not going to happen.
While privacy is certainly a social value, its value cannot be as high as many think that it is. One certainly may question whether this changes when we consider the government’s use of this technology versus a private citizen’s use of it. In other words, does it bother us that the government is watching us perform activities more than a private individual?
It probably should not: our privacy has greatly diminished with technology and, whether you think it is beneficial or not, we cannot un-invent something. The gravamen of this argument is that drones taking pictures in the sky by law enforcement are not any more intrusive than say, the cameras on the street corners, the smart phone cameras that nearly everyone has, or even civilian drones, which were recently legalized for use in early 2015. We utilize an immense amount of technology even though we know that, in some way, it may be intruding on our privacy, or has the potential to do so. However, we deem these intrusions to be less valuable than the benefits we obtain from the use of that technology. Is it so ludicrous that the same argument be advanced to drones used by those we deem as the protectors of our community?
B. The Valuation of Safety Gained By Warrantless Drone Use
On the other hand, the safety and other social benefits we could obtain from drones or UAVs are undervalued. Many believe that the use of drones would simply be used to enforce minor crimes or capture speeders on camera. However, there are much bigger social benefits to using drones for law enforcement purposes. Consider an example:
Imagine an everyday situation where the police receive an anonymous tip of a crime occurring. Specifically, the person in question is manufacturing heroin in their backyard in a greenhouse. They have “Do Not Enter” signs, a large fence, and bushes are surrounding the outside of the fence. Without a warrant, the police decide to fly a drone over the back yard and they observe several blocks of heroin in the green house. This observation would be unlawful under proposals that require the use of a warrant because there is no probable cause in this instance. In addition, it would be very burdensome for a local police force to get an overhead look without an aerial vehicle.
However, these facts are nearly the exact same as the 1986 Supreme Court case, California v. Ciraolo. The only difference is that in Ciraolo, the police used a helicopter to fly over the property and the drugs in question were marijuana plants. An overwhelming majority of police departments cannot afford to purchase airplanes or helicopters. In this situation, under proposals requiring a warrant, that same exact evidence obtained from a drone would not be admissible. A drone is the functional equivalent of a helicopter or an airplane in this situation and could be utilized for a fraction of the price. This would expand the capabilities of law enforcement personnel greatly.
Consider another example. Aside from dismantling dangerous on-going situations, law enforcement could even utilize drones as preventative measures against crime to deter it from taking place in the first place, much like a patrol officer. With shootings occurring on a near daily basis now, drones over watching schools or playgrounds, outside of large sports events, over watching national monuments for suspicious activity and the like would provide very strong security without risking life or limb. This may not be the ideal example to address the privacy concerns that drones pose, but it does effectively address the opportunity cost of requiring warrants to use drones for law enforcement purposes.
In light of the tragic shooting that occurred in Paris, police may want to fly a drone above other events or cities with large amounts of people to ensure the safety of the public. Under regulations or a bill requiring the use of a warrant, police would not be allowed to use a drone in this way unless they had a warrant premised upon probable cause that a crime had been or was about to be committed.
This requirement would be extremely difficult to meet under current Fourth Amendment protections due to the reasonableness of observing activities in public places. In other words, the police would have to have facts to prove to a judge that they had probable cause, which would need to define, with particularity, the place to be searched, or the people to be surveilled, so that they could obtain a search warrant. All of this would be required in order to observe people gathered in a place completely open to the public, simply because the observation was taking place from a drone, rather than from an officer in their car, on a rooftop, observation deck, or a manned aircraft. A drone would increase the marginal benefits greatly because they can move from place to place quickly, and scan the area for any threats at various angles and views at a relatively low cost. Thus, there is little privacy concern, and immense marginal social benefits in the prevention of a bombing, terroristic act, or other violent crime.
The bottom line is that law enforcement entities will be unable to harvest the unique benefits drones afford them should legislators or regulatory agencies require a warrant to use these devices. Some regulations could be imposed, but a broad-sweeping need for a warrant would not be necessary. A drone could watch over a huge area that a police officer, or even several police officers, could not, preempting or preventing possible threats for a fraction of the cost.
In terms of policy analysis, if it is the safety of law enforcement officers and the general public that is of paramount concern, support for warrantless use of UAVs or drones should be at the top of the list, so that this technology can be used by law enforcement in this tri-state area and in other states.
 David Ferris, This Solar Powered Drone Will Watch You All Day, FORBES (Aug. 16, 2012, 3:12 PM), www.forbes.com/sites/davidferris/2012/08/16/this-solar-powered-drone-wil....