You’re sitting on your back patio, about to add a log to the fire pit. A speaker in the corner emits soft music. It’s a beautiful evening; warm summer air, the smell of cut grass and wildflowers. Slowly, though, you begin to hear a low humming. The noise gets louder and louder. You look around, then glance to the sky, where you see a black, insect-like machine hovering eighty feet above your head. A camera mounted just below the contraption’s nose pans down, focuses on your face, zooms in, and snaps a few photos before whirring off to photograph other parts of your property.
You’ve just had an encounter with a drone. But this drone is different than the ones you’ve seen kids pilot at the beach or the ones that shoot footage of football games. This drone is there for a purpose. It’s there to spy on you, and it’s being operated not by a fourteen-year-old next door but by a uniformed agent of the state.
That’s right. The police department got an anonymous tip that you were illegally growing marijuana and decided to have a look for themselves. They didn’t bother with a search warrant. They just piled into the squad car, synced the drone with the controller, and interrupted a beautiful evening.
Can Police Use Drones for Surveillance?
Doesn’t the Fourth Amendment protect you from searches without a warrant? How can the cops fly their drones right into your backyard without permission? What’s to stop them from harassing you?
The answer is not yet entirely clear. Drone technology is new and caselaw tends to lag far behind the cutting edge. At the moment, drones are a gray area, though lawsuits have begun to work their way through the system.
For an excellent breakdown of precedent and the current cases, see Eugene Volokh writing on a March 18 decision by the Michigan Court of Appeals here.
There is some precedent that could limit the scope of the Fourth Amendment, though. In California v. Ciraolo (1986), the Supreme Court ruled that a police officer’s warrantless surveillance of a private home was legal because, as Chief Justice Warren Burger noted in the majority opinion, “The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.” In Florida v. Riley (1989), the same logic was applied to a helicopter operated by a police officer.
However, as noted in Volokh’s article, there is also caselaw that would suggest drone usage might violate Americans’ reasonable expectation of privacy. Analysis of more recent cases such as Kyllo v. United States (2001) can be found here.
What’s the Problem With Warrantless Drones?
Any violation of the personal privacy guaranteed by the Fourth Amendment is an issue. The Founders wrote the Constitution to constrain government and to protect the rights of the individual. The government and the governed are in an eternal power struggle, and the tools of the American republic are designed to aid the governed. The Fourth Amendment shields us from searches and seizures, but more broadly it shields us from having the state in our homes. The government does not and cannot have a seat at the dinner table or an eye into the basement.
Allowing law enforcement to fly cameras over our houses and past our windows shatters the veil of privacy that private property provides. Americans ought to be free from the expectation that the state could be watching everything they do through an airborne telephoto lens.
Of course, from time-to-time police will have a legitimate reason to be suspicious. In some cases, using a drone could be advantageous to stop serious crimes. That being said, search warrants exist for a reason. If the cops can demonstrate to a judge why a drone flight is necessary, they should be permitted to fly. Without a warrant, though, drones are an egregious violation of liberty and privacy. UAV surveillance is not the same as driving a squad car by a house.
Why Warrantless Drone Surveillance Should be Banned
Localities, states, and the federal government should all act swiftly to prohibit warrantless drone surveillance by law enforcement. At some point in the future the judiciary could catch up and render such rules obsolete, but while the law is still fuzzy, it is the moral imperative of governments to rein in their surveillance powers. Of course, most law enforcement agencies are loath to relinquish any tools they have in their arsenal, and often elected government is amenable to their cause. In such instances, it is the responsibility of the voters to make their will known. No American should be content to have their rights violated by those who are supposed to defend them.