Commentary

Look to States, Not Just Courts, for Drone Privacy Protections

Raymond Nhan argued in a recent post at the Pacific Legal Foundation’s blog that as things stand, “there is no clear answer as to the question whether the use of a drone to examine someone’s property would require a warrant.” (Although some states have passed drone warrant requirements.) This ambiguity is in part thanks to Supreme Court precedent that predates the emergence of widely available drones. When judges are faced with questions related to police drones and the Fourth Amendment in the inevitable lawsuits to come it would be worth them remembering, as Nhan points out, “that Fourth Amendment protections are highest in one’s own home.” However, it’s also worth us keeping in mind that courts are not the only entities that can reconsider privacy in the age of the drone.

Fortunately, it’s unlikely that a court would find it constitutional for a police officer to fly a drone up to bedroom windows without a warrant. It’s also improbable that a court would allow for an officer to examine a house with a thermal scanner without a warrant. As Justice Scalia noted in the Kyllo majority opinion, which held that police do need a warrant to scan a house with a thermal imaging device, “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” Yet, as Nhan explains, the same doesn’t apply to backyards:

On the other hand, courts will be less likely to hold that flying a drone 500 feet over someone’s uncovered and unfenced backyard is a search. Courts would be less likely to make such a holding because the a (sic) property owner who leaves their backyard uncovered and unfenced does not really exhibit any expectation of privacy.

Nhan cites the 1986 California v. Ciraolo decision, in which the Supreme Court held that police officers looking for marijuana in a backyard from an airplane at 1,000 feet did not need a warrant. After all, the Court’s majority reasoned, Dante Ciraolo did not have a reasonable expectation of privacy in his backyard. At a time when police are increasingly using drones such a precedent is concerning.

But a number of states have passed warrant requirements for drones, going beyond the floor set by the Supreme Court. As I noted earlier this month, some lawmakers in New Hampshire have proposed legislation expanding the expectation of privacy (emphasis mine):

an individual is presumed to have a reasonable expectation of privacy on privately-owned real property if he or she […] is not observable by individuals located at ground level in a public place where they have a legal right to be, regardless of whether he or she is observable from the air.

The language in the New Hampshire bill is similar to language found in Florida statute (emphasis mine):

a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

Drones ought to prompt judges to reconsider privacy protections when constitutional challenges arrive in court. However, courts can be slow to catch up with technological changes. Nhan is right to raise some of the issues courts will have to deal with in cases concerning police drones, but it’s important to remember that legislatures as well as courts can play a role in protecting privacy as technology changes.

Matthew Feeney is a policy analyst at the Cato Institute.