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Surveillance Technology:

How Drones are going to Change the Definition of Privacy on Domestic Soil

Nicholas D. Short

Northern Arizona University


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Surveillance Technology: How Drones are going to Change the Definition of

Privacy on Domestic Soil

Drones, which are names for Unmanned Aerial Vehicles (UAVs) are

inevitably going to change the definition of privacy on domestic soil as soon

as the year 2015. The court system within the United States appears to be

lagging behind in case law involving surveillance using technology by law

enforcement and many problems will arise due to the technology itself being

extremely advanced. One of the biggest concerns for the protection of

everyday Americans and their rights to privacy comes with the fact that the

court system has granted responsibility upon the wings of the Federal

Aviation Administration (FAA). The FAA is tasked with the challenge of

protecting our civil liberties while also setting standards and regulations as to

what type of UAVs are allowed to be operated by individuals within the

public and private sectors.

The fact sheet on Unmanned Aircraft Systems (2013) produced by the

FAA gives us an idea about the sheer amount of tasks Congress has given

the FAA to handle with regards to the usage and regulations of drones. It

states that they will, Introduce UAS (Unmanned Aerial Systems) to be

integrated into a National Airspace System (NAS) that is evolving from

ground navigation aids to a GPS-based system in NexGen. Furthermore, In

2012, Congress directed the FAA to allow unmanned aircraft weighing 4.4

pounds or less to be flown domestically. The FAA also set standards for the
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drones besides the weight which said they, must be flown within the line of

sight of the operator, less than 400 feet above the ground, during daylight

and more than 5 miles from an airport or any other aviation activity

location. The FAA is primarily focused on public safety with regards to

airspace, but now with these provisions and new tasks, they are placed into a

position that will come with an enforcement role that they are not prepared

for.

Congress has granted funding of 63 billion dollars under the Re-

Authorization Act and by 2015 the FAA will be in charge of tens of thousands

of flying drones by hobbyists and law enforcement officials alike. Kashmir Hill

(2012) from Congress Welcomes the Drones, states that, by 2015 the FAA

has to start allowing the commercial use of drones. They are required to

provide military, commercial, and privately owned drones expanded access

to U.S. airspace currently reserved for manned aircraft by September 30 th

2015. This means that they will be permitting unmanned drones controlled

by remote operators on the ground to fly in the same airspaces as airliners,

cargo planes, business jets and private aircraft. This monumental task is

something the FAA is in no way prepared for, and even if plans, provisions

and regulations for safety are all met, it is not addressing the possibility that

drones may be used by law enforcement in ways that may potentially

infringe upon our rights governed under the 4th Amendment.

The 4th Amendment to the Constitution guarantees the right of the

people to be secure in their persons, houses, papers, and effects, against


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unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the persons or things to

be seized. The FAA must make sure that an individuals reasonable

expectations of privacy are upheld and in doing this they must also adhere to

the Constitution by protecting individuals from warrantless searches.

Jay Stanley (2012) Senior Policy Analyst of the American Civil Liberties

Union is beginning to voice some of the concerns that we will see based

upon the rights of privacy governed under the 4th Amendment. He states,

The bottom line is: domestic drones are potentially extremely powerful

surveillance tools, and that power like all government power needs to

be subject to checks and balances. We hope that Congress will carefully

consider the privacy implications that this technology can lead to. Stanley is

not only referring to the fact that Congress must step in and realize the

privacy implications this will have and how the FAA does not have the

resources nor the standing to truly enforce their laws, but also how there

needs to be other agencies and branches of government involved to insure

that a realistic balance can be achieved between law enforcement and

individual rights.

