1

Cyberlaw—2013

Laura Nielson

UAV s and the 4th

Amendment

Introduction

On February 14, 2012, the president signed into law the FAA Modernization and Reform

Act of 2012 (FMRA), marking the beginning of what is sure to be an era of increased

government surveillance. The FMRA requires that the Federal Aviation Administration (FAA)

initiate a plan to begin phasing unmanned vehicle aircrafts ( UAV ) into the National Airspace

System (NAS), with a target completion date of September 30, 2015.1 Currently, the NAS has a

limited number of operational UAV s, but that number is expected to skyrocket as the FAA

opens the UAV over the next few years.2 Anticipated operators of UAVs will include federal

agencies as well as local police departments, which will use UAV primarily to conduct aerial

surveillance.3

Under current law, there is no warrant requirement for conducting aerial surveillance

above private or commercial property, provided that the aircraft operates within navigable

airspace, as defined by FAA regulations. This narrow protection of the Fourth Amendment

reflects the limited amount of relevant case law on the subject of warrantless aerial surveillance.

The current state of the law is however, widely considered to be inadequate and outdated, as it

was established at a time when the idea of cheap, ubiquitous, unmanned aerial surveillance was

the stuff of science fiction. For that reason, the opening of the NAS to UAV surveillance and the

1 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332, 126 Stat. 11, 74.

2 Richard M. Thompson II, Congr. Research Serv., Drones in Domestic Surveillance Operations: Fourth Amendment

Implications and Legislative Responses 1 (Sept. 6, 2012). 3 25 NO. 3 Air & Space Law. 1, 20

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rapid advancement and availability of this technology is certain to usher in a new era of Supreme

Court jurisprudence on the subject of warrantless aerial surveillance.

This paper addresses the coming legal challenges to the Supreme Court's jurisprudence

by examining the capabilities of UAV technology and their consequences for privacy rights.

The paper then reviews the Supreme Court's aerial surveillance case law and its limitations in the

UAV context. Finally, the author argues that both legislative and judicial (but especially

legislative) action is necessary to adequately protect Fourth Amendment rights currently being

threatened by the rapidly evolving UAV technology.

I. What Unmanned Aerial Vehicles Are and How They Are Used.

a. The Definition and Common Uses of UAV s.

An Unmanned Aerial Vehicle (UAV) is an aircraft with no pilot on board. UAVs can be

remote controlled aircraft (e.g. flown by a pilot at a ground control station) or can fly

autonomously based on pre-programmed flight plans or more complex dynamic automation

systems.4 UAVs are currently used for a number of missions, including reconnaissance and

attack roles.5

The military role of UAV is growing at unprecedented rates. In 2005, tactical and theater

level unmanned aircraft vehicle (UAV) alone, had flown over 100,000 flight hours in support of

Operation ENDURING FREEDOM (OEF) and Operation IRAQI FREEDOM (OIF).6 Rapid

advances in technology are enabling more and more capability to be placed on smaller airframes

which is spurring a large increase in the number of SUAS being deployed on the battlefield. The

4 http://www.theuav.com/

5 Id.

6 Id.

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use of SUAS in combat is so new that no formal DoD wide reporting procedures have been

established to track SUAS flight hours.7

UAV no longer only perform intelligence, surveillance, and reconnaissance (ISR)

missions, although this still remains their predominant type.8 Their roles have expanded to areas

including electronic attack (EA), strike missions, suppression and/or destruction of enemy air

defense (SEAD/DEAD), network node or communications relay, combat search and rescue

(CSAR), and derivations of these themes.9 These UAV range in cost from a few thousand dollars

to tens of millions of dollars, and the aircraft used in these systems range in size from a Micro

Air Vehicle (MAV) weighing less than one pound to large aircraft weighing over 40,000

pounds.10

b. Controversial and Future Uses of UAVs.

Drones can also be outfitted with thermal devices, license plate readers, and laser radar,

making them useful to local law enforcement teams as well.11

Law enforcement expects that in

the near future drones can be outfitted with facial recognition or biometric recognition capacity

that can recognize and track individuals based a multitude of personal, physical characteristics.12

The advent of Google goggles makes this all the more likely.

