DRONES IN THE HOMELAND: A
POTENTIAL PRIVACY OBSTRUCTION
UNDER THE FOURTH AMENDMENT AND
THE COMMON LAW TRESPASS DOCTRINE
Ajoke Oyegunle
I. INTRODUCTION
In the wake of September 11, 2001,' the nation changed in a particularly defining way: it has become more protective. From the rubble emerged a nation
transformed-one guarded and hyper-vigilant, accepting of less privacy in the
name of national security.2 The PATRIOT Act, a promise for a stronger, safer
America, was one such concession.' A broad-ranging law, the PATRIOT Act
allows the federal government greater access to collect private information
from individuals and organizations.' Years after the PATRIOT Act was enacted, support for the law5 illustrated the zeitgeist of a terror-strewn nation. Legis+ J.D. Candidate, May 2014, The Catholic University of America, Columbus School of
Law.
I James Barron, Thousands Feared Dead as World Trade Center is Toppled, N.Y.
TIMES (Sept. 11, 2001), http://commcns.org/17k7jCs (describing the terrorist attacks of September 11,2001, in which al-Qaeda terrorists hijacked four planes; two striking the World
Trade Center in New York City, one crashing into the Pentagon, and another crashing in
Pennsylvania).
2
For example, after September I1, 2001, Congress enacted the PATRIOT Act to respond to national security threats. For instance, the PATRIOT Act allows the government to
access library and bank records without showing probable cause and to issue wiretaps without obtaining warrants. See Reform the PatriotAct, ACLU, http://commcns.org/15mT5B5
(last visited Apr. 13, 2013) (noting that the government can seize any piece of property
without probable cause if it believes that the item relates to terrorist activity).
3
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56,
115 Stat. 272 (codified in scattered sections of 12, 15, 18, and 31 U.S.C.) (2006)).
4
See, e.g., 50 U.S.C. § 1861 (2006) (granting the government access to business records for foreign intelligence and international terrorism investigations); see also Reform the
PatriotAct, supra note 2.
5
Gary Langer, Poll: Support Seen for Patriot Act, ABC NEWS (June 9, 2005),
http://commcns.org/l 8m8X91 (noting that a 2005 ABC poll estimated American support for
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lation in the aftermath of September 11th has posed some barriers to Fourth
Amendment protection.' Although the intent of the FAA Modernization and
Reform Act of 2012 ("FAA Act") was to respond to terrorism, it has been
viewed as a seamless expansion of the policies set forth in the Patriot Act that
ultimately weakened privacy The impending deployment of drones into the
national airspace is a linear progression of the tradeoff between privacy and
national security that the nation made eleven years ago.9
As advances in technology have made it easier for the government and private entities to access, collect, and share the private information of individuals,
privacy concerns have become increasingly relevant. The Fourth Amendment
guarantees protection against unreasonable searches and seizures by the government. This concept is central to cases concerning the collection of private
information through the use of unmanned aerial vehicles (UAVs), which are
more commonly referred to as drones." The FAA Act directs the FAA to license drones and allows for the routine use of unmanned aircraft in domestic
skies. 2 The FAA Act does not, however, institute privacy safeguards. Because drones have the unique capability of collecting massive amounts of highly sensitive, private information that could ordinarily be shielded by some form
of technology (e.g., computer firewall) or physical structure, 4 their proliferathe Patriot Act at nearly 60 percent).
6
U.S. CONST. amend. IV (noting that the Fourth Amendment affords privacy to "persons, houses, papers, and effects, against unreasonable searches and seizures" and calls for
the use of a warrant for probable cause).
7
For example, the government was able to attain access to library and bank records
without probable cause and issue wiretaps without warrants. See Reform the Patriot Act,
supra note 2; see also Alexandra Marks, Privacy Advocates Fightfor Ground Lost After
9/11, CHRISTIAN SCI. MONITOR (Apr. 3, 2007), http://commcns.org/l e84r2N (noting that in
times of national turmoil, privacy safeguards afforded by the Fourth Amendment have become less effective).
I See Marks, supra note 7.
9
JAY STANLEY & CATHERINE CRUMP, ACLU, PROTECTING PRIVACY FROM AERIAL
SURVEILLANCE: RECOMMENDATIONS FOR GOVERNMENT USE OF DRONE AIRCRAFT 6-8 (Dec.
2011), availableat http://commcns.org/135ZeE5.
to See, e.g., Lisa Rein, Stepped-up Computer Monitoring of Federal Workers Worries
Privacy Advocates, WASH. POST (Aug. 16, 2012), http://commcns.org/l8y4vmG (the government's use of private information was exemplified when the FDA used advanced computer software to covertly collect data from its scientists' computers).
11 STANLEY&CRUMP, Supra note 9, at 13-15.
12 See FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332(a)(1),
(a)(2)(A)(iii), 126 Stat. Ii, 73 (2012) ("[T]he Secretary of Transportation, in consultation
with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems
industry, shall develop a comprehensive plan to safely accelerate the integration of civil
unmanned aircraft systems into the national airspace system.").
13 See generally id.
14 See Andy Greenberg, Flying Drone Can Crack Wi-Fi Networks, Snoop on Cell
Phones, FORBES (June 28, 2011), http://commcns.org/19cVu4v (describing, for example, a
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Drones in the Homeland
tion may raise legitimate and urgent privacy concerns." This article is not intended to impugn domestic drone expansion, but rather, issues a caveat to
premature action before thorough privacy and safety assessments have been
conducted.
Part II of this article will provide an overview of the FAA Act and identify
problems that the Act creates, with particular emphasis on the privacy implications caused by increased domestic drone use. Part III will provide a historical
overview of drones followed by a discussion of governmental regulation of
drones. Then, Part IV will analyze the FAA Act in the context of the Fourth
Amendment and the common law trespass doctrine. Finally, Part V will provide a tripartite analysis of both favorable and unwanted effects of the domestic deployment of drones, and will further explore potential remedies.
II. THE FAA MODERNIZATION AND REFORM ACT OF 2012
A. Overview of the FAA Act
President Obama signed the FAA Act on February 14, 2012,6 one year after
House Transportation Committee Chairman John Mica introduced it.' 7 The
intent of the Act was to provide funding for the Federal Aviation Administration ("FAA") for fiscal years 2011-2014, and to revamp the nation's air traffic
control system." Sections 331 through 336 of the Act introduce drones into
domestic use, and Section 332 requires the FAA to accelerate the expansion of
drones for civil use into the U.S. National Airspace System ("NAS") by September 30, 2015.'" These sections of the Act further concern the integration of
civil and public drones into domestic skies.20
The federal government has used drones domestically since 2004."1 The
NAS will be open to military, commercial, and private (individually-owned)
drones within a few years. As many as 30,000 drones are expected to operate
drone that is capable of intercepting Wi-Fi signals and recording cell phone conversations).
15
For example, Rand Paul, a Republican senator, noted in a CNN column that, "[t]he
domestic use of drones to spy on Americans clearly violates the Fourth Amendment and
limits our rights to personal privacy." See Rand Paul, Don't Let Drones Invade Our Privacy,
CNN OPINION (June 15, 2012, 9:16 AM), http://commcns.org/I4TtX81.
16 The FAA Modernization and Reform Act of 2012, 126 Stat. 11.
17 FAA Reauthorization and Reform Act of 2011, H.R. 658, 112th Cong. (2011).
18 Id.
19 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 331-36, 126
Stat. 1I, 72-78 (2012).
20 Id. §332(a), 112 Stat. at 73.
21 OFFICE OF INSPECTOR GEN., DEP'T OF HOMELAND SECURITY, CBP's USE OF UNMANNED AIRCRAFT SYSTEMS IN THE NATION'S BORDER SECURITY 2 (2012), available at
http://commcns.org/l7k8li0.
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in U.S. airspace by 2030.2 While the FAA, a division of the U.S. Department
of Transportation, has the authority to issue permits for drone use, it has not
specified to whom it will authorize such use.23 The Act is silent on this issue
and the FAA has been reluctant to provide much more clarity, provoking a
lawsuit centered upon the FAA's denial of an April 2011 Freedom of Information Act ("FOIA") request.24
The Electronic Frontier Foundation ("EFF"), a law and technology nonprofit
organization, requested information from the FAA regarding drone use and, in
January 2012, filed suit against the U.S. Department of Transportation. 5 The
EFF sought release of the names of the particular government and private entities to which the FAA had authorized the use of drones. 26 The FAA responded
three months later by releasing two lists of public and private entities given
authorization to deploy drones.27 However, the lists, which were meant to appease concerns, instead elicited further scrutiny because the FAA has not explained the restrictions that it plans to place on the groups that received authorization. 28 Further, the FAA has not revealed whether it plans to limit the types
of drones allowed.29
Questions remain regarding the types of drones that have been approved and
their full capabilities, as well as the reasons for the denial of authorization for
certain organizations." Similarly, the FAA has not provided details regarding
an organization's intended uses for its drones.'
B. Concerns of the FAA Act
The FAA Act amends Title 49 of the U.S. Code to address the expansion of
See FAA, FAA AEROSPACE FORECAST FISCAL YEARS 2010-2030, at 48 (2010), available at http://commcns.org/l 7FtcCi.
23 FAA Modernization and Reform Act § 331(2), 126 Stat. at 72.
24 See Complaint for Injunctive Relief for Violation of the Freedom of Information Act,
5 U.S.C. § 552, Elec. Frontier Found. v. U.S. Department of Transportation, No. 0164 (Cal.
N.D. Jan. 10, 2012), available at http://commcns.org/l7FtcCi.
25 Id.
22
26
27
Id.
FAA List of Certificates of Authorizations (COAs), ELEC. FRONTIER FOUND.,
http://commcns.org/18y4PBH (last visited Apr. 13, 2013); see FAA List of Special Airworthiness Certificates-Experimental Category (SACs),
ELEC.
FRONTIER
FOUND.,
http://commcns.org/l 8m9yYu (last visited Apr. 13, 2013).
