Grounding Drones: Big Brother's Tool Box Needs Regulation Not Elimination

Abstract

One of the most significant contemporary issues in privacy law relates to law enforcement’s new domestic surveillance tool: unmanned aerial vehicles, also known as, drones. Law enforcement’s use of aerial surveillance as an investigatory tool is currently under attack. In the past, if law enforcement chose to follow a suspect throughout the day, either on the ground or in the air, they need not worry about seeking a warrant or determining whether probable cause or reasonable suspicion exists to justify their surveillance. Aerial surveillance of criminal suspects has been considered outside the protections of Fourth Amendment law. In the 1980’s, the Supreme Court determined in cases such as California v. Ciraolo and Florida v. Royer that as long as the public had the same opportunities as law enforcement to view the ground below and the aircraft stayed within public navigable airspace, aerial surveillance was possible and not considered a Fourth Amendment “search.” Now, law enforcement aerial surveillance is being given a second look. Because of the advances in technology, law enforcement need not devote manpower or spend significant amounts of agency funds on costly airplane or helicopter rides to satisfy their surveillance needs. Law enforcement is slowly turning towards this new domestic surveillance tool as they begin to explore drone capabilities. Several state, local, and federal law enforcement agencies have admitted to utilizing unmanned aircraft systems as a domestic surveillance tool. The use of drones domestically is bound to increase significantly in the next several years as they prove to be cost-effective. Drones have already crept into our domestic, commercial lives. The Federal Aviation Authority is in the process of creating six test ranges and designating airspace to operate drone flights in order to develop better certification and air traffic standards. Public and private companies have already embraced drone technology as drones are being used for a variety of purposes, to include crop dusting, traffic monitoring, surveying land, and relaying communication signals. To date, eight states have passed legislation that significantly limits law enforcement’s use of drones, and twenty-two states have legislation pending on the matter. Congress is currently considering the Preserving American Privacy Act of 2013 which would require law enforcement to seek a warrant to use a drone to conduct surveillance on individuals or their property with specific exceptions given for emergencies. The question becomes whether the use of drones, as an aerial surveillance tool, triggers Fourth Amendment protections. This paper argues that drone use by law enforcement does not constitute a “search” under the Fourth Amendment, that the current legislative proposals clash with the Supreme Court’s current view on domestic aerial surveillance, and that law enforcement should seek a court order similar to the pen register statute under 18 U.S.C. § 2703 to prevent governmental abuse. A court order would allow law enforcement to use drones if the data to be collected is relevant to an ongoing investigation, they demonstrate a particularized need to collect the information via drone, and if the irrelevant data collected after the flight is subsequently destroyed and not stored for future use.