While the possibility of drones with facial recognition capacity may seem like something

out of Hollywood, the innovative potential of UAVs does not end there. The Defense Advanced

7 Id.

8 Id.

9 Id.

10 Id.

11 Richard M.Thompson II, Congressional Research Service, Drones in Domestic Surveillance Operations: Fourth

Amendment Implications and Legislative Reponses (2012); available at https://opencrs.com/document/R42701/2012-09-06/. 12

Id.

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Research Projects Agency (DARPA) of the Department of Defense13

is investing millions of

dollars14

in an attempt to insert electronics into moths and other insects.15

DARPA anticipates

that the resulting insect “cyborgs” will enable the U.S. to better locate and combat terrorists,

even in remote terrorist training camps in places such as the “hills of northern Pakistan.”16

Mandyam Srinivasan, professor of visual neuroscience at the University of Queensland,

envisions the cyborgs flying “inside buildings, entering through windows and doors

inconspicuously,” and taking movies and recording sounds while perching unsuspected on a

wall.17

Whatever capabilities these cyborgs could perform on terrorists could also be used on

citizens. Thus, these insects could “be used in a variety of military and homeland security

applications,” including detecting explosives, toxins, or drugs as well as potentially hunting

down robbers.18

Many people assume UAVs are currently only being used abroad in counterterrorism

efforts. While UAVs have become a centerpiece in counterterrorism strategy, domestic use has

already begun.19

In 2012, President Obama authorized the Federal Aviation Administration

(FAA) to develop specific rules to accelerate the incorporation of unmanned aircraft into the

13

Jonathan Richards, Can Cyborg Moths Bring Down Terrorists?, Times Online, May 24, 2007, http://technology.timesonline.co.uk/tol/news/tech_and_ web/article1831494.ece?. 14

DARPA's Microsystems Technology Office (MTO) “has devoted more than US $2 million to the Hybrid Insect MEMS (HI-MEMS) program.” Roland Piquepaille's Technology Trends: How New Technologies Are Modifying Our Way of Life, Autonomous Insect Cyborg Sentinels, June 22, 2007, http:// www.primidi.com/2007/06/22.html. 15

R. Colin Johnson, Insect Cyborgs Go Undercover, http:// www.tectrends.com/cgi/showan?an=00168087. (last visited July 26, 2008). 16

Richards, supra note 10 17

Richard Macey, The Name's Bogong - James Bogong, The Sydney Morning Herald, Oct. 13, 2007, http://www.smh.com.au/news/national/the-names-bogong-- james-bogong/2007/10/12/1191696173795.html, see also George Dery, Cyborg Moth's War on Terror: The Fourth Amendment Implications of One of the Federal Government's Emerging Surveillance Technologies, 11 SMU Sci. & Tech. L. Rev. 227 (2008) 18

Bill Christensen, Implants Create Insect Cyborgs, Live Science, Feb. 4, 2008, http://www.livescience.com/strangenews/080204-cyborg-insect.html. 19

37-FEB Champion 9, 9-10

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national airspace system by 2015. It is estimated that drones will be a $5 billion-plus industry.20

The FAA predicts that 30,000 drones will be deployed within 20 years.21

Other domestic agencies are already utilizing UAVs. In 2005, U.S. Customs and Border

Protection (CBP) became the first domestic law enforcement agency to put a UAVs into action.22

CBP assigned Predator B UASs to Arizona to patrol and secure the United States border with

Mexico.23

The CBP's Predators monitor thirty-mile stretches of the border from three miles

above the desert floor, relaying images from their infrared cameras to a ground control station.24

