New 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-unchecked-government-drones-not-over-mybackyard, 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-about-privacy.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 non-differentiation” 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.
Advantage 2: Backlash
Contention two is Backlash
Drones are critical to the economy/competitiveness but status quo backlash will push
the market out
Gruber 4-25-15 – [Robert H. – litigation associate @ Greenberg Traurig] [COMMERCIAL DRONES AND PRIVACY: CAN
WE TRUST STATES WITH “DRONE FEDERALISM”?] (http://tinyurl.com/pgpsp64) [Richmond Journal of Law & Technology
Volume XXI, Issue 4] (accessed 7-13-15) //MC
At this stage, it is impossible to accurately predict the scope of the future UAS industry. Its potential benefits are vast
and varied: beyond mere job creation, drones will contribute to efficiency in various industries and
particularly true in the commercial sphere , where competition and innovation
can drive progress towards functions far removed from the individual surveillance people fear. UAS have already proven
useful in functions from crop monitoring9 to gathering atmospheric data.10 Domino’s Pizza made headlines when it
aspects of society. This is
announced the development of delivery UAS systems, as have other companies—and while some skeptics dismissed the press
releases as “publicity stunts,”11 it is not too difficult to imagine a future in which packages appear on our
doorstep out of the sky. 12 Recently, Facebook announced a plan that epitomizes the benevolent possibilities of
commercial UAS. 13 It has purchased the U.K.-based company Ascenta, which manufactures solarpowered aircraft that can stay
aloft at high altitudes for years at a time. Facebook’s goal? Providing Internet access in areas where traditional connections are
impractical or impossible. 14 Even though commercial UAS flight is still largely prohibited in the United
States, the battle over drone regulation has already begun , fixated largely on imagined harms to
people’s privacy.15 And the privacy advocates are winning: more than twenty states have passed
laws restricting UAS operations.16 Many of these address law enforcement surveillance, but an increasing number of states
are proposing—and enacting—restrictions on private and commercial aircraft. For example, a bill proposed and
enrolled in Texas makes it a misdemeanor to collect an image of a person’s land without consent.17 Other states are considering
similar legislation.18 One town in Colorado must have gotten Napolitano’s memo—it considered issuing “drone hunting licenses”
that would authorize its citizens to shoot any unpiloted aircraft.19
[5] This sort of
legislation is both premature and problematic , particularly with respect to the kind of
drones that will be used for commercial or civil purposes (as opposed to law enforcement purposes). It is
premature because legislators cannot foresee—and therefore cannot balance—all of the potential benefits
and harms of commercial drone use. Many of the privacy interests purportedly advanced by restrictive legislation are already
protected by other areas of the law. 20 It is problematic because inconsistent and overly-restrictive regulations (1)
potentially violate the First Amendment right to gather information and (2) threaten to chill industry growth.21 The harms
such legislation causes are analogous, in a sense, to those that would have arisen if states had created a patchwork of Internet
privacy laws several years before the development of the World Wide Web.22 Right now, the United States leads the
pack in UAS technology. If the current legislative pattern continues, the U.S. might very well drive a
market with incredible potential overseas , to more open-minded nations.23
[6] Is restrictive legislation nevertheless justified, as a means of vindicating legitimate privacy interests?24 Perhaps not, particularly
where commercial UAS use is concerned. There are few cognizable circumstances in which using drones to monitor individual
people will be profitable for non-government actors and entities. 25 First, a primary advantage of unmanned aircraft is that they can
go swiftly and easily where people cannot. UAS could be used profitably to survey mines, monitor power
lines in remote areas, collect traffic-flow information, spray and monitor crops, and so forth. Some predict that
eighty-percent of commercial drones will be used for agricultural purposes 26 —so the majority will
seldom even accidentally interfere with individual privacy interests . As one person put it, “corn doesn’t mind
if you watch it.”27 Second, even if a particular commercial drone’s images could be processed and linked
to individuals’ identities, what would justify the cost of such directed monitoring? Demographic information may be
valuable, but our phones and Internet activity paint a cheaper and more accurate picture of consumer
activities—where individuals go, where they shop, and what they buy.
[7] The global market for UAS is growing fast.28 At the moment, the best available UAS technology belongs to the United States
and Israel.29 Developed for military purposes, this technology nevertheless has massive export potential for civil
and commercial uses.