28 Jennifer Lynch, FAA Releases Lists of Drone Certificates-Many Questions Left Unanswered, ELEC. FRONTIER FOUND. (Apr. 19, 2012), http://commcns.org/ldAYhcJ (citing
the University of Colorado as having received one hundred different COAs in the past six
years).
29 See generally id.
30 See Lynch, supra note 28.
31 Id.
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Drones in the Homeland
drones in American airspace.3 2 Though innocuously titled, the FAA Act introduces the potential wide-scale use of drones into American airspace, prompting
concerns over its long-term effects.33 Notably, the FAA Act does not contemplate an effort to inform the public of the impending expansion of drones, as
other agencies have done in the past.34 Likewise, the Act fails to articulate requirements for applicants to secure approval for drone deployment. 5 Concerns
persist over the private sector's authority to sell or share the information collected from private individuals through the use of drones.36 Equally important,
the FAA Act fails to address what entities may use drones, and, pertinently, the
ways in which the information gathered may be used. 7
The Act directs the FAA to clear airspace in order to accommodate increased drone presence," giving the FAA the exclusive authority to issue licenses for drones.39 In addition, the Act requires the FAA to permit not only
the government (e.g., law enforcement agencies), but also public and private
entities to operate drones in domestic airspace."0 The Act directs the FAA to
expedite the process through which applicants for drone operation become licensed to fly in the NAS.4 When the FAA shortens the application process, the
criteria may also be simplified, which is an alarming possibility considering
the possible lack of comprehensive privacy and safety assessments.42 Until the
FAA publishes regulations in 2014 or explains what the regulations might in32 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 331-36, 126
Stat. 11, 72-78 (2012).
33 See S. Smithson, Drones Over U.S. Get OK by Congress, WASH. TIMES (Feb. 7,
2012), http://commcns.org/l 7vfkst.
34 See, e.g., Brian Stelter, Switch to Digital TV Broadcasts is a Work in Progress, N.Y.
TIMES (June 18, 2009), http://commcns.org/14lwCnY (discussing the Federal Communications Commission's efforts to prepare the public for the 2009 digital television transition,
which included the broadcast of numerous consumer alert messages).
35 See, e.g., Letter from Rep. Edward Markey & Rep. Joe Barton, Co-Chairmen, Cong.
Bi-Partisan Privacy Caucus, to Michael P. Huerta, Acting Admin., Fed. Aviation Admin.
(Apr. 19, 2012), availableat http://commcns.org/141wDZ5 (probing into the data collection
and retention procedures of FAA-licensed drones).
36 See, e.g., id.
37 See generally Lynch, supra note 28.
38
FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 332-34, 126
Stat. 11, 72-77 (2012)
39 Id. § 331(2), 126 Stat. at 72.
40 Id. §§ 332, 334, 126 Stat. at 73-75, 76-77 (discussing the integration of civil drones
and public drones, respectively).
41 Id. § 334(a)(1), 126 Stat. 76.
42
Using Unmanned Aerial Systems Within the Homeland: Security Game Changer?:
Hearingbefore the Comm. on Homeland Security, 112th Cong. 2 (July 19, 2012) (statement
of Michael McCaul, Chairman, S. Comm. on Oversight, Investigations, and Management).
Congressman Michael McCaul (R-TX), has publicly called for the Transportation Security
Administration ("TSA"), a division of the Department of Homeland Security ("DHS"), to
conduct a risk assessment with drones. Id.
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clude, public uncertainty will persist. Private companies that have received
authorization to operate drones-including Raytheon and General Atomics,"may operate with little oversight in just a few short years."
Drones present an untapped and lucrative market, valued at $5.9 billion. 5
NASA forecasts "significant capacity growth for [civil] UAVs."46 Integration
of drones into national airspace will begin with drone deployments at six testing sites throughout the country-in order to vary in climate and geography,
presumably to increase the chance of detecting complications-as mandated in
the Act.47
III. THE LACK OF STRICT PARAMETERS FOR GOVERNMENT AND
CIVILIAN USE OF DRONES PRESENTS A DANGEROUS PRECEDENT
A. Drones: A Brief History
Although drones may have been unknown to many before September 11,
2001, their history dates back to before the First World War.4'8 Drones, which
are remotely piloted aircraft,49 descended from an earlier generation of drones
that were developed in a Navy pilot program toward the end of the war." Unlike the drones discussed infra, these early drones were developed exclusively
as weapons with no surveillance capabilities and were more similar to cruise
missiles than contemporary drones." The Navy's early drone program was ul-
43 Other companies that received authorization are Telford Aviation, AAI Corporation,
Honeywell, Unmanned Systems Inc., L-3 Bai Aerosystems, and Aurora Flight Companies.
See Kashmir Hill, FAA Coughs Up Info On Where Drones Are Being Flown And Who's
Flying Them, FORBES (Apr. 20, 2012), http://commcns.org/l14TuYxA.
44 FAA Modernization and Reform Act § 332(a)(3), 126 Stat. at 73 ("[t]he plan required
under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems
into the national airspace system as soon as practicable, but not later than September 30,
2015.").
45 Predator Drones and Unmanned Aerial Vehicles (UAVs), N.Y. TIMES (Nov. 25,
2012), http://commcns.org/ Ie85XCO.
46 TIMOTHY H. COX ET AL., NASA, CIVIL UAV CAPABILITY ASSESSMENT I (Dec. 2004),
availableat http://commcns.org/l dlEAkd.
47 FAA Modernization and Reform Act § 332(c)(1), 126 Stat. at 74.
48 John Sifton, A Brief History of Drones, THE NATION (Feb. 7, 2012),
http://commcns.org/l 5mUS9i (noting that "[a]ir warfare has been with us for over a hundred
years.. and the development of drones was in the works from the start").
49 THE UAV-UNNAMED AERIAL VEHICLE, http://commcns.org/14e6Ua5 (last visited
Apr. 13, 2013).
50 John Sifton, Drones: A Troubling History, THENATION, Feb. 27, 2012, at 11, 12; see
Sifton, BriefHistory, supra note 48.
51 Mark Edward Peterson, The UA V and the Current and Future Regulatory Construct
for Integration into the NationalAirspace System, 71 J. AIR L. & CoM. 521, 535 (2006).
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Drones in the Homeland
timately unsuccessful and abandoned when the war ended. 2
The drone program was revived during World War II but, similarly, found
little immediate success. 3 The federal government continued to develop drones
for military use and deployed surveillance drones in Afghanistan in 2000."4
Although the military continued to use drones in surveillance missions, the
Central Intelligence Agency ("CIA") pioneered an additional use in 2001 when
it deployed its first weaponized drone, General Atomics' "Predator.""
Aerial drones encapsulate a wide range of technology with diverse functions. They can be remotely controlled, 6 flown with the use of a computer,57 or
prompted electronically by an automated system. 8 Drones range in size from a
few inches to hundreds of feet 9 and have a number of uses, including intercepting telecommunications by eavesdropping on cellular phone calls, accessing text messages, and intercepting Wi-Fi communications.6"
While military drones have primarily engaged in aerial attacks in battle
zones," they are also adept at providing surreptitious reconnaissance and retrieving sensitive communications. They have been used by the military and
local law enforcement for surveillance and suspect apprehension purposes and
can capture and transmit live video feed.63 Furthermore, military drones have
been used to observe movement, take photographs, and record video;' some
are even equipped with radar and heat sensors65 that can detect human presence
through walls or other obstructions.66 Beyond surveillance equipment, drones
also carry weapons. 67 Their names conjure images of dread and prowess: PredSifton, TroublingHistory, supra note 50; Sifton, BriefHistory, supranote 48.
Sifton, TroublingHistory, supra note 50; Sifton, BriefHistory,supra note 48.
Sifton, TroublingHistory, supra note 50; Sifton, BriefHistory,supra note 48.
55 Sifton, TroublingHistory, supra note 50; Sifton, BriefHistory, supranote 48.
56 Drones: America's New Air Force, CBS NEWS, Aug. 16, 2009, 9:05 PM,
http://commcns.org/I e86cgn.
57 See Elisabeth Bumiller, A Day Job Waiting for a Kill Shot a World Away, N. Y.
TIMES, July 29, 2012, http://commcns.org/lalo75H (discussing the modem disconnect of
"fighting a telewar with a joystick and a throttle").
58 Peter Finn, A Futurefor Drones: Automated Killing, WASH. POST, Sept. 19, 2011 at
A.
59 Unmanned Aircraft System Test Sites, 77 Fed. Reg. 14,319, 14,319 (proposed Mar. 9,
2012) (to be codified at 14 C.F.R. pt. 91).
60 Greenberg, supra note 14.
61
U.S. Drone Strike Kills Five Militants in Pakistan, Officials Say, FOXNEws.coM
(Sept. 24, 2012), http://commcns.org/173Hha0.
62 Christopher Drew, Military Is Awash in Data From Drones, N.Y. TIMES (Jan. 11,
2010) http://commcns.org/1 aIobSX.
63 PredatorDrones and Unmanned Aerial Vehicles (UA Vs), supra note 45.
64 Who Is Flying Unmanned Aircraft in the U.S.?, ELEC. FRONTIER FOUND. (Jan. 10,
2012), http://commcns.org/Ie86nbJ.
52
53
54
66
Id.
Id.
67
Id.
