by Dawn Kennedy
In February 2012, Congress mandated the integration of Unmanned Aircraft into the National Airspace with HR 1540 §1094 and §1097. The Federal Aviation Administration Reauthorization Act, HR 658, gave further instruction. In response, there was pushback from individuals and organizations over “drones” being used to spy on US citizens, some even claiming that the US was going to use “killer drones” to take out innocent civilians. One columnist, Charles Krauthammer, suggested that the first person to “shoot down” a drone would become a “folk hero.” This sentiment was repeated by Judge Andrew Napolitano on cable news. Trying to prevent reckless hero behavior by ordinary citizens, Mike Toscano, President and CEO of the Association for Unmanned Vehicle Systems International (AUVSI), reminded the public that shooting something out the sky is quite dangerous. (An object falls at 9.8m/s thanks to the law of gravity, and disabling any aircraft, manned or unmanned, so it is subject to that law makes it a high-speed object, unable to navigate, that can cause significant damage upon impact.)
One viewpoint that seems to be missing from the hoopla is an examination of the Fourth Amendment securing the rights of Americans against illegal search and seizure, and its application in court cases already on record. In December 2011 the ACLU published a report by Jay Stanley and Catherine Crumpin, “Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft.” The report lists cases (starting on page 13) in which the Supreme Court already has upheld certain warrantless searches from manned aircraft. However, the report also acknowledges that the Supreme Court has not ruled on any case regarding Unmanned Aircraft: “The Supreme Court has never taken a position on whether the Fourth Amendment places limits on government use of UAV surveillance. However, it allowed some warrantless aerial surveillance from manned aircraft.” (Those cases include two from 1986, California v. Ciraolo and Dow Chemical Co. v. United States; and one from 1989, Florida v. Riley (1).)
What would be the difference between identical surveillance carried out by a Manned Aircraft or a UAV?
I believe the ACLU report neglects a key factor, those Fourth Amendment decisions upheld by the Supreme Court in which a surveillance device other than the naked eye or a camera has been used. In Kyllo v US (2), a Supreme Court case in 2001, a thermal imager detected heat from an alleged entrepreneurial pot grower’s lamps, and this was deemed a search in violation of the Fourth Amendment. The Court held that “where…the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant.” The Court decided that the thermal imager was such a “device not in general public use.” In this case the search was conducted by a hand-held device, operated by a police officer from his car outside the suspect’s home.
Let’s examine the implications. Manned Aircraft perform flyovers for “administrative” searches without a warrant; the EPA is one example. Surveillance from an aircraft, with regular cameras or naked eye, does not constitute a Fourth Amendment violation when the cops find your backyard pot plants. It IS a violation when the police use any type of sense-enhancing technology (handheld in this case, but logically that could extend to payloads). There has been no determination as to whether the placement of the pilot, either in the cockpit or outside, would violate Fourth Amendment rights. The real issue seems to be not the airspace, but the payloads or other intrusive devices that would invade “privacy”.
To help address the UAS public perception problem, the industry should first realistically compare the capabilities of a UAS to a manned aircraft. As noted, the Supreme Court has already upheld searches from airspace—just not with certain equipment that is considered intrusive. Like a Manned Aircraft, a UAV is piloted, but from outside the cockpit. Thus it should not matter whether or not the pilot is physically in the aircraft; the issue is that advanced payloads, such as thermal imagers, may not be used without a warrant. Most UAS manufacturers could develop UAS for civilian applications with basic cameras that conform to established Supreme Court precedents. I believe they already do.
Furthermore, there is already an authorized suspension of the Fourth Amendment in emergency situations (exigent circumstances). During a recent UNEQ experiment scenario, a UAV hovered in front of a window looking for the “perpetrator.” In the spirit of the exercise, a journalist asked if it was spying on the little psycho, and my husband Mike, overseeing the experiment, responded, “The gunman is in there shooting people. He has the right to remain silent, he has given up his right to privacy here”. Case in point.
From the defendant’s standpoint, there is recourse if law enforcement overreaches. If the court later determines the situation did not meet the criteria for the “exigent circumstances exception” to the Fourth Amendment, the defendant can have all evidence suppressed through the “exclusionary rule.”
On a lighter but relevant note, in discussing privacy concerns, a firefighter wanted to know how much higher the UAV would fly and see than a firefighter on a ladder truck, at fully extended height, capable of looking into the neighbor’s yard while they are battling a house fire. I like to believe that when someone’s house is burning, and you are protecting adjacent structures, the issue of “privacy” would be of lesser concern.
When it comes to marketing UAS to the community, for civilian use, we should remind the public that First Responders are backed up in their own end zone, to use a football metaphor. The crisis or disaster already has occurred; they have to run the length of the football field to meet it. A UAS can help them down the field, and help protect us and themselves. Properly employed, a UAS is an asset to help keep people safe. It can be a key part in ensuring effective disaster response in their region.
The problem arises when a technology that many people already believe will spy on them, violating their Constitutional rights, is used in offensive missions. That is, when law enforcement initiates the engagement. Already in Alameda, California, a Sheriff is meeting resistance for suggesting a UAS might be used for advanced surveillance (in addition to disaster response).
Privacy issues are not a matter to be ignored. The Fourth Amendment concerns are indeed legitimate. What may have been overlooked or forgotten is that there is already a good deal of precedent that applied to UAS would answer many public concerns. In August of 2012, Police Chiefs across the country adopted a “Code of Conduct” for the use of UAS. This is a great start. It demonstrates that the user community acknowledges the issue, and is taking it seriously. It is important to keep the dialog open and fair on both sides of the debate. It is the responsibility of UAS users to follow established rules of law and precedent, and to acknowledge the public’s concerns. Let’s work to educate the public on the safeguards that are already in place, (through court cases since the 1980s), and to reassure them that if anyone violates the rules, as set forth by the Supreme Court, there is already a recourse available to them in the form of the exclusionary rule.
1. California v Ciarolo, 476 U.S. 207 (1986), Dow Chemical Co. v United States, 476 U.S. 227 (1986), Florida v Riley, 448 U.S. 445 (1989)
2. Kyllo v United States, 533 U.S. 27 (2001)
Dawn Kennedy is a former Firefighter/ NREMT- Paramedic, who worked in mostly small to mid-sized communities surrounding Tucson, AZ. She left the field in 1997 and moved to Germany as an Army wife. Upon return to the US a few years later, she felt the cruel hand of “no reciprocity” for Paramedics between certain states. She still works today with first responders of all stripes with UNEQ consulting, a company that seeks to identify and test technology to help good equipment and users find each other. She is the CEO of At The Ready Publications, LLC because she saw that rural first responders needed their own platform to share information and address the unique challenges they face. In her spare time, she is a third year law student- but has no plans to chase ambulances after passing the bar. Please contact Dawn at firstname.lastname@example.org