When unmanned drones deploy in the United States, as they inevitably will, I think the predominant consideration will be privacy concerns, rather than Constitution. In the end, the Constitution’s Fourth Amendment prohibitions on unreasonable search and seizure will not determine the domestic rules on drones. In part, that is because I think the Fourth Amendment will not pose much of an obstacle to drones for surveillance purposes. Cameras, for example, are already permitted to constantly photograph public spaces — think of the cameras in government buildings, airports, public squares, and streets. They can be used at the borders and at sensitive installations. If New York City can cover much of its downtown with video surveillance, should it matter whether it is a drone or a stationary camera?
I predict that private drones will prove a bigger invasion of privacy. I met an inventor a few months ago who showed me a drone that could be made for a few hundred dollars and controlled by an iphone. The Constitution only limits what the state can do, not what private parties can do. And it is private parties who will be the principle users of domestic drones. I predict that these drones will be used mostly by suspicious spouses and parents, not to mention celebrity gawkers. So more important than worrying about whether the NYPD or DHS uses drones, are what rules our society will choose to govern and constrain the private use of drones. It may ultimately be difficult to control; as drone technology allows for smaller and cheaper drones, the government will have less and less ability to regulate them.