65
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ator, Reaper, Shadow, Global Hawk, Sentinel (also called the "Beast of Kandahar"), and Fire Scout. 8 Yet, even the smallest drones have names that project
ferocity, like the three-foot-long Raven. 9
There are hundreds of types of drones suited for varied purposes." Conceivably, drones may have facial recognition abilities.7 Commercial use of drones
will likely expand with the enactment of the FAA Act.7 2 Industry uses may
even extend to movie production, photography, aerial mapping, crop dusting,
journalism, real estate ventures" and conservation endeavors.74
B. An Exploration of Drone Regulation
1. BackgroundInformation
The FAA Act does not specify which government and civilian organizations
will be permitted to use drones." It can be presumed that any individual or entity can apply for authorization. 6 Nonetheless, this issue will likely be clearer
when the FAA publishes a final rule on drones in 2014."7 There are currently
two forms of FAA approval required to deploy drones: (1) A "Certificate of
Authorization" ("COA") or "Waiver" for public entities such as the military
Elisabeth Bumiller & Thom Shanker, War Evolves with Drones, Some Tiny as Bugs,
N.Y. TIMES, June 19, 2011, http://commcns.org/19cWKob (discussing the evolution of aeri68
al drone design "from blimps to bugs").
69
Id. (explaining that the Raven, for example, is employed by American troops in Afghanistan, often "toss[ed] by hand like a model airplane to peer over the next hill").
70
STANLEY & CRUMP, supranote 9, at 2.
71 Domestic Unmanned Aerial Vehicles (UA Vs) and Drones, ELEC. PRIVACY INFO. CTR.,
http://commcns.org/14e79Ss (last visited Apr. 13, 2013).
72
See FAA AEROSPACE FORECAST FISCAL YEARS 2010-2030, supra note 22, at 57 (predicting roughly 10,000 active commercial UASs in five years).
73 Greg McNeal, A Primer on Domestic Drones: Legal, Policy, and Privacy Implications, FORBES (Apr. 10, 2012, 8:12 PM), http://commcns.org/17FvjWO.
74 John R. Platt, Eye in the Sky: Drones Help Conserve Sumatran Orangutans and Other Wildlife, ScI. AM. (Sept. 27, 2012), http://commcns.org/15yIhio (describing how scientists in Indonesia use drones in conservation missions to study deforestation and endangered
orangutans).
75 See ALISSA M. DOLAN & RICHARD M. THOMPSON 11, CONG. RESEARCH SERV., R42940,
INTEGRATION OF DRONES INTO DOMESTIC AIRSPACE: SELECTED LEGAL ISSUES 3-4 (Apr. 4,
2013) (explaining that users can be public, commercial, or recreational); see also Harley
Geiger, The Drones Are Coming, CENTER FOR DEMOCRACY & TECH. (Dec. 21, 2011),
http://commcns.org/17vfL62 (noting that "potentially anyone from media companies to
homeowners' associations might one day obtain a permit..
76
See DOLAN &THOMPSON, supra note 75, at 3-4; see also Geiger, supra note 75.
77 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332b, 126 Stat.
11, 74 (2012); Ben Wolfgang, FAA ChiefSays Drones Will Force Change at Agency: Regulatory Body Won't Stand in the Way of Unmanned Aerial Vehicles, WASH. TIMES, Aug. 7,
2012, http://commcns.org/ IczsohC.
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and universities;78 and (2) an "Experimental Airworthiness Certificate" for the
private sector to do research and development in national airspace.79 Each form
of authorization lasts for two years,"0 but the authorization process for public
and private drones could change under the FAA's final rules.8'
The application process is conducted online and the FAA must determine
the airworthiness of the drone within sixty days of an applicant's submission.82
If an application is disapproved, the applicant may request feedback from the
FAA to determine strategies for future application approval. 3 The FAA expedites its application process to provide temporary COAs in emergency situations." Although the Act excludes any mention of privacy restrictions, some
broad safety regulations are in place." The FAA has broad discretion to supply
licenses to anyone who can prove "safe operation" of a drone.86 However, what
constitutes "safe" is not defined, and the FAA Act does not mention if expected regulations will clarify the term. Likewise, Section 335 mandates FAAconducted safety studies, without explaining whether explicit safety criteria
will be addressed in the final rule.87
Some safeguards are specified in the FAA Act. Section 334(c)(2)(C) creates
a 4.4 pound weight restriction for aircrafts operated: (1) during the day; (2)
"within the line of sight of the operator;" (3) fewer than 400 feet above the
ground; (4) in uncontrolled airspace, and (5) more than five miles from an area
engaged in aviation activity. The FAA Act also requires that civil drones be
equipped with "sense and avoid capability;" that is, technology that allows
78
FAA
Makes
Progress
with
UAS
Integration,
FED.
AVIATION
ADMIN.,
http://commcns.org/18mb0dn (last visited Apr. 13, 2013).
79 Fact Sheet-Unmanned Aircraft Systems (UAS), FED. AVIATION ADMIN. (Feb. 19,
2012), http://commcns.org/17FvAJf (clarifying that civil operators of UASs cannot access
the NAS without obtaining an experimental airworthiness certificate).
80
FAA Makes Progress with UAS Integration,supra note 78.
In its final rules, the FAA will determine "whether a certificate of waiver, certificate
of authorization, or airworthiness certification ... is required for the operation of [drones]."
See FAA Modernization and Reform Act § 333(b)(2), 126 Stat. at 74. Also, "[T]he Secretary of Transportation shall issue guidance regarding the operation of public unmanned aircraft systems to expedite the issuance of a certificate of authorization process." Id. at §
334(a)(1), 126 Stat. at 76.
82 Id. § 334(c)(2)(A)(l)(ii), 126 Stat. at 76-77.
83 FAA Makes Progress with UAS Integration,supra note 78.
84 Id.
85 See, e.g., McNeal, supra note 73; see also FAA Modernization and Reform Act §
332(a)-(c), 126 Stat. at 73-75 (instructing the FAA to develop and implement a plan to safe81
ly integrate drones into the national airspace).
86 See, e.g., FAA Modernization and Reform Act §§ 333(a), 335, 126 Stat. at 75, 77
(requiring the Secretary of Transportation to determine whether a drone can operate safely,
although the term "safely" is not explicitly defined in the Act).
87 See id. §§ 335, 126 Stat. at 77.
88 Id. § 334(c)(2)(C), 126 Stat. at 76-77.
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drones to anticipate and avoid collisions." Although the FAA Act addresses
some safety concerns, it does not go far enough to restrict FAA discretion. For
example, a similar provision regarding privacy assessments is absent, and the
Act gives no indication that privacy measures will be implemented within the
regulations .'
The FAA Act does not impose rules on "model aircraft," which are those
used for recreational purposes, "capable of sustained flight," and flown within
sight of the operator, provided that the aircraft observe basic safety guidelines." The Act also does not appear to regulate what types of drones can and
cannot be used for these purposes.92 Further, the Act does not address whether
applicants with criminal records would be eligible to receive such authorization, which is especially relevant considering that drones may be equipped
with weaponry.93
2. Drone Use
The federal government currently operates drones in the UAS in a limited
capacity. 4 The U.S. Customs and Border Protection ("CBP"), a division of
Homeland Security, employed drones well before the enactment of the FAA
Act.9" CBP uses drones for patrolling the United States' northern and southwestern borders, as well as the Caribbean and Gulf regions.96 CBP has maintained regular, albeit discreet, use of drones in the United States since fiscal
Id. §§ 331(5), 332(a)(2)(A)(ii), 126 Stat. at 72, 74.
The word privacy is not mentioned once in reference to drones in the FAA Act. See
id. §§ 331-336. 126 Stat. 72-78; see also e.g., McNeal, supra note 73 (discussing the privacy
concerns "largely ignored by the bill").
91 FAA Modernization and Reform Act § 336, 126 Stat. at 77.
92 See id. §§ 331-336 (addressing drones but not whether the FAA will promulgate rules
restricting any make or model). Drones come in different forms. Some are designed strictly
for surveillance, while others are weaponized. See also Eric Schmitt & Michael S. Schmidt,
U.S. Drones Patrolling ItsSkies Provoke Outrage in Iraq, N.Y. TIMES, Jan. 29, 2012,
http://commcns.org/15tk2ZP (discussing American surveillance drones used in Iraq and
armed drones used in Pakistan, Yemen, and Somalia).
93 See FAA Act §§ 331-336 (showing a lack of information within these sections);
Christopher Drew, DronesAre Weapons of Choice in Fighting Qaeda, N.Y. TIMES (Mar. 16,
2009), http://commcns.org/15QPVJk (stating that armed drones are routinely used in battle,
and U.S. military drones are used prevalently in the Middle East).
94 See, e.g., CBP's USE OF UNMANNED AIRCRAFT SYSTEMS, supra note 21, at 4 (estimating that U.S. Customs and Border Protection ("CBP"), for example, logs less than half of
the flight hours supported by its seven unmanned aircrafts per year); see also M. Ryan Calo,
The Drone as Privacy Catalyst, 64 STAN. L. REV. ONLINE 29 (2011), available at
http://commcns.org/17vi60J (attributing the current underutilization of unmanned aircraft to
the FAA's onerous restrictions).
95 CBP's USE OF UNMANNED AIRCRAFT SYSTEMS, supra note 21, at 2 (stating that CBP
first used drones in 2004).
89
90
96
Id.at 2.
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year 2004," and now has nine operational drones at a cost of $18 million
each.9" CBP has lent use of its Predator drones to local law enforcement, as
well as to the Federal Bureau of Investigation ("FBI") and the Drug Enforcement Administration ("DEA")."9
The U.S. Air Force currently conducts training exercises using drones."
While the Air Force acknowledges that its drones may unintentionally collect
private civilian data without consent, it deems such activity legal as long as the
purpose is not to target a specific person for surveillance." °' Any information
obtained can be retained for ninety days and shared among other government
organizations.' 2 However, it is unclear whether the Air Force prohibits the release of civilian information into the general public.0 3 If history serves as an
instrument of forecast, skepticism of the government's ability or inclination to
protect private civilian information may be warranted. For instance, in 2010,
the federal Transportation Security Administration ("TSA") ordered the fullbody X-Ray images that employed advanced imaging technology obtained
from airport security checkpoints to be disbursed online."
Congress has not yet outlined clear privacy or safety parameters for domestic drone use,'0 5 which leaves cause for concern. Drones are employed both for
surveillance and weaponry, and the latter use has invited scrutiny, as drone
strikes in war zones become increasingly common."'6 The CIA continues ag97
Id. at 2.
