March 1, 2018

Searching questions about drones and the fourth amendment

It's only a matter of time before the Supreme Court will have to grapple with the vexing constitutional issues raised with increasing drone usage.

Both recreational and commercial drone use has skyrocketed since the United States Congress mandated the Federal Aviation Administration (FAA) in 2012 to safely integrate drones into national airspace. As a result, the FAA has loosened regulations, making it easier to operate drones commercially. Not only are drones seeing increased commercial usage, but a growing number of government agencies are also turning to drones to assist with law enforcement and public safety. With this increased use in commerce and public safety comes an increase in privacy claims against both state actors and private individuals and companies.

Legally, two basic regimes operate to protect individual privacy rights: (1) traditional tort claims, which may be used to protect people from non-governmental actors; and (2) the Fourth Amendment to the Constitution, which protects the public from governmental invasions of privacy. 

The Fourth Amendment protects private citizens from unreasonable searches and seizures by the government. This constitutional protection provides, in relevant part, that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The touchstone of Fourth Amendment analysis is whether a "search" occurred. Except in limited circumstances, warrantless searches violate the Fourth Amendment and evidence collected during the search cannot be admitted in criminal proceedings.

It's only a matter of time before the Supreme Court will have to grapple with the vexing constitutional issues raised with increasing drone usage. When it does, its focus will likely be on whether the defendant had a reasonable expectation of privacy in the information collected.  However, in time, the proliferation of drone technology will alter how courts apply the Fourth Amendment. Whatever novel approach the Court may develop to protect privacy in the digital age, while preserving the Fourth Amendment’s traditional check on governmental power, will undoubtedly be influenced by the impact the drone revolution is expected to have on society.

Read the full article by Kevin Moon and Brandon Franklin in California Lawyer here.

A Q&A with Kevin Moon on this topic from UAS Magazine can be found here.