1AC
Plan
The United States Supreme Court should rule that government aerial
surveillance without a warrant is unconstitutional under the 4th
amendment
Advantage 1: Privacy
First, the plan solves privacy and closes loopholes — a judges warrant allows for
privacy but still allows law enforcement effectiveness
Guliani 15 — Neema Singh Guliani, American Civil Liberties Union Washington Legislative Office, focusing on surveillance, privacy, and
national security issues. Prior to joining the ACLU, she worked in the Chief of Staff’s Office at DHS, concentrating on national security and civil
rights issues. She has also worked as an adjudicator in the Office of the Assistant Secretary for Civil Rights in the Department of Agriculture and
was an investigative counsel with House Oversight and Government Reform Committee, where she conducted investigations related to the BP
oil spill, contractors in Iraq and Afghanistan, and the Recovery Act. Neema is a graduate of Brown University where she earned a BA in
International Relations with a focus on global security and received her JD from Harvard Law School in 2008, 2015 (“Unchecked government
drones? Not over my backyard,” The Hill, March 24th, Available online at http://thehill.com/blogs/congress-blog/civil-rights/236701-uncheckedgovernment-drones-not-over-my-backyard, accessed on 7-13-15) GIE
Right now, the
federal government doesn’t have a clear picture of how it’s using drone technology across
agencies and departments, nor does it have clear, consistent standards in place to protect Americans’
privacy.
For example, at a hearing last June, then-FBI
Director Robert Mueller III acknowledged that the bureau was using
drones for surveillance. When asked about policy and procedures to regulate this use, he confessed that the agency was only in the
initial stages of creating them. If the federal government doesn’t have clear rules in place for drone use, how can
citizens be sure that their privacy is being protected?
Hopefully this will begin to change with the new presidential memorandum. Mandating
that agencies describe their drone
use is a necessary first step, and the Obama administration deserves credit for taking it, but this is not a sufficient protection
for Americans’ privacy. Given the potential invasiveness of this technology and how frequently it is used, letting government agencies
set their own drone use guidelines, is a recipe for failure.
Instead, Obama
should require all federal agencies to meet strong minimum privacy standards, and close
the following privacy loopholes in his existing guidance.
First and foremost, absent an emergency, law
enforcement agencies should only use drones to conduct surveillance
or gather information with a warrant. This is not a rule that should be left to the discretion of individual agencies. Second, the
federal government should restrict the purposes for which drones can be used by agencies. The guidelines
allow drones to be used for any “authorized purpose,” which is not strictly defined. Drones should only be used in
emergencies, by law enforcement with a warrant, or in situations where they are unlikely to
substantially intrude on people’s privacy, such as environmental surveys.
Second, privacy is central to personal liberty and individuality, it turns individuals into
statistics, the courts have an obligation to solve
Mills 08 — Jon L. Mills, B.A. from Stetson University in 1969. He went on to the University Of Florida
College Of Law where he graduated second overall in 1972. While at the Levin College of Law he served
on the Florida Law Review, and was a member of Florida Blue Key. Before Mills became the Dean
(education) of the Levin College of Law he served as a Professor at the University of Florida in 1995,
2008 (Privacy: The Lost Right, ISBN: 978-0195367355, Oxford University Press, Accessed On 7-16-15, pg.
305-306)
Privacy, as a central part of personal liberty and individuality, is a touchstone of American democracy and
a generally accepted, yet amorphous, global right. A combination of forces from the government, an intrusive society,
commercial interests, and segments of the press are, in effect, crushing the individual's right to be let alone. If they were
concerned about an intrusive world in 1890, what might Warren and Brandeis think today? In 2008, the law is ill equipped to
protect citizens from the private and public assault on their privacy. This onslaught is not the result of some grand
conspiracy. No conspiracy could work so well. In fad-, the government, the information industry, and the press are, at least on the surface,
doing what the public demands: they are providing security, needed information, and the news and gossip that the public wants. The status of
our collective privacy is unpredictable, inconsistent and changing continually—a reflection of a society with changing mores and changing
technology.
The confluence of technology and the motivations of data brokers are causing the individual to be
treated more and more as a statistic. The threshold question is, do we care? Well, we do when we are hurt. We care when the
government dictates that a loved one must die painfully. We care when we are crime victims scrutinized by the press. We care when we do not
get a job because of inaccurate criminal records.
As part of today's culture and society, no individual is immune. As suggested in the introduction, there are very few private aspects of
a “day in the life" of a modern citizen. Further, as this book has made clear, the legal solutions are piecemeal and incremental, requiring the
public to demand remedies for violations of their right to privacy. The
impact is so vast and comprehensive that no one
ethnic, religious, or other group is singled out. We are all part of the privacy interest group. So far, most of us
are underinformed as to what is happening to us and are largely unaware of any effective legal remedies. However, there are legal remedies for
privacy violations. And, if the privacy right is important, the
courts have an obligation to fashion effective options from
the myriad remedies. There will be no single sweeping reform that will bestow privacy on each of us. The forces and policies that
support intrusions on individual privacy are too substantial and in some cases, are supported by most of the public. For example, most of the
public supports warrantless searches and constant camera surveillance to counter violence and terrorism. Likewise, most of the public shows a
voyeuristic interest in tabloids and disaster journalism, at least until someone in their own family becomes an unwilling subject. This most
individual of rights requires our personal commitment to protect ourselves through our personal choices and actions and our advocacy. The
central lessons of a study of privacy today are as follows:
• No universal agreement exists on the scope of privacy because of inherent moral, political, and perceptual differences.