United States’ monopoly on UAS technology may already be eroding. In 2013 Israel
surpassed the U.S. as the chief exporter of UAS technology—although Israel remains second to the U.S. in
[8] However, the
production.30 What accounts for this discrepancy? A regulatory barrier: the companies that develop our military drones are
restricted from marketing their technology elsewhere.31 China and other countries are now entering the ring.32 By competing
in the global market, the U.S. can realize all the benefits of a multi-billion dollar industry once the
FAA opens up the national airspace33—which it is poised to begin doing soon— but only if the U.S. avoids
establishing a draconian regulatory framework for commercial UAS.
[9] This Article focuses on commercial UAS, and on the legal frameworks—both current and potentially forthcoming—surrounding
them. 34 Part I provides a brief background of the politically-charged context within which UAS regulation is being developed. Part II
examines two critical issues in the UAS regulatory debate: (1) the extent to which the “third-party doctrine” will apply to information
captured by commercial UAS; and (2) the boundaries of First Amendment protection of “information gathering.” Part II also outlines
existing state and federal laws governing civil drone use. Part III examines approaches the United States could take in regulating
commercial drone use. Ultimately, the article concludes that the federalism model will stifle the market for UAS
aircraft and technology, unless
Congress acts to create a baseline federal scheme that assuages
privacy concerns without hindering industry growth.
Scenario 1 is Farming
First, drones Key to precision farming
Griekspoor 13 – P.J. Griekspoor, 3-21-2013, "Precision Agriculture Seen as Big Winner in Drone
Technology," No Publication, http://farmprogress.com/story-precision-agriculture-seen-big-winner-dronetechnology-9-96113
The biggest thing on the horizon in precision agriculture is Unmanned Aerial Vehicle flights ,
according to a new report from the Association for Unmanned Vehicle Systems International. ¶
Kansas, already a leader in research on the vehicles that are expected to see explosive growth
when integration into national airspace begins in 2015, ranks No. 7 among states likely to see
economic benefits the report says, with the state expected to see a $2.9 billion impact and 3,700
new jobs between 2015 and 2025.¶ The greatest area of growth indicated by the report will be in precision agriculture,
which is slated to grow 10 times that of the public safety market for UAS. Precision agriculture use of UAS refers to two segments of
the farm market: remote sensing used to scan plants for health problems, growth rates and hydration; and precision application of
needed pesticides or nutrients in order to save money and reduce environmental impact. ¶ Aerial sensing with the hexacopter, can
provide mapping of an entire section of land at 1-inch resolution in about 18 minutes – a task that would take hours if not days on a
tractor.¶ Aerial sensing with the hexacopter, can provide mapping of an entire section of land at 1-inch resolution in about 18
minutes – a task that would take hours if not days on a tractor. ¶ Members of the Kansas Ag Research and Technology Association
got an upclose look at the work that is being done at Kansas State University by agronomy professor Kevin Price, who is working
closely with Deon van der Merwe, head of the toxicology section at the K-State Veterinary Diagnostic Laboratory.¶ UAVs can help
monitor crop conditions¶ Van der Merwe is a remote-controlled aircraft enthusiast who is excited about the prospect of using UAVs,
commonly referred to as drones, to detect blue-green algae blooms in bodies of water.¶ Price brought two aircraft to the KARTA
conference, a flying wing by RiteWingRC called the Zephyr II and a DJI S800 Spreading Wings hexacopter.¶ Price said the
promise of using the aircraft to do remote sensing to monitor crop condition, detect diseases and
map fields for variable rate application of nutrients or pinpoint areas for fungicide or pesticide
application, is huge.¶ Aerial sensing with the hexacopter, for example, can provide mapping of an
entire section of land at 1-inch resolution in about 18 minutes – a task that would take hours if not
days on a tractor.¶
Second, precision farming key to prevent agricultural collapse
Gonzalez 13 – Sarah Gonzalez, 2-27-2013, "Data analysis, biotech are key in agriculture's future
sustainability," No Publication, http://www.agri-pulse.com/ag-issues-biotech-future-22613.asp
Bayer's forum, which began on Tuesday in Orlando, Florida, included a futuristic look at agriculture in the
year 2025, just 25 years before the world population is expected to reach nine billion and
agriculture is required to increase productivity by 70 percent. “We've been able to convince consumers that
