Don’t look now, but something’s watching you

Amy E. Feldman

In the 1984 song “Somebody’s Watching Me,” the Motown singer Rockwell sang: “I always feel like/ Somebody’s watching me/ And I have no privacy.” He certainly could not have foreseen that within thirty years, the lyrics to that song could be changed to “I always feel like/ SomeTHING’s watching me/ And I have no privacy.” Because as Orwellian as the year 1984 seemed, it could not have matched the potential for Big Brother-like surveillance that drones have the power to create in 2013.

Private drones. Source: Creative Commons

Private drones. Source: Creative Commons

Much has been written about the constitutional concerns over weaponized drones, the unmanned combat-ready flying robots, including on Constitution Daily. But even drones without weapons or the potential to injure or kill—so-called “surveillance drones” that collect information about citizens—are raising real concern among privacy advocates and constitutional scholars.

In contrast with bulky and costly police helicopters, the surveillance drones have advanced to the point that so-called microdrones, about the size of birds or even bugs, can fly silently and inconspicuously, and cost as little as a few hundred dollars. It is estimated that although there are currently relatively few drones today, according to the Congressional Research Service, the Federal Aviation Administration estimates that there will be 30,000 drones flying in U.S. airspace in the next twenty years.

There can be no doubt about the value of the treasure trove of information potentially provided by drones, including aid to emergency search and rescue operations and critical law enforcement operations for public safety. But when they can be deployed, and what information they can gather about you or about a suspect in an investigation, is still unsettled. The Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against 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.”

Now, surveillance drones eliminate the need to enter a home to find evidence of criminal behavior, but can, instead, view such activity by hovering near a home’s window. So the question arises: Does law enforcement have to get a search warrant to deploy a drone to gather information? If so, when?

In Katz v. United States in 1967, the Supreme Court found that the need for the government to get a search warrant depends on whether the person had a reasonable expectation of privacy in the area to be searched. So it seems that if the police want to fly a drone to hover outside a suspect’s bedroom window in order to conduct surveillance, it would likely need a warrant.  And areas outside a person’s home but still within close proximity, like the driveway, are what the court has called “curtilage” and are still afforded some Fourth Amendment protection (United States v. Hester, 1924).

That said, surveillance drones have a far broader ability to track and monitor the actions of citizens who may or may not be suspected of a crime. Through February 2013, 31 states have considered legislation to ensure privacy from surveillance drones. To date, none has become law, although both houses of the legislature of Virginia have passed a two-year moratorium on the use of drones by state and local law enforcement that awaits the governor’s signature; the city of Charlottesville, Virginia, last month passed a municipal drone resolution banning the sale or use by the municipality of surveillance drones.

Without a doubt, this issue is a thriller, as Michael Jackson would say. You can expect to see much more debate on this issue in the next year. What do you think? How do you balance a citizen’s right to be free of surveillance against the government’s need to protect citizens? Let us know!

Amy E. Feldman is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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