• Privacy is a broad concept affecting multiple facets of human existence that individuals and governments value as a general principle.
• A single policy is not probable or practical to protect privacy across the globe or even across the county.
• A broader understanding of the scope of privacy (i.e., recognizing which issues are important to individual liberty) is a prerequisite for
protecting individual privacy.
Third, privacy is a prerequisite to democracy
Michael McFarland, [a computer scientist with extensive liberal arts teaching experience and a special
interest in the intersection of technology and ethics, served as the 31st president of the College of the
Holy Cross.], June 2012
“Why We Care about Privacy”, Online:
http://www.scu.edu/ethics/practicing/focusareas/technology/internet/privacy/why-care-aboutprivacy.html
Privacy is even more necessary as a safeguard of freedom in the relationships between individuals and
groups. As Alan Westin has pointed out, surveillance and publicity are powerful instruments of social
control. 8 If individuals know that their actions and dispositions are constantly being observed, commented on and criticized, they find it
much harder to do anything that deviates from accepted social behavior. There does not even have to be an explicit threat of retaliation.
"Visibility itself provides a powerful method of enforcing norms." 9 Most people are afraid to stand apart, to be different, if it means being
subject to piercing scrutiny. The "deliberate penetration of the individual's protective shell, his psychological armor, would leave him naked to
ridicule and shame and would put him under the control of those who know his secrets." 10 Under these circumstances they find it better
simply to conform. This is the situation characterized in George Orwell's 1984 where the pervasive surveillance of "Big Brother" was enough to
keep most citizens under rigid control. 11 Therefore
privacy, as protection from excessive scrutiny, is necessary if
individuals are to be free to be themselves. Everyone needs some room to break social norms, to engage
in small "permissible deviations" that help define a person's individuality. People need to be able to
think outrageous thoughts, make scandalous statements and pick their noses once in a while. They need
to be able to behave in ways that are not dictated to them by the surrounding society. If every appearance,
action, word and thought of theirs is captured and posted on a social network visible to the rest of the world, they lose that freedom to be
themselves. As Brian Stelter wrote in the New York Times on the loss of anonymity in today's online world, "The collective intelligence of the
Internet's two billion users, and the digital fingerprints that so many users leave on Web sites, combine to make it more and more likely that
every embarrassing video, every intimate photo, and every indelicate e-mail is attributed to its source, whether that source wants it to be or
not. This intelligence makes the public sphere more public than ever before and sometimes forces personal lives into public view." 12 This
ability to develop one's unique individuality is especially important in a democracy, which values and
depends on creativity, nonconformism and the free interchange of diverse ideas. That is where a
democracy gets its vitality. Thus, as Westin has observed, "Just as a social balance favoring disclosure
and surveillance over privacy is a functional necessity for totalitarian systems, so a balance that ensures
strong citadels of individual and group privacy and limits both disclosure and surveillance is a
prerequisite for liberal democratic societies. The democratic society relies on publicity as a control over
government, and on privacy as a shield for group and individual life." 13 When Brandeis and Warren wrote their
seminal article on privacy over one hundred years ago, their primary concern was with the social pressure caused by excessive exposure to
public scrutiny of the private affairs of individuals. The problem for them was the popular press, which represented the "monolithic, impersonal
and value-free forces of modern society," 14 undermining the traditional values of rural society, which had been nurtured and protected by
local institutions such as family, church and other associations. The exposure of the affairs of the well-bred to the curiosity of the masses,
Brandeis and Warren feared, had a leveling effect which undermined what was noble and virtuous in society, replacing it with the base and the
trivial. Even apparently harmless gossip, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by
inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of
print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its
relative importance.... Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous
impulse can survive under its blighting influence. 15 For
Brandeis and Warren, privacy was a means of protecting the
freedom of the virtuous to maintain their values against the corrupting influence of the mass media that
catered to people's basest instincts. Although the degrading effect of the mass media is still a problem,
today a more serious threat to freedom comes from governments and other large institutions. Over the
last century, governments have developed sophisticated methods of surveillance as a means of
controlling their subjects. This is especially true of totalitarian states, as the passage from Westin quoted above indicates. The Soviet
Union, Communist China, Nazi Germany, Fascist Italy and white-run South Africa all used covert and overt observation, interrogation,
eavesdropping, reporting by neighbors and other means of data collection to convince their subjects that independent, "antisocial" thought,
speech and behavior was unacceptable. In many cases the mere presence of the surveillance was enough to keep people in line. Where it was
not, the data collected was used to identify, round up and punish elements of the population that were deemed dangerous. For example,
Ignazio Silone, in his book Bread and Wine, described the use of surveillance in Fascist Italy in this way: It is well-known [says Minorca] that the
police have their informers in every section of every big factory, in every bank, in every big office. In every block of flats the porter is, by law, a
stool pigeon for the police.... This state of affairs spreads suspicion and distrust throughout all classes of the population. On this degradation of
man into a frightened animal, who quivers with fear and hates his neighbor in his fear, and watches him, betrays him, sells him, and then lives
in fear of discovery, the dictatorship is based. The real organization on which the system in this country is based is the secret manipulation of