If a seismic sensor is triggered on the ground, the Predator can investigate and, upon finding drug

smugglers, tag them with its laser illuminator.25

With the GPS coordinates and the infrared

illuminator, agents have no difficulty intercepting the smugglers.26

The Predator's effectiveness

in drug interdiction was demonstrated on January 11, 2008, when CBP agents seized over a

thousand pounds of marihuana from a truck illegally crossing the border.27

With the assistance of

20

Editorial, The Dawning of Domestic Drones, Without Proper Controls, The Use of Unmanned Aircraft Could Threaten Privacy, N.Y. Times, Dec. 26, 2012, at A24. 21

Richard M.Thompson II, Congressional Research Service, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Reponses (2012); available at https://opencrs.com/document/R42701/2012-09-06/. 22

Travis Dunlap, We've Got Our Eyes on You: When Surveillance by Unmanned Aircraft Systems Constitutes A Fourth Amendment Search, 51 S. Tex. L. Rev. 173, 180 (2009); see also, Press Release, U.S. Customs & Border Prot., CBP Makes History with the Launch of Predator B (Sept. 29, 2005), http:// www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2005_press_ releases/092005/09292005.xml (last visited Nov. 4, 2009). 23

Id. Just like its military counterpart, the General Atomics Predator B is designed to “[p]erform multi-mission low- to high-altitude surveillance, reconnaissance, and ‘Hunter-Killer’ missions.” It has a sixty-six foot wingspan, a 3,850 pound payload capacity, a maximum altitude of over 50,000 feet, a maximum endurance of over thirty hours, and the ability to carry missiles and bombs. General Atomics Aeronautical Systems, Inc., Predator B/MQ-9 Reaper Brochure 2 (2007), http://www.ga-asi.com/products/aircraft/pdf/Predator_ B.pdf. 24

Jeff Wise, No Pilot, No Problem, Popular Mechanics, Apr. 1, 2007, at 64, available at http://www.popularmechanics.com/science/air_ space/4213464.html. 25

Id. 26

Id. 27

Press Release, U. S. Customs & Border Prot., Border Patrol Agents Seize More Than a Ton of Marihuana This Past Weekend (Jan. 14, 2008), http:// www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2008_news_releases/jan_ 2008/01142008_6.xml (Last visited Nov. 4 2009).

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the UAS, the agents successfully deployed a tire deflation device, stopped the vehicle, and

arrested the driver.28

Local law enforcement agencies have also used drones to apprehend criminal suspects.

The Los Angeles Times recently reported the first instance in which military “drone” aircraft

participated in the arrest of United States citizens on United States soil.29

Armed with a search

warrant, Nelson County Sheriff Kelly Janke went looking for six missing cows on the Brossart

family farm in the early evening of June 23, 2011.30

Three men brandishing rifles chased him off

the property.31

Knowing the gunmen could be anywhere on the 3,000-acre spread in eastern

North Dakota.32

Fearful of an armed standoff, Janke called in reinforcements from the state

Highway Patrol, a regional SWAT team, a bomb squad, ambulances, deputy sheriffs from three

other counties, and a Predator B drone.33

As the drone circled 2 miles overhead the next

morning, sophisticated sensors under the nose helped pinpoint the three suspects and showed

they were unarmed.34

Police rushed in and made the first known arrests of U.S. citizens with help

from a Predator.35

The use of this surveillance technology to assist local law enforcement has drawn

criticism.36

Former U.S. House Representative Jane Harman (D-CA36) told the Los Angeles

Times that during her tenure on the House Homeland Security Intelligence Subcommittee, there

28

Id. 29

Id. 30

Id. 31

Id. 32

Id. 33

Id. 34

Id. 35

Id. 36

Id. See also Brian Bennett, Police Employ Predator Drone Spy Planes on Home Front, L.A. Times. Dec. 10, 2011, at Nation. (quoting former Reprsenetative Jane Harman as saying that “[t]here is no question that this could become something that people will regret.”)

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was no discussion about using Predators to assist local police on routine matters.37

She asserts

that the use of these drones without public debate or clear legal authority is a “mistake.”38

Should

such a case be appealed, the Supreme Court could issue a judgment articulating a new standard

controlling how the Fourth Amendment governs robotic surveillance.