98
Id. at 2 ("CBP was awaiting delivery of a tenth aircraft purchased with FY2011
funds.").
99 McNeal, supra note 73.
o See, e.g., BY ORDER OF THE SECRETARY OF THE AIR FORCE: AIR FORCE INSTRUCTION
14-104, OVERSIGHT OF INTELLIGENCE ACTIVITIES II (Apr. 23, 2012), available at
http://commcns.org/le8aKn0 (describing navigational training requirements for Air Force
components that conduct intelligence, including UAS operations).
"0' See id. at 12.
102
Id.
See id. at I I (in reference to the distribution of domestic imagery, the report states
that "unless otherwise approved, distribution of domestic imagery to be withheld from all
general access database systems." While this statement might imply that such images will
not be publicly disseminated, it does not specifically refer to UASs).
"04 See, e.g., Joshua Norman, Naked Body Scan Images Never Saved, TSA Says, CBS
NEWS (Nov. 16, 2010, 5:05 PM), http://commcns.org/17FAR3F (noting that despite reassurances from TSA that body scan images would neither be stored nor distributed, TSA produced 100 full-body scanner images in compliance with a FOIA request); see also Kashmir
Hill, Gizmodo Joins the Internet War on TSA with 100 "Leaked" Body Scans, FORBES (NOV.
16, 2010, 12:36 PM), http://commcns.org/l 4eaykq.
105 See, e.g., Eric Posner, Obama's Drone Dilemma, SLATE (Oct. 8, 2012, 3:32 AM),
103
http://commcns.org/17khDul (explaining that, absent a showing of self-defense, the Charter
of the United Nations prohibits a country from advancing militarily against another country
without U.N. approval or consent of the advanced-upon country).
106 See, e.g., Jackie Northam, As Drone Strikes Increase, So Do Concerns Over Use,
NAT'L PUB. RADIO (June 12, 2012), http://commcns.org/15QPE98 (discussing American
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gressive drone strikes in Pakistan, °7 Yemen,' 8 and Somalia °9 as a safer and
more accurate alternative to manned aerial attacks."
The FAA Act does not address the possibility of domestic drone strikes."'
While drone strikes abroad do not necessarily translate to domestic drone
strikes, the FAA should promulgate rules specifically prohibiting the potential
use of drone strikes with the United States. Although language to this effect
may seem superfluous, it is necessary in order to ensure strict requirements for
civilian safety and to assuage fears of government abuses, which, in some cases, remain memorable." 2 For instance, in 1985, during an egregiously disproportionate display of police power, Philadelphia police dropped a bomb on a
West Philadelphia row house and leveled a city block, killing eleven people,
including five children. "' The bombing, endorsed by then-Mayor Wilson
Goode, destroyed 61 homes."' To be clear, this event was not the result of a
drone attack. However, the fact that government officials bombed a city and
escaped criminal charges "' gives reason to pause before instituting a nationwide drone program that carries a potentially lethal threat to public safety.
reliance on drones abroad, particularly in Yemen and Pakistan); Hakim Almasmari, Drone
Strikes Kill 5 Suspected Al Qaeda Fighters in Yemen, Officials Say, CNN (Oct. 4, 2012),
http://commcns.org/l7khGGn.
107 Chris Woods, A Journey into Moral Depravity-U.S. Congressman Dennis Kucinich
on Covert Wars, BUREAU OF INVESTIGATIVE JOURNALISM (June 29, 2012),
http://commcns.org/14TyAj I (describing America's "covert war" in Pakistan).
108 Chris Woods, Is the Secret War in Yemen and Somalia Secret No Longer?, BUREAU
OF INVESTIGATIVE JOURNALISM (June 16, 2012), http://commcns.org/14eaBN5 (describing
targeted killings in Yemen and Somalia, where America has not officially declared war).
109 Id.
"0 Scott Shane, Report Cites High Civilian Toll in Pakistan Drone Strikes, N.Y. TIMES
(Sept. 25, 2012, 9:47AM), http://commcns.org/laeCc3p.
I See The FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 331336, 126 Stat. 11, 72-78 (showing that the sections that should address this topic do not).
112 See, e.g., Philadelphia,City Officials Ordered to Pay $1.5 Million in MOVE Case,
CNN (June 24, 1996, 6:25 PM), http://commcns.org/I 7FBDOG (describing a 1985 Philadelphia bombing); Martha T. Moore, 1985 Bombing in PhiladelphiaStill Unsettled, USAToDAY.COM (May 11, 2005, 10:23 PM), http://commcns.org/lczwQNm.
"3 Philadelphia Ordered to Pay $1.5 Million, supra note 112 (discussing the circumstances surrounding the 1985 bombing and the 1996 settlement against the city, the police
commissioner, and the fire commissioner, wherein a jury awarded $1.5 million to a survivor
of the bombing finding that the police bombing constituted a Fourth Amendment violation
of unreasonable searches and seizures).
II4 Moore, supra note 112.
115 See PhiladelphiaOrdered to Pay $1.5 million, supra note 112 (criminal charges were
never filed against either the mayor, police, or other government officials involved in the
bombing).
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IV. DOMESTIC DRONES MAY CONTRAVENE THE FOURTH
AMENDMENT AND THE COMMON LAW TRESPASS DOCTRINE
A. Privacy Implications of Domestic Drones in the Context of the Fourth
Amendment
This section will first focus on the potential privacy impact of domestic
drones as to the Fourth Amendment. Next, this section will propose that courts
implement the "equilibrium-adjustment" theory" 6 of the Fourth Amendment in
response to technology-related privacy obstructions.
1. The State ofPlay: Exploring the FourthAmendment's Limitations in
Addressing Privacy Concerns in an Era of Technological Expansion
The FAA has issued permits allowing private, public, and government entities to use drones,' 7 which introduces a significant privacy concern. "8
a. Aerial Surveillance Case Law
The Fourth Amendment is comprised of two clauses that provide dual protection against government invasions of privacy. The "reasonableness clause"
protects against "unreasonable searches and seizures."''9 The "warrant clause"
extends a second layer of protection, prohibiting searches without probable
cause and warrants. 20 The Supreme Court held that the Fourth Amendment is
not generally implicated when the issue involves an individual's right to privacy from aerial surveillance.' California v. Ciraolo concerned police officers'
use of aerial surveillance to obtain evidence of a crime.'22 In Ciraolo, police
procured a private airplane to fly above the defendant's property, at which
116 Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125
HARV. L. REV. 476, 480 (2011) (describing the equilibrium-adjustment theory as a "judicial
response to changing technology and social practice" that attempts to balance or sustain the
equilibrium of individual privacy and police power in relation to the Fourth Amendment).
117 See FAA List of Special Airworthiness Certificates- Experimental Category, supra
note 27; FAA List of Certificates of Authorizations (COAs), supra note 27. The EFF obtained both lists from the FAA through a Freedom of Information Act lawsuit.
118 Judy Keen, Citing Privacy, Critics Target Drones Buzzing Over USA, USATODAY.COM (Jan. 10, 2013, 6:50 PM), http://commcns.org/14Tzg87.
119 "The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated." U.S. CONST. amend. IV.
120 "[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons to things to be seized."
U.S. CONST. amend. IV.
121 California v. Ciraolo, 476 U.S. 207, 207-208 (1986).
122
Id. at 207.
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point they observed illegal marijuana cultivation in his backyard. 2 1 Upon the
defendant's objection to the admissibility of the evidence of drug activity, the
Court held that the police did not violate the defendant's privacy right by observing his property without a warrant because the Fourth Amendment offers
protection only against an unreasonable search or seizure.'24 The Court declined to find that a search had occurred because the police had observed the
illegal activity in plain view, despite the fact that the view was auspiciously
25
enhanced from 1,000 feet in the air above the defendant's property.
Drones are vastly superior to traditional aerial technology. 26 Drones, unlike
the airplane that surveyed the defendant's property from a vantage point of
1,000 feet,'2 can potentially hover at altitudes upwards of 60,000 feet for days
at a time, 28 with future expectations for drones capable of years of sustained
flight. 2 1 Some drones are designed specifically with high-altitude surveillance
in mind.'30 At these altitudes, drones can survey private property and remain
undetected while gathering sensitive data.'' From a textual reading of Ciraolo,
aerial surveillance of property is not a Fourth Amendment search. 3 2 However,
the Ciraolo court did not foresee the expansion of drones- technology that
increases the likelihood of observing an individual's private activity.' As
such, privacy law has not evolved to meet these advances,'34 and because CiId.
U.S. CONST. amend. IV.
125 Ciraolo,476 U.S. at 207.
126 Calo, supra note 94, at 30.
127 Ciraolo, 476 U.S. at 207.
128 Raisa Bruner, Huge New Hydrogen-Powered Spy Drone Takes Test Flight, ABC
NEWS (June 5, 2012), http://commcns.org/l 5mZWdW; see Boeing Phantom Eye Completes
FirstAutonomous Flight, BOEING (June 4, 2012), http://commcns.org/I 9d0FS4 (stating that
Boeing's hydrogen-fueled surveillance drone, the Phantom Eye, can potentially reach an
altitude of 65,000 feet and remain in flight for four days, although during its test flight in
June it reached an altitude of only 4,000 feet).
129 Lance Whitney, Boeing Eyes Five-Year Flightfor SolarPlane, CNET (Sept. 17, 2010,
8:43 AM), http://commcns.org/ l8mffFS (announcing Boeing's $89 million contract with the
federal Defense Advanced Research Projects Agency ("DARPA") to produce, by 2014, a
drone capable of hovering 60,000 feet in the sky for a five-year period).
130 See id. (noting that drones could "eventually turn into a less expensive alternative to
communications and reconnaissance satellites").
131 See Jane Mayer, The Predator War, NEW YORKER (Oct. 26, 2009),
http://commcns.org/17kj77R (describing how drones can stealthily survey private property
without compromising clarity of images. For example, a CIA predator drone surveyed two
miles above a home and produced images that were "remarkably crisp").