biotechnology is the core of sustainability” by 2025, Kottmeyer said, adding that convincing and educating consumers is more
important than convincing regulators. During the shift of focus from regulator to consumer he predicts, Kottmeyer said it is important
to appeal to the emotional sentiments on which the consumer bases decisions. Furthermore, the organic customer is attracted to
simpler agriculture, social justice, sustainability and good stewardship, which he says are all things biotechnology can provide. “The
approach that they're rejecting has a clear benefit to the very things most important to them,” he said. The benefits of seed
technology will be realized, particularly because of the increased global population in 2050, as well as the prediction that more than
half the world population will be in the middle class by that date. He said this huge middle class, particularly in China and India, will
create a new consumer. While the European Union currently blocks all U.S. biotechnology products, Kottmeyer is optimistic the
consumer will drive a change. He noted that data analytics, which allowed him to make his 2025
predictions, show that finding ways to influence consumers is much simpler than normally
anticipated. “You just have to crunch the data,” he said. In fact, the entire agriculture industry is
currently moving into a “data-centric” era, said David Nicholson, head of Bayer's Research and
Development, during the forum. Using the information gained from technology in a way that helps
agriculture achieve the required 70 percent increase in productivity is the key to success or
failure, he said. Precision agriculture, in particular, is the focus of this data-driven era allowing the
farmer to know what to grow and where to grow it for the best results. “When we think of the farmer of the
future we see a grower as CEO,” said David Hollinrake, Bayer's Vice President of Agriculture Commercial Operations Marketing,
adding that farming will increasingly become a business investment instead of a lifestyle or family choice. “We want to be able to
participate as an enabler of using data as precision tools.”
Third, a Food crisis will collapse civilization through disease and terrorism
Brown 09 – [Lester, environmental analyst, founder of the Worldwatch Institute, and founder and
president of the Earth Policy Institute, a nonprofit research organization, recipient of 26 honorary degrees
and a MacArthur Fellowship, has won several prizes and awards, including the United Nations
Environment Prize, the World Wide Fund for Nature Gold Medal, and the Blue Planet Prize, “Could Food
Shortages Bring Down Civilization?” http://www.scientificamerican.com/article/civilization-food-shortages/]
One of the toughest things for people to do is to anticipate sudden change. Typically we project the future by extrapolating from
trends in the past. Much of the time this approach works well. But sometimes it fails spectacularly, and people are simply blindsided
by events such as today’s economic crisis. For most of us, the idea that civilization itself could disintegrate probably seems
preposterous. Who would not find it hard to think seriously about such a complete departure from what we expect of ordinary life?
What evidence could make us heed a warning so dire—and how would we go about responding to it? We are so inured to a long list
of highly unlikely catastrophes that we are virtually programmed to dismiss them all with a wave of the hand: Sure, our civilization
might devolve into chaos—and Earth might collide with an asteroid, too! For many years I have studied global agricultural,
population, environmental and economic trends and their interactions. The combined effects of those trends and the political
tensions they generate point to the breakdown of governments and societies. Yet I, too, have resisted the idea that food
shortages could bring down not only individual governments but also our global civilization. I can no longer ignore
that risk. Our continuing failure to deal with the environmental declines that are undermining the world food economy—most
important, falling water tables, eroding soils and rising temperatures—forces me to conclude that such a collapse is possible.¶
The Problem of Failed States¶ Even a cursory look at the vital signs of our current world order lends unwelcome support to my
conclusion. And those of us in the environmental field are well into our third decade of charting trends of environmental decline
without seeing any significant effort to reverse a single one.¶ In six of the past nine years world grain production has fallen short of
consumption, forcing a steady drawdown in stocks. When the 2008 harvest began, world carryover stocks of grain (the amount in
the bin when the new harvest begins) were at 62 days of consumption, a near record low. In response, world grain prices in the ¶
