Data Erasure Counterplan
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Varsity Division
Data Erasure Counterplan – Table of Contents
Summary.............................................................................................................................................. 2
Glossary............................................................................................................................................... 3
First Negative Constructive (1NC) Shell ........................................................................................... 4
Permutation Answers
AT: Permutation – Implement Rule 1 .................................................................................................... 5
Solvency Extensions
AT: No Solvency – Privacy.................................................................................................................... 6
AT: No Solvency – Altitude Privacy....................................................................................................... 7
AT: No Solvency – Persistent Surveillance Circumvention ................................................................... 8
AT: No Solvency – Time Limit Circumvention ....................................................................................... 9
AT: No Solvency – Curtilage Laws Circumvention .............................................................................. 10
AT: Solvency Turn – Separation of Powers ........................................................................................ 11
AT: Solvency Turn – Separation of Powers ........................................................................................ 12
AT: Solvency Turn – Racism............................................................................................................... 13
AT: Solvency Turn – Dismantling Racism ........................................................................................... 14
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Data Erasure Counterplan
RIUDL
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Summary
The Data Erasure Counterplan is a direct response to the way in which the Affirmative plan attempts
to provide the general public with increased privacy from the government by requiring that warrants
be obtained before drone surveillance occurs. The warrant requirement of the plan makes it uniquely
difficult to prevent certain things, such as terrorist attacks.
The counterplan evidence says that the best approach with drones is to require transparency on
reasoning for persistent data collection, erase impertinent information within 48 hours, and require
drones have to fly in higher airspace. This still allows the government to preserve privacy for the
public by putting drones under the same restrictions as helicopter surveillance.
The counterplan also addresses the concerns about armed drones by sending a consistent message
to the international community: Drones will only be allowed domestically with accompanying
limitations on their development. The counterplan avoids any prevention of development for the
Aerospace Industry DA by not grounding drones. Finally, the counterplan still allows for the constant
collection of evidence that could be vital in preventing a looming attack or observing an unpredictable
crime from a second-hand perspective.
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Glossary
Curtail – Reduce in extent or quantity; impose a restriction on.
CCTV – Closed-circuit television. Surveillance cameras that record on a closed circuit, such that only
the people with access to the system can watch the footage.
Curtilage – An area of land attached to a house and forming one enclosure with it.
Data Retention – The storage of data gathered through surveillance operations.
Fourth Amendment – The part of the Bill of Rights that prohibits unreasonable searches and
seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
Jurisprudence – The theory or philosophy of law.
Rhetoric – Language designed to have a persuasive or impressive effect on its audience, but often
regarded as lacking in sincerity or meaningful content.
Ubiquitous – Present, appearing, or found everywhere.
Warrant (Search) – A legal document authorizing a police officer or other official to enter and search
a premises.
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Data Erasure Counterplan
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1NC Shell (1/1)
Counterplan: The United States federal government should limit the persistent use of aerial
surveillance, require law enforcement agents to delete impertinent information after 48 hours,
and mandate that aerial surveillance occur at least 350 feet above the ground.
1. The Counterplan has the following net benefits: ____________________________________.
2. The Counterplan solves – Monitored data erasure is preferable to the warrant-based logic of
the affirmative plan.
McNeal, 2014
(Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for
Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)
While warrants are appealing to privacy advocates, the enactment of overly broad restrictions on
drone use can curtail non-invasive, beneficial uses of drones. Legislators should reject a
warrant-based, technology centric approach as it is unworkable and counterproductive.
Instead, legislators should follow a property rights centric approach, coupled with limits on
persistent surveillance, data retention procedures, transparency and accountability measures
and a recognition of the possibility that technology may make unmanned aerial surveillance
more protective of privacy than manned surveillance. This paper makes five core
recommendations: Legislators should follow a property rights approach to aerial surveillance. This
approach provides landowners with the right to exclude aircraft, persons, and other objects from a
column of airspace extending from the surface of their land up to 350 feet above ground level. Such
an approach may solve most public and private harms associated with drones. Legislators should
craft simple, duration-based surveillance legislation that will limit the aggregate amount of time the
government may surveil a specific individual. Such legislation can address the potential harm of
persistent surveillance, a harm that is capable of being committed by manned and unmanned aircraft.
