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.