spring and summer of last year climbed to the¶ highest level ever.¶ As demand for food rises faster than supplies¶ are growing, the
resulting food-price inflation puts severe stress on the governments of countries already teetering on the
edge of chaos. Unable to buy grain or grow their own, hungry people take to the streets. Indeed, even before
the¶ steep climb in grain prices in 2008, the number of failing states was expanding [see sidebar at left]. Many of their problems
stem from a failure¶ to slow the growth of their populations. But if the food situation continues to deteriorate, entire
nations will break down at an ever increasing rate. We have entered a new era in geopolitics. In the 20th
century the main threat to international security was superpower conflict; today it is failing states. It is not the concentration of¶
power but its absence that puts us at risk. States fail when national governments can no longer provide personal
security, food security¶ and basic social services such as education and¶ health care. They often lose control of part or all¶ of
their territory. When governments lose their¶ monopoly on power, law and order begin to disintegrate.¶ After a point,
countries can become so dangerous that food relief workers are no longer¶ safe and their programs are
halted; in Somalia¶ and Afghanistan, deteriorating conditions have¶ already put such programs in jeopardy.¶ Failing states are
of international concern because they are a source of terrorists, drugs, weapons and refugees,
threatening political stability everywhere. Somalia, number one on the 2008¶ list of failing states, has
become a base for piracy.¶ Iraq, number five, is a hotbed for terrorist training.¶ Afghanistan, number seven, is the
world’s¶ leading supplier of heroin. Following the massive¶ genocide of 1994 in Rwanda, refugees from that¶ troubled state,
thousands of armed soldiers among¶ them, helped to destabilize neighboring Democratic¶ Republic of the Congo (number six).¶
Our global civilization depends on a functioning network of politically healthy nationstates to control the
spread of infectious disease, to manage the international monetary system, to control international
terrorism and to reach¶ scores of other common goals. If the system for controlling infectious diseases—
such as polio,¶ SARS or avian flu—breaks down, humanity will be in trouble. Once states fail, no one assumes
responsibility for their debt to outside lenders. If enough states disintegrate, their fall will threaten the
stability of global civilization itself.
Fourth, terrorism guarantees extinction
Hellman 08 – (Martin E. Hellman, emeritus prof of engineering @ Stanford, “Risk Analysis of Nuclear
Deterrence” SPRING 2008 THE BENT OF TAU BETA PI, http://www.nuclearrisk.org/paper.pdf)
* Cites CT experts
The threat of nuclear terrorism looms much larger in the public’s mind than the threat of a full-scale nuclear war, yet
this article focuses primarily on the latter. An explanation is therefore in order before proceeding. A terrorist attack
involving a nuclear weapon would be a catastrophe of immense proportions : “A 10-kiloton bomb
detonated at Grand Central Station on a typical work day would likely kill some half a million people, and inflict over a trillion dollars
in direct economic damage. America and its way of life would be changed forever.” [Bunn 2003, pages viii-ix]. The likelihood
of such an attack is also significant. Former Secretary of Defense William Perry has estimated the chance of
a nuclear terrorist incident within the next decade to be roughly 50 percent [Bunn 2007, page 15]. David Albright,
a former weapons inspector in Iraq, estimates those odds at less than one percent, but notes, “We would never accept a situation
where the chance of a major nuclear accident like Chernobyl would be anywhere near 1% .... A nuclear terrorism attack is a lowprobability event, but we can’t live in a world where it’s anything but extremely low-probability.” [Hegland 2005].
In a survey of
85 national security experts , Senator Richard Lugar found a median estimate of 20 percent for the “probability
of an attack involving a nuclear explosion occurring somewhere in the world in the next 10 years,”
with 79 percent of the respondents believing “it more likely to be carried out by terrorists” than by
a government [Lugar 2005, pp. 14-15]. I support increased efforts to reduce the threat of nuclear terrorism, but that is not
inconsistent with the approach of this article. Because terrorism is one of the potential trigger mechanisms for a fullscale nuclear war , the risk analyses proposed herein will include estimating the risk of nuclear terrorism as one component of
the overall risk. If that risk, the overall risk, or both are found to be unacceptable, then the proposed remedies would be directed to
reduce which-ever risk(s) warrant attention. Similar remarks apply to a number of other threats (e.g., nuclear war between the U.S.
