Drones and the Fourth Amendment: Redefining Expectations of Privacy

Drones have gained notoriety as a weapon against foreign terrorist targets; yet, they have also recently made headlines as an instrument for domestic surveillance. With their sophisticated capabilities and continuously decreasing costs, it is not surprising that drones have attracted numerous consumers—most notably, law enforcement. Courts will likely soon have to decipher the limits on the government’s use of drones under the Fourth Amendment. But it is unclear where, or even whether, drones would fall under the current jurisprudence. Because of their diverse and sophisticated designs and capabilities, drones might be able to maneuver through the Fourth Amendment’s doctrinal loopholes. This Note advocates analyzing drones under an adapted approach to the reasonable-expectation-of-privacy test in Katz v. United States. Courts should focus more on the test’s oft-neglected first prong—whether a person exhibited a subjective expectation of privacy—and analyze what information falls within the scope of that expectation, excluding information knowingly exposed to the plain view of the public. This analysis also considers instances when, although a subjective expectation exists, it may be impossible or implausible to reasonably exhibit that expectation, a dilemma especially relevant to an analysis of drones. Courts that adopt the recommended analysis would have a coherent and comprehensible approach to factually dynamic cases challenging the constitutionality of drone surveillance. Until then, the constitutional uncertainties of these cases will likely linger

The Forgotten Right "to Be Secure"

Surveillance methods in the United States operate under the general principle that “use precedes regulation.” While the general principle of “use precedes regulation” is widely understood, its societal costs have yet to be fully realized. In the period between “initial use” and “regulation,” government actors can utilize harmful investigative techniques with relative impunity. Assuming a given technique is ultimately subjected to regulation, its preregulation uses are practically exempted from any such regulation due to qualified immunity (for the actor and municipality) and the exclusionary rule’s good faith exception (for any resulting evidence). This expectation of impunity invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques during preregulation periods. Regulatory delays tend to run long (often a decade or more) and are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigations). While the societal costs of regulatory delay are high, rising, and difficult to control, the conventional efforts to shorten regulatory delays (through expedited legislation and broader rules of Article III standing) have proved ineffective. This Article introduces an alternative method to control the costs of regulatory delay: locating rights to be “protected” and “free from fear” in the “to be secure” text of the Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the “to be secure” text, however, suggests that the Amendment can be read more broadly: to guarantee a right to be “protected” against unreasonable searches and seizures, and possibly a right to be “free from fear” against such government action. Support for these broad readings of “to be secure” is found in the original meaning of “secure,” the Amendment’s structure, and founding-era discourse regarding searches and seizures. The rights to be “protected” and “free from fear” can be adequately safeguarded by a judicially-created rule against government “adoption” of an investigative method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier j

Cities and Drones: What Cities Need to Know about Unmanned Aerial Vehicles (UAVs)

NLC's municipal guide, Cities and Drones, is designed to serve as a primer on drones for local officials, providing insight into the recently released federal rules relating to drone operation, as well as offering suggestions for how local governments can craft their own drone ordinances to encourage innovation while also protecting their cities.Drones have the potential to revolutionize many industries and city services, particularly as their technology advances. There are many applications for drones within the public sector at the local and state level. Drones can be used for law enforcement and firefighting, as rural ambulances, and for inspections, environmental monitoring, and disaster management. Any commercial arena that involves outdoor photography or visual inspection will likely be experimenting with drones in the near future, as will retailers who want to speed up package delivery.However, drones also present challenges. There are some safety issues, for instance, when operators fly their drones over people or near planes. City residents often have privacy concerns when any small device hovering nearby could potentially be taking photos or video. The FAA's final rule on drones left some opportunity for city governments to legislate on this issue. Rather than ban them outright, city officials should consider how this new technology might serve residents or enhance city services

Privacy, Restriction, and Regulation Involving Federal, State and Local Legislation: More Hurdles for Unmanned Aerial Systems (UAS) Integration?