132 Ciraolo, 476 U.S. at 215.
133 Id. at 213 (noting that Fourth Amendment protection is unavailable to "activities
clearly visible" to the public). However, drones allow operators to observe activities not
visible to the public, so courts may, in fact, be willing to find Fourth Amendment searches
in aerial surveillance cases with drones.
134 Calo, supra note 94, at 30.
123
124
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raolo did not foresee this expansion, courts might reconcile drone surveillance
with the Ciraolo holding and find that drone surveillance is not a Fourth
Amendment search.
In Florida v. Riley, under circumstances similar to Ciraolo, the Supreme
Court held that the police officers' viewing of the defendant's marijuana plants
did not constitute a Fourth Amendment search. 35 Although the officers observed the illegal activity from a helicopter above the defendant's greenhouse,
the defendant's marijuana plants were in public view, and a reasonable expectation of privacy does not attach to that which is in public view.'36
Generally, aerial surveillance is not a search,' but drones could carve out a
unique exception to the rule.' In Dow Chemical Co. v. United States, the
chemical company sought injunctive relief against the Environmental Protection Agency's ("EPA") use of photographs it obtained during flights over one
of its chemical plants.'39 The Supreme Court affirmed the Sixth Circuit's ruling
in favor of the EPA, holding that the aerial surveillance and photography did
not constitute a Fourth Amendment search because Dow Chemical had no reasonable expectation of privacy from an airplane operating in public airspace. 4 °
The court based its ruling on the "open fields" doctrine, 4' whereby Fourth
Amendment protection "is not extended to the open fields."' 42 Proponents of
domestic drone expansion may find false support in this case to bolster an argument-premised on the "open fields" doctrine-that drones pose no privacy
violation to individuals in public.'43 As the "Fourth Amendment protects people, not places,""' a reasonable expectation of privacy can be found in the public arena.'45
These early aerial surveillance cases are a distinct subset of Fourth Amend135
136
137
Florida v. Riley, 488 U.S. 445, 450-51 (1989) (plurality opinion).
Id.
Id. at 450-451; see Ciraolo, 476 U.S. at 215.
138 See RICHARD M. THOMPSON II, CONG. RESEARCH SERV., R42701, DRONES IN DOMESTIC SURVEILLANCE OPERATIONS: FOURTH AMENDMENT IMPLICATIONS AND LEGISLATIVE RESPONSES 13 (Sept. 6, 2012), available at http://commcns.org/l368U 1r.
139 Dow Chem. Co. v. United States, 476 U.S. 227, 229-30 (1986). The EPA obtained
the photographs after Dow denied the agency physical access to the location in question and
did so without an administrative warrant. Id.
140 Id. at 239.
141 Id. at 236-39.
142 See, e.g., Hester v. United States, 265 U.S. 57, 59 (1924).
143 See Eva Hershaw, Send in the Drones, TEX. OBSERVER (May 2, 2012, 5:23 PM),
http://commcns.org/17FCEFM (referring to the "open fields" doctrine, U.S. Rep. Henry
Cuellar (D-TX) argued that the Fourth Amendment may not apply to drone surveillance as
"a lot of this has been adjudicated by the Supreme Court. We're talking about cameras used
for surveillance, which have been around for a long time.").
144 Katz v. United States, 389 US 347, 351 (1967).
145 See id. at 351-52 ("But what [a person] seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.").
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ment privacy cases and should be distinguished from potential drone cases.
Conventional aircraft are manned, thus the privacy invasion, if one is found, is
immediate. Drones, however, are operated remotely, obscuring a finding that a
search is being conducted, as the privacy invasion is less apparent.'46 While this
distinction qualifies the type of invasion, it does not diminish the intrusion; the
fact that a privacy invasion is less noticeable does not make it less harmful."7
Although drones are unmanned, the data collected are transmitted to operators
who can, in many cases, view the information in real time.' 48 The privacy intrusion still exists regardless of where it is conducted and by what means it is
managed.
b. Technology Surveillance
Drones are discrete and more technologically advanced than conventional
aircraft, a distinction that could trigger Fourth Amendment protections that
were unavailable in Ciraolo and Riley. More recently, in United States v.
Jones, the defendant was convicted of cocaine possession with the intent to
distribute based on evidence acquired through the government's warrantless
application of a GPS device on the defendant's vehicle.' 9 The government installed the GPS device on authority of an invalid warrant. The Supreme Court
affirmed the U.S. Court of Appeals for the District of Columbia and reversed
the conviction, holding that the installation of the GPS device constituted a
Fourth Amendment search due to the physical trespass involved in installing
5 Justice Sotomayor based her concurrence on a tracking theory,
the GPS."'
finding that an illegal search resulted not only from the trespass, but also from
the government's warrantless use of a GPS device to monitor the defendant. 5'
Similarly, drones are able to track individuals' movements as surreptitiously
and effectively as GPS devices.'52 Therefore, the use of drones as surveillance
146 The Supreme Court has upheld two tests for determining a search: Whether the government violated a reasonable expectation of privacy, Florida v. Riley, 488 U.S. 445, 455
(1989), or whether the government obtained information by physically intruding onto one's
property, Unites States v. Jones, 132 S. Ct. 945, 949 (2012). The government could circumvent both tests if a government drone, hovering in public airspace, retrieved private information by tracking the individual through means other than physically touching the individual's property, as was the case in Jones.
147 Judy Keen, Drones in US. Skies Come Under Fire,USA TODAY (Jan. 10, 2013, 6:50
PM), http://commcns.org/14Tzg87 ("Growing public wariness about the loss of privacy is
driving concerns about drones.").
148 See, e.g., Mayer, supra note 131 (discussing an attack on a terrorist where the operators "watched the fiery blast in real time.").
149 Jones, 132 S. Ct. at 948-49.
150
Id. at 949.
15' Id. at 954-957 (Sotomayor, J., concurring).
152 Domestic Unmanned Aerial Vehicles, supra note 71 ("On some drones, operators can
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Drones in the Homeland
tools should be viewed with equal or greater concern.
In Kyllo v. United States, the Supreme Court determined whether the use of
sense-enhancing technology "not in general public use," to gather information
about the interior of a home that could not otherwise be obtained without entry,
constituted a Fourth Amendment search requiring a warrant.,53 In Kyllo, the
petitioner was convicted of cultivating marijuana after the government used
thermal imaging equipment to ascertain high levels of heat emitting from
Kyllo's home.'54 The government believed that these heat levels might indicate
the use of certain high-intensity lamps used to grow marijuana indoors.'55 On
appeal, the Supreme Court reversed both the district court and the court of appeals, holding that the government's use of heat sensors without a warrant constituted a search because the government could not have ascertained this conduct otherwise.5 6 The use of such technology triggered the Fourth Amendment's "reasonableness clause,"' 57 and the Court found that Kyllo's reasonable
expectation to keep the activities inside his home private was violated by the
illegal search.'
Drones are "not in general public use"' 9 and are often outfitted with thermal
imaging capabilities that certainly meet, if not surpass, that of the equipment
used in Kyllo.' This suggests that information collected by a drone, at least
that which intrudes upon the intimate details of the home, should be subjected
to the same threshold warrant protections affirmed in Kyllo. 6 '
In its seminal 1967 Katz v. United States decision, the Supreme Court
demonstrated how Fourth Amendment privacy protections could apply in public places. 62 In Katz, the Court found that the defendant's expectation of privacy while making a private phone call in a closed phone booth was reasonable
and therefore protected.'63 That the trespass was neither physical nor conducted
track up to 65 different targets across a distance of 65 square miles.").
153Kyllo v. United States, 533 U.S. 27, 34 (2001).
154Id. at 29-30.
I's Id.
(based in part on the thermal image information, the police obtained a warrant to
search Kyllo's home and found more than 100 marijuana plants).
156Kyllo, 533 U.S. at 40.
U.S. CONST. amend. IV.
158Kyllo, 533 U.S. at 34 ("While
117
it may be difficult to refine Katz when the search of
areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of
residences is at issue, in the case of the search of the interior of homes-the prototypical and
hence most commonly litigated area of protected privacy-there is a ready criterion, with
roots deep in the common law, of the minimal expectation of privacy that exists, and that is
acknowledged to be reasonable.")(emphasis original).
159Id. at 40.
160 THOMPSON,
supra note 138, at 3.
Id. at 13-14.
162Katz v. United States, 389 US 347, 351-52 (1967).
163 Id. at 359.
161
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in a private home or building did not preclude a privacy intrusion." 6 Justice
Harlan, in his concurrence, brought forth a two-part "reasonable expectation of
privacy" test, which courts adopted in construing whether or not a search has
occurred. The test examines whether (1) the individual has a subjective expectation of privacy, which (2) "society is prepared to recognize as reasonable."
The Katz doctrine should protect individuals from drone surveillance in public
if they enjoy a reasonable expectation of privacy, and society generally believes that this expectation is reasonable.
The Fourth Amendment protects individual privacy against government use
of sensory detection equipment (e.g., wiretaps, thermal imaging, and satellite
location surveillance). 65 This well established precedent of individual privacy
should govern with drones because many drones are equipped with technology,
such as high-definition cameras, radar technology, and thermal imaging sophisticated enough to "see" through obstructions. 6 ' Drones make it possible to
procure large amounts of information ordinarily unobtainable during a physical
search.'67 Perhaps more significantly, drones make it possible to obtain personal information that intrudes upon privacy in inventive and increasingly invasive ways."' Activities performed within the confines of the home could be
69
observed with great detail.
2. Employing the Equilibrium-Adjustment Theory as a PragmaticApproach to
Fourth Amendment Analysis Relative to Evolving Technologies
The equilibrium-adjustment theory, introduced by Professor Orin Kerr,' is
new in name but has shaped Fourth Amendment case law for decades. 7 ' The
161 Id. at 353 ("[l~t becomes clear that the reach of [the Fourth] Amendment cannot turn
upon the presence or absence of a physical intrusion into any given enclosure.").
