Q. What are the potential privacy risks associated with domestic drones?
Drones could make many tasks such as delivering packages, conducting law enforcement, and surveying property cheaper and easier. The increasing prevalence has drawn ire from privacy advocates, however, who worry about the ways that drones seem to present new and pernicious infringement of individual space. What makes surveillance technologies potentially different is that drones, especially miniaturized ones, can hide in plain sight. One website advertises the Dragonfly drone as "a palm-sized robot that flies like a bird and hovers like an insect." Because of the size, which is small, and the appearance, which mimics a dragonfly, one website brags that when it comes to insects and drones, "People can't tell the difference!"47 The ability to fly without being noticed means that these drones can be more intrusive than other surveillance technologies without fear of being spotted.
Even for larger-scale drones used for personal or government purposes, which people can identify in ways that draw attention to the possible surveillance and photography function, some groups see drones as presenting a new and serious privacy threat. The difference with other forms of surveillance is that they are relatively inexpensive, can loiter for long periods, and can penetrate into areas that might have been off limits to surveillance cameras mounted on street lights. With the proliferation of drones for domestic use in mind, two related potential problems arise in terms of privacy. One deals with the government's use of drones in a US homeland setting and the other addresses privacy infractions resulting from the use of private or commercial drones. This section addresses the privacy concerns related to both government and private drones and then investigates the extent to which current constitutional protections will be sufficient to address the drone- related privacy concerns.
In terms of privacy issues related to the government use of drones, with even the current technology, drones could be barely discernible in the sky but still allow the government to collect video or images with impressive resolution. Senator Rand Paul raised the rhetorical question in an op-ed of whether "unwarranted and constant surveillance by an aerial eye of Big Government" was the answer to crime. Senator Paul went on to state that he did not want a government drone monitoring his barbecues or "a nanny state watching over my every move."48 He then wrote a series of letters to Robert Mueller, Director of the Federal Bureau of Investigation. The first requested more information about how long the FBI had been using drones while not publicly outlining protection of privacy, whether it had planned to develop such protections, the measures it was taking to protect Fourth Amendment rights, along with a litany of other concerns related to the FBI's use of drones, including whether it planned to arm them.49 Another followed up on the earlier email, reiterating the importance of transparency and requesting that the FBI offer prompt responses to the queries. He then sent an additional letter asking for clarification on the FBI's response that there had not been a need to seek a warrant to use drones in the past, seeking to understand the FBI's understanding of when individuals do or do not have reasonable expectations of privacy, the matter on which the Fourth Amendment turns.
The American Civil Liberties Union reported approvingly on Senator Paul's "dogged" efforts to gain clarity on what it means to have a "reasonable expectation of privacy."50 The
Federal Bureau of Investigation responded to these requests stating that its agents had used drones to conduct surveillance over the United States 10 times between 2006 and 2013, using the drones to support operations related to kidnappings, search and rescue missions, drug interdictions, and support missions. It noted that it had conducted surveillance using drones for eight criminal and two national security cases. The FBI elaborated that it does not use armed drones over US soil and that it would acquire a warrant to obtain information that goes beyond a reasonable expectation of privacy. Otherwise though, the FBI concluded that there were no Fourth Amendment concerns surrounding its use of drones.51 In a follow-up letter to members of Congress, the legislative affairs officer for the FBI noted that it was unable to disclose many of the FBI-specific drone practices, which are classified as "Law Enforcement Sensitive" because of the security considerations with which they deal.52
Given the fraught nature of the discussion about privacy, including surrounding the term "reasonable," it is not surprising that the United States has had a number of Supreme Court cases interpreting the scope of what is reasonable or not. In three major Supreme Court cases in the 1980s, the justices sided with the government. These cases very much foreshadowed the present debate surrounding the use of drones by law enforcement agencies. The first case in 1986, California v. Ciraolo, dealt with whether the government could constitutionally identify marijuana plants in an individual's backyard from an airplane at 1,000 ft. The court stated that the "Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye." In another case, Dow Chemical Co. v. United States, the use of government cameras to take aerial pictures of a Dow chemical facility was seen as constitutional in part because "the photographs here are not so revealing of intimate details as to raise constitutional concerns," as the Court put it. In other words, these rulings suggested that the mere involvement of technology did not itself constitute a violation of privacy under the Constitution since these technologies were not being used in superhuman ways but rather completely consistent with the human eye and to view events not of an intimate nature. Thus, in some respects one could be wary of the proliferation of drones from a privacy perspective.