and China over Taiwan). His article would be incomplete if it only dealt with the threat of nuclear terrorism and neglected the threat
of full-scale nuclear war. If both risks are unacceptable, an effort to reduce only the terrorist component would leave humanity in
great peril. In fact, society’s almost total neglect of the threat of full-scale nuclear war makes studying
that risk all the more important. The cosT of World War iii The danger associated with nuclear deterrence depends on
both the cost of a failure and the failure rate.3 This section explores the cost of a failure of nuclear deterrence, and the next section
is concerned with the failure rate. While other definitions are possible, this article defines a failure of deterrence to mean a full-scale
exchange of all nuclear weapons available to the U.S. and Russia, an event that will be termed World War III. Approximately 20
million people died as a result of the first World War. World War II’s fatalities were double or triple that number—chaos prevented a
more precise determination. In both cases humanity recovered, and the world today bears few scars that attest to the horror of those
two wars. Many people therefore implicitly believe that a third World War would be horrible but survivable, an extrapolation of the
effects of the first two global wars. In that view, World War III, while horrible, is something that humanity may just have to face and
from which it will then have to recover. In contrast, some of those most qualified to assess the situation hold a very different view. In
a 1961 speech to a joint session of the Philippine Congress, General Douglas MacArthur, stated, “Global war has become a
Frankenstein to destroy both sides. … If you lose, you are annihilated. If you win, you stand only to lose. No longer does it
possess even the chance of the winner of a duel. It contains now only the germs of double
suicide.” Former Secretary of Defense Robert McNamara expressed a similar view: “If deterrence fails and conflict develops, the
present U.S. and NATO strategy carries with it a high risk that Western civilization will be destroyed” [McNamara 1986,
page 6]. More recently, George Shultz, William Perry, Henry Kissinger, and Sam Nunn4 echoed those concerns when they quoted
President Reagan’s belief that nuclear weapons were “totally irrational, totally inhu- mane, good for nothing but killing, possibly
destructive of life on earth and civilization.” [Shultz 2007] Official studies, while couched in less emotional terms, still convey the
horrendous toll that World War III would exact: “The resulting deaths would be far beyond any precedent.
Executive branch calculations show a range of U.S. deaths from 35 to 77 percent (i.e., 79-160 million dead)… a change in targeting
could kill somewhere between 20 million and 30 million additional people on each side .... These calculations reflect only deaths
during the first 30 days. Additional millions would be injured, and many would eventually die from lack of adequate medical care …
millions of people might starve or freeze during the follow- ing winter, but it is not possible to estimate how many. … further millions
… might eventually die of latent radiation effects.” [OTA 1979, page 8] This OTA report also noted the possibility of serious
ecological damage [OTA 1979, page 9], a concern that as- sumed a new potentiality when the TTAPS report [TTAPS 1983]
proposed that the ash and dust from so many nearly simultaneous nuclear explosions and their resultant fire- storms
could usher in a nuclear winter that might erase homo sapiens from the face of the earth, much as
many scientists now believe the K-T Extinction that wiped out the dinosaurs resulted from an impact winter caused by ash and
dust from a large asteroid or comet striking Earth. The TTAPS report produced a heated debate, and there is still no scientific
consensus on whether a nuclear winter would follow a full-scale nuclear war. Recent work [Robock 2007, Toon 2007] suggests that
even a limited nuclear exchange or one between newer nuclear-weapon states, such as India and Pakistan, could
have devastating long-lasting climatic consequences due to the large volumes of smoke that would be generated
by fires in modern megacities. While it is uncertain how destructive World War III would be, prudence dictates that we apply the
same engi- neering conservatism that saved the Golden Gate Bridge from collapsing on its 50th anniversary and assume that
preventing World War III is a necessity—not an option.
Finally, diseases cause extinction
Guterl 12 – [Fred, award-winning journalist and executive editor of Scientific American, worked for ten
years at Newsweek, has taught science at Princeton University, The Fate of the Species: Why the Human
Race May Cause Its Own Extinction and How We Can Stop It, 1-2, Google Books, online
Over the next few years, the bigger story turned out not to be SARS, which trailed off quickly, bur avian influenza, or bird flu. It had
been making the rounds among birds in Southeast Asia for years. An outbreak in 1997 Hong Kong and another in 2003 each called
for the culling of thousands of birds and put virologists and health workers into a tizzy. Although the virus wasn't much of a threat to
humans, scientists fretted over the possibility of a horrifying pandemic. Relatively few people caught the virus, but more than half of
them died. What would happen if this bird flu virus made the jump to humans? What if it mutated in a way that allowed it to spread
from one person to another, through tiny droplets of saliva in the air? One bad spin of the genetic roulette wheel and a
deadly new human pathogen would spread across the globe in a matter of days . With a kill rate of 60
percent, such a pandemic would be devastating, to say the least.¶ Scientists were worried, all right, but the object of their
