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Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses

Others would establish a regime under which the drone user must file a data collection statement stating when, where, how the drone will be used and how the user will minimize the collection of information protected by the legislation.


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    Do you believe that this item violates a copyright? Ciralolo , U. The yard was not visible from the public streets, so police used a fixed-wing aircraft to fly over the home.

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    Although the officers flew at a low altitude, they were within the altitude limits set by FAA regulations and could identify marijuana plants with the naked eye. The Court ruled this was not a search that required a warrant under the Fourth Amendment because the defendant had no reasonable expectation of privacy in his backyard being viewed from the regulated altitude, much the same way there is no reasonable expectation of privacy in a backyard viewable from a public street.

    Essentially, the backyard was within the public view for anyone flying over the subject property. Similarly, in Florida v. Riley , U. The officers, unable to see into the greenhouse from public streets, used a helicopter to hover over it. From an altitude of feet, the officers could identify marijuana plants growing in the greenhouse through holes in the roof with naked-eye observations. The Court, finding this case to be controlled by Ciralolo, ruled this was not a search that required a warrant under the Fourth Amendment.

    Although the observation altitude was lower than the regulated altitude for fixed-wing aircraft, the FAA permits helicopters to fly below that limit and therefore the greenhouse would have been readily viewable to any member of the public flying over in a helicopter at that height. Moreover, the Court noted that such low-altitude helicopter flights are not unusual in the United States. The Court noted that not all warrantless aerial searches of the area around a home would be legal simply because the aircraft was flying within legal altitude restrictions.

    But the Court did not specify the conditions under which such aerial searches would be unconstitutional. In the third case, Dow Chemical v. United States , U. EPA hired a commercial aerial photographer to fly over the plant taking photographs of the open areas around the plant and between its buildings with a standard precision aerial mapping camera. The court held that the open areas of an industrial facility are not subject to the same Fourth Amendment protections as the curtilage around a home and, on the basis of Ciralolo , the government does not necessarily violate the Fourth Amendment by viewing private property from navigable public airspace.

    Unlike in Ciralolo and Riley , the government made its observations with technological aids rather than naked-eye observations. The use of a sensory device that was publically and commonly available to augment human observations did not render the aerial search impermissible. Together, these cases suggest the police may be able to use UAVs to conduct warrantless aerial searches of areas surrounding homes and businesses that are readily viewable from navigable public airspace.

    Riley and Dow Chemical both indicate there may be limits to warrantless aerial searches that would be relevant to government use of UAVs.

    Riley stated that not all aerial searches would be legal simply because they are conducted from within the legally designated navigable airspace. In Dow Chemical , the court found it meaningful that the camera used in the aerial search was one that was publically and commonly available.

    This suggests the government could conduct warrantless aerial searches similar to the searches in these three cases so long as the UAV is not employing cameras or other devices that are unusual and not available to the general public. Depending on how common private UAV use becomes, it could be argued the use of a UAV itself is the use of an unusual technology that is not readily available to the public. Despite these remaining ambiguities in the Supreme Court ' s aerial search cases, other Fourth Amendment cases suggest specific technology some UAVs are known to carry could transform an aerial search by UAV into an impermissible warrantless search.

    Supreme Court held the government could not, without a warrant, use technology that is not in general public use to gather information about the inside of a home where such information otherwise could not be obtained except by entering the home. Some UAVs are known to carry thermal imaging cameras and similar devices.

    PRIVACY PROTECTIONS IMPLICATED BY THE DOMESTIC USE OF UNMANNED AERIAL VEHICLES OR DRONES

    Presumably Kyllo prohibits the government from using a UAV armed with such technology that is not in general public use to peer through the walls of a private home. UAVs are expected to be used by law enforcement to aid in tracking suspects. The ability of these devices to stay aloft for extended periods and surreptitiously monitor individuals from above would make them a powerful tool for such purposes. Supreme Court cases suggest such UAV tracking in public places likely would not require a warrant for short periods, but may require a warrant for tracking over an extended time. In United States v.

    Knotts , U. Police planted a radio transmitter in a container of suspected illicit drug precursors that an informant then gave to the suspect. The signal was used to follow the suspect to a remote cabin where a drug lab was later discovered during a warranted search. The court reasoned that a person does not have a reasonable expectation of privacy in his or her movements on public streets and highways.

    Karo , U. Officers followed the signal to the homes of various suspects and storage facilities and used the signal to track the movements and location of the materials within these buildings. The Court again stated the officers did not need a warrant to track the suspects ' movements on public streets, but when the transmitter was used to track movements within private buildings, the tracking became a search subject to the Fourth Amendment.

    In the final case, United States v. Jones , S. The Court ' s reasoning rested on the fact that attaching the GPS device to the suspect ' s car was a trespass, which meant it was also a search requiring a warrant under the Fourth Amendment. Importantly, two concurring opinions agreed that the duration of the tracking could be an independent ground for finding an unconstitutional search.

    These justices reasoned that even though an individual has a lower expectation of privacy in his or her movements on a public street, it is reasonable for the public to assume that no one could sustain constant surveillance of a person ' s movements on public streets for so long, and that a degree of reasonable privacy interest arises from this expectation. These concurrences have implications for tracking with UAVs since presumably police could use a UAV to track a suspect almost indefinitely without ever trespassing. Limits on Privacy May Shift with Technology.

    Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses

    Two of the cases discussed above, Kyllo and Dow Chemical , suggest the limits on the types of technology the police could use to monitor suspects and their homes or businesses with UAVs may change with time. In both cases, the court found a meaningful distinction between technology in general public use and technology that was not.

    The search in Dow Chemical was upheld, in part, because the camera used, although sophisticated and relatively powerful, was a standard mapping camera. By contrast, the search in Kyllo was found to violate the Fourth Amendment, in part, because the thermal imaging device used was not in general public use. When a technology is in general public use, the public faces a greater exposure to it and has a lower expectation of privacy from such technology.

    The exact limits of UAV technology use by the government to perform surveillance without warrants may be determined in the future by what becomes general public use. Unlike governmental actors, private operators are generally not subject to the Fourth Amendment ' s prohibition against unreasonable searches and seizures. Restrictions on private use of UAVs would come from federal or state statutes and judicial decisions. While it is possible that UAV use could give rise to property-based legal claims of trespass and nuisance, it is more likely privacy interests could be protected by the tort of invasion of privacy.

    Invasion of Privacy Tort. Invasion of privacy consists of four distinct types of legal wrongs for which a plaintiff can recover money damages. In the case of private UAV use, the type of invasion of privacy tort most likely implicated is the unreasonable intrusion upon the seclusion of another.

    Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses

    While invasion of privacy is a recognized cause of action in Connecticut courts, the state Supreme Court has not yet had the occasion to set forth the necessary elements of a claim concerning unreasonable intrusion on the seclusion of another. However, when addressing other invasion of privacy claims, the state Supreme Court has generally adopted the reasoning found in the Restatement Second of Torts, which is a set of model rules summarizing the law created by the American Law Institute.

    Lower courts in Connecticut have followed this example when ruling on an intrusion on seclusion claim. Cossettee , WL April 13, The focus of the inquiry is generally the same regardless of whether information gleaned from the invasion has been publicized.

    While this tort includes a physical invasion, it also covers situations more likely to be experienced with the use of UAVs. An invasion of seclusion may be committed by using mechanical means to oversee or overhear another person ' s private affairs. It is likely a privacy claim arising from the use of a UAV would be considered within this framework.