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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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