One of the most controversial uses of UAV s is to target and kill enemy combatants

abroad in the name of national security and pursuant to counterterrorism measures. In recent

years, the United States has generated controversy as targeted killings and drone strikes have

been used to kill al Qa’ida leaders, even those embedded in civilian populations. A “targeted

killing” is extra-judicial, premeditated killing by a state of a specifically identified person not in

its custody.39

A “drone strike” occurs when a targeted killing is carried out through the use an

unmanned Predator drone aircraft.40

Drone aircrafts are armed with laser guided missiles and are

controlled by an operator at a television monitor hundreds of miles away.41

Their radar, infrared

sensors and color video camera can track vehicles at night and through clouds.42

The video is

sharp enough to make out people on the ground from more than three miles away.43

Drone

strikes are a way for the United States to kill specific targets without endangering the person

responsible for actually pulling the trigger—the military may have its proverbial cake and eat it

too.44

Drone strikes have been defended as a form of self-defense specific to counterterrorism as

37

Id. 38

Id. 39

Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 Cardozo L. Rev. 405, 437 (2009). 40

Id. 41

Eric Schmitt, Threats and Responses: The Battlefield: US Would Use Drones to Attack Targets, N.Y. Times (Nov. 6, 2002), http://www.nytimes.com/2002/11/06/world/threats-responses-battlefield-us-would-use-drones-attack-iraqi-targets.html?pagewanted=all&src=pm 42

Id. 43

Id. 44

Id.; see also Tom Tschida, Predator Drones and Unmanned Aerial Vehicles (UAVs), N.Y. Times, (Nov. 25 2012), http://topics.nytimes.com/top/reference/timestopics/subjects/u/unmanned_aerial_vehicles/index.html

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opposed to an offensive attack method (which is illegal if pre-emptive under international law).

The reason why this argument has any support is because terrorism has defied all preconceived

notions regarding state sovereignty and self-defense. Still, the use of UAV s in this context is

likely to become one of the most controversial issues of this century, if not in the near future.

II. The Costs and Benefits of UAVs.

The ‘unmanned’ aspect of UAVs makes them an ideal tool to enhance a broad range of

government functions beyond monitoring borders and counterterrorism efforts. For example,

police departments could use UAV to conduct dangerous operations without risking the lives of

officers or the public; kidnappings, hostage situations, and bomb threats are just a few examples

of situations where police officer safety could be directly impacted by the substitution of drones

for manpower. The use of UAVs could also limit administrative waste; the Environmental

Protection Agency (EPA) could use UAV to ensure industry compliance with environmental

regulations without wasting manpower.45

However, the obvious appeal of using technology instead of manpower should not deter

the government for creating safeguards for constitutional rights. In a December 2011 whitepaper,

the American Civil Liberties Union (ACLU) warned that “[t]he prospect of cheap, small,

portable flying [video-surveillance] machines threatens to eradicate existing practical limits on

aerial monitoring and allow for pervasive surveillance, police fishing expeditions, and abusive

use of these tools in a way that could eventually eliminate the privacy Americans have

traditionally enjoyed in their movements and activities.”46

Nevertheless, such corruption need

not come to pass. A balance must be struck between the technology's merits and the potential

45

25 NO. 3 Air & Space Law. 1, 19 46

Jay Stanley & Catherine Crump, ACLU, Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft 1 (Dec. 2011), http:// www.aclu.org/files/assets/protectingprivacyfrornaeriaIsurveillance.

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detriment to civil liberties. Ryan Calo, a UAV expert and the director of Privacy and Robotics at

Stanford Law School, notes that “[l]ike almost any technology, drones can be misused. It is

important to put in place appropriate frameworks to ensure that they are operated responsibly.”47

III. The Fourth Amendment and UAV s.

The Supreme Court’s most recent case on warrantless aerial surveillance took place

nearly 25 years ago, prior to the advent of today's UAV technology. This section will briefly

review the relevant Supreme Court cases that led one commentator to conclude that states have

the power “to continually monitor [their] citizens from above.”48

It will then address the

possibility of statutory protection from government use of unmanned aircraft.