fear. 16 While totalitarian regimes may not seem as powerful or as sinister as they did 50 years ago, surveillance is still used in many places as
an instrument of oppression. For example Philip Zimmerman, the author of the PGP (Pretty Good Privacy) data encryption program, reports
receiving a letter from a human rights activist in the former Yugoslavia that contained the following testimonial: We are part of a network of
not-for-profit agencies, working among other things for human rights in the Balkans. Our various offices have been raided by various police
forces looking for evidence of spying or subversive activities. Our mail has been regularly tampered with and our office in Romania has a
constant wiretap. Last year in Zagreb, the security police raided our office and confiscated our computers in the hope of retrieving information
about the identity of people who had complained about their activities. Without PGP we would not be able to function and protect our client
group. Thanks to PGP I can sleep at night knowing that no amount of prying will compromise our clients. 17 More recently social media and the
Internet played major roles in the "Arab Spring" uprisings in the Middle East, causing Egypt and Libya to shut down the Internet in their
countries in an attempt to stifle dissent. 18 In China there has been an ongoing battle between the government and activist groups over
government monitoring and censorship of the Internet. 19 Even
in a democracy, there is always the danger that
surveillance can be used as a means of control. In the United States, for example, where freedom is such
an important part of the national ethos, the FBI, the CIA, the National Security Agency (NSA) and the
armed forces have frequently kept dossiers on dissidents. The NSA from 1952 to 1974 kept files on
about 75,000 Americans, including civil rights and antiwar activists, and even members of Congress.
During the Vietnam war, the CIA's Operation Chaos collected data on over 300,000 Americans. 20 Since
then the NSA has had an ongoing program to monitor electronic communications, both in the U.S. and
abroad, which has led to constant battles with individuals and groups who have sought to protect the
privacy of those communications through encryption and other technologies. 21 Some of the most famous
incidents of surveillance of dissidents, of course, occurred during the Nixon administration in the early 1970s. For example, when Daniel
Ellsberg was suspected of leaking the Pentagon Papers, an internal critique of government conduct of the Vietnam war, Nixon's agents broke
into the office of Ellsberg's psychiatrist and stole his records. 22 And it was a bungled attempt at surveillance of Nixon's political opposition, as
well as illegal use of tax returns from the IRS, that ultimately brought down the Nixon administration. 23 More recently, during the 1996
presidential campaign, it was revealed that the Clinton White House had access to the FBI investigative records of over 300 Republicans who
had served in the Reagan and Bush administrations. The Clinton administration claimed it was all a mistake caused by using an out-of-date list
of White House staff, while the challenger Bob Dole accused them of compiling an "enemies list." >sup>24 Whatever the motivation, the head
of the FBI termed the use of the files "egregious violations of privacy." 25 Since the 9/11 terrorist attacks in 2001, there has been even greater
urgency in the government's efforts to monitor the activities and communications of people, both foreigners and its own citizens, in order to
identify and prevent terrorist threats. The Patriot Act, passed less than two months after 9/11, greatly expanded the government's authority to
intercept electronic communications, such as emails and phone calls, including those of U.S. citizens. As a result government agencies have
been building the technological and organizational capabilities to monitor the activities and communications of their own citizens. For example,
Wired magazine revealed in a recent report how the National Security Agency has transformed itself into the largest, most covert, and
potentially most intrusive intelligence agency ever created. In the process—and for the first time since Watergate and the other scandals of the
Nixon administration—the NSA has turned its surveillance apparatus on the US and its citizens. It has established listening posts throughout the
nation to collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas. It has
created a supercomputer of almost unimaginable speed to look for patterns and unscramble codes. Finally, the agency has begun building a
place to store all the trillions of words and thoughts and whispers captured in its electronic net. And, of course, it's all being done in secret. To
those on the inside, the old adage that NSA stands for Never Say Anything applies more than ever. 26 The FBI, the Drug Enforcement Agency
and the Department of Homeland Security also have many programs to monitor citizens in general, not just those who are under suspicion.
These efforts include sifting through media references, 27 tracking chatter on social networks, 28 and monitoring peoples' movements through
license plate scanners 29 and video cameras. 30
The mere knowledge that American citizens could be the subjects of
surveillance can in itself have a chilling effect on political freedom. "Now it is much more difficult than it
once was to dismiss the possibility that one's phone is being tapped, or that one's tax returns may be
used for unfriendly political purposes, or that one's life has become the subject of a CIA file. The
realization that these activities might take place, whether they really do or not in any particular instance,
has potentially destructive effects on the openness of social systems to innovation and dissent." 31 At
times the government in the United States has gone beyond surveillance and intimidation and has used
the data gathered as a basis for overt oppression. One of the most blatant examples is the internment of over 100,000
Japanese Americans, most of them American citizens, during World War II. The Justice Department used data from the Census Bureau to
identify residential areas where there were large concentrations of Japanese Americans, and the army was sent in to round them up. They were
taken away from their homes and held in concentration camps for the duration of the war. 32 Governments
do need information,
including personal information, to govern effectively and to protect the security of their citizens. But
citizens also need protection from the overzealous or malicious use of that information, especially by
governments that, in this age, have enormous bureaucratic and technological power to gather and use
the information.
