Is Wide-Area Persistent Surveillance by State and Local Governments Constitutional?

This dissertation addresses the following question: “Can wide-area persistent surveillance (WAPS) developed by the United States military and employed abroad as a tool in the Global War on Terror be employed domestically as a law enforcement tool without violating the US Constitution’s Fourth Amendment?” The most likely and controversial application of WAPS by state and local governments is for law enforcement. Aircraft will loiter over a city persistently taking high-definition photographs to capture locations of unidentified persons with the intent to identify persons and areas of interest for criminal investigations. Based on the Flyover Cases, aerial surveillance has few constitutional limitations which WAPS can be consistent. The key challenge in determining the constitutionality of WAPS depends on the Court’s interpretation of the Fourth Amendment concerning emerging technologies. Legal scholars have suggested various forms of the Mosaic Theory, which was introduced in two concurring opinions in Jones v. United States . The Supreme Court has been reticent to engage new technology’s constitutionality. WAPS is among the less intrusive tools when compared to other emerging technologies like digital information or facial recognition. This research argues why the Courts should view Personal Identifying Information (PII) as the line of reasonable expectations of privacy for WAPS and other emerging technologies. Aerial surveillance by nature, collects passive information, new data is not being created by photographing the happenings in public spaces from an aerial platform. In Carpenter v. United States, the Court ruled that warrantless surveillance of cell site location information (CSLI) for more than seven days was an unreasonable search. However, the court repeatedly referred to CSLI as “unique,” whereas “conventional surveillance and tools, such as security cameras,” are not. WAPS should not be limited by the Constitution for the operational duration, time of day/night, camera resolution, location of collection, altitude, or any other variable at the collection stage of the operations. The analysis and exploitation of WAPS data encounters constitutional limits necessary to protect individuals’ PII absent probable cause standards