By Ryan Calo
Just in case you haven’t seen the memo: Drones are coming to a city near you. They are arriving on these shores by the hundreds after serving in war zones overseas, and plenty of new models are on order to meet a burgeoning domestic demand.
Why now? Under a fresh mandate from Congress, the Federal Aviation Administration will begin to relax its restrictions around the domestic use of “unmanned aerial systems,” leading to greater use of drones by public agencies and, eventually, the private sector.
The FAA’s primary concern is safety; carelessly deployed drones might literally crash your dinner party or collide with other aircraft in the already crowded skies. But civil-liberty groups are worried about what they see as a greater danger: the specter of massive surveillance.
The Electronic Frontier Foundation is suing the FAA to release records of who has asked for permission to use drones. The ACLU recently issued a report on drones and privacy. The D.C.-based Electronic Privacy Information Center filed a petition asking the FAA to consider privacy as the agency opens American skies to unmanned flight.
It is easy to see why these and other groups are concerned: It turns out that there is very little in American privacy law that would prohibit drone surveillance within our borders.
Citizens do not generally enjoy a reasonable expectation of privacy in public, nor even in the portions of their property visible from a public vantage. Google, with Maps and especially Street View, has taken full advantage of this, for example.
There are also practical barriers to aerial surveillance. Few law enforcement agencies can afford planes. Those with helicopters use them sparingly. The widespread availability of drones reduces or removes these barriers, dramatically altering law enforcement’s calculus for when aerial surveillance might be appropriate.
The prospect of excessive surveillance through technology was recently front and center in United States v. Jones — a case before the Supreme Court involving global position systems. Every one of the nine justices agreed that the police need a warrant before affixing a GPS device to a car and following a suspect for a prolonged period, even where the defendant’s movements take place entirely in public.
And yet for the majority, it was ultimately the act of physically attaching the device to the car that triggered the warrant requirement. Drones can follow a car without the need to attach anything.
Jones is getting a lot of attention. The FBI reportedly turned off thousands of GPS devices in response to the ruling. There is a second case before the Supreme Court right now, however, that has yet to raise red flags in privacy and technology circles.
In Florida v. Jardines, the nation’s highest court will consider whether the police need a warrant before a dog can sniff your house. Dogs can already sniff your bags at the airport or your car at a checkpoint on the theory that no human searches through your belongings unless and until the dog detects contraband — at which point your expectation of privacy is no longer considered reasonable.
The question before the Court in Jardines is whether officers suddenly need a warrant because the container being sniffed happens to be your house.
The conceptual leap from dogs to drones is shorter than you might think. As Burkhard Bilger recently wrote in a New Yorker piece about the NYPD’s K9 unit: “Canine police tend to talk about their dogs as if they were mechanical devices. They describe them as tools or technology.”
Police may not peer into the interior of a house using thermal imaging. But perhaps they could equip a drone with thermal or chemical sensors and let it loose to roam a neighborhood in search of invisible infractions such as indoor marijuana. No human would have to see the data unless or until the drone spotted a violation.
The wrong decision in Jardines makes this and similar surveillance scenarios uncomfortably plausible.
Drones are a versatile technology. They have great potential to assist in investigations, scientific research, disaster relief and countless other human pursuits. But the FAA needs to take seriously the legitimate concerns of civil-liberties groups, lest our privacy go to the dogs.
Caption: Photo: U.S. Department of Defense