Legislators should adopt data retention procedures that require heightened levels of suspicion and
increased procedural protections for accessing stored data gathered by aerial surveillance. After a
legislatively determined period of time, all stored data should be deleted. Legislators should enact
transparency and accountability measures, requiring government agencies to publish on a
regular basis information about the use of aerial surveillance devices (both manned and
unmanned). Legislators should recognize that technology such as geofencing and auto-redaction,
may make aerial surveillance by drones more protective of privacy than human surveillance.
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AT: Permutation – Implement Rule 1
The Plan and CP are incompatible – the warrant requirement of the plan should be rejected
entirely because it doesn’t protect privacy or public safety, but may protect criminals.
McNeal, 2014
(Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for
Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)
Conclusion The emergence of unmanned aerial vehicles in domestic skies raises understandable
privacy concerns that require careful and sometimes creative solutions. The smartest and most
effective solution is to adopt a property rights approach that does not disrupt the status quo.
Such an approach, coupled with time-based prohibitions on persistent surveillance, transparency,
and data retention procedures will create the most effective and clear legislative package.
Legislators should reject alarmist calls that suggest we are on the verge of an Orwellian police
state.[73] In 1985, the ACLU argued in an amicus brief filed in California v. Ciraolo that police
observation from an airplane was “invasive modern technology” and upholding the search of Ciraolo’s
yard would “alter society’s very concept of privacy.” Later, in 1988, the ACLU argued in Florida v.
Riley that allowing police surveillance by helicopter was “Orwellian” and “would expose all Americans,
their homes and effects, to highly intrusive snooping by government agents...” In a different context in
2004 (before the advent of the iPhone) police in Boston were going to use Blackberry phones to
access public databases (the equivalent of Googling). Privacy advocates decried the use of these
handheld phones as “mass scrutiny of the lives and activities of innocent people,” and “a violation of
the core democratic principle that the government should not be permitted to violate a person’s
privacy, unless it has a reason to believe that he or she is involved in wrongdoing.”[74] Reactionary
claims such as these get the public’s attention and are easy to make, but have the predicted harms
come true? Is the sky truly falling? We should be careful to not craft hasty legislation based on
emotionally charged rhetoric. Outright bans on the use of drones and broadly worded warrant
requirements that function as the equivalent of an outright ban do little to protect privacy or
public safety and in some instances will only serve to protect criminal wrongdoing. Legislators
should instead enact legislation that maintains the current balance between legitimate surveillance
and individuals’ privacy rights. The best way to achieve that goal is to follow a property centric
approach, coupled with limits on pervasive surveillance, enhanced transparency measures, and data
protection procedures.
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AT: No Solvency – Privacy
Police abuse, not privacy concerns, are the real issue and the CP resolves them.
Reid, 2014
(Melanie [Associate Professor of Law, Lincoln Memorial University-Duncan School of Law];
GROUNDING DRONES: BIG BROTHER'S TOOL BOX NEEDS REGULATION NOT ELIMINATION;
20 Rich. J.L. & Tech. 9; kdf)
VI. THE REAL FEAR BEHIND DRONE USE: GOVERNMENT ABUSE P77 If privacy is not the real
concern behind drone use, perhaps it is the fear of law enforcement abuse. If law enforcement
uses drone technology to target particular areas of the community and randomly "search for
crime," is there another way to keep law enforcement in check than to say drone use
automatically triggers the Fourth Amendment and requires a warrant? General crime monitoring
has never been considered an acceptable practice by the Court. n242 Drones should be used only for
investigations of specific targets, not merely to "look for crime." Citizens of the United States do not
want to become citizens of the next Soviet Union where agents and drones randomly patrol for
criminal or anti-state activity. Citizens fear that regular drone flights might inadvertently collect data
from a whole range of individuals unrelated to a specific investigation. P78 The answer lies not in
requiring a warrant or a particular exception to the warrant requirement, but in requiring law
enforcement to seek a court order similar to that required for a pen register under 18 U.S.C § 2703.
n243 To obtain such a court order, law enforcement officials would need to demonstrate specific
and articulable facts indicating that the data is relevant to an ongoing criminal investigation.
This would prevent law enforcement from using drones to randomly search for crime in a
particular area. The order would specify the identity, if known, of the person who is the subject of the
criminal investigation and whom law enforcement would like to surveil and describe the particularized
need for the information that can be gathered with the drone. n244 P79 The order also should
contain language requiring law enforcement to discard any information collected by the drone
that is not relevant to the scope of the investigation within twenty-four to forty-eighty hours.