Despite these concerns, others suggest that the proliferation of drones presents few risks even when it comes to questions of privacy. One argument suggests that the privacy horse has left the barn long before drones came onto the scene. As the Congressional Research Service's report on privacy and drones puts it, "in determining society's privacy expectations, a reviewing court might also take into consideration the proliferation of aerial mapping such as Google Maps and Google Earth conducted by private actors."53 For that matter, do the technologies depart considerably from a closed-circuit surveillance camera strapped onto a lamppost instead of a drone? Are individuals simply responding differently because of the novelty of the technology but not because of any qualitative difference between the privacy they have already relinquished and that which they would stand to relinquish with drones? Drones, according to this logic, are if anything a difference of degree, not a difference of kind.
Another defense of drones expresses full confidence in the Constitution's ability to protect individuals' privacy. Albeit speaking from the perspective of having a dog in the fight, the AUVSI has expressed agreement with this position, suggesting that existing constitutional provisions protect privacy: "Over the last 225 years, the court system has done a pretty good job of protecting our Fourth Amendment rights, and that is something we absolutely support."54 Indeed, many types of drones would fall outside the "naked-eye" provision and be unconstitutional, and several cases point to important privacy protections under the Fourth Amendment. In one case, Kyllo v. United States, the Supreme Court decided the constitutionality of a government thermal imager to identify illegal marijuana growing and raised concerns about whether permitting the government to collect information through "advancing technology" was reasonable. The technology went beyond the "human eye" in using an imaging system that was found, in turn, to reach beyond the limits of constitutionality. As John Villasenor from UCLA Law School concludes, "under a balanced reading of Kyllo, the government use of a UAV to reveal 'details of the home that would previously have been unknowable without physical intrusion' would be unconstitutional today."55
More contemporary cases involve the legality of GPS tracking devices that the government affixed to a vehicle without obtaining warrants. These cases were both considered of questionable constitutionality, with Supreme Court justices across the ideological spectrum expressing the view that new technologies such as GPS monitoring went beyond "reasonable societal expectation of privacy," as Justice Sotomayor put it, a view shared by Justices Scalia and Alito. These cases point to the prospect not of drones running rampant in the infringement of privacy but of reaching some constitutional bounds in the form of the Fourth Amendment.56
The rapidly changing technology, increasing use of drones by law enforcement and private citizens, ambiguity surrounding the parameters of an individual's right against "unreasonable searches and seizures," and the definition of what constitutes a "search" point toward the likelihood that a number of drone- specific legal cases will soon fill courts around the country. Andrew Couts, writing for Digital Trends, observes that these questions are "slippery" under the best circumstances: "throw drones in the mix and ... the fine line across which surveillance by the state becomes 'search' gets downright knotty."57
The privacy issues surrounding individuals' use of drones raise a somewhat different set of considerations. Those involving the government use of drones more directly hinge on questions of constitutionality, primarily through the Fourth Amendment protections, and generally raise more serious opposition, in part because government drones are generally more capacious, and individuals may fear some inappropriate government use of the information obtained through a drone. For the use of individual drones, the concern is more simply about the invasion of one's own privacy. Individuals worry, for example, about whether previously intimate activities such as sunbathing at a nude beach would become matters of public consumption. Indeed, there are a number of videos online showing footage from a drone loitering over such a beach. As a Brookings Institution report on privacy concludes, "there is no firm consensus about how best to safeguard privacy rights from nongovernmental drone surveillance."58 These privacy matters reside at the state level, which has given rise to considerable interstate variation depending on philosophies about the balance between the individual's right to engage in drone hobbyist activity and an individual's right to privacy. Whereas some states have passed "peeping Tom" laws in the context of drones, others have remained mum.