165 Kyllo v. United States, 533 U.S. 27, 34 (2001); see Katz v. United States, 389 US
347, 353; see also United States v. Jones, 132. S. Ct. 945 (2012).
166 See Mayer, supra note 131 (describing a CIA video obtained from the infrared camera of a Predator drone patrolling two miles above a suspected terrorist's home in Pakistan);
see also Drone Patrols Take off with Eye on Canada, Florida, NBC NEWS (Apr. 2, 2008,
9:29 PM), http://commcns.org/173LeLl (describing agents of the CBP using a Predator
drone equipped with radar imaging to apprehend illegal immigrants who cross the Mexican
border).
167 Domestic Unmanned Aerial Vehicles, supra note 71 (discussing drone capabilities,
such as "infrared cameras, heat sensors, GPS, sensors that detect movement, and automated
license plate readers").
168 STANLEY & CRUMP, supra note 9, at 10-13 (arguing that new uses of unmanned
drones pose a "looming threat to Americans' privacy").
169 Drones Moving from War Zones to the Home Front, NAT'L PUB. RADIO (Apr. 17,
2012, 1:00 PM), http://commcns.org/l 7viGv (discussing how drones can observe the inside
of buildings and homes).
170
Kerr, supra note 116.
171 Id. at 480-81.
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equilibrium-adjustment theory suggests that the Supreme Court has approached the Fourth Amendment with the flexibility necessary to account for
advancements in technology and changes in social norms,"' which would explain varying decisions in Fourth Amendment cases that present similar conditions.' Under this theory, the Supreme Court protects the balance between the
government's police power and individuals' privacy by shifting its Fourth
Amendment evaluation to accommodate for "new tools and new practices
[that] threaten to expand or contract police power in a significant way."' 74
Under the equilibrium-adjustment theory, the Supreme Court should perceive drones as a technology unchecked by Fourth Amendment law.' Drones
simplify the ways in which the government can obtain information from individuals while increasing the amount of information the government can collect.'76 In order to prevent police power from becoming stacked against individual privacy, the Supreme Court should strengthen Fourth Amendment protections concerning drones."' If government drones, for example, are used to
conduct surveillance above a criminal suspect's home, the Supreme Court
might instinctively turn to the aerial surveillance cases like Ciraolo and conclude drone use is not a search, citing the similarities between drone and airplane surveillance. However, if the Court is inclined to lean toward the equilibrium-adjustment theory of Fourth Amendment jurisprudence, it should find
172 Id. at 480 ("When Changing technology or social practice makes evidence substantially harder for the government to obtain, the Supreme Court generally adopts lower Fourth
Amendment protections for these new circumstances to help restore the status quo ante level
of government power. On the other hand, when changing technology or social practice
makes evidence substantially easier for the government to obtain, the Supreme Court often
embraces higher protections to help restore the prior level of privacy protection.").
173 Compare, e.g., United States v. Jones, 132. S. Ct. 945, 949 (2012) (holding that a
Fourth Amendment violation was found when police attached a GPS device to a suspect's
vehicle in order to monitor his movements) with United States v. Knotts, 460 U.S. 276, 285
(1983) (finding that the police did not violate the defendant's Fourth Amendment right by
using a beeper to track his vehicle).
174 Kerr, supra note 116, at 480.
175 Until the Supreme Court considers the legality of a drone's use for surveillance,
UAVs will present a novel area of Fourth Amendment jurisprudence. See John Villasenor,
Will "Drones" Outflank the Fourth Amendment?, FORBES (Sept. 20, 2012, 3:59 PM),
http://commcns.org/l 7viFrq ("In a word, no ... [court] rulings provide cause for optimism
that, with respect to government UAV observations, the Fourth Amendment will be reasonably protective .... [lI]t is important not to lose sight of the substantial constitutional foundation we already have.").
176 See Somini Sengupta, Drones May Set off a Flurry of Lawsuits, N.Y. TIMES (Feb. 20,
2012, 1:28 PM), http://commcns.org/15n0znD (discussing how drones can "collect vast
troves of data from people and communities...").
177 See Kerr, supra note 1.16, at 480 ("On the other hand, when changing technology or
social practice makes evidence substantially easier for the government to obtain, the Supreme Court often embraces higher protections to help restore the prior level of privacy
protection").
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that the government's actions constitute a search by distinguishing drone surveillance as superior and thus sufficiently distinct from airplane surveillance so
as to warrant different treatment under the Fourth Amendment.
B. Implications of Domestic Drones upon the Common Law Trespass Doctrine
in Relation to Jones and the Fourth Amendment
1. The InterrelationshipBetween the Trespass Doctrineand the Fourth
Amendment Strengthens Privacy Protections
While the Fourth Amendment protects individuals from privacy abuses by
the government, it does not extend its protection to wrongs inflicted by private
parties. 7 Even if grounds for a Fourth Amendment suit existed, an individual
would have no Fourth Amendment recourse against a non-government entity.
However, grounds for a trespass tort would exist.
Justice Brandeis recognized the right to privacy as so fundamental as to be
the cornerstone of a free society.' 79 Notably, Brandeis wrote, "That the individual shall have full protection in person and in property is a principle as old as
the common law; but it has been found necessary from time to time to define
anew the exact nature and extent of such protection."' 8 ° A violation of the privacy right can be redressed in the common law doctrine of trespass, which is
defined as an unlawful interference with a property owner's right to enjoy his
person or property. 8' While the Fourth Amendment applies to the government's infringement of one's privacy, the common law trespass doctrine draws
no limitations upon the character of the trespasser, recognizing one's right to
privacy against a government or individual.' 82 Courts often defer to Katz's
"reasonable expectation of privacy" application of the Fourth Amendment privacy protection when examining non-physical privacy concerns," 3 but courts
have also examined the issue in the context of trespass.'84 Individuals confront178 U.S. CONST.
amend. IV.
19 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193,
193 (1890) ("Gradually the scope of these legal rights broadened; and now the right to life
has come to mean the right to enjoy life,-the right to be let alone ....
180 Id.
181 See BLACK'S LAW DICTIONARY 1642 (9th ed. 2009).
182 Id.;
see RESTATEMENT(SECOND) OF TORTS § 652(b) (1977).
183 California v. Ciraolo, 476 U.S. 207, 211 (1986); Katz v. United States, 389 U.S. 347,
358-359 (1967) (the government's electronic eavesdropping "violated the privacy upon
which [Katz] justifiably relied"); see Florida v. Riley, 488 U.S. 445, 450 (1989) (affirming
Katz in a finding that the police did not conduct a search because the defendant did not enjoy a reasonable expectation of privacy from the government's "naked eye" observation of
his property from an airplane).
1s4United States v. Jones, 132. S. Ct. 945, 953 (2012) (premising its finding based on the
Drones in the Homeland
20131
ing privacy intrusions from drones might argue the common law as an alternative applicable legal theory. In Jones, five justices, led by Justice Scalia, revived the trespass doctrine in regard to a Fourth Amendment search'85 in lieu of
the "reasonable expectation" doctrine, which had been applied liberally since
Katz. 86
In Jones, the police physically attached a GPS monitoring device to Jones'
vehicle, inviting a privacy invasion centered upon trespass."' Justice Scalia
asserted that, "the Katz reasonable-expectation-of-privacy test has been added
to, but not substituted for, the common-law trespass doctrine."'8 8 As such, the
Jones court held that a Fourth Amendment search resulted from the government's physical trespass upon Jones' vehicle.'89 Rather than supplant the "reasonable expectation" standard, the trespass doctrine bolsters it, allowing for
privacy safeguards in light of technological intrusions. 9" Thus, for example, if
small surveillance drones landed-without a warrant-on an individual's
property, a trespass sufficient to implicate the Fourth Amendment's protection
against an unreasonable search could result. This is not to imply that a trespass
would always amount to a search. In Oliver v. United States, police officers
trespassed on the defendant's property and observed his marijuana field. 9' Yet,
even though there was a physical trespass, the Court found that the officers'
warrantless search was not a violation because they viewed the marijuana in an
"open field" and there is no legitimate expectation of privacy in open field.'92
Jones presents an issue of technological surveillance precipitated by a trespass. A trespass predicated on a surveillance motive is unique in that it poses a
higher degree of harm because the privacy invasion is continuous and may be
indefinite.'93 If a drone landed on an individual's property, it could, like the
GPS device in Jones, continuously monitor and transmit information after the
government's warrantless attachment of a GPS device to the defendant's vehicle on the
common law trespass doctrine).
i5 Id. at 949-50.
186 Id. at 954 ("It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present
case does not require us to answer that question."). For a discussion of the prevalence of
Katz's reasonable expectation doctrine, see Daniel R. Hansen, Note, Warrantless Aerial
Surveillance and Florida v. Riley: The Loss of Liberty, 1990
UTAH
L. REv. 407, 410 (dis-
cussing the prevalence of the Katz "reasonable expectation of privacy" doctrine as applied
in Fourth Amendment cases).
187 Jones, 132 S. Ct. at 948.
188 Id. at 952.
189 Id. at 949.
190 Id. at 952.
191Oliver v. United States, 466 U.S. 170, 173 (1984).
192
Id. at 177-81.
See Jones, 132 S. Ct. 957-964 (Alito, J., concurring); David Hong, In Depth: Supreme Court Ruling on GPS Tracking, CTR. STRATEGIC & INT'L STUD. (Apr. 10, 2012),
http://commcns.org/l5n0Sit.