The seminal privacy case relevant to the issue of warrantless surveillance is the 1967 case

of Katz v. United States.49

Justice Harlan's concurrence in Katz set the precedent that the Fourth

Amendment protects individuals' reasonable expectation of privacy.50

In Katz, the FBI

wiretapped a public telephone booth in order to record the Katz’ phone calls.51

Justice Harlan

observed that the government needed a warrant to eavesdrop on Katz's conversation because

even though it occurred in a public phone booth, he had a reasonable expectation of

privacy.52

Specifically, Katz had demonstrated a subjective expectation of privacy by entering

the phone booth and closing the door behind him, and that expectation was objectively

reasonable from a societal perspective (i.e., as a society, we expect to be able to hold a private

47

Ryan Calo, Ten Myths About Drones, Huffington Post (May 22, 2012), http://www.huffingtonpost.com/ryan-calo/drones-myths_b_1537040.html. 48

See Joseph J. Vacek, Big Brother Will Soon Be Watching--Or Will He? Constitutional, Regulatory, and Operational Issues Surrounding the Use of Unmanned Aerial Vehicles in Law Enforcement, 85 N.D. L. Rev. 673, 676-77 (2009) 49

Id. at 679-84. 50

Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring). See, e.g., California v. Ciraolo, 476 U.S. 207, 211 (1986); Kyllo v. United States, 533 U.S. 27, 33 (2001). 51

Katz, 389 U.S. at 349. 52

Id. at 361 (Harlan, J. concurring).

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conversation in a phone booth).53

Katz held that a governmental activity is a search if it violates

“an actual (subjective) expectation of privacy . . . that society is prepared to recognize as

‘reasonable.’”54

Nearly two decades later, during the late 1980s, the Court applied Katz in three decisions

involving surveillance by manned aircraft. These cases illustrate how little reasonable

expectation of privacy the Court believed society had from warrantless surveillance by manned

aircraft.

The Court first addressed aerial surveillance in 1986 with California v. Ciraolo, in which

the Court held that the police could look into a suspect's backyard, even the protected curtilage55

around the suspect's home, from a plane 1,000 feet above the ground.56

In an opinion by Chief

Justice Burger, the court wrote that society was not “prepared to honor” an expectation of

privacy from observations that “took place within public navigable airspace” because “[a]ny

member of the public flying in this airspace who glanced down could have seen everything that

these officers observed.”57

Accordingly, Ciraolo reflects the principle that Fourth Amendment

protections do not extend to “what a person knowingly exposes to the public.”58

The second case addressing warrantless aerial surveillance, Dow Chemical Co. v. United

States, was decided on the same day as Ciraolo.59

In this case, the court held that the government

53

Id. 54

Id. at 361 (finding a search where the police attached a microphone to the outside of a phone booth). 55

“Curtilage” is a common law concept which extends protection of the home to the area immediately surrounding the home. United States v. Dunn, 480 U.S. 294, 300 (1987). An area is within the curtilage of a home if it is “intimately tied to the home itself,” as evidenced by “four factors: [(1)] the proximity of the area claimed to be curtilage to the home, [(2)] whether the area is included within an enclosure surrounding the home, [(3)] the nature of the uses to which the area is put, and [(4)] the steps taken by the resident to protect the area from observation by people passing by.” Id. at 301. 56

Ciraolo, 476 U.S. at 209-13. 57

Id. at 209-15. 58

Id. (citing Katz, 389 U.S. at 351). 59

476 U.S. 227 (1986).

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could use a powerful camera from a plane to capture details of an industrial plant without

implicating the Fourth Amendment.60

As in Ciraolo, the Court emphasized that the impacted

company had not taken steps to shield itself from aerial photography and that the government

had used “navigable airspace.”61

The Court reasoned that an industrial complex is more like an

“open field” than the curtilage of a home. As a result, the complex was subject to warrantless

surveillance by aircraft operating lawfully in the navigable airspace immediately above or

sufficiently near the area for the reach of cameras.62

Representing the last of the 80’s cases, a plurality of the Court held in Florida v. Riley

that when a helicopter flying at 400 feet did not violate a statute or regulation, there was no