Fourth, unlimited Drone surveillance is ethically wrong — marginalizes populations
and harms cultures
Finn and Wright 12 — Rachel L. Finn, Senior Research Analyst at Trilateral Research, former research
associate at the University of Hull, Rachel was also a research associate at the University of Manchester
and an associate lecturer at Manchester Metropolitan University. She has a Ph.D. in Sociology from the
University of Manchester, David Wright, founder of Trilateral Research, He is currently a member of the
European Commission’s trust at risk foresight expert group, 2012 (“Unmanned aircraft systems:
Surveillance, ethics and privacy in civil applications,” Science Direct, March 23rd, Available online at
http://www.sciencedirect.com/science/article/pii/S0267364912000234, Accessed on 7-14-15)
In addition to safety concerns, there
are significant ethical considerations surrounding the use of UASs for
surveillance in civil applications. There has been an on-going debate on the ethics of using remotely piloted vehicles in combat
operations. They have been blamed for significant losses of life on the ground in combat zones, the removal of soldiers “from the human
consequences of their actions”.100 In relation to civil applications, Hayes, of Big Brother Watch, states that “drones
and other robotic
tools will add to the risks of a Playstation mentality developing along Europe’s borders”,101 where bodies
are objectified into “things to track, monitor, apprehend, and kill”.102 Hayes further argues that the European Union’s
security-industrial complex has placed law enforcement demands ahead of civil liberties concerns.103 Nevins agrees, stating that “the
normalization of previously unacceptable levels of policing and… official abuse” has “disturbing
implications for civil and human rights”. Whitehead concurs, stating that “the logical aim of technologically equipped police who
operate as technicians must be control, containment and eventually restriction of freedom”.104 Nevins also reports fears of “mission creep” in
police use of UASs.105
However, there is some debate about how UASs affect the targets of this distantiated surveillance. Whitehead argues that drones raise civil
liberties concerns because “[e]veryone gets monitored,
photographed, tracked and targeted”.106 Similarly, Nevins
notes that while UASs are seen by law enforcement as “just another tool in the toolbox” and technologically
neutral, “[t]here is every reason to be concerned about how the law enforcement and ‘homeland
security’ establishments will take advantage of their new tools”.107 Wall and Monahan argue that in combat situations this distantiation is
racialised, where the use of UASs has:
harm[ed] ethnic and cultural others with great prejudice…[and] lump[ed] together innocent civilians
with enemy combatants, women and children with wanted terrorist leaders. From the sky, differences among
people may be less detectable, or—perhaps more accurately—the motivations to make such fine-grained distinctions may be attenuated in the
drive to engage the enemy. 108
We have already seen evidence that similar racialised marginalisation as well as class, gender and political
marginalisation is occurring in relation to UAS surveillance in civil applications. Furthermore, the potential for UASs
to carry weapons raises more immediate safety and ethical concerns about the right to life. According to PrisonPlanet.com, the death toll from
non-lethal Tasers in the US is more than 350 people,109 which Wall and Monahan predict could “further the violent dehumanization and nondifferentiation” of UAS devices.110 Thus, despite apparent technological neutrality, the negative ethical impacts of UAS devices are likely to fall
disproportionately on marginalised populations.
Finally, Action on drones spills over to other privacy concerns
Crump and Stanley 13 – (Jay Stanley – Senior Policy Analyst with the ACLU’s Speech, Privacy and Technology Project, former
analyst at the technology research firm Forrester. Catherine Crump – staff attorney with the ACLU's Speech, Privacy, and Technology Project
and a nonresident fellow with the Stanford Center for Internet and Society) [Why Americans Are Saying No to Domestic Drones]
(http://www.slate.com/articles/technology/future_tense/2013/02/domestic_surveillance_drone_bans_are_sweeping_the_nation.html) //MC
*fait accompli – a thing that has already happened or been decided before those affected hear about
With drones, on the other hand, because of the safety and regulatory issues they raise, we have a chance to do it right. The
American public and our elected representatives can, for once, get ahead of the deployment curve—we can raise
awareness, propose protections, and build support for them before the problems hit us in the face. If
done right, this moment of hyperawareness about privacy could become a more permanent state of
affairs: Ryan Calo of Stanford’s Center for Internet and Society suggested in a December 2011 paper that because of their
“disquieting” nature, drones “could be just the visceral jolt society needs” to spark broader changes in
how Americans conceptualize privacy problems.
