By Gerald D. Skoning
The genie is out of the bottle once again. Drone — unmanned aerial vehicles “UAVs” — technology, which for years was a top-secret Pentagon project, is in the public domain and has become an overnight Internet sensation.
Drones have proven their popularity on a global scale, but sales of drones in domestic markets are expected to be particularly robust. The Federal Aviation Administration recently predicted that about 7,500 civilian drones will be in use within five years after the agency grants them greater access to U.S. skies.
Predator drones serve as surveillance units for anti-drug trafficking operations along the U.S.-Mexico border, and U.S. police officials — including some in Florida — have expressed great interest in utilizing drone technology for law enforcement purposes on the domestic front.
While the idea of drones proliferating on the home front may seem like an unsettling future to some, the scenario isn’t quite imminent yet. The FAA holds tight regulation of UAVs in the national airspace, primarily because the agency deems current UAV models lacking in “adequate ‘detect, sense and avoid’ technology” that would prevent collision with other aircraft.
But in addition to the issues related to air traffic control, domestic expansion of drone activity, particularly by law enforcement authorities, has raised red flags about personal privacy. Privacy advocates worry that a proliferation of drones will lead to a “surveillance society” in which the movements of Americans are routinely monitored, recorded and scrutinized by the authorities. Fears abound that Big Brother’s “eye-in-the-sky” strategy will trample on our right to privacy.
Based on Supreme Court precedent, those fears are justified. In the 1986 case of California v. Ciraolo, the court ruled that the Fourth Amendment was not violated by a police officer’s warrantless, naked-eye observation — from an airplane flying in public airspace at an altitude of 1,000 feet — of the defendant’s backyard in which he was growing marijuana.
Writing for the majority, then-Chief Justice Warren Burger concluded that the defendant had no reasonable expectation of privacy, reasoning that, “Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed… we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.”
Based on that decision, it would seem that observations, live video feeds, or remote photography conducted by drone aircraft in unrestricted airspace could be conducted by law enforcement officials without the need to obtain a search warrant.
Since it’s unlikely that the Constitution will protect us against constant drone surveillance, those privacy issue should be addressed in the FAA’s new regulations dealing with UAV certification for civilian use. For example, federal regulations should require police to obtain warrants for drone surveillance, with exceptions for emergency situations or when necessary to protect human life.
In the absence of a comprehensive federal standard addressing privacy rights in drone activities, the Florida Legislature should pass the Freedom from Unwarranted Surveillance Act — Senate Bill 92 — which would grant similar protection to the privacy rights of citizens against omniscient, “eye-in-the-sky” governmental surveillance.
Gerald D. Skoning is a lawyer in Chicago and a seasonal resident of Juno Beach.