By Jared Rankin
Though it remains technologically and politically fraught, the vision of a domestic dronespace has been fast tracked for legislation by 2015. It is by now obvious, and much commented-upon, that the introduction of sensor-laden drones into national airspace has serious implications for privacy rights. Many have voiced concerns about the extent to which privacy protections will figure in the FAA’s research and regulatory goals. According to a docket describing the UAS Test Site program, “[t]he FAA’s mission is to provide the safest, most efficient aerospace system in the world and does not include regulating privacy.” On the other hand, there are those who argue that the privacy protections that are already built into U.S. law will go a long way to cover the potential threats that drones pose to privacy. In order to establish whether or not the integration of drones will require, as some suggest, an overhaul of current privacy protections, or if indeed any potential intrusions are already accounted for under existing legal premises, it is necessary to review the legal protection afforded to informational privacy in the United States and how that protection responds to technological advances.
The United States Constitution does not establish an explicit right to privacy, nor does it offer a concrete definition of what privacy is; in the words of Justice William Douglas in 1965, the concept “emanates” from the Bill of Rights. Paradoxically, this conceptual ambiguity was foregrounded in the landmark 1967 case Katz vs. U.S. which held wiretapping without a warrant to be unconstitutional, reversing the 1927 ruling in Olmstead vs. U.S.. Though Katz seemed to be a victory for privacy rights, Justice John Harlan maintained that the right to privacy is subjective on two counts: first, a person must exhibit an expectation of privacy, and second, that society must be willing to recognize that expectation as legitimate. These two premises, reasonable individual and societal expectations, set a legal precedent which made the right to privacy, especially informational privacy, quite malleable; instead of being a fundamental right, it was established as being subject to social and technological change.
A number of Supreme Court cases attest to the shifting understanding of the expectation of privacy.
I. Individual Expectations: The New Aerial Perspective
In the 1986 case California v. Ciraolo, Dante Ciraolo was convicted of growing marijuana in his backyard after the police, without warrant, used a plane to fly over the fences surrounding his backyard. The court ruled that this was not a violation of the Fourth Amendment because the images were taken from public airspace over his backyard. The same logic was applied again in the 1989 case Florida v. Riley, when a police officer flew a helicopter, without a warrant, over Michael Riley’s greenhouse and spotted marijuana through two panels missing from the roof. Because the roof was not covered, it was established that Riley could have no reasonable expectation of privacy. The public nature of the airspace was a function of the technology of manned flight. The sky became public when we acquired the means to enter it.
II. Societal Expectations: Publicly Available Technologies
In the 1986 case Dow Chemical Co. v. U.S., the Supreme Court ruled that the EPA did not violate Dow Chemical’s expectation of privacy when it took aerial photographs of a Dow facility in a follow-up to an on-site inspection, as the agency had photographed an outdoor area using a conventional, unsophisticated camera. The ruling established that technologies which are not available to the public, such as satellites, require a warrant, but that the EPA’s surveilant action took place in an open air space and was thus roughly equivalent to observing an activity in an “open field.” This same logic held in the 2001 case Kyllo v. U.S., when the court ruled that evidence collected through thermal imaging (that was collected from a car) could not be used to support the issuance of a warrant. Though the police did not physically enter the home, their use of thermal imaging, a technology which is not publicly available, constituted a search and thus made their actions unconstitutional.
The paradox of Katz was echoed recently in the 2012 case U.S. v. Jones. The defendant, Antoine Jones, alleged that his Fourth Amendment right was violated when police attached a GPS tracker on his car, without first seeking a warrant, as they investigated him for alleged narcotics violations. The court ruled in favor of the defendant in a 9-0 vote. Though initially celebrated as a victory for privacy rights, the judgment was not unprecedented; instead, it was adjudicated on a technicality. The case was decided on the grounds that the installation of the GPS onto private property—in this case, the defendant’s car—in tandem with prolonged surveillance, constituted a search and thereby a violation of the Fourth Amendment. In other words, Jones’ private property was protected, but the same protection was not afforded to information about him, specifically the four weeks of data logging the movements of his car. Driving on a public road, Jones had no reasonable expectation of privacy; it was merely the invasion onto his private property that the case was decided in his favor. Rights to informational privacy remain precarious even with the imminent introduction of domestic drones.
