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Wednesday, November 26, 2014
Airspace Wars: Attack of the Drones
Airspace Wars: Attack of the
Drones
By Caleb Thurston, Intern
The Cochran Firm
It is no longer breaking news that the U.S. Military uses
drones, officially known as Unmanned Aerial Systems (UAS’s), to assist them in
battling the War on Terror. The majority of voters in the U.S. approve of drone
usage for this purpose. However, how will U.S. citizens feel when drone usage
is extended to local police forces, public agencies, or for commercial
purposes?
- Legislation passed by the U.S. Congress in 2012 mandated the FAA to accelerate the issuing process for Certificate of Waiver and Authorizations (COA’s). COA’s are essentially the licenses required to operate drones. The first non-military use of drones was extended for law enforcement purposes. Law enforcement utilizes UAS’s for numerous reasons:
- Cost effective surveillance (exponentially cheaper than helicopters)
- Significantly less risks for officer safety
- Versatility of accessories (cameras, heat sensors, audio devices, nonlethal munitions)
- Reduces human error in law enforcement
- Noncriminal applications (auto accidents, fires, chemical spills, or other emergencies)
Drone use can be beneficial to the nation as a whole, but it
does not come without issues. At issue is the possibility of police
surveillance and monitoring.
The fourth amendment protects people “in their persons,
houses, papers and effects against unreasonable search and seizure.” Under the
law what is an “unreasonable” surveillance search?
The seminal holding in Katz found that the fourth
amendment “protects people not places.” This case established a two-part test
for dealing with this issue; (1) person must have exhibited an actual
subjective expectation of privacy, and (2) that expectation of privacy must be
one that society is prepared to accept as reasonable.
In two cases subsequent to Katz, Ciraolo and Riley
the Court held that law enforcement officers flying at an altitude of 1000 feet
and 400 feet respectively was not a search and there was no reasonable
expectation of privacy. The Court opined that any member of the public flying at
these levels could have seen these illegal crops.
A pivotal case on technology came in the matter of Kyllo,
when the Court held that heat sensors utilized from the outside of a residence
after police observation of excessive use of electricity, and snow melting over
one unit of a duplex and not the other cannot be used without a warrant. Heat
sensors identify human movement, lamps, and other areas from outside the
residence where there is a reasonable expectation of privacy.
What do these cases
mean to you?
“If police can see something from airspace in which they
have a lawful right of access to be, there is no reasonable expectation of
privacy.”
Under the law should privacy expectations decrease as modern
technology becomes more used by the general public? If UAS usage is not
restricted, there will virtually be no protection against UAS flight in areas immediately
surrounding the property, or through the “curtilage,” (an area immediately
surrounding the premises where there is a likely expectation of privacy). This
could allow surveillance of activities inside the premises.
Could drones be used
in the future for non-military, non-law enforcement purposes?
In October 2014, the FAA authorized a handful of video
production companies within the closed confines of their video production sets.
Additional businesses such as Amazon, Google and Facebook have now petitioned
the FAA to obtain a COA for utilizing drones. If authorized, these businesses
will be able to pioneer the use of drones in their industries.
Potential Solutions:
- Congress could pass law regulating the use of drones.
- Courts could interpret laws and the constitution to limit the use of drones where they may violate a reasonable expectation of privacy. These interpretations could take an extended period of time as cases and controversies arise regarding these matters.
- The FAA could limit and regulate drone flight, but this would have to be on a rational based on “safety” rather than on the “expectation of privacy.” FAA action could be limited due to Congress’s recent mandate to expedite issuance of COA’s for drones.
Each of these possible solutions must consider whether it is
time to revise the concept of privacy rights under the law to include
protection against invasion of privacy by non-government parties.
posted by The Cochran Firm at 11:32 AM
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