Fourth Amendment search because “no intimate details connected with the use of the home or

curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury.”63

In Riley, Justice O'Connor wrote a separate concurring opinion, advocated a shift away from

using FAA regulations to determine reasonable expectations of privacy. She reasoned that the

regulations exist to secure safety of the skies--not privacy interests. Justice O'Connor argued that

the relevant inquiry should not be whether “‘[a]ny member of the public could legally have been

flying over Riley's property in a helicopter at 400 feet, but whether the public actually does travel

overhead at that altitude with such regularity that Riley's expectation of privacy was not one that

society could recognize as ‘reasonable’.64

Her opinion provided the crucial fifth vote in this

controversial plurality decision.

60

Dow Chem. Co., 476 U.S. at 239 (“We hold that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.”). 61

Id. at 230, 239; see Ciraolo, 476 U.S. at 209-13. 62

Id. 63

Florida v. Riley, 488 U.S. 445, 451-52 (1989). 64

Id. at 454 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).

12

In 2001, the Court revisited this issue in Kyllo v. United States, when it addressed the use

of high-tech surveillance tools that augment the physical senses.65

While not involving aerial

surveillance, Kyllo represents a shift in the Court's analysis of how technology affects Fourth

Amendment privacy rights.66

Following a tip, Federal agents “came to suspect” that Kyllo was

using high-intensity “grow lights” to cultivate marijuana in his home.67

While the agents were

parked on Kyllo's street, they used a thermal imaging device to determine that excessive heat

was emanating from his house.68

Based on the data from this device, the agents obtained a search

warrant and discovered Kyllo's marijuana.69

The Court held that a Fourth Amendment “search,” which would be “presumptively

unreasonable without a warrant,” occurs when government agents use sense-enhancing

technology not in general public use to obtain any information regarding the interior of a home,

and when that information is not otherwise available without physical intrusion into a

constitutionally protected area.70

Accordingly, in Kyllo, the Court shifted its analysis away from

the Katz test of a “reasonable expectation of privacy” and instead focused on the limited

availability to the public of sense-enhancing technology. This key factor, the Kyllo court

reasoned, reduces the scope of society's reasonable expectations of privacy, at least in the context

of private homes.71

Thus, the Court in Kyllo held “that obtaining by sense-enhancing technology

any information regarding the interior of the home that could not otherwise have been obtained

65

533 U.S. 27, 34 (2001). 66

Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125Harv. L. Rev. 476, 496-98 (2011). 67

Kyllo, 533 U.S. at 34. 68

Id. at 29-30. 69

Id. at 30. 70

Id. at 34-35, 40. 71

See Vacek, supra note 29, at 683 (“the test seems to turn on whether Wal-Mart sells it or not”).

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without physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search--at least

where . . . the technology in question is not in general public use.”72

IV. The Challenge to Privacy Presented by UAV s Today.

Because of how rapidly technology is changing, it is unlikely that Kyllo alone will

sufficiently protect privacy rights in the age of unmanned aerial surveillance. The Supreme Court

simply has not been able to keep up with the advancements of technology fast enough to

sufficiently protect individual rights. This section will outline the three major reasons why Kyllo

is insufficient to protect an individual’s right to privacy.

First, the holdings and reasoning previously outlined in the case law above rely on

outdated assumptions about manned aircraft that were formulated prior to the existence of

today's UAV technology. For example, the Court of the 1980’s could not foresee the small size

of today’s UAVs, let alone anticipate the cyborg drones attached to insects. The aircrafts relevant

to a 1980’s discussion on privacy were large enough to be noticeable to an individual, which

allowed individuals to take necessary action to ensure their own privacy. Today’s UAVs could

be mistaken for a simple moth. Similarly, UAVs today allow aerial surveillance to be conducted

for much longer periods of time than in the 1980s. In short, the sophistication of today’s UAV

technology poses a significant challenge to Fourth Amendment protections under the Court's

existing doctrine.