Ultimately, the best solution on drones would be for Congress to pass strong, uniform rules protecting everyone across the nation and putting
privacy concerns to rest. For example, law enforcement agents should not make drones general tools of surveillance but should instead
utilize them only where they have a specific reason to believe that use of one will turn up evidence of
criminal activity. Ideally, those protections would become a model for other, perhaps less vivid but equally
intrusive technologies such as cellphone location tracking. But unless and until Congress acts, state and local resolutions
and rules are the best thing Americans can do to protect our privacy from the enormously invasive potential of domestic surveillance drones.
The upsurge in local activism around the country is just what’s needed to make this happen.
Solvency
Court rulings on drones is necessary to ensure 4th amendment protections
Celso 14 – [Joel – JD Candidate @ Univesrity of Baltimore Law] [DRONING ON ABOUT THE FOURTH AMENDMENT: ADOPTING A
REASONABLE FOURTH AMENDMENT JURISPRUDENCE TO PREVENT UNREASONABLE SEARCHES BY UNMANNED AIRCRAFT SYSTEMS]
V. CONCLUSION
Under the Supreme Court's current jurisprudence, it is only a matter of time before the Fourth
Amendment will no longer be able to provide protection from warrantless UAS surveillance, even in the
home. n295 The answer to the question posed by Justice Scalia in Kyllo should not be that technology has the power to
"shrink the realm of guaranteed privacy" to the point of elimination. n296 This is especially true given the Court's
articulated concern that it "assures preservation of that degree of privacy against government that
existed when the Fourth Amendment was adopted." n297 Although the original degree of privacy is difficult to ascertain,
allowing the government to use a UAS outfitted with facial recognition software or high-powered
cameras to silently track individuals for extended periods of time without a warrant hardly seems to
qualify. n298 Equally unlikely is the idea that Congress, rather than the Constitution, was expected to be the
guarantor of privacy protections at the time the Fourth Amendment was adopted. n299 It is clear that the
courts need a new approach to their Fourth Amendment jurisprudence to protect privacy from a
technological onslaught. Requiring a warrant for all UAS surveillance will ensure that even the
widespread use of UAS will not erode society's legitimate privacy expectations.
Fourth amendment protection is the lynchpin to protect privacy
Ahsanuddin 14 – (Sadia Ahsanuddin – Muslim Public Affairs Council Research Fellow; Harvard Grad, worked at three think tanks,
Berkman Center for Internet and Society, Brennan Center for Justice and interned at the United Nations) [Domestic Drones:
Implications for Privacy and Due Process in the United States] (accessed 3-25-15) //MC
The reasonable
expectation of privacy standard has been vital and several decisions have been handed
down that indicate what to expect as drones get integrated into the national airspace. The privacy of the home, for
instance, is still likely to be protected by the Fourth Amendment.100 In Kyllo v. United States,101 the Supreme Court considered a case
where law enforcement used thermal-imaging devices to map the heat patterns emitting from a home. The Court ruled that the
evidence obtained via the thermal-imaging device was inadmissible because the device allowed law
enforcement “to explore details of the home that would previously have been unknowable without physical
intrusion,” and therefore, “the surveillance is a “search” and is presumptively unreasonable without a
warrant.”102 Barring certain exceptions, then, if a drone were operated to conduct warrantless surveillance of the inner quarters of a home,
the surveillance would violate the Fourth Amendment.
Kyllo is also an important case to consider because the
Court recognized that thermal-imaging devices, as with drones
today, were not widely-available to the public, and as such the average person could not reasonably foresee its use in
investigating a private dwelling.103 However, not everything at home would be protected by the Fourth Amendment. Under the “plain
view” doctrine, objects, statements, or activities that an individual exposes to the public are not currently
considered to be protected by the Fourth Amendment.104
In the age of mass surveillance, however, the reasonable expectation of privacy standard will have to be reassessed. Courts
will have to
address whether individuals have any reasonable expectation of privacy, even when at home. Today, it is
commonly expected that the government routinely surveils large numbers of people.105This capability to conduct surveillance
will only strengthen with the increased use and prevalence of drones.106 In such an age, what will the average
individual’s reasonable expectation of privacy be? As Professor Woodrow Hartzog stated, “Once you’ve been put on notice that
you can have no expectation of privacy, then it’s not reasonable to expect any privacy in any area in
particular.”107
2. Public vs. Private Places
The demarcation between the public and private spheres is crucial when considering an individual’s right to privacy. The U.S. Supreme Court
has traditionally held that an individual’s privacy rights are limited while in public; an individual does not have a reasonable expectation of
privacy where they are privy to the public eye.108 They do, however, have a reasonable expectation of privacy in the intimate areas of their
homes, as well as in the immediate areas around their homes.109 Existing
case law presents an instructive vantage point
from which to glean future law relating to drone surveillance.
In United
States v. Karo, for instance, the Drug Enforcement Agency (DEA) tracked a beeper device attached to a can of ether on public
streets and in private residences.110 Because the DEA was not authorized to conduct any surveillance inside
homes, the Court held that a trespass under the Fourth Amendment had occurred: “Indiscriminate
monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy
interests in the home to escape entirely some sort of Fourth Amendment oversight.”111 As drones become
increasingly used by law enforcement agencies, it is likely that there will be legal challenges and a reviewing court
will have to determine the location of the individual and whether they had a reasonable expectation of privacy to
determine whether an unreasonable search took place. Alternatively, courts may decide to determine whether the
surveillance itself is reasonable, regardless of where it took place.