This requirement would alleviate any concerns that the government would collect this information for
other nefarious purposes in the future. Being that it is a court order, this requirement would have teeth
as long as magistrates signing these orders follow up and demand that law enforcement demonstrate
that they in fact have complied with the order and destroyed any irrelevant information. If a law
enforcement officer fails to comply, a variety of sanctions could be used to demand compliance.
Sanctions even as severe as jail time would cause any law enforcement agent to comply fully. P80
The court order also should include a penalty for disclosing to unauthorized persons data
obtained from a drone, thereby limiting exposure of the information to government personnel
working on the particular case, similar to grand jury secrecy requirements under the Federal Rule of
Criminal Procedure 6(e). n245 Under Federal Rule of Criminal Procedure 6(e)(7), "[a] knowing
violation of Rule 6 . . . may be punished as a contempt of court." n246 Moreover, if the drone is flown
outside the FAA regulated navigable airspace and views activity not within the public's vantage point,
penalties should also be in place to punish those individuals in violation of strict flight guidelines
provided in the court order. Punishing individual agents with contempt of court holds both law
enforcement and judges accountable and likely will serve as a more effective means to prevent
government abuse than requiring warrants prior to drone flights.
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AT: No Solvency – Altitude Privacy
The 350 foot altitude was chosen to allow owners to maintain property rights below a certain
altitude, while still allowing for private drones under FAA regulations, privacy is not the core
issue.
McNeal, 2014
(Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for
Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)
The uncertainty associated with landowner rights in the airspace immediately above their property
has raised two problems. First, there is little clarity regarding where low altitude aerial surveillance by
the government would violate the Fourth Amendment. Is it at 500 feet if by a fixed wing aircraft, or
1,000 feet?[31] Is it 400 feet if by a helicopter? In Riley the Court said that the surveillance
conducted at 400 feet by a helicopter did not require a warrant, but it left open the possibility
that surveillance at a lower altitude would be acceptable. Thus raising the question, what about a
flight at 350 feet? The case law on whether this would be a lawful observation is not clear, but it’s
difficult to see how a court applying the principles of Riley would find substantive differences from an
observation at 350 feet versus one at 400 feet. That’s because the Supreme Court’s jurisprudence
tells us to look at whether the observation took place from “navigable airspace” or from a vantage
point at which a member of the public could otherwise be. For helicopters, navigable airspace could
easily include 350 feet above ground level, so long as the pilot was not creating a hazard.[32] For
drones and model aircraft, FAA rules and guidelines for hobbyists require operation below 400
feet, thus an operation at 350 feet would be from a public vantage point. The problem is not the
technology, the problem is the ability of landowners to exclude aerial observations from certain
vantage points (that’s a property rights problem). Any legislative solution for aerial
surveillance must address this issue. Second, the absence of clarity with regard to property
rights has also raised concerns about the privacy implications of private (non-government)
uses of drones. While private drone use is beyond the scope of this paper, the right to exclude the
government from conducting aerial surveillance is inextricably tied to whether the public would have
had a right to make the observation the police made. The linkage of these two concepts suggests that
a property rights approach may provide a way to harmonize these separate policy concerns and also
address most of the concerns associated with aerial surveillance.
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AT: No Solvency – Persistent Surveillance Circumvention
Bright-line rules are more precise, attuned, and reasonable, and provides more protection.
