Unmanned Aircraft: My Suggested Privacy Analysis

I’m sure you’ve been hearing a lot in the news lately about “drones” and that the police will use them to spy on you and that the President might use them to kill unsuspecting Americans. Crazy political rhetoric aside (meaning the killing of unsuspecting Americans), these unmanned aircraft are real and there are serious questions on how they’re going to be used and the regulation of their use.  I thought it would be interesting to look at the problems that can arise with integrating new technology and illustrating some of the issues we will be facing in the future as a society.

Unmanned Aircraft: Death from Above 2013, or (more likely) A New Commercial Frontier

I’m not going to call them drones. That carries too much of the recent political emotional baggage tied to this subject. Instead, I will call them what they are: unmanned aircraft. It’s an aircraft that doesn’t have a pilot on board; that’s all it is. In some respects, they’re fancier versions of hobbyist model planes: there is someone at the controls, just on the ground. Unmanned aircraft generally have cameras and other means of relaying the flight data to the pilot on the ground, which the pilot then uses to fly the plane.

This is the InView, made for scientific and commercial purposes.
This is the InView, made for scientific and commercial purposes.

There are actually quite a lot of issues with the regulations on where, when and how to fly unmanned aircraft, especially as the non-spying uses for them are quite numerous. Even a cursory glance at the Wikipedia article on unmanned aircraft reveals lots of useful applications: monitoring livestock, wildfire fighting, natural resource exploration, shipping, and not to mention untold scientific research uses.  I’m not going to focus on the nitty-gritty of FAA regulations and such; that’s kind of boring.  Instead, we’ll talk about something sexier: privacy issues.

What is Private, Anyway?

Let’s do a quick primer on privacy law in the US.  There’s no cohesive set of privacy laws.  Instead, we use a couple different laws to cover privacy.  First and foremost is the Fourth Amendment of the US Constitution, which prohibits unreasonable searches and seizures by the state (usually police).  The United States Supreme Court has interpreted this to mean that the police cannot search an area in which a person has a “reasonable expectation of privacy.”  In the 18th and 19th centuries, this was easy to apply: the cops couldn’t search your house without probable cause.  But as our lives became more public and technology has increased our ability to remotely gather data without actually physically intruding, this has become much, much more difficult to apply.

There hasn’t really been much of an overall legislative approach to addressing this issue.  Instead, what we have right now is a hodgepodge of Supreme Court decisions to guide us.  The first big Supreme Court case on this type of issue was called Katz v United States.  In Katz, the FBI used electronic surveillance without a warrant to listen in on a phone conversation in a closed phone booth.  The Supreme Court held that this was an unreasonable search because Katz had a reasonable expectation of privacy in a phone booth with the door shut.  This has been the framework for every other case where new technology has been used to gather information about criminal suspects without a warrant.

Privacy and Cops Aloft

When you start looking at aerial surveillance, there are two main cases: California v Ciraolo and Florida v Riley. In Ciraolo, Ciraolo had a massive privacy fence built around his yard to hide the marijuana he was growing in the backyard.  The police used an airplane to fly up 1,000 feet in public airspace and get photos of the backyard.  The police used those photos to get an arrest warrant for Ciraolo.  The Supreme Court found this reasonable: the police had the right to be up in a plane and the marijuana was readily visible.  The Court was also fine with the fact that the police were in the plane specifically to look into Ciarolo’s backyard and not for some other reason.

In Riley, Riley had a greenhouse in his backyard that could not be looked into from the ground.  The roof of the greenhouse was made of translucent panels which couldn’t be seen through.  However, a couple panels were missing.  So the police used a helicopter flying at 400 feet to find the marijuana growing in the greenhouse and, later, to arrest Riley.  The Court was fine with this, but for varying reasons.  The narrowest reason is Justice O’Connor’s, who looked to see whether the aircraft was flying at a height that members of the public (not police) travel regularly.  So her focus was to find a way to analogize travel by aircraft to walking along the sidewalk in front of a house: she wants to know if the public are traveling regularly that way.  If the public does travel regularly that way, then there is no expectation of privacy from that area.

For example, helicopters travel frequently at about a height of 400 feet or so over my parents’ house on the way to and from a nearby hospital.  It makes sense that the people in the helicopter could look down and see us hanging out in the pool in my parents’ backyard, despite the very high hedges my parents planted for privacy.  Justice O’Connor would have no problem with that, but she might have a problem if the helicopter were to be much lower and circle around my parents’ backyard.

Justice O’Connor has given us a moving target as far as what unreasonable aerial observation is.  I think this extends automatically to unmanned aircraft, too.  The fact that there isn’t a person in the plane doesn’t change things much.  The analysis would be the same.  It’s pretty normal for the public to travel by aircraft in the public navigable airspaces over houses.  As long as the unmanned aircraft are in those same areas, they’d be complying with the already existing standards on aerial surveillance by police from Supreme Court precedent.  Aircraft travelling much lower than that is well outside the norm of public travel, which would make it unreasonable by today’s standards, which makes it an unreasonable search in violation of the 4th Amendment.

Oversimplified Wrap-Up

The interesting thing about Justice O’Connor’s framework is that it is adaptable and attempts to mirror the expectations of our society.  What is reasonably private is defined by the standards of the time.  And the times, they are a-changing.  Sometimes, it just feels like we’re hurtling headlong toward the singularity and technology is evolving at an exponential rate.  It will be interesting to see how our standards of privacy will change (i.e., over-sharing on Facebook) and what new technologies we will have to adapt to.

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