worry was somewhat theoretical. Nobody knew for certain if such a supervirus was even possible. To cause that kind of damage to
the human population, a flu virus has to combine two traits: lethality and transmissibility. The more optimistically minded scientists
argued that one trait precluded the other, that if the bird flu acquired the ability to spread like wildfire, it would lose its ability to kill
with terrifying efficiency. The virus would spread, cause some fever and sniffles, and take its place among the pantheon of ordinary
flu viruses that come and go each season.¶ The optimists, we found out last fall, were wrong. Two groups of scientists
working independently managed
to create bird flu viruses in the lab that had that killer combination of lethality
and transmissibility among humans. They did it for the best reasons, of course—to find vaccines and medicines to treat
a pandemic should one occur, and more generally to understand how influenza viruses work. If we're lucky, the scientists will get
there before nature manages to come up with the virus herself, or before someone steals the genetic blueprints and turns this
knowledge against us. ¶ Influenza is a natural killer, but we have made it our own. We have created the conditions for new
viruses to flourish—among pigs in factory farms and live animal markets and a connected world of international
trade and travel—and we've gone so far as to fabricate the virus ourselves. Flu is an excellent example of how we have,
through our technologies and our dominant presence on the planet, begun to multiply the risks to our own survival
Scenario 2 is the economy
First, drones improve the efficiency of every sector of the economy
Dubravac 14 – Chief economist of the Consumer Electronics Association (9-2-2014, Shawn Dubravac,
Richmond Times-Dispatch, "How commercial drones can drive economic growth",
http://www.richmond.com/opinion/their-opinion/guest-columnists/article_a849638c-bf53-514d-a79351255162a0bf.html)
Drones are an exceptional example of how emerging technologies can increase the productivity of
myriad diverse businesses . Whether monitoring valuable infrastructure, quickly and
inexpensively surveying an area, or delivering rich video in real time, drones will change the way
businesses do what they do. The CEA estimates the costs related to using a drone may be one-tenth the cost of other
alternatives of certain business activities. Because drones are such efficient cost-reducers for various use-cases,
entirely new services and consumer benefits are now on their way to market.
In some ways, the marketplace for commercial drones is limited only by our imaginations . Drones
have already helped catch cattle rustlers, capture wedding memories and monitor national
borders. In the agricultural sector alone, drones are farming crops, weeding fields and applying
fertilizers. Eventually, this technology will be integral to media outlets, real estate professionals
and emergency first responders. In July, a three-day search for a missing senior in Wisconsin
ended when an amateur drone pilot joined the effort and spotted the man after only 20 minutes.
As in most nascent markets, companies are experimenting with drones across numerous business applications. In July, Amazon
petitioned the FAA for an exemption to allow the company to test drones in the U.S., an effort to implement same-day package
delivery. Such experimentation can lead to lasting innovation, new business models and economic growth. Without the exemptions,
Amazon may have to move its research and development operations abroad, resulting in fewer domestic jobs and less national
investment.
In the absence of federal guidelines from the FAA, states are instead crafting their own drone laws, creating a
patchwork of different and diverse state laws. According to the National Conference of State Legislatures, 16 states
including Virginia have enacted 20 laws regarding drone use — the latest laws, in Tennessee and Indiana, went into effect July 1.
This maze of regulations will make compliance much more complicated for companies that want
to incorporate drones into their commercial operations.
We shouldn’t delay any longer in opening our skies to new economic growth. While we’re waiting for the
government to provide clarity, the projected jobs, economic activity and $4.4 million in added tax revenue the drone sector will
provide in Virginia over the coming years are drifting that much further out of reach. We need to feed tomorrow’s
economic engine today, but the absence of forward thinking is hindering our potential .
Second drones are necessary to maintain growth
Rehfuss 15 – [Abigail W. – graduate of Loyola University Maryland, Albany Law School of Union University, Assistant Albany
County Attorney.] [THE DOMESTIC USE OF DRONES AND THE FOURTH AMENDMENT] (http://tinyurl.com/o5te3mx)
(accessed 7-14-15) //MC
As of 2012, a market
study estimated that drone spending will almost double over the next decade
from current worldwide drone expenditures.66 This study, conducted by the Teal Group, remarked that “[t]he
UAV market will continue to be strong despite cuts in defense spending . . . [now that] ‘UAVs have
proved their value in Iraq, Afghanistan, and Pakistan . . . .’”67 The study predicts that the worldwide UAV market “will
continu[e] as one of the prime areas of growth for defense and aerospace companies,” and it
reflects the rapidly expanding interest in the UAV business by nearly forty U.S., European, South African, and
Israeli companies.68 Overall, the study “‘ predicts that the U.S. will account for 62 percent of worldwide
RDT&E spending on UAV technology over the next decade, and 55 percent of the procurement . . . .’”69
Undoubtedly, introducing drones on the home front has the potential to spur economic growth across
the country .