Yang, 2014
(Y. Douglas [JD Boston U]; BIG BROTHER'S GROWN WINGS: THE DOMESTIC PROLIFERATION
OF DRONE SURVEILLANCE AND THE LAW'S RESPONSE; 23 B.U. Pub. Int. L.J. 343; kdf)
Even when discussing narrowly tailored issues such as aerial surveillance, the Court struggles to
maintain a firm footing as to what constitutes a "search," and what does not. n313 Nonetheless, the
Supreme Court's framework provides useful guidance for forming a solution that answers how society
can successfully assimilate drone surveillance into the American landscape without further
deteriorating individual privacy rights and expectations. Beyond the Supreme Court's guidance, the
various federal and state legislative responses to the rise of drone surveillance provide yet another
insight into how drone surveillance should be treated. n314 Analyzing legislative responses generally
yields a much closer view of how the general public views drone use, [*388] simply because "[a]
legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to
balance privacy and public safety in a comprehensive way." n315 The near-ubiquitous warrant
requirements among both the federal and state proposals clearly indicate that the legislatures
intend to restrict drone use above and beyond the Supreme Court's baseline rules. n316
Nevertheless, neither the Supreme Court nor the various legislative proposals properly address how
to define and restrict drone surveillance; the Court simply has not addressed the limits of drone use
as of yet, and the legislatures have misapplied warrant requirements to drones when such
requirements are too broad, too blunt, and unreasonably restrictive. n317 To effectively address the
privacy issues that surround drone surveillance, one needs to apply a new approach that is
founded on legal precedent and embraces a balance between society's interest in effective law
enforcement and the individual's interest in personal privacy. Instead of applying a nearuniversal warrant requirement, courts and legislatures should look to bright-line rules that are
more precise, attuned, and reasonable, while affording a similar level of protection that an
ordinary person enjoys today. n318 This Note presents six bright-line rules to assist legislatures
and courts in their determinations of how drone surveillance should be regulated. n319 Each of the
six rules restates the Supreme Court's understanding of the Fourth Amendment, yet simultaneously
incorporate suggestions from various federal and state legislative proposals that addressed the
public's concerns. n320 As the world of privacy law and the Fourth Amendment wander into the
uncertain caverns of drone surveillance, this Note aims to shed some light onto the right path forward.
While society may currently see drones as an unknown entity, society may soon find a path that
preserves its fundamental values and security, while enabling genuine law enforcement work to carry
out its duty to protect us all.
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AT: No Solvency – Time Limit Circumvention
Establishing limits on drones is the only method to revitalize the fourth amendment, we
cannot assume abuse of those time limits.
San Pedro, 2014
(Victoria [J.D. Candidate, Stetson University College of Law]; STUDENT WORK: DRONE
LEGISLATION: KEEPING AN EYE ON LAW ENFORCEMENT'S LATEST SURVEILLANCE
TECHNOLOGY; 43 Stetson L. Rev. 679; kdf)
V. CONCLUSION AND RECOMMENDATIONS With the ubiquity of drone licenses among American
law enforcement agencies, n288 the drag-net surveillance that was once a laughable concept n289 is
now a reality. n290 While state statutes and proposed federal legislation attempt to limit law
enforcement's ability to use drones in surveillance efforts, those proposals and statutes do
not adequately address the duration of the surveillance or the sophistication of the
technology used by law enforcement to enhance drone capabilities. Therefore, by requiring a
warrant and restricting law enforcement from conducting drone surveillance for a period lasting longer
than twenty-four hours, the proposed legislation will best address the issues left open by Fourth
Amendment jurisprudence. [*720] Further, including the exigent circumstances language into the
legislation will allow law enforcement agencies to better understand the circumstances that would
permit the use of a drone. Because the courts have addressed exigent circumstances on numerous
occasions, n291 law enforcement agencies may already have protocols and officer training dealing
with exigent circumstances. Rather than drafting legislation that attempts to describe a circumstance
meriting the use of a drone, n292 using the exigent circumstances language will allow law
enforcement agencies to comply with Fourth Amendment jurisprudence already defined by the Court.
Similarly, legislation imposing a time restriction on the duration of the surveillance will provide
law enforcement agencies with a bright-line rule that facilitates application across the board.
Since the current Fourth Amendment jurisprudence provides that one does not have a reasonable
expectation of privacy from all observations of one's property, n293 this statutory language will
provide a reasonable expectation of privacy from prolonged observations of one's property. This
proposal would comply with current Fourth Amendment jurisprudence regarding fly-over
aerial observations and would also be consistent with the mosaic theory. n294 Further, this
proposal limits law enforcement's ability to use any form of drone technology. Given that the
technological advancements in this field will likely continue to progress at a rapid pace, any proposed
legislation should incorporate an objective standard defining the permissible level of technology or an
outright prohibition on the use of all drone surveillance. In this way, we can align the use of this form
of technology with Fourth Amendment protections. Rather than providing vague standards, such as
technology that is not in general public use, the general restriction provides a bright-line rule to law
enforcement agencies. [*721] Therefore, this proposal would allow law enforcement to be exempt
from the warrant requirement for exigent circumstances, while also allowing them to obtain a warrant
from a neutral and detached magistrate when law enforcement intends to conduct long-term
surveillance, thereby ensuring that law enforcement agencies comply with the warrant requirement of
the Fourth Amendment and respect citizens' privacy rights.
