Domestic Drones & the Invasion of Privacy

 

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.   

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  1. Profile Photo Inactive
    @KennedySmith
    Misthiocracy

    Kennedy Smith:

    I’ll line up to shake the hand of the first guy to shoot down a domestic surveillance drone.

    What’s the difference between a “domestic surveillance drone” and  some poor kid’s webcam-equipped RC airplane?

     · 10 hours ago

    The difference: shooting down a surveillance drone is striking a blow for liberty.  Shooting down some kid’s RC plane is just plain fun.

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    @RobertPromm

    Absolutely!  Not too long before these things get deployed… snooping around your backyard and peeking in your windows.

    Other than that, they are really neat.  Warning – nerd alert!

    • #2
  3. Profile Photo Contributor
    @PeterRobinson

    Hm.  Does that mean, John, that the regulation of drones would fall entirely to the states? 

    • #3
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    @Foxfier

    PETA already used a remote controlled toy with a camera to harass shooters on a private hunt.

    It ended just like anyone with a hint of sense would suspect…. *BOOM!*

    Mr Robinson

    They’re treated like planes. (even with the new stuff

    • #4
  5. Profile Photo Member
    @HangOn

    Regulate drones as you would cell phone interceptions. You can pick up cell phone conversations for virtually no cost violating people’s privacy. The same civil penalties should apply to private parties.

    The threat of civil measures may not stop everybody however. Drones will lead to technological war to find countermeasures, such as being able to scramble, disable, or destroy drones that come within a certain range.

    • #5
  6. Profile Photo Inactive
    @KennedySmith

    I don’t doubt your legal opinion, mainly cause I can’t come up with a refutation.  And wouldn’t object to them being deployed along the borders, nor would I object to the military being deployed there.

    They are no different than stationary cameras, though, which we also shouldn’t have monitoring our movements.  This is a free country, not Tony Blair’s Britain.  I’ll line up to shake the hand of the first guy to shoot down a domestic surveillance drone.  And be photographed.  And detained, most likely.

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  7. Profile Photo Member
    @Misthiocracy
    Robert Promm: Absolutely!  Not too long before these things get deployed… snooping around your backyard and peeking in your windows.

    There are people developing full-sized versions of these devices, capable of carrying a pilot/passenger with almost no flying experience.

    The computer (theoretically, no more than an iPhone would be needed) keeps the aircraft stable.  The “pilot” just needs to enter the GPS coordinates of where he wants to go and then keep an eye on altitude and intervene to navigate around obstacles.

    The only real design obstacle is range. More fuel means more weight, which requires more powerful motors. The aircraft in the above link uses eight electric motors.

    • #7
  8. Profile Photo Inactive
    @wilberforge

    The issue with Federal or State run drone programs is with function creep. The concept of bringing one down would be quite a challenge.

    The small hobby backyard snoopers are another thing  for which there are measures. Not all go Boom, Hmmm.

    • #8
  9. Profile Photo Member
    @Misthiocracy
    Kennedy Smith:

    I’ll line up to shake the hand of the first guy to shoot down a domestic surveillance drone.

    What’s the difference between a “domestic surveillance drone” and  some poor kid’s webcam-equipped RC airplane?

    I think that laws to regulate privately-owned “drones” should be modeled on video voyeurism laws, such as Stephanie’s Law in New York, rather than on laws regulating private wire-tapping.

    After all, it’s legal for me to look out my apartment window, where I can see into other people’s apartments. It’s not legal for me to use technology to monitor or record a place where a person has a reasonable expectation of privacy.

    There are plenty of possible legitimate uses for private webcam-equipped RC aircraft, like this guy who filmed riots in Warsaw.  I don’t think his RC aircraft should be illegal, and certainly shouldn’t be shot down on sight.

    I believe there’s no effective difference between a police “drone” and a police helicopter, for the purposes of the Fourth Amendment.

    If PETA had used a manned aircraft, would it have been ok to shoot it down?

