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Drones Over America -- Congressional Research Service Report -- Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses

Drones Over America -- Congressional Research Service Report -- Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses

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Published by BJHarrelson
Sept. 6, 2012, 23 pages
The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues...

Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation's skies in less than 20 years. Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015. However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use.

This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. A reviewing court's determination of the reasonableness of drone surveillance would likely be informed by location of the search, the sophistication of the technology used, and society's conception of privacy in an age of rapid technological advancement. While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways or backyards. Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people's expectations of privacy evolve.

Online Source:
http://www.fas.org/blog/secrecy/2012/09/drones_domestic.html
Sept. 6, 2012, 23 pages
The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues...

Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation's skies in less than 20 years. Congress has played a large role in this expansion. In February 2012, Congress enacted the FAA Modernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate the integration of unmanned aircraft into the national airspace system by 2015. However, some Members of Congress and the public fear there are insufficient safeguards in place to ensure that drones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety, and is not adequately prepared to handle the issues of privacy and civil liberties raised by drone use.

This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. A reviewing court's determination of the reasonableness of drone surveillance would likely be informed by location of the search, the sophistication of the technology used, and society's conception of privacy in an age of rapid technological advancement. While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways or backyards. Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people's expectations of privacy evolve.

Online Source:
http://www.fas.org/blog/secrecy/2012/09/drones_domestic.html

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Published by: BJHarrelson on Feb 16, 2013
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CRS Report for Congress
 Prepared for Members and Committees of Congress
Drones in Domestic Surveillance Operations:Fourth Amendment Implications andLegislative Responses
Richard M. Thompson II
Legislative AttorneySeptember 6, 2012
Congressional Research Service
7-5700www.crs.govR42701
 
Drones in Domestic Surveillance OperationsCongressional Research Service
Summary
The prospect of drone use inside the United States raises far-reaching issues concerning the extentof government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues.Drones, or unmanned aerial vehicles (UAVs), are aircraft that can fly without an onboard humanoperator. An unmanned aircraft system (UAS) is the entire system, including the aircraft, digitalnetwork, and personnel on the ground. Drones can fly either by remote control or on a predetermined flight path; can be as small as an insect and as large as a traditional jet; can be produced more cheaply than traditional aircraft; and can keep operators out of harm’s way. Theseunmanned aircraft are most commonly known for their operations overseas in tracking down andkilling suspected members of Al Qaeda and related organizations. In addition to these missionsabroad, drones are being considered for use in domestic surveillance operations, which mightinclude in furtherance of homeland security, crime fighting, disaster relief, immigration control,and environmental monitoring.Although relatively few drones are currently flown over U.S. soil, the Federal AviationAdministration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years.Congress has played a large role in this expansion. In February 2012, Congress enacted the FAAModernization and Reform Act (P.L. 112-95), which calls for the FAA to accelerate theintegration of unmanned aircraft into the national airspace system by 2015. However, someMembers of Congress and the public fear there are insufficient safeguards in place to ensure thatdrones are not used to spy on American citizens and unduly infringe upon their fundamental privacy. These observers caution that the FAA is primarily charged with ensuring air traffic safety,and is not adequately prepared to handle the issues of privacy and civil liberties raised by droneuse.This report assesses the use of drones under the Fourth Amendment right to be free fromunreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness.A reviewing court’s determination of the reasonableness of drone surveillance would likely beinformed by
 
location of the search, the sophistication of the technology used, and society’sconception of privacy in an age of rapid technological advancement. While individuals can expectsubstantial protections against warrantless government intrusions into their homes, the FourthAmendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways o backyards. Concomitantly, as technology advances, the contours of what is reasonable under theFourth Amendment may adjust as people’s expectations of privacy evolve.In the 112th Congress, several measures have been introduced that would restrict the use of drones at home. Senator Rand Paul and Representative Austin Scott introduced the PreservingFreedom from Unwarranted Surveillance Act of 2012 (S. 3287, H.R. 5925), which would requirelaw enforcement to obtain a warrant before using drones for domestic surveillance, subject toseveral exceptions. Similarly, Representative Ted Poe’s Preserving American Privacy Act of 2012(H.R. 6199) would permit law enforcement to conduct drone surveillance pursuant to a warrant, but only in investigation of a felony.
 
Drones in Domestic Surveillance OperationsCongressional Research Service
Contents
Introduction......................................................................................................................................1
 
Background, Uses, and Drone Technology...............................................................................2
 
Fourth Amendment Jurisprudence...................................................................................................4
 
Privacy in the Home..................................................................................................................6
 
Curtilage and Open Fields.........................................................................................................7
 
Manned Aerial Surveillance......................................................................................................7
 
Government Tracking................................................................................................................8
 
Border Searches.......................................................................................................................10
 
Warrants, Suspicionless Searches, and Special Needs............................................................11
 
Application of Fourth Amendment to Drones...............................................................................12
 
Location of Search...................................................................................................................12
 
Technology Used.....................................................................................................................14
 
Warrant Requirement and Suspicionless Drone Searches.......................................................17
 
Legislative Proposals in the 112th Congress to Constrain Domestic Use of Drones....................18
 
Preserving Freedom from Unwarranted Surveillance Act of 2012 (H.R. 5925, S.3287).....................................................................................................................................18
 
Preserving American Privacy Act of 2012 (H.R. 6199)..........................................................18
 
Farmers Privacy Act of 2012 (H.R. 5961) and Other Restrictions on EPA Drone Use...........19
 
Alternative Proposals.....................................................................................................................19
 
Conclusion.....................................................................................................................................20
 
Contacts
Author Contact Information...........................................................................................................20
 

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