Reconsidering Privacy in the Age of the Drone

The Supreme Court will likely soon have to decide whether the prevalence of drones should prompt a reassessment of how privacy is protected.
February 24, 2016 • Commentary
This article originally appeared on Forbes​.com on February 24, 2016.

Technology changes, and our attitudes towards privacy rights change with it. Photographers, aid workers, building inspectors, and others use unmanned aerial vehicles (commonly called “drones”), a relatively new technology, but it’s law enforcement’s use of these new tools that raises some of the most significant privacy concerns. The Supreme Court will likely soon have to decide whether the prevalence of drones should prompt a reassessment of how privacy is protected. Unfortunately, some of the Supreme Court’s attempts to deal with changes in technology have been detrimental to privacy rights and are particularly worrying in a world where law enforcement agencies will increasingly be using drones. In such a world those precedents should be reexamined.

Airplanes were one of the first technologies to change legal doctrine. The ancient legal doctrine of ad coelom— English translation, “whoever’s is the soil, it is theirs all the way to Heaven and all the way to hell”— sits uneasily in a world with flying contraptions. It took a case involving chickens killing themselves in fits of panic for a U.S. Supreme Court justice to declare that the doctrine had no role in the modern world.

Lee and Tinie Causby owned a chicken farm outside Greensboro, North Carolina. During the Second World War the military used a nearby municipal airport, and the landing aircraft flew low over the farm—only 83 feet above the ground. The noise and light glares from the aircraft didn’t sit well with the chickens, many of which killed themselves by flying into the coop’s walls. Causby claimed that the deaths of the chickens were a taking of “private property for public use” under the Fifth Amendment, and thus the government owed them compensation. A majority on the Supreme Court agreed.

Writing for the majority, Justice William O. Douglas cited the ad coelum doctrine. “In a world without airplanes, this doctrine seems at first glance reasonable. But, air travel makes the doctrine unfeasible. As Douglas correctly noted in his opinion, the ad coelum doctrine “has no place in the modern world. The air is a public highway, […] Were that not true, every transcontinental flight would subject the operator to countless trespass suits.”

Douglas went on to argue that the Causbys and other landowners own “at least as much of the space above the ground as they can occupy or use in connection with the land.” Douglas didn’t elaborate on when this enjoyment of airspace ends, he didn’t have to. Whatever the limit, it was clear that at least a partial taking had occurred when planes flew 83 feet above the ground around Causby’s property, causing deadly disturbances to the farm’s avian residents.

Given that every day tens of thousands of flights take place in American airspace some sections of the air should be treated like public roads. In other contexts, such as the Fourth Amendment, the Supreme Court has twice considered whether police officers need a warrant to observe private property from aircraft and both times ruled that police officers do not need a warrant to search a private residence from the air.

In 1986, in California v. Ciraolo, the Court ruled that officers did not need a warrant to search a backyard for marijuana plants from an airplane at 1,000 feet. Chief Justice Warren Burger wrote that Dante Carlo Ciraolo could not reasonably expect privacy in his backyard, and therefore a warrant wasn’t required.

Then, in Florida v. Riley (1989) the Court ruled that police could use a helicopter hovering at 400 feet to look for marijuana plants in a backyard without a warrant. Like in Ciraolo, the Court ruled that Riley did not have an expectation of privacy, in part because at 400 feet “any member of the public or the police could legally have observed respondent’s greenhouse.”

In a prescient dissent, Justice William Brennan offered a far‐​fetched thought experiment for 1989, but which now seems more like soothsaying:

Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind, or dust at all — and, for good measure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses, but also what books they were reading and who their dinner guests were. Suppose, finally, that the FAA regulations remained unchanged, so that the police were undeniably “where they had a right to be.” Would today’s plurality continue to assert that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” was not infringed by such surveillance?

Such “miraculous” helicopters are now about 500 bucks on Amazon. So should Ciraolo and Riley be reconsidered?

Given the prevalence of drones, their comparative cost‐​effectiveness, and the ongoing war on drugs, it shouldn’t be a surprise if police increasingly use drones to conduct warrantless searches of residential properties. And drones are just getting smaller, quieter, and equipped with higher definition cameras. If you care about your privacy, then you should be concerned with whether the Supreme Court will continue to follow Ciraolo and Riley.

Police officers can take advantage of new technologies without infringing on privacy rights, but it will nevertheless still be easy to peek into places where they shouldn’t be allowed to look. Judges (and eventually justices) should rethink whether private citizens’ “expectations of privacy” should be given deciding weight.

Some argue that police officers shouldn’t need a warrant to observe what is in plain view from a public area. After all, air travelers during takeoff and landing can sometimes peek into the backyards of nearby homes, if only for a moment. But to compare this kind of observation to the surveillance in Ciraolo and Riley is misguided.

Dissenting in Ciraolo, Justice Lewis Powell noted the absurdity of allowing warrantless aerial surveillance because air passengers can sometimes see private property.

…the actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent. Travelers on commercial flights, as well as private planes used for business or personal reasons, normally obtain at most a fleeting, anonymous, and nondiscriminating glimpse of the landscape and buildings over which they pass. The risk that a passenger on such a plane might observe private activities, and might connect those activities with particular people, is simply too trivial to protect against.

In a footnote, Powell elaborated further:

As all of us know from personal experience, at least in passenger aircrafts, there rarely — if ever — is an opportunity for a practical observation and photographing of unlawful activity similar to that obtained by Officer Shutz in this case. The Court’s analogy to commercial and private overflights, therefore, is wholly without merit.

The Ciraolo and Riley decisions posed significant privacy concerns when they were issued and improvements in technology in the years since have only made these concerns more pronounced. Many drones today already have aerial surveillance capabilities better than what was available to law enforcement in the late 80s, and these capabilities will only continue to get better. It’s time for courts to reconsider privacy protections in the age of the drone.

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