    • #9
  10. Profile Photo Podcaster
    @DaveCarter

     This really bothers me on a fundamental level.  Little by little, precedent by precedent, encroachment by encroachment, an Orwellian state is reaching its tentacles ever further into our lives and stealing our liberty.  We began by meekly submitting to police checkpoints where armed agents of the state detain us without probable cause and demand to see our papers.  Now we are talking about drones over our skies?   Drones are part of our military operations.  Border security is one thing, but to turn those things on American citizens crosses a line that, in my humble opinion, is a line too far.   It’s bad enough to have our movements tracked via street level cameras, though I would note that the Supreme Court ruled earlier this year that police cannot place a GPS tracking device on a citizen’s vehicle without a warrant.  Being watched in traffic is one thing,..but when a citizen can’t venture into their own back yard without Big Brother watching, the government has gone too far.  Can anyone seriously believe that this is what the Founders intended?  As President Reagan observed, we are a people that have a government, …not the other way around. 

    • #10
  11. Profile Photo Member
    @Misthiocracy

    This is a big topic with the Academy of Model Aeronautics (AMA), which takes the position that the difference between a “model aircraft” and a “drone” is that the pilot is in full control of, and in line-of-sight with, the aircraft at all times.

    The FAA doesn’t currently regulate RC aircraft, but the AMA is lobbying the FAA to enshrine their definition when the FAA finalizes its drone regulations.  

    (Transport Canada already requires that the pilot be able to physically see the aircraft at all times. That’s not just theoretical line-of-sight, but the actual ability to see the physical aircraft.)

    Even using this distinction between drone and “model aircraft”, that still allows a lot of opportunity for privacy invasion. Line-of-sight can be very far, and just how much computer assistance is allowed before the pilot is no longer in “full control”?

    As long as line-of-sight is maintained, surely it isn’t necessary to outlaw all computer assistance for hobbyist pilots, is it?

    • #11
  12. Profile Photo Inactive
    @MishaA
    I’m with Charles Krauthammer on this one, preemptive limits/and or ban on drone surveillance of American citizens.  We could do a lot of things to make the nation more “secure”, but it would go against the intrinsic personal liberty that makes America a beacon for freedom in the world.  http://www.youtube.com/watch?v=-IVQVTVMgWQ  
    • #12
  13. Profile Photo Member
    @Misthiocracy
    Misha A.: I’m with Charles Krauthammer on this one, preemptive limits/and or ban on drone surveillance of American citizens.

    Does Mr. Krauthammer make any distinction between the use of drones by agents of the government and the use of manned aircraft for the same purpose?

    So far, I have not heard a decent argument explaining why there is any effective difference between manned aircraft and drones.

    In that video, Krauthammer’s only argument is “drones are an instrument of war,” but so are airplanes and helicopters, which police use all the time.

    So far, I am completely unconvinced that there is any effective difference.

    If you want to ban the use of manned aircraft for “domestic surveillance” (including stuff like simply monitoring traffic conditions and enforcing speed limits) then that’s a fair and consistent position, but I see no logic in banning unmanned air surveillance while at the same time allowing manned air surveillance.

    • #13
  14. Profile Photo Member
    @Misthiocracy
    Dave Carter:  

    The Supreme Court ruled earlier this year that police cannot place a GPS tracking device on a citizen’s vehicle without a warrant. 

    The Supreme Court was split down the middle on WHY placing a GPS tracking device on a person’s vehicle without a warrant is unconstitutional.

    The majority opinion stated that it was a physical trespass of the person’s private property, and therefore constituted an unreasonable search. This reasoning still allows the police to track a person’s movements in public places from a distance, and therefore (I would argue) allows the use of an unmanned aircraft to monitor a person’s movements in public places since there is no trespass of the person’s private property.

    The minority opinion argued that the GPS violated the person’s “reasonable expectation of privacy”, as per Katz v. United States which is still a controversial precedent because it’s defined so vaguely.

    • #14
  15. Profile Photo Podcaster
    @DaveCarter
    Misthiocracy

    Dave Carter:  

    The Supreme Court ruled earlier this year that police cannot place a GPS tracking device on a citizen’s vehicle without a warrant. 