Third, economic collapse causes competition for resources and instability that escalates
and goes nuclear
Harris and Burrows 09 – [counselor in the National Intelligence Council, the principal drafter of Global
Trends 2025, **member of the NIC’s Long Range Analysis Unit “Revisiting the Future: Geopolitical Effects
of the Financial Crisis”, Washington Quarterly, http://www.twq.com/09april/docs/09apr_burrows.pdf]
Increased Potential for Global Conflict
Of course, the report encompasses more than economics and indeed believes the future is likely to be the result of a number of
intersecting and interlocking forces. With so many possible permutations of outcomes, each with ample opportunity for unintended
consequences, there is a growing sense of insecurity. Even so, history may be more instructive than ever. While we continue
to believe that the Great Depression is not likely to be repeated, the lessons to be drawn from that
period include the harmful effects on fledgling democracies and multiethnic societies (think Central Europe
in 1920s and 1930s) and on the sustainability of multilateral institutions (think League of Nations in the same period). There is no
reason to think that this would not be true in the twenty-first as much as in the twentieth century. For
that reason, the ways in which
the potential for greater conflict could grow would seem to be even more apt in a
constantly volatile economic environment as they would be if change would be steadier.
In surveying those risks, the report stressed the likelihood that terrorism and nonproliferation will remain priorities even as resource
issues move up on the international agenda. Terrorism’s appeal will decline if economic growth continues in
the Middle East and youth unemployment is reduced. For those terrorist groups that remain active in 2025, however, the
diffusion of technologies and scientific knowledge will place some of the world’s most dangerous
capabilities within their reach. Terrorist groups in 2025 will likely be a combination of descendants of long
established groups inheriting organizational structures, command and control processes, and training procedures necessary to
conduct sophisticated attacks and newly emergent collections of the angry and disenfranchised that become self-radicalized,
particularly in the absence of economic outlets that would become narrower in an economic downturn.
The most dangerous casualty of any economically-induced drawdown of U.S. military presence would almost certainly be
the Middle East. Although Iran’s acquisition of nuclear weapons is not inevitable, worries about a nuclear-armed Iran
could lead states in the region to develop new security arrangements with external powers, acquire
additional weapons, and consider pursuing their own nuclear ambitions. It is not clear that the type of
stable deterrent relationship that existed between the great powers for most of the Cold War would emerge
naturally in the Middle East with a nuclear Iran. Episodes of low intensity conflict and terrorism taking place under a nuclear umbrella
could lead to an unintended escalation and broader conflict if clear red lines between those states involved are not well established.
The close proximity of potential nuclear rivals combined with underdeveloped surveillance capabilities and mobile
produce inherent difficulties in achieving reliable indications and warning of
lack of strategic depth in neighboring states like Israel, short warning and missile
dual-capable Iranian missile systems also will
an impending nuclear attack. The
flight times, and uncertainty of Iranian intentions may place more focus on preemption rather than defense,
potentially leading to escalating crises .
Types of conflict that the world continues to experience, such as over resources, could reemerge,
particularly if protectionism grows and there is a resort to neo-mercantilist practices. Perceptions of
renewed energy scarcity will drive countries to take actions to assure their future access to energy
supplies. In the worst case, this could result in interstate conflicts if government leaders deem assured access to energy
resources, for example, to be essential for maintaining domestic stability and the survival of their regime. Even actions short of war,
however, will have important geopolitical implications. Maritime security concerns are providing a rationale for naval buildups
and modernization efforts, such as China’s and India’s development of blue water naval capabilities. If the fiscal stimulus focus
for these countries indeed turns inward, one of the most obvious funding targets may be military. Buildup of regional naval
capabilities could lead to increased tensions, rivalries, and counterbalancing moves, but it also will create opportunities for
multinational cooperation in protecting critical sea lanes. With water also becoming scarcer in Asia and the Middle East, cooperation
to manage changing water resources is likely to be increasingly difficult both within and between states in a more dog-eat-dog
world.
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
[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
tanks, Berkman Center for Internet and Society, Brennan Center for Justice and interned at the United Nations)
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
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
In the age of mass surveillance, however, the reasonable expectation of privacy standard will have to be reassessed.
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
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
the evidence obtained therewith was inadmissible in court. The two concurrences, however, indicated that
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
enforcement situations on the ground. Airborne 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
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 one-and-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
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
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
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 “twenty-four 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.