We must look to the court and case law to see exactly how the 4th

Amendment will be affected by seeing how privacy issues, with regards to

the use of invasive technology similar to drones, has been interpreted by the

courts in previous rulings. This will show us how previous concerns of privacy
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issues in the past will play crucial roles in privacy issues of the future,

starting with what constitutes a legal search under the 4th Amendment. This

is guided by Katz v. United States (1967) whereby the court defines

reasonable expectations of privacy of a search as, a persons expectations

of privacy in things searched as well as society believing that the expectation

is reasonable. Two prior cases address these issues as well as alluding to

the issues we will see in the future involving a search and a persons

reasonable expectation of privacy in their own backyards. The first case,

California v. Ciraolo (1986), involved a local California man who was growing

marijuana in his backyard. The yard was enclosed by two fences and

shielded by view at ground level. Santa Clara officers received an

anonymous tip and observed the marijuana plants from 1,000 ft. in the sky

with the naked eye using their department helicopter, without reasonable

suspicion to do so. The defendant, Ciraolo, believed that his 4th Amendment

right protecting him against warrantless searches and seizures had been

infringed upon. The court ruled against Ciraolo claiming that it did not

violate the 4th Amendment because the police observation took place within

public navigable airspace, in a physically non-intrusive manner.

The second case, Florida v. Riley (1989) took place 3 years later in

Florida and involved essentially the same thing but with a lower flying

helicopter. The Florida County Sheriffs office received a tip about man

growing marijuana in his backyard in a greenhouse that was enclosed and

could not be seen at ground level. The Sheriffs office responded by flying a
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helicopter, 400 feet over the backyard, while peering in with the naked eye,

down into the greenhouse. The officers observed marijuana plants growing in

the greenhouse through open shutters, allowing officers to see clearly inside

of the greenhouse. Once again the defendant Riley claimed an infringement

upon his 4th Amendment protections and once again the court rejected his

claim. The court stated that, 4th Amendment does not require that police

traveling in the public airways at an altitude of 400 feet to obtain a warrant

in order to observe what is visible to the naked eye. Furthermore, the most

concerning aspect of the ruling in Rileys case came from the courts

statement regarding Rileys expectation of privacy. They state, Respondent

[Riley] could not reasonably have expected that the contents of his

greenhouse were protected from public or official inspection from the air,

since he left the greenhouse roof partially open. This ruling may lead others

to feel they have a right to look into your house if your garage door or a

window is left open.

Based upon these two prior cases which involved police and their

warrantless observations of an individuals property in their own backyards,

the court has granted law enforcement the discretion to essentially spy on

everyones backyards based upon assumptions, such as a neighbors

concern or tip, rather than reasonable suspicion. This difficult problem will

inevitably come to fruition once drones become readily accessible to law

enforcement agencies. Our right to privacy will come under jeopardy if law

enforcement agencies begin to use drones in ways that helicopters used to


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be used and much more. This poses another major concern and that is the

transparency and technological capability that drones used by law

enforcement will eventually possess. One of the examples of the kind of

technology that law enforcement drones may possess in the near future

comes in the form of the militarys Switchblade Drone.

According to Daniel Goure (2012) from Lexington Institute, It

[Switchblade] is a very short range, low altitude, lightweight, tube fired

miniature unmanned aerial vehicle carried and deployed by individual

warfighters. The Switchblade is 24 inches, weighs 6 pounds and has optical

sensors and networks which allow an individual to fly the mini UAV by

sending its surveillance imagery to an I-pad held by the operator. The

operator can then direct the Switchblade to lunge forward and kill the target

with a direct explosion to the targets face or body. This 24-inch, labeled

assassins bug by Goure, demonstrates not only the power of one of the

drones that could potentially be used by police, but also the damage and

transparency they will inevitably have, especially on domestic soil. The

mobility and accessibility that something such as Switchblade possesses, has

shown the weapons capability and transparent nature that these drones

possess, which makes them a perfect weapon in close contact situations.

Although the weaponry is frightening, its optical capability of spying is what

truly defines how drones are going to change the definition of privacy on

domestic soil in the near future.