According to a Congressional Research Service report, it can be deduced that surveilling an individual at home without a warrant, using
technology not generally available, would constitute a search. If law enforcement were to use a normal camera or camcorder in order to record
an individual in plain view of the public, albeit at home, law enforcement officers may be in their right to record data. It would also seem that
brief drone surveillance of public areas may be permitted. And yet, courts
may choose to distinguish between an unmanned
[unstaffed] aircraft and a manned [staffed] aircraft conducting surveillance. Courts may decide that the
technology used is a decisive factor in determining whether an unwarranted search has occurred, partly
because law enforcement use of rare technological equipment may set apart what is “in plain view” of
the public and what is not.112
Case law also offers insight on warrantless aerial surveillance as well: anything
that cannot be viewed by the public while
traveling through the United States’ navigable airspace is protected by the law. On the other hand, if an individual
passing over a property can view some incriminating evidence with their bare eye, law enforcement does not need to obtain a
warrant to submit that evidence in a court of law.113 In California v. Ciraolo, law enforcement conducted manned
[staffed] aerial surveillance of the backyard of a suburban home based on a tip that the suspect was growing marijuana. Police flew an aircraft
1,000 feet above the suspect’s backyard and were able to identify the marijuana plants with their bare eyes.
California argued that the respondent had “knowingly exposed” his backyard to aerial observation, because any member of the public flying
through the navigable airspace over the respondent’s home could see the marijuana plants. The
Supreme Court concluded that
because “[a]ny member of the public” flying over the backyard could have observed the plants with
their naked eye, the “respondent’s expectation that his garden was protected from such observation is
unreasonable, and is not an expectation that society is prepared to honor.”115 Thus, the warrantless gathering of evidence
from areas that are visible to the public was permitted by the Supreme Court.116 That the evidence was gathered using
a manned [staffed] aircraft is applicable to the usage of drones to collect evidence.
However, drones
allow the possibility of extended surveillance to an extent that manned [staffed] aircraft
does not. As the ACLU suggested, drone surveillance presents the possibility of “a single, distributed, wide-area
surveillance system” via multiple mutually-coordinating drones deployed over a neighborhood.117 The U.S. Supreme Court has
recognized that mass or extended surveillance may infringe upon the rights protected by the Fourth Amendment. Although the
Supreme Court has held that warrantless location tracking on public roads is permissible, as in United States v.
Knotts, a majority of justices in two concurrences in United States v. Jones indicated an awareness that
prolonged surveillance of an individual encroaches upon Fourth Amendment rights. In United States v. Jones,
the Supreme Court unanimously decided that the attachment of a GPS device to a car and the month-long tracking of the vehicle without a
valid warrant constituted an unreasonable search, and that the evidence obtained therewith was inadmissible in court. The two concurrences,
however, indicated that in
the future, the Court might uphold an individual’s reasonable expectation of
privacy in the face of lengthy, pervasive, and warrantless location tracking.119
Although the majority of the Court ultimately decided United States v. Jones based on the trespass on private property that law enforcement
perpetrated when placing the tracking device on the suspects’ car,120 Justice Alito and Justice Sotomayor’s individual concurrences took issue
with the warrantless cataloguing of the suspect’s actions for one month. In Justice Sotomayor’s words, the information collected
about the suspect “reflects a wealth of detail about her familial, political, professional, religious, and sexual
associations.”121 Concurrences represent a shadow majority willing to decide the issue on the grounds of the
length of the search. As such, these opinions are instructive in considering the potential directions
American jurisprudence may take when considering drone surveillance, especially since drones are better adept at
cataloguing an individual’s associations than most formerly introduced technologies.
A ruling now is necessary to stop any worse privacy invasions
Stanley and Crump 11 – (Jay Stanley – Senior Policy Analyst with the ACLU’s Speech, Privacy and
Technology Project, former analyst at the technology research firm Forrester. Catherine Crump – staff
attorney with the ACLU's Speech, Privacy, and Technology Project and a nonresident fellow with the
Stanford Center for Internet and Society) [Protecting Privacy From Aerial Surveillance:]
(https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf) (accessed 3-25-15)
//MC
UAVs and privacy
With the federal
government likely to permit more widespread use of drones, and the technology likely to
become ever more powerful, the question becomes: what role will drones play in American life? Based on current trends—
technology development, law enforcement interest, political and industry pressure, and the lack of legal
safeguards—it is clear that drones pose a looming threat to Americans’ privacy. The reasons for concern reach
across a number of different dimensions:
Mission creep. Even where UAVs are being envisioned for search and rescue, fighting wildfires, and in dangerous
tactical police operations, they are likely to be quickly embraced by law enforcement around the nation for other,
more controversial purposes. The police in Ogden, Utah think that floating a surveillance blimp above their city “will be
a deterrent to crime when it is out and about.”58 In Houston, police suggested that drones could possibly be used for writing traffic
tickets.59 The potential result is that they become commonplace in American life.60
Tracking. The
Justice Department currently claims the authority to monitor Americans’ comings and goings
using GPS tracking devices—without a warrant. Fleets of UAVs, interconnected and augmented with
analytics software, could enable the mass tracking of vehicles and pedestrians around a wide area.