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AT: No Solvency – Curtilage Laws Circumvention
Drones are unique, circumvention doesn’t matter, and warrants can’t avoid circumvention
harm.
Slobogin, 2014
(Christopher [Milton Underwood Prof of Law, Vanderbilt U Law School]; Panvasive Surveillance,
Political Process Theory, and the Nondelegation Doctrine; 102 Geo. L.J. 1721; kdf)
Why has there been such a legislative flurry in connection with drones, while there has been minimal
legislative movement on fusion centers and cameras? One might argue that drones discover more
intimate information or are more "intrusive" than these other surveillance techniques, but that
is a hard distinction to accept, given the vast amounts of data fusion centers can collect and the
ubiquity of cameras. The more likely answer is that, given their appearance and their
association with our overseas adventures, the panvasive nature of drones--even those, and
perhaps especially those, that are hummingbird-like--is dramatically obvious, whereas fusion
centers and cameras operate almost invisibly. n180 Some states will likely leave drone operation up
to law enforcement as they have with cameras, rather than require warrants or some other Fourth
Amendment-type restriction before they can be deployed. In those states, courts sensitive to
political process theory need to ensure that the legislative authorization meets not only the
legislation criterion but also the representation criterion. Of most concern in this context are law
enforcement decisions to fly drones only over certain areas--for instance, urban centers of a city.
That is the same representation issue that arises in connection with CCTV and should be
handled in the same manner.
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AT: Solvency Turn – Separation of Powers
Domestic spying isn’t an issue of Separation of Powers.
Lener, 2014
(Mark [leads the Constitutional Alliance]; The Chilling Effect of Domestic Spying; Aug 5;
americanpolicy.org/2014/08/05/the-chilling-effect-of-domestic-spying/; kdf)
Congress has its share of the blame for the domestic spying that has and even to this day is
taking place. After all it is congress that has the responsibility of oversight over agencies and
departments of the federal government. All too often congress has failed to do what it has been
tasked with doing; performing oversight. In fact, not too long ago congress gave retroactive immunity
to telecom companies for the roles telecom companies played in illegally collecting information for the
NSA at the request of former President Bush. When it comes down to it, there is plenty of “blame” to
go around. Some are guilty: All are responsible including the public for not demanding better of our
elected and appointed officials. Whether a Democrat or Republican occupied the White House or
regardless of which party controlled the Senate and/or the House of Representatives,
domestic spying took place and is still taking place. Domestic spying is not a “Right” or “Left”
issue. Domestic spying is an equal opportunity offender.
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AT: Solvency Turn – Separation of Powers
The court order process could be used as a way to maintain power balance
Reid, 2014
(Melanie [Associate Professor of Law, Lincoln Memorial University-Duncan School of Law];
GROUNDING DRONES: BIG BROTHER'S TOOL BOX NEEDS REGULATION NOT ELIMINATION;
20 Rich. J.L. & Tech. 9; kdf)
Our right to privacy stems from our desire to be free from governmental interference in our daily lives.
In the Fourth Amendment context, we have a right to be free from unreasonable searches and
seizures and a right to be free from governmental abuse. However, these protections do not
extend to any limitation on law enforcement's use of drone surveillance in public areas for a specific
purpose. There is no realistic expectation of privacy when a drone passes over one's house or car or
observes our activity in public. We gave up the luxury of privacy in public places long ago. P84 Drone
use by law enforcement must be limited but not unduly subjected to Fourth Amendment
scrutiny, as drones should not constitute a "search." To limit the temptation to use drones to
"look for crime," law enforcement could be subject to the court order process prior to utilizing
a drone in an investigation.
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AT: Solvency Turn – Racism
Drone expansion provides a check against police violence.