193
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initial trespass had expired."' In United States v. Knotts, police, with permis-
sion, placed a beeper in a can of chloroform and subsequently had a civilian
place the can in the defendant's vehicle.' 95 The signal from the beeper allowed
the police to monitor the defendant."" The Supreme Court declined to find a
Fourth Amendment obstruction on the grounds that the defendant had no reasonable privacy expectation on public roads.'97 Knotts is distinguished from
Jones. The police in Jones committed a trespass by physically attaching a GPS
monitor to the defendant's vehicle,' whereas the officers in Knotts evaded a
trespass by placing a radio transmitter in a container of chloroform (rather than
the defendant's vehicle) before the defendant took the container into his possession.'" Furthermore, Justice Alito's concurrence theorized that the government's lengthy monitoring of Jones' vehicle constituted a search under the
Fourth Amendment," an especially relevant argument in regard to observations made by drones. Because drones can be designed for long-term surveillance,2"' their monitoring may implicate a Fourth Amendment search.
Jones exemplifies a true intersection between privacy law and technology,
where the former has not kept pace with the latter. Justice Sotomayor observed
the interrelationship between the Fourth Amendment and the common law
trespass theory in a privacy analysis, asserting the applicability of both doctrines. 2" The right to be safe from an overreaching government is an underpinning of the Fourth Amendment." 3
2. Employing the Mosaic Theory as a PragmaticApproach to Fourth
Amendment Analysis
Protecting the public from unreasonable government intrusions is increas194Domestic Unmanned Aerial Vehicles, supra note 71.
195United States v. Knotts, 460 U.S. 276, 278 (1983).
196 Id. at 278.
197Id. at 281 ("A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."); see United
States v. Karo, 468 U.S. 705, 711-12 (1984) (holding that the defendant's Fourth Amendment right was not infringed when a Drug Enforcement Administration ("DEA") agent
placed a beeper in a can of ether, which the defendant picked up from a civilian informant
and then transported to his vehicle and eventually to his house).
198Jones, 132 S.Ct. at 948.
199Knotts, 460 U.S. at 282.
200 See Jones, 132 S. Ct. at 957-964 (Alito, J., concurring) (characterizing the government's "long-term monitoring of the movements of the vehicle [the defendant] drove" as a
violation of his reasonable expectation of privacy).
201
Whitney, supra note 129.
See Jones, 132 S.Ct. at 954-957 (2012) (Sotomayor, J., concurring) (noting that
"Katz's reasonable-expectation-of-privacy test [of the Fourth Amendment] augmented, but
did not displace or diminish, the common-law trespassory test that preceded it").
203 U.S. CONST. amend. IV.
202
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Drones in the Homeland
ingly difficult as technology continues to advance, adding a greater dimension
to privacy harm. 4 The "mosaic theory"2"5 of the Fourth Amendment attempts
to accommodate for this limitation of privacy law by "requir[ing] courts to apply the Fourth Amendment to government conduct considered as a collective
whole rather than as isolated steps.""
When analyzing an event as a potential Fourth Amendment search, each act
is assessed separately; therefore, one of many acts may be considered a search,
while other related acts may not, or the courts may find that a collection of intrusive acts is not a search. 7
Under the mosaic theory, touched on by Justice Sotomayor in Jones, aggregated actions may be sufficiently intrusive to amount to a search under the
Fourth Amendment.20 8 As such, recourse could be available for potential privacy threats posed by drones because courts may consider a complete picture of
the privacy intrusion rather than the individual acts that might not ordinarily
constitute a Fourth Amendment search. Justice Alito took such an approach in
his Jones concurrence in which he argued that, because the government's privacy violation occurred with the long-term monitoring of the defendant's car,
it was not the government's use of GPS itself that violated the Fourth Amendment. 29 The mosaic theory allows for the evolution of existing privacy protections afforded by the Fourth Amendment and common law. 20 Precisely because drones, unlike many other technologies, are not widely used on a domestic scale, and the ways in which they will impact society is unknown, this theory may compensate for the limitations in privacy law to address potential
threats. The mosaic theory may be useful in determining whether activities
conducted by drones amount to searches by encouraging courts to consider a
fuller picture of the alleged abuse.
204
See Calo, supra note 94, at 30 ("The development of American privacy law has been
slow and uneven; the advancement of information technology has not. The result is a widening chasm between our collective and individual capacity to observe one another and the
protections available to consumers and citizens under the law.").
205 The "Mosaic Theory" is a term introduced by Orin Kerr in a 2010 blog post; see Orin
Kerr, D.C. Circuit Introduces "Mosaic Theory" Of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search, VOLOKH CONSPIRACY (Aug. 6, 2010, 2:46 PM),
http://commcns.org/141BpFI.
206 Kerr, supra note 116, at 320.
207 Kerr, supra note 116, at 314 (stating that the mosaic theory considers "aggregat[ed]
conduct rather than" individual steps).
208 See United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring) ("I
would take these attributes of GPS monitoring into account when considering the existence
of a reasonable societal expectation of privacy in the sum of one's public movements").
209 See id. at 957-64 (Alito, J., concurring).
210 Kerr, supra note 116, at 328.
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V. DRONES: POTENTIAL BENEFITS, HARMS, AND POSSIBLE
SOLUTIONS
A. Drones May Present a Public Benefit
Drones are touted as superior reconnaissance tools because they have the
ability to be cost effective while simultaneously raising the efficiency of law
enforcement, as there is a lower risk to law enforcement officials than with
traditional manned aircraft.2 ' Deployment of drones eliminates the risk that a
pilot or crew could be killed or injured during a surveillance mission.1 2 Drones
also allow for advanced national security with increased border patrol, as well
as the opportunity to conduct more sophisticated and effective emergency response and rescue missions.2 3 In a disaster, drones could be deployed quickly
to assess affected areas and improve situational awareness, aiding first responders in determining where resources should go.2 4 The availability of
drones also provides local law enforcement agencies with the opportunity to
operate more efficiently by obtaining otherwise unavailable surveillance information that could potentially lead to greater and more accurate arrests.25
Domestic drone use could result in economic benefits by creating jobs in drone
manufacturing and supplying industries, creating demand for drone operators,
and encouraging scientific innovation. 6
Though not enforced by a body of legal authority, the Association for Unmanned Vehicle Systems International ("AUVSI"), an international trade association representing the drone industry, has disseminated a Code of Conduct
211 See Calo, supra note 94, at 30 (noting the inevitability of "widespread domestic use"
of drones because of their cost-effectiveness).
212
Job C. Henning, Op-Ed., Embracing the Drone, N.Y. TIMES, Feb. 20, 2012,
http://commcns.org/17viYT3 ("[Drones] eliminate risk to pilots and sharply reduce the financial costs of projecting power.").
213 Amy Gahran, Fighting Fire With Data, Spacecraft, Drones, CNN (July 26, 2012,
9:37 AM), http://commcns.org/17viZ9N (stating that the infrared sensors in drones aid in
firefighting); Dougal Shaw, DisasterDrones: How Robot Teams Can Help in a Crisis,BBC
(July 22, 2012, 22:39 ET), http://commcns.org/173LGts (describing how drones can assist
in disaster response).
214
Dougal Shaw, DisasterDrones: How Robot Teams Can Help in a Crisis, BBC (July
22, 2012, 22:39 ET), http://commcns.org/173LGts (describing how drones can assist in
disaster response).
215
Brian Bennett, Police Employ PredatorDrone Spy Plane on Home Front, L.A. TIMES
(Dec. 10, 2011), http://commcns.org/19dlxGh (describing the first American arrested with
the help of a drone after allegedly stealing cattle).
216 Gary Martin & Viveca Novak, Push to Step up Domestic Uses of Drones, S.F.
CHRONICLE (Nov. 27, 2012, 5:56 PM), http://commcns.org/17vjI Im (noting that the FAA
has predicted that 30,000 drones could be flying in the United States in less than twenty
years).
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Drones in the Homeland
for drone use.217 The Code of Conduct recommends that drone users operate
with the privacy of individuals in mind, but stops short of detailing any specif-
ic privacy guidelines." 8
Drones could serve as a public benefit if the FAA implements comprehensive safety guidelines for drones. The FAA intends to soften the transition of
the domestic use of drones in the national airspace by improving upon protocol
in the NAS." 9 The Next Generation Air Transportation System ("NextGen") is
expected to revamp the National Airspace System procedures and bolster current technology to improve safety in air travel.2 ° In part, the NextGen program
will institute the use of GPS technology to allow air traffic controllers to more
accurately monitor aircraft, including drones.2 2 ' This will allow aircraft to fly
closer together while avoiding collisions. The FAA Act, which requires that
drones be equipped with "sense and avoid" capability, 2 can work with
NextGen to create safer skies. NextGen was created to alleviate air traffic congestion,224 a larger concern with the prospect of drones vying for a share of the
national airspace.
B. Drones Present a Public Concern
Drones present a potential danger to those on the ground. Drone pilots, who
are often thousands of miles from their targets, might operate with a false sense
of security, be less wary, and not react as quickly. 2 1 Other hazards from drones
might include bird strikes or other obstructions. 26 Another consideration is the
potential for programming errors, which could have dire consequences. 27 For
217 AUVSI, UNMANNED AIRCRAFT SYSTEM OPERATIONS INDUSTRY "CODE OF CONDUCT"
2 (2012), available at http://commcns.org/1 8meYTm.
218 Id.
PLAN
11
(2012),
available at
219 FAA,
NExTGEN
IMPLEMENTATION
http://commcns.org/I a IsKgO.
220 Id.
FAA, Fact Sheet-NextGen (Feb. 14, 2007), available at
221 Press Release,
http://commcns.org/173LQ43.
222 NExTGEN IMPLEMENTATION PLAN, supra note 219, at 44.
223 The FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§ 331(5),
332(a)(2)(A)(ii), 126 Stat. 11, 72-73 (2012).
224 Fact Sheet-NextGen, supra note 221.
225 See Elisabeth Bumiller, A Day Job Waiting for a Kill Shot a World Away, N.Y.
TIMES, July 29, 2012, http://commcns.org/lalo75H (noting the effect of "fighting a telewar
with ajoystick and throttle" from a "padded seat in American suburbia").