    The Supreme Court was split down the middle on WHY placing a GPS tracking device on a person’s vehicle without a warrant is unconstitutional.

    Well, Misthiocracy, I defer to your expertise on the specific legal machinations.  But I would ask you where you would draw the line?  How much surveillance of your day to day activities are you, as a free citizen, willing to countenance before you say enough?  Do you agree that with increased surveillance comes the increased likelihood of abuse of that power?    From police checkpoints to being groped by the TSA,  it seems that the slippery slope to a police state is fast becoming a super slide.  Government will always find a justification and a precedent for more control and more encroachments on a free man’s right to be left alone.  As I said earlier, mine is a very fundamental concern.  I don’t like it.  Not one bit.  

    • #15
  16. Profile Photo Inactive
    @CuriousJohn

    The big news in Chicago radio today, People are reporting (spotting) drones over Chicagoland for the NATO conference and the No Fly Zone

    • #16
  17. Profile Photo Inactive
    @Palaeologus
    Misthiocracy

    Does Mr. Krauthammer make any distinction between the use of drones by agents of the government and the use of manned aircraft for the same purpose?

    So far, I have not heard a decent argument explaining why there is any effective difference between manned aircraft and drones.

    In that video, Krauthammer’s only argument is “drones are an instrument of war,” but so are airplanes and helicopters, which police use all the time.

    So far, I am completely unconvinced that there is any effective difference.

    There’s an effective difference between something the size of a helicopter and something the size of say, a hummingbird, spying on folks. It’s not there yet, but it will be.

    Also, there is a drastic difference in efficiency. A couple of people can watch many. While I am a huge fan of cost savings on labor, I don’t much care for the opportunity to easily increase the scope of surveillance.

    • #17
  18. Profile Photo Contributor
    @JohnYoo
    Peter Robinson: Hm.  Does that mean, John, that the regulation of drones would fall entirely to the states?  · 3 hours ago

    Never fear, Peter, the federal government is near.  I am sure that the Federal Aviation Administration will never pass up a chance to regulate something that flies.  But if the FAA does not, and even if it does, the states should have primary responsibility for figuring out the privacy rules for drones.  States regulate the rules for cars and driving, and I don’t see why they shouldn’t have the same authority for drones.

    • #18
  19. Profile Photo Member
    @Misthiocracy
    Kennedy Smith

    Misthiocracy

    Kennedy Smith:

    I’ll line up to shake the hand of the first guy to shoot down a domestic surveillance drone.

    What’s the difference between a “domestic surveillance drone” and  some poor kid’s webcam-equipped RC airplane?

    The difference: shooting down a surveillance drone is striking a blow for liberty.  Shooting down some kid’s RC plane is just plain fun.

    I think that’s just mean. Poor kid worked hard on that plane!

    • #19
  20. Profile Photo Member
    @
    Misthiocracy

    Robert Promm: Absolutely!  Not too long before these things get deployed… snooping around your backyard and peeking in your windows.

    There are people developing full-sized versions of these devices, capable of carrying a pilot/passenger with almost no flying experience.

    The computer (theoretically, no more than an iPhone would be needed) keeps the aircraft stable.  The “pilot” just needs to enter the GPS coordinates of where he wants to go and then keep an eye on altitude and intervene to navigate around obstacles.

    The only real design obstacle is range. More fuel means more weight, which requires more powerful motors. The aircraft in the above link uses eight electric motors. · 15 hours ago

    I was wondering, since Johnny Quest, when there would finally be flying cars. It took long enough for TV phones (Skype, FaceTime).

    • #20
  21. Profile Photo Member
    @DavidFoster

    There are real air safety issues here. A drone pilot, however well-trained and certified, does not exactly have the same kind of *personal stake* in safety that a pilot in an aircraft has, and if the drone pilot is monitoring several of these devices at once, his attention will be correspondingly divided.

