Much hubbub has been made recently over whether police use of drones would be an unacceptable infringement of privacy. In fact, lawmakers in some minor jurisdictions have gone so far as to ban all drones.
Caring little for fourth amendment questions, myself, especially in the domestic law enforcement context, I’ll only offer one observation: the police have been oggling you from above for decades.
There is a precedent well known to every law student that allows the police to use aircraft for observation of the areas of your property that they may not be able to see from the street. In California v. Ciraolo, 476 U.S. 207, the Supreme Court decided that police use of airplanes to “search” your backyard was not a breach of your fourth amendment right to be free from unreasonable searches. According to the Court,
“The Fourth Amendment simply does not require the police traveling in the public airways at [a legal] altitude to obtain a warrant in order to observe what is visible to the naked eye.”
Now, back to drones: the only technical difference between drones and ordinary aircraft is the location of the pilot. It is not at all clear why this difference would matter to your sense of privacy. Maybe electronic eyes burn that much more on the back of your head? It’s doubtful the Supreme Court would make that kind of distinction.
However, there is another effective difference: the ease and low cost of drones will greatly increase the amount of surveillance that the police can conduct. And being watched only when the police determine it’s worth the exorbitant cost may seem like less of a burden on your backyard activities. So then that must be what people are worried about.
But if it is not the technical differences between drones and police helicopters that raise the specter of a police state, then the efforts to limit aerial surveillance should not be limited to unmanned overflight. If it decides to craft a new policy for aerial surveillance, the legislature should ensure that it be platform-neutral: aerial surveillance is either intrusive or mundane. It can’t be both, depending on where the pilot sits.
Paul Taylor, Senior Research Fellow
Center for Policy & Research