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A prime example of the enhanced optical capabilities of drones is the

ARGUS-IS. It is also known as the Autonomous Real-Time Ground Ubiquitous

Surveillance Imaging System, which is the essential eye in the sky type of

sensory system for future drone usage. According to D.L. Cade (2013) from

petapixel, [ARGUS-IS] is a 1.8 gigapixel drone mounted surveillance system

that can scan twenty five square miles of ground surface in extremely high

detail from over twenty thousand feet in the air. The true significance, other

than the ability to continuously scan an area the size of a small town, is that

it can pick up objects as small as six inches from the ground and can see

your every move (Cade, 2013). ARGUS-IS is currently used on drones that

are massive in size and are comparable to being a little larger than a Boeing

757. For example, Robert Johnson (2012) from Business Insider draws the

comparisons between a Boeing 757 and a MQ-4C Reaper. The Boeing 757

has a wingspan of 124 feet and a maximum of range of just over 4,000

nautical miles, with an operating ceiling of 42,000 feet., whereas, the MQ-4C

Reaper has a wingspan of 130 feet, with a maximum range of over 8,000

nautical miles and an operating ceiling of 56,500 feet. The size of this type of

drone is mindboggling, but what is more concerning to the issue of privacy is

that the sensor package, ARGUS-IS, that the drone is equipped with, has the

potential to see everything at all times. Knowing that law enforcement

agencies will not likely have the funding and money to fly such predator

drones, the concern over ARGUS-IS is its ability to be mounted to smaller and
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less expensive Unmanned Aerial Vehicles. This is a much more realistic type

of UAV that will be flying with this new type of sensory technology.

The rate at which this technology is advancing is something that the

Federal Aviation Administration must consider when attempting to create

new policies over the use and regulations of Unmanned Aerial Vehicles. The

problem that this technology poses though is something the FAA cant

handle, at least legally for now, because the law appears to be lagging quite

far behind in respect to technological innovations of surveillance. With the

case law and precedent set in Florida and California over thirty years ago, we

see that with regards to helicopters flying 1,000 feet and 400 feet, the

naked eye sufficiency standard used by both officers in prior cases to

identify illegal activities, such as marijuana growing, will become a standard

of the past. This is because of the sheer capability of drones, from their size

to their sensory perception. The question then becomes how will the public

even know it is being watched? Also, what can we possibly do to combat this

when the law itself appears to justify the warrantless searches of say

someones backyard because they can simply see it from the sky with the

naked eye? Furthermore, whos to say that drones wont be used in ways

that are more invasive when the court rules that an officer peering into ones

property does not need a warrant because the property is not protected

under the Fourth Amendment like the Florida case?

These are the questions the FAA will inevitably face as well as what this

argument is based upon, which is the growing number of concerns this will
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have on future actions of intrusions made on part by law enforcement

themselves. The court needs to focus on the future aspects that pertain to an

individuals reasonable expectations of privacy, in light of this new

technology, while the FAA has to figure out how they will go about ensuring

that these rights are upheld.

In conclusion, drones are going to reshape our definition of privacy

inevitably forever, while re-defining what it means to search a persons

property. The interpretation of the 4th Amendment will greatly be altered in a

way that changes what a persons reasonable expectation of privacy is.

George Orwells description from his book Nineteen Eighty-Four more than

captures and illustrates the realities of what is to come the closer we get to

increased domestic drone usage. Orwell states that, Big Brother is watching

you the caption saidIn the far distance a helicopter skimmed down

between the rooftops, hovered for an instant like a blue bottle, and darted

away again with a curving flight. It was the Police Patrol, snooping into

peoples [windows and yards] (p.2). Orwells example of Police Patrol is a

prime illustration of drones and how the domestic landscape could eventually

look, with them hovering around neighborhoods looking for suspicious

activity, while hardly being detected. This may soon be the reality for

domestic America unless the laws governing the use of surveillance

technology are written in a way that truly preserves our 4th Amendment

rights. It may also be necessary for Congress to place the enforcement role

on the shoulders of actual defense agencies, rather than the FAA.


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