New uses. The
use of drones could also be expanded from surveillance to actual intervention in law
technologies could be developed that could, for example, be used to control
or dispel protesters (perhaps by deploying tear gas or other technologies), stop a fleeing vehicle, or even deploy weapons.61
enforcement situations on the ground. Airborne
In addition, drones raise many of the same issues that pervasive video surveillance brings in any context.
For example:
Chilling effects. What would be the effect on our public spaces, and our society as a whole, if everyone felt the keen eye of the
government on their backs whenever they ventured outdoors? Psychologists have repeatedly found that people who are
being observed tend to behave differently, and make different decisions, than when they are not being
watched. This effect is so great that a recent study found that “merely hanging up posters of staring human eyes is
enough to significantly change people’s behavior.”62
Voyeurism. Video surveillance is susceptible to individual abuse, including voyeurism. In 2004, a couple making love on
a dark nighttime rooftop balcony, where they had every reason to expect they enjoyed privacy, were filmed for nearly four
minutes by a New York police helicopter using night vision. This is the kind of abuse that could become
commonplace if drone technology enters widespread use. (Rather than apologize, NYPD officials flatly denied that this
filming constituted an abuse, telling a television reporter, “this is what police in helicopters are supposed to do, check out people to make sure
no one is … doing anything illegal”).63
Discriminatory targeting. The individuals operating surveillance systems bring to the job all their existing
prejudices and biases. In Great Britain, camera operators have been found to focus disproportionately on
people of color. According to a sociological study of how the systems were operated, “Black people were between oneand-a-half and two-and-a-half times more likely to be surveilled than one would expect from their
presence in the population.”64
Institutional abuse. In addition to abuse by the inevitable “bad apples” within law enforcement, there is also the danger of institutional
abuse. Sometimes, bad policies are set at the top, and an entire law enforcement agency is turned toward
abusive ends. That is especially prone to happen in periods of social turmoil and intense political conflict.
During the labor, civil rights, and anti-Vietnam war movements of the 20th century, the FBI and other security agencies
engaged in systematic illegal behavior against those challenging the status quo. And once again today we are
seeing an upsurge in spying against peaceful political protesters across America.65
Automated enforcement. Drones
are part of a trend toward automated law enforcement, in which cameras and
other technologies are used to mete out justice with little or no human intervention. This trend raises a
variety of concerns, such as the fact that computers lack the judgment to fairly evaluate the circumstances
surrounding a supposed violation, and may be susceptible to bugs and other software errors, or simply are not
programmed to fairly and properly encapsulate the state of the law as passed by legislatures.66
One point that is often made with regards to new surveillance technologies is that, while they may increase government surveillance of individuals, they can also increase individuals’ ability to
record the activities of officials, which can serve as a check on their power.67 Too often, however, the authorities seek to increase their surveillance over individuals (for example, by installing
surveillance cameras throughout public spaces) while restricting individuals’ ability to use that same technology as a check against their power (for example, by attempting to prevent
individuals from videotaping police68). Already, security experts have started expressing concern that unmanned aircraft could be used for terrorism69—which naturally raises the question:
will individuals be able to make use of the new technology for their own purposes, or will
government seek a monopoly over the new technology
by citing fears of its use for terrorism?
The Fourth Amendment restricts the use of drones
With drone technology holding so much potential to increase routine surveillance in American life, one
key question is the extent
to which our laws will protect us. The courts should impose limits on the use of drones for surveillance,
prohibiting them from becoming pervasive.
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
[staffed] aircraft.
In the 1986 decision California v. Ciraolo, the Supreme Court focused on whether an individual has a privacy interest in being free
from aerial surveillance of his backyard. The police had received a tip that Dante Ciraolo was growing marijuana in his backyard, but high fences
prevented them from viewing his backyard from the street. The police borrowed a plane, flew it over the backyard and easily spotted marijuana
plants growing there. Ciraolo argued that his Fourth Amendment rights were violated because the government did not get a warrant. The Court
rejected this argument, explaining that there was no intrusion into his privacy because “[a]ny
member of the public flying in this
airspace who glanced down could have seen everything that these officers observed.”70
In Dow Chemical Co. v. United States, also decided in 1986, the Supreme Court addressed whether the Environmental Protection
Agency violated Dow’s Fourth Amendment rights when it employed a commercial aerial photographer to use a precision aerial mapping camera
to take photographs of a chemical plant. The Court found no violation, in part because the
camera the EPA used was a
“conventional, albeit precise, commercial camera commonly used in mapmaking,” and “the photographs here are
not so revealing of intimate details as to raise constitutional concerns.” However, the Court suggested that the use of more
sophisticated, intrusive surveillance might justify a different result. It wrote, “surveillance of private property by using
highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally
proscribed absent a warrant.”71
In Florida v. Riley, decided in 1989, the police had received a tip that Michael Riley was growing marijuana in a greenhouse on the
property surrounding his home. The interior of the greenhouse was not visible from the ground outside the property, and the greenhouse had a
ceiling, though two panels in the ceiling were missing. A police officer flew over the greenhouse and spotted marijuana through the openings in
the roof. While no reasoning commanded a majority of the Court, four
justices concluded that its decision in Ciraolo
applied because Riley had left part of the greenhouse open to public view, and so the search was
constitutional.72
Because of their potential for pervasive use in ordinary law enforcement operations and capacity for revealing far more than the naked eye,
drones pose a more serious threat to privacy than do manned [staffed] flights. There are good reasons to believe
that they may implicate Fourth Amendment rights in ways that manned flights do not.