Second, the limitations that Kyllo and Riley place on warrantless aerial surveillance

depend on the assumptions that such technology is either unavailable to the general public or

rarely used in navigable airspace.73

However, the relatively low cost of surveillance-equipped

UAV and the opening of the NAS will make this technology readily available for operation in

72

Kyllo at 34. 73

25 NO. 3 Air & Space Law. 1, 20

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public airspace.74

Moreover, as the NAS is increasingly opened to UAV operations, public

exposure to UAV also will increase.75

In fact, UAV may well become a routine part of our air

traffic.76

Therefore, a citizen's reasonable expectations of privacy from UAV may diminish as

flights become more common.77

Third, there has long been a distinct lag between the advances of technology and the

protection offered by the court. The distinct gap between the 1980’s cases in Kyllo in 2001

evidences this fact. Because of this lag, society may have to wait for the Court to articulate a

legal framework for determining constitutional limitations on UAV surveillance. Indeed, while

many endorse a more active role for the Court in adjusting constitutional protection whenever

changing technology or social practice expands government power,78

the Court is not always

willing or able to respond in a timely manner.

There is however, hope the Supreme Court will continue to parse out the protections

afforded by the Fourth amendment in the near future. As recently as 2012, the Court addressed

electronic surveillance using a GPS tracking device (albeit not in an aerial context) in United

States v. Jones.79

In Jones, the Court returned to a pre-Katz property-based analysis of the Fourth

Amendment and held that attaching the device to defendant's vehicle and then conducting long-

term monitoring of that vehicle constituted a warrantless search in violation the Fourth

Amendment.80

However, the Court did notice that an individual’s expectation of privacy did

change as society becomes acclimated to new technology. Justice Alito, in a concurring opinion

74

Id. 75

Id. 76

Id. 77

Id. 78

Kerr, supra note 47, at 478. 79

United States v. Jones, 132 S. Ct. 945 (2012). 80

Id. at 949-50 (Scalia, J., five-justice majority opinion).

15

with Justices Ginsburg, Breyer, and Kagan, emphasized that society's objective expectations of

privacy are dynamic, especially in cases of “[d]ramatic technological change.”81

When

government uses technology to increase the public's security at the expense of its privacy, even if

the trade-off is highly unwelcome, the public may eventually accept it as inevitable.82

Thus,

despite the seemingly victorious holding for Fourth Amendment rights, Jones alludes to a time

when judicially-based protections are not enough to protect an individual’s right to privacy.

In such circumstances, the best solution to privacy concerns may be legislative, not

judicial, in nature.83

Legislatures are well-suited to gauge changing public attitudes and balance

privacy and public safety concerns in a dynamic, comprehensive manner as their members

depend on public approval to maintain their position. As Justice Powell stressed in Dow,

determining privacy rights based solely on the manner of surveillance in use at the time will not

protect Fourth Amendment rights, but rather will permit their “gradual decay” as technology

advances.84

Consequently, legislatures may be best suited to define the lawful use of UAV

surveillance as it relates to privacy.

V. Conclusion

While there may be many valuable and appropriate uses for UAV technology, such as

search-and-rescue missions, hot pursuit in a dangerous criminal situation and detecting radiation

leaks, history teaches that law enforcement agencies--and others--will not exercise appropriate

restraint.85

In a representative democracy, society’s leaders should act swiftly to establish

reasonable limitations and protections against emerging technologies that alter the fundamental

81

Id. at 962 (Alito, J., concurring). 82

Id. 83

25 NO. 3 Air & Space Law. 1, 20 84

Dow Chem. Co. v. United States, 476 U.S. 227, 240 (1986) (Powell, J., dissenting). 85

37-FEB Champion 9

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balance between the privacy rights of the people and the surveillance capacity of the state. Given

the importance our society places on Fourth Amendment rights, both the judicial and legislative

branches should take action to ensure an individual’s expectation of privacy does not “gradually

decay” as technology advances.