226 See Bill Dedman, Bird Strikes Becoming a More Serious Threat, NBC NEWS (Jan. 16,
2009, 8:16 AM ET), http://commcns.org/17kkOSO (stating that collisions between birds
and aircraft are rising, possibly due to quieter aircraft).
227 Jeremy Hsu, Air Force Shoots Down Runaway Drone Over Afghanistan, POPULAR
Sci. (Sept. 14, 2009, 2:31 PM), http://commcns.org/ldB3Wzz (noting that an MQ-9 Reaper's control system malfunctioned causing it to fly out of control before U.S. Air Force shot
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example, the control system of an MQ-9 drone malfunctioned while flying
over Afghanistan, causing the drone to fly out of control before the U.S. Air
Force shot it down. 28 With the rush to get drones in the sky by the 2015 mark,
some safety concerns linger. Collisions and crashes would present an obvious
threat to the people and property below. In June 2012, a military Global Hawk
drone crashed in Maryland during a training exercise.2 9 The New York Times
reported that the Air Force acknowledged drawbacks in that "more than a
third" of predator drones have malfunctioned and crashed. 3°
After the passage of the FAA Act, safety concerns rose to the forefront, with
privacy safeguards falling by the wayside. 23 Drones can collect massive
amounts of data and the amount is likely influenced by the drone make and
model,2312 but the FAA Act does not yet regulate which drones are acceptable or
prohibited for domestic use.233 When the FAA publishes its regulations, it
should not only prohibit weapon-bearing drones, but also impose restrictions
on the ability of individuals and organizations to collect data with drones. The
FAA regulations should proscribe law enforcement bodies from collecting information without a warrant; otherwise, there is the potential for the use of
warrantless information as evidence in court. 34
Considering the limited use of domestic drones thus far, and the various
mishaps possible,233 the use of domestic drones should be intensively studied
from a safety perspective in addition to thorough privacy assessments. Although the FAA Act requires that drones be equipped with "sense and avoid"
capability, absent any large-scale studies of drones interacting with conventional aircraft, one can only speculate how successful drones will be in avoiding collisions.236 Drones present great possibilities but likewise create formidable concerns; thus, their utility must be weighed against the risk to personal
it down).
Id.
Chris Lawrence, Navy Drone Crashes in Maryland, CNN (June 11,
http://commcns.org/l 5QSuLp.
228
229
230
2012),
Drew, MilitaryAwash, supra note 62 (noting that the "clunky" controls attribute to
the crashes).
231 See FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 335, 126
Stat. i1, 77 (2012) (providing for safety studies but making no mention of any privacy studies).
232 Sengupta, supra note 176 (noting that drone hobbyists built a drone capable of intercepting Wi-Fi signals and recording cell phone conversations).
233
Id.
See, e.g., California v. Ciraolo, 476 U.S. 207, 215 (1986) ("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.").
235 See, e.g., Lawrence, supra note 229.
236 FAA Modernization and Reform Act § 331(5), 126 Stat. at 72 (stating that the "sense
and avoid" capability will enhance the safety and effectiveness of drone flight).
234
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Drones in the Homeland
safety and privacy.
C. Potential Remedies
Before drones are introduced into mainstream domestic use, the FAA should
outline comprehensive privacy safeguards. Because a natural and understandable apprehension of the unknown elicits opposition to drones, the FAA should
promote transparency and encourage a complete understanding of drone integration by informing the public at large in a comprehensible, written and accessible form, as well as a reasonable effort through local television media. 37
The FAA should inform the public of all integral aspects of drone use well before the FAA Act takes effect in 2015.238 Such integral aspects would include
names of all entities, whether private, public, or government, that have applied
for permits to use drones.239 The public should be informed of applicants who
have been denied permits and reasons for the rejections, as well as those who
have been given authorization and for what uses." Clear rules should be craft"
ed to explain how personal information collected by drones can be used.24
' The
FAA should also explain whether it will impose limitations on how high, far,
and fast drones are permitted to fly.24 2 The FAA should also the address the
operational risks that drones may pose to each other, other aircraft, or the pub243
lic.
Additionally, Congress should regulate the use of drones by law enforce-
ment agencies by requiring warrants before using drones to obtain information
from individuals. Because of its sophistication and potential for harm, a drone
aerial search should be prohibited, unless accompanied by a warrant.2 "
The FAA should address the potential ramifications of putting drone tech-
nology into the hands of private companies, especially without instituting strict
regulations regarding the use of drones. Like other electronic devices, drones
See Lynch, supra note 28 (suggesting that the FAA release "all the information necessary [for the public] to engage in informed debate over the incorporation of" drones into
domestic airspace).
238 FAA Modernization and Reform Act § 334, 126 Stat. at 76-77; see Smithson, supra
note 33.
239 Lynch, supra note 28.
240 Lynch, supra note 28.
241 Chris Cole, Drone Lobby Cracks Open US Skies-Will It Happen in the UK?, DRONE
WARs UK (Feb. 11, 2012), http://commcns.org/l9dlN81.
242 FAA Modernization and Reform Act § 332, 126 Stat. at 73-75 (requiring the FAA to
initiate a rulemaking to, in part, "define the acceptable standards for operation and certification of civil unmanned aircraft systems").
243 Id.
244 Press Release, Sen. Rand Paul, Sen. Paul Introduces Bill to Protect Americans
Against Unwarranted Drone Surveillance (June 12, 2012) (on file with CommLaw Conspectus), availableat http://commcns.org/15QI9PH.
237
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might be vulnerable to hackers who can penetrate firewalls and intercept personal data from private individuals. 45 Potentially, drones can be susceptible to
attacks by terrorists who hijack them.246 Unregulated use of drones can potentially lead to a variety of abuses by government agencies using drones to gain
unfettered access into homes and businesses.
It is a point worth reiterating that the expansion of drones into the national
airspace should not be permitted before comprehensive and widely disseminated privacy guidelines are in place. If the FAA does not institute such protections in its rulemaking, Congress should pass legislation requiring them. In
June, Representative Austin Scott of Georgia introduced a House bill entitled,
"Preserving Freedom From Unwarranted Surveillance Act of 2012," which
proposes necessary privacy safeguards in response to drones.247 One such privacy measure would prohibit law enforcement from using drones to collect
evidence against criminal suspects without a warrant.24 The Senate version of
the bill, sponsored by Senator Rand Paul of Kentucky, would reinforce the
warrant clause of the Fourth Amendment by requiring the government to obtain a warrant to gather evidence against a criminal suspect. 249 Senator Paul
proposed exceptions to the warrant requirement in regard to border patrol and
in cases of imminent threats to life.
The judiciary, working in tandem with Congress, should ensure that drone
technology does not abridge the right to privacy. Privacy law is ill-equipped to
properly address the burgeoning advances in technology without strengthening
existing law with a "balancing approach to aerial surveillance." 25' Courts
should allow "aerial surveillance of open fields, but mandat[e] stricter scrutiny
of surveillance over homes and curtilage ... [to] enable courts to preserve the
right to privacy where expectations are highest without placing undue re-
245 Hacking Drones and the Dangers it Presents, NAT'L PUB. RADIO, (July 8, 2013, 3:00
PM), http://commcns.org/l 5QSGds (demonstrating how UAVs can be hacked by describing
how a professor intercepted the GPS signal of a drone and changed its flight path).
246 Id. (theorizing that terrorists could hack into a drone's control system and take over
its operation).
247 Preserving Freedom From Unwarranted Surveillance Act of 2012, H.R. 5925, 112th
Cong. (2012).
248 Press Release, Sen. Rand Paul, supra note 244 ("Like other tools used to collect information in law enforcement, in order to use drones a warrant needs to be issued. Americans going about their everyday lives should not be treated like criminals or terrorists and
have their rights infringed upon by military tactics.").
249 Preserving Freedom from Unwarranted Surveillance Act of 2012, S. 3287, 112th
Cong. (2012); Press Release, Sen. Rand Paul, supra note 244.
250 H.R. 5925 § 4.
251 Hansen, supra note 186, at 438 (stating that the "reasonable expectation of privacy"
test introduced in Katz should be used in cases of aerial surveillance for "a balance between
liberty and law enforcement").
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Drones in the Homeland
'
strictions on law enforcement."252
VI. CONCLUSION
While the expansion of drones is a certainty, it is less certain how courts will
construe the Fourth Amendment in the context of drones. The tests employed
in Katz and Jones-which consider the reasonable expectation of privacy and
trespass, respectively-are both good law and govern Fourth Amendment
searches. As such, drones may present Katz and Jones violations simultaneously. Drones pose a potential search issue under the Fourth Amendment, and because case law shows a greater likelihood of finding a search when the govemnment uses technology, rather than aerial surveillance,253 a search premised
on the Jones trespass theory is particularly relevant. Drones have the capability
to collect massive amounts of highly sensitive, private information from individuals.254 Before the FAA Act is implemented, comprehensive privacy safeguards must be instituted. Implementation of the FAA Act's drone provisions
is premature considering the lack of information on drones' potential impact on
civilians. Surveillance by drones with their unprecedented capabilities is not
ordinary surveillance that the Framers intended to shield from Fourth Amendment protection; rather it is enhanced technology that exploits a common interpretation of Fourth Amendment rights beyond its intention. While the potential
for more effective and efficient law enforcement is great, so, too, is the cost to
civilian privacy. When technology has the potential to impose so great an intrusion upon society, the government has a duty to not only implement strict
safeguards, but to make a concerted effort to inform the public of the use of the
technology and its risks.
Id.
Kyllo v. United States, 533 U.S. 27, 34 (2001); see Katz v. United States, 389 US
347, 353 (1967); see also United States v. Jones, 132 S. Ct. 945 (2012).
254 See Press Release, Rep. Ed Markey, Markey Releases Discussion Draft of Drone
Privacy and Transparency Legislation (Aug. 1, 2012) (on file with CommLaw Conspectus),
252
253
availableat http://commcns.org/1 73Mbnk.