With the Congressional mandate for the integration of unmanned aerial systems (UAS) in the National Airspace System (NAS) to begin by 2015, significant interest in UAS investment, operations, and research has taken place. Unfortunately, a complex array of requirements and restrictions have been placed on UAS stakeholders by the Federal Aviation Administration (FAA). Public concerns about privacy in and around UAS operations has also created an additional layer of convolution, with outcries for further restrictions by the citizens who believe this technology may be used in ways that violate their right to privacy and protection against illegal search and seizure. As such, legislators and representatives from the Federal Government to the local city government levels have proposed or imposed various laws or restrictions on UAS operations. As such, UAS stakeholders face an ever changing regulatory landscape further complicating their ability to conduct research and development of their systems. Because UAS operators have been concentrating on gaining FAA approval for Certificates of Authorization or Waiver (COA) and apply for test site designations, these stakeholders may be less aware of state and local legislation that could potentially limit or restrict technology development and use of UAS. This research analyzed state and local legislation to identify themes and trends in the development and passage of limitations and barriers to UAS operations. “Hot spots” of activity were identified to evaluate potential for future legislation. These findings will arm UAS stakeholders with the comprehensive understanding they need to make sound decisions on UAS research, acquisition, and usage in their locality

Local Government Policy and Planning for Unmanned Aerial Systems

This research identifies key state and local government stakeholders in California for drone policy creation and implementation, and describes their perceptions and understanding of drone policy. The investigation assessed stakeholders’ positions, interests, and influence on issues, with the goal of providing potential policy input to achieve successful drone integration in urban environments and within the national airspace of the United States. The research examined regulatory priorities through the use of a two-tiered Stakeholder Analysis Process. The first tier consisted of a detailed survey sent out to over 450 local agencies and jurisdictions in California. The second tier consisted of an in-person focus group to discuss survey results as well as to gain deeper insights into local policymakers’ current concerns. Results from the two tiers of analysis, as well as recommendations, are provided here

Legal Aspects Concerning Use of Drones in the Conditions of the Slovak Republic within the Sphere of Intra-logistics

The use of drones for material transmits or support of activities of intra-logistics belongs among the new and progressive technological methods. Their primary purpose does not lie in the monitoring of employees; for the most part, it is utilized in the sphere of transport, when monitoring objects and private land properties or when supporting of intra-logistics, which is its primary economic purpose. Individual entrepreneurs need to protect their widely delineated private complexes which are always busy and full of employees. That is why they are often interested in eliminating of monitoring complexity of these areas. Newly proposed drone use requires further attention not only from the technical sphere but also from the field of law. Our current legal frame should be amended and updated as such, that it would enable their use

Regulating Law Enforcement\u27s Use of Drones: The Need for State Legislation

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government\u27s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. This Article takes up the task of analyzing and comparing state laws regulating the government\u27s use of drones for law enforcement purposes. While the oldest of these laws was enacted in 2013, the thirteen laws passed thus far exhibit wide variations and noteworthy trends. This Article surveys the quickly expanding list of laws, notes which regulations are likely to constrain government drone use, and identifies laws that provide only the illusion of regulation. While some state legislatures have taken up the task of regulating government drone use, many have left the determination of standards for governmental drone use to the judiciary. This Article advances the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use in law enforcement investigations. And were the judiciary to attempt the task of restricting law enforcement\u27s use of drones, the solutions the courts would propose would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures. Moreover, those states that have yet to develop their own regulations should draw upon lessons that can be learned from existing laws and the differences between them

Regulating Law Enforcement\u27s Use of Drones: The Need for State Legislation

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government\u27s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. This Article takes up the task of analyzing and comparing state laws regulating the government\u27s use of drones for law enforcement purposes. While the oldest of these laws was enacted in 2013, the thirteen laws passed thus far exhibit wide variations and noteworthy trends. This Article surveys the quickly expanding list of laws, notes which regulations are likely to constrain government drone use, and identifies laws that provide only the illusion of regulation. While some state legislatures have taken up the task of regulating government drone use, many have left the determination of standards for governmental drone use to the judiciary. This Article advances the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use in law enforcement investigations. And were the judiciary to attempt the task of restricting law enforcement\u27s use of drones, the solutions the courts would propose would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures. Moreover, those states that have yet to develop their own regulations should draw upon lessons that can be learned from existing laws and the differences between them