Over Your Head, under the Radar: An Examination of Changing Legislation, Aging Case Law, and Possible Solutions to the Domestic Police Drone Puzzle
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Table of ContentsI. Introduction 1830II. Background 1836A. Familiar Concept, Foreign Sight 1837B. Drones Are a Unique Search Technology 1840C. Present Drone Policy 1842III. The Importance of Recent Legislative Developments .. 1845A. The FAA Modernization and Reform Act of 2012 1845B. Legislative Incentive to Operate Drones Without Restrictions 1847IV. Messy Authority: Case Law's Inconsistent Treatment of Aerial Observation 1849A. Katz v. United States: A Starting Point for Drawing the Privacy Line 1850B. Missed Opportunities for Consistency 1852C. Florida v. Riley: An Increasingly Ineffective Application of Reasonableness 1854D. Kyllo v. United States: The Importance of Sensory Enhancement 1858E. United States v. Jones: New Potential forChange 1862V. Solutions: Closing the Privacy Gap 1864A. Protective Legislation 18641. Federal Legislation: General Recommendations 18652. Federal Legislation: Specific Solutions 18683. State Solutions 18764. Municipal Solutions 1877B. Judicial Remedies: Return to Katz or Enumerate a Drone-Specific Test 1877VI. Conclusions: The Road Ahead 1883I. IntroductionLook up. Domestic unmanned aircraft have arrived and may be coming to a city near you.1The drone revolution promises to increase substantially the ability of law enforcement to serve and protect their jurisdictions. Drones are unique because they often lack the technical limitations and restrictive costs of manned aircraft.2 Their potential for a positive impact on society is substantial, but drones also carry a potential for abuse. The technology can outstrip certain constitutional protections and case law governing naked-eye aerial observation by police. A possible reassurance may be that police have no desire to track and observe average Americans.3 But the danger of abuse may already be realized.4 Indeed, the revelations surrounding the National Security Agency's surveillance programs underscore the lengths to which the federal government will go to use technology in the pursuit of fighting crime and terrorism and that such technology is subject to abuse.5Consider the following hypothetical. City police launch three drones from a municipal airport just after dawn. Drone 1 operates at 10,000 feet, carries downward-looking cameras, and can remain aloft for twelve continuous hours to follow targets below. It will stay overhead in the public airways to track and identify the individuals coming and going from an open courtyard within an estate. Assume that Drone 1 is completely imperceptible to naked-eye observation from the ground.Drone 2 is small and operates only at low altitudes where larger, manned aircraft cannot fly. It will target the individuals mentioned above by hovering silently at varying distances from the house (some at fifteen feet over a field, some above a public street, etc.). Drone 3 is also small, but travels to the scene of a forest fire on the edge of town. City police have equipped these smaller drones with a variety of cameras and listening devices, none of which amplify sensory inputs above normal human perception. Additionally, the smaller drones are equipped with navigational cameras that capture a continuous feed of video from start to finish. If a policeman were at these unusual drone flight altitudes, he would hear and see exactly as these drones do.If present law is applied, are the targeted individuals protected from the warrantless observations made by these drones?6 Now assume that their general capabilities have become commonly known, much like those of a typical police helicopter today. How might the law vary for each drone under these assumptions, if and when police rapidly expand their use of drones? The answers to these questions about Drones 1, 2, and 3 are worth knowing.In general, the Fourth Amendment7 protects Americans from unreasonable searches and seizures. …