Government use of UAVs
equipped with technology that dramatically improves on human vision or captures
something humans cannot see (such thermal or x-ray images) should be scrutinized especially closely by
the courts. This follows from the Supreme Court’s statement in Dow Chemical that using sophisticated technology not generally available
to the public may be considered a search under the Fourth Amendment. It is also suggested by the 2001 case Kyllo v. United States, in which
the court rejected the use of thermal imaging devices to peer into a suspect’s home without a warrant.73
Further, the Supreme Court has suggested that the
pervasive or continuous use of a surveillance technology may
heighten Fourth Amendment concerns. In United States v. Knotts, the Supreme Court addressed whether attaching primitive
“beeper” tracking technology to a car violated the driver’s Fourth Amendment rights.74 Although it concluded that the use of the beeper in
that case did not violate the Fourth Amendment, it held that if “such
dragnet type law enforcement practices” as “twentyfour hour surveillance of any citizen of this country” ever arose, it would determine if different
constitutional principles would be applicable. Citing to this language in Knotts, the federal appeals court in Washington D.C.
recently ruled that attaching a GPS device to a person’s car and tracking his movements for 28 days fell into this category of dragnet-type
surveillance and held that the government’s warrantless tracking violated the Fourth Amendment. 75 That case is now up on review before the
Supreme Court. Because drones
allow for surveillance at least as pervasive and continuous as GPS tracking,
the courts should recognize that the Fourth Amendment places restrictions on their use.
With drones as in so many areas, the
technology is moving far more rapidly than our jurisprudence, and it is
important that the courts keep the Constitution relevant in the world of high technology in which we are
increasingly going to be living.
Recommendations
UAVs are potentially extremely powerful surveillance tools, and that power, like all government power, needs to be subject to
checks and balances. Like any tool, UAVs have the potential to be used for good or ill. If we can set some good privacy
ground rules, our society can enjoy the benefits of this technology without having to worry about its
darker potentials. We impose regulations on what law enforcement can do all the time, for example allowing law enforcement to take a
thermal image of someone’s home only when they get a warrant. We need to impose rules, limits and regulations on
UAVs as well in order to preserve the privacy Americans have always expected and enjoyed.
The ACLU recommends at a minimum the following core measures be enacted to ensure that this
happens:
Usage restrictions. UAVs
should be subject to strict regulation to ensure that their use does not eviscerate the
privacy that Americans have traditionally enjoyed and rightly expect. Innocent Americans should not have to worry that their activities will
be scrutinized by drones. To this end, the use of drones should be prohibited for indiscriminate mass surveillance,
for example, or for spying based on First Amendment-protected activities. In general, drones should not be
deployed except:
where there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific
instance of criminal wrongdoing or, if the drone will intrude upon reasonable expectations of privacy, where the government has
obtained a warrant based on probable cause; or
where there is a geographically confined, time-limited emergency situation in which particular individuals’ lives are at risk, such
as a fire,
hostage crisis, or person lost in the wilderness; or
for reasonable non-law enforcement purposes by non-law enforcement agencies, where privacy will not
be substantially affected, such as geological inspections or environmental surveys, and where the
surveillance will not be used for secondary law enforcement purposes.
• Image
retention restrictions. Images of identifiable individuals captured by aerial surveillance technologies should not be retained
or shared unless there is reasonable suspicion that the images contain evidence of criminal activity or are
relevant to an ongoing investigation or pending criminal trial.
• Public
notice. The policies and procedures for the use of aerial surveillance technologies should be explicit and
written, and should made public. While it is legitimate for the police to keep the details of particular investigations confidential,
policy decisions regarding overall deployment policies—including the privacy tradeoffs they may entail—are a public matter that should be
openly discussed.
• Democratic control. Deployment and policy decisions surrounding UAVs should be democratically
decided based on open information—not made on the fly by police departments simply by virtue of
federal grants or other autonomous purchasing decisions or departmental policy fiats.
• Auditing
and effectiveness tracking. Investments in UAVs should not be made without a clear, systematic
examination of the costs and benefits involved. And if aerial surveillance technology is deployed, independent audits should
be put in place to track the use of UAVs by government, so that citizens and other watchdogs can tell generally how and how often they are
being used, whether the original rationale for their deployment is holding up, whether they represent a worthwhile public expenditure, and
whether they are being used for improper or expanded purposes.