Judge Harlan’s conception of a subjective, evolving privacy is here quite explicitly at work. First, individual expectations of privacy must now accommodate the fact that the aerial perspective is a public perspective; if we don’t want people to see into our backyards or greenhouses, then we need to cover them with a roof, just as we should draw the curtain on a window if we don’t want those on the street to see what we’re doing inside. Second, societal expectations of privacy have had to change, and will continue to change, according to technology which is ‘publicly available’—thermal imaging, satellites and sophisticated cameras require a warrant because they are unusually invasive, but also because they aren’t publicly accessible.
However, it is well documented, and much discussed, that a wide variety of surveillant technologies are becoming more sophisticated at an exponential rate, and that the price of these technologies is dropping accordingly. These “off-the-shelf” technologies are likely to become commonplace, bringing them closer to the condition of being “publicly available.” The growing interest in commercial and private drone use, and the proliferation of high powered sensor technology such as hyperspectral and thermal imaging, facial recognition and laser spectroscopy, will challenge and inevitably have an effect on both individual and societal expectations of privacy. These factors underlie the argument that the premises of privacy under the law are inadequate to regulate the right to privacy.
It is also to be considered that drones change the nature of aerial surveillance. Drones are totally unlike helicopters and airplanes: they are smaller, more versatile, cheaper to fly, quieter, and can maintain surveillance for 24 hours, hovering or tracking. While it is true that we are in the midst of a frenetic—and at times hyperbolic—public reaction to the prospect of drones emerging in domestic space, it is very possible that society will in time become accustomed to this technology, just as those in urban centers have acclimatised to an environment of prevalent police surveillance platforms such as CCTV systems. Back in 2011, before the spectre of domestic drone use had become the topic of a national discussion, Jay Stanley and Catherine Crump wrote in the ACLU report Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft that “the introduction of routine aerial surveillance … would profoundly change the character of public life in the United States.” The character of public life, of course, is determined at least in part by our expectations of privacy. But the presence of drones will also affect the public expectation of privacy.
Drones therefore highlight, and may well play into, the potential problem with the juridical premises of privacy: understandings of privacy shift according to norms, and norms are subject to the development and proliferation of technology, which doesn’t always proceed along predictable or planned lines. The trend is that as individuals we can expect less and less privacy, and that societally, the legal boundaries between what is public and what remains private are becoming more conflated (a process that has been accelerating ever since the telephone first allowed us to project our voice into a public space on a private wire).
That being said, drones may also change the nature of discussions on privacy, as they make these issues more acute; as a result of the unique capabilities of drones, and because of the prevailing public perception of the drone, their introduction presents a qualitative change in the experience of surveillance. We are, as a result, seeing a proliferation of local and state-level legislation that attempts to protect privacy from intrusions by drones. It of course remains to be seen whether these regulations, as well as those set forth by the FAA, will be enough.
Come what may, the space for reasonable expectations of privacy appears to be shrinking in inverse proportion to the expansion of surveillant technology–the means of furtive search and seizure of personal information, and the means of documenting private activity, have become more technologically feasible, the cost of entry of surveillance is dropping and surveilant capabilities are increasingly becoming more publicly available. Since privacy is subject to societal expectations, the contours of drone use and proliferation, and the expectations that are established outside of the courts, will be key to determine expectations of privacy and thus the legal limits of surveillance in a post-2015 world. It is possible that drones will require us to set concrete limits around Harlan’s shifting principle of privacy.
Cover Image: Justice John Harlan II