Bernd, 2013
(Candice [assistant editor/reporter with Truthout]; The Coming Domestic Drone Wars; Sep 19;
www.truth-out.org/news/item/18951-the-coming-domestic-drone-wars#; kdf)
Private Citizens and Domestic Drone Technology But in addition to major corporations, media
activists also are beginning to look at the possibilities of domestic drones to broadcast live
streaming coverage of protests and other actions in such a way that could provide greater
transparency of police activity during political clashes, such as those that occurred in 2011
during the height of the Occupy Wall Street movement. Occupy live-streamer Tim Pool, now a
producer with Vice Media, has been experimenting with a small radio-controlled quadcopter drone
called the Parrot AR Drone, which can be controlled from a tablet or smartphone. Pool hopes to lower
the cost of media production for the individual by using drone technology to gather audio and visual
content from the air. "These things make it a lot easier for the average person to pick up the control
and say, 'OK, I can do this,' whereas with something like the more expensive drones that have
proprietary controllers, you have to learn how to fly those. The AR.Drone is an iPhone app. It looks
like a video game," Pool told Truthout. But he admits that in moments when events are breaking it
becomes harder to fly a drone. "It's difficult with all the ruckus, the police, with people running. There's
no way to predict what's going to happen. It's hard to take your focus away." Pool was on the ground
in Turkey during the Occupy Gezi Park demonstrations, which protested an urban development plan
to replace the park with a shopping mall. During the demonstrations, Pool witnessed the police forces
there shoot down a DJI Phantom drone used by an accompanying journalist, whom he said was
detained by police for hours afterward. He expects the same thing could happen in the US.
"Governments will be a bit behind in adopting drones for surveillance or quad-roters like this.
I think we'll see the private sector first. We'll see private individuals filming major breaking news
with their drones, hobbyists and eventually I know a lot of news organizations are researching
drone potential. Once that gets legal they'll start flying drones all over the place, and eventually the
police will start filming with drones as well," Pool said. And he's right - scores of law enforcement
agencies are experimenting with domestic drone technology already.
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AT: Solvency Turn – Dismantling Racism
Data erasure allows for secondary law enforcement, no racist assumptions would be made.
McNeal, 2014
(Gregory [prof at Pepperdine University]; Drones and Aerial surveillance: Considerations for
Legislators; Nov; www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance; kdf)
Legislators should reject broadly worded use restrictions. Some jurisdictions have enacted limitations
on how information gathered from drones may be used. Legislators should reject these broadly
worded use restrictions that prohibit the use of any evidence gathered by drones in nearly any
proceeding. Such restrictions exceed the parameters of the Fourth Amendment and in some
circumstances may only serve to protect criminals while not deterring governmental
wrongdoing. For example, the Alameda County California Sheriff’s Department proposed the use of
small drones for: crime scene documentation, EOD missions, HAZMAT response, search and rescue,
public safety and life preservation missions, disaster response, fire prevention, and documentation of
a felony when such documentation is premised upon probable cause.[53] Linda Lyle, a privacy
advocate with the ACLU criticized the proposal, stating: “If the sheriff wants a drone for search and
rescue then the policy should say he can only use it for search and rescue...Unfortunately under his
policy he can deploy a drone for search and rescue, but then use the data for untold other purposes.
That is a huge loophole, it’s an exception that swallows the rule.”[54] Her points mirror the ACLU’s
position in their December 2011 white paper where they state that drone use is acceptable so long
as “the surveillance will not be used for secondary law enforcement purposes.”[55] It is also
similar to the language used in other proposals prohibiting the use of information gathered by
a drone “as evidence against an individual in any trial, hearing or other proceeding....”[56] A
simple hypothetical can help to illustrate the problem with this approach. Imagine that law
enforcement uses a drone to search for a lost hiker in a state park. This is a search and rescue
mission that fits within the public safety, emergency, or exigency exceptions in most legislative
proposals aimed at controlling drone usage. However, imagine that during the course of the
search the drone observed a man stabbing a woman to death in the park. That collection was
entirely inadvertent, and as such suppressing the videotape of the stabbing would not serve
to deter the police from using drones in the future as they were not searching for an unrelated
stabbing crime, they were searching for a lost hiker. Yet, that evidence under the blanket use
restrictions found in various proposals circulating in state legislatures, Congress, and under the
ACLU’s “secondary law enforcement purposes” standard would need to be suppressed.[57]
Suppressing secondarily gathered evidence doesn’t protect privacy (as inadvertent discovery
can’t be deterred); it merely protects a criminal who if observed from a helicopter, an airplane,
or from the ground would face evidence of his crime, but under broadly worded drone focused
privacy bills may be more difficult to prosecute. It is difficult to see what public policy goal is
furthered by suppressing evidence of a crime merely because the evidence was gathered from
a drone instead of a helicopter. Do legislators really want to be in the position of making it harder to
punish perpetrators of violent crime? If the discovery were genuinely inadvertent, there is little to no
deterrent value that justifies suppressing such evidence.
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