    • #21
  22. Profile Photo Member
    @

    One thing I have never looked into is if law enforcement can use video footage, from say traffic cameras, as evidence or just use them to catch somebody. I have heard automatic traffic tickets have been shot down. It seems to me that this is the crucial issue. The technology is here, isn’t going away, and will only get more sophisticated. However, it is well-known that video can be easily tampered with (even make dinosaurs look real). I’ve brought this up to people and the normal person in a small town says naivily, why would they want to do that?

    • #22
  23. Profile Photo Inactive
    @Pseudodionysius
    John Yoo

    Peter Robinson: Hm.  Does that mean, John, that the regulation of drones would fall entirely to the states?  · 3 hours ago

    Never fear, Peter, the federal government is near.  I am sure that the Federal Aviation Administration will never pass up a chance to regulate something that flies.  But if the FAA does not, and even if it does, the states should have primary responsibility for figuring out the privacy rules for drones.  States regulate the rules for cars and driving, and I don’t see why they shouldn’t have the same authority for drones. · 1 hour ago

    I think our only realistic hope is that unarmed drones begin to marry off to each other, settle down and raise a brood of electric sheep.

    • #23
  24. Profile Photo Inactive
    @wilberforge

    It has already been comfirmed that Police can attach a GPS  tracking device to your ground conveyance without a warrant and it is legal.

    As for scores of buzzing drones overhead, the FAA weighs in heavily on this issue for commercial flight safety.

    As it stands, the pro drone argument and survelliance capabilities will be presented as a a Greater Public Good. This will not play out well, Just how much Greater Good by movers and shakers is needed ?

    • #24
  25. Profile Photo Member
    @

    Benjamin Franklin, warned at one point that he was being spied on so as to find evidence for an attack on his character, replied, “I have long observ’d one Rule which prevents any Inconvenience from such Practices.  It is simply this, to be concern’d in no Affairs that I should blush to have made publick, and to do nothing but what Spies may see & welcome.”

    • #25
  26. Profile Photo Inactive
    @Foxfier
    PracticalMary: One thing I have never looked into is if law enforcement can use video footage, from say traffic cameras, as evidence or just use them to catch somebody. I have heard automatic traffic tickets have been shot down. It seems to me that this is the crucial issue. The technology is here, isn’t going away, and will only get more sophisticated. However, it is well-known that video can be easily tampered with (even make dinosaurs look real). I’ve brought this up to people and the normal person in a small town says naivily, why would they want to do that? · May 18 at 7:12am

    It’s a horrible source for information, but I seem to remember TruTV having a lot of “bank video tape established evidence in court that suspect’s vehicle was at X place” type evidence in their crime docus.

    As to altering the tape– such as was done in the Zimmerman case– the same thing stops them that stops them from planting other evidence.  It takes a lot to make it look right, hiding evidence of change is nearly impossible (copy of a copy works) and chance of getting caught.

    • #26
  27. Profile Photo Inactive
    @Foxfier

    I do not understand how a digital copy being altered would leave evidence, but my husband did the college thing for making and identifying such things and he swears it’s possible.  He’s also able to spot CGI that I have to closely inspect to identify, so training can quickly identify computer graphics. 

    • #27
  28. Profile Photo Inactive
    @Dramman
    John Yoo

    When unmanned drones deploy in the United States, as they inevitably will, I think the predominant consideration will be privacy concerns, rather than Constitution.  · May 17 at 2:04p

    I may only be a law school student, and far, far from a Constitutional law enthusiast, but I am not sure I agree with Prof. Yoo given the alluded US v. Jones decided by the Supreme Court a few months ago.

    Jones linked a trespass to search. The drone would trespass airspace  property right if it would substantially interfere the use and enjoyment of the land. I would think the right to privacy is invariably linked to the use and enjoyment of the land. This would unsettle precedent though, see FL v. Riley (search at 400ft OK). This might be overcame by only viewing from airspaces of public land or the land of third parties.

    What bothers me is the use of thermal cameras and such on drones. There seems to be a spit on this issue between the circuits. Mainly by interpreting Katz’s “reasonable expectation of privacy”. This might be a place for “Supreme” help.

    • #28
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