A report from Bard’s College for the Study of Drones shows that so far, 600 law enforcement agencies across the country use drones.[1] Coupled with the expanding capabilities of drones, this raises legitimate privacy concerns.[2] Now, with drone technology also entering the private sector, these worries are heightened.[3] But, the current state of the law offers little to no protection from privacy threats presented by drone technology. To prevent our society from becoming an outright “surveillance state,” where routine surveillance would be the norm, there must be stronger laws in place to protect our privacy.
Since the advent of drone technology, one of the most commonly raised concerns is whether such technology will be used to spy on the masses.[4] This concern is not without warrant. USA Today reported that the Pentagon “has deployed drones to spy over U.S. territory for non-military missions over the past decade,” but, so far, such flights have been “rare and lawful.”[5] However, the current, widespread use of drone technology among law enforcement agencies, makes it clear that aerial spying is no longer a “rare” occurrence. But, even if we take the Pentagon’s statement at face value, the fact that the flights occurred at all, and without public notice, is worrying, primarily because of how invasive aerial surveillance can be.
Current drone technology is incredibly advanced. Drones can lock on to, and automatically follow individuals.[6] They can identify individuals from immense distances.[7] And, all of this can be done remotely.[8] The long-distance surveillance drone technology offers has frightening implications. For example, the government “may be able to use aerial surveillance to track our movements en masse and catalog participation in constitutionally protected activities such as protests, religious ceremonies, and political rallies.”[9] Moreover, the public isn’t exactly privy to the content of the aerial surveillance data gathered by the government, and so cannot confirm whether the data was gathered for a legal purpose (i.e. public safety).[10]
Drones have also entered the private sector. Drones are now being used by hobbyists for recreational purposes.[11] In the industrial setting, they are used to survey real estate and inspect infrastructure such as roofs and cell towers.[12] Companies like Amazon are even developing drones to be used for delivering packages.[13] But, widespread commercial use brings along its own set of privacy concerns. For example, Amazon recently secured a patent for “surveillance as a service,” in which “delivery drones would take pictures and images of your home, and then send you an alert if anything looks awry.”[14] But, what if video footage of your neighbor’s house accidentally captures footage of your house? Or what if the surveillance footage of your house is hacked?
So far, the Supreme Court has recognized few privacy protections for individuals when it comes to drone technologies. In Florida v. Riley, a police helicopter flew over a property owner’s fenced-in backyard, which revealed that the owner was growing marijuana plants.[15] The Court held that advancements in technology have shifted societal expectations of privacy, and as such the owner did not have a reasonable expectation of privacy under the Fourth Amendment because of the ability that anyone might have to observe what was observed in this case from the air.[16]
In an era of drone surveillance, personal privacy is increasingly at stake. There must be stronger privacy protections in place and greater transparency regarding the use of drones and the content of the surveillance data collected. The ACLU has put out several suggestions. For one, drones should not be deployed unless there is reasonable grounds for believing that the drone will collect evidence relating to a crime.[17] And, if a drone will intrude on reasonable privacy expectations, a warrant will need to be obtained.[18] But, regardless of which regulations are adopted in the end, the drone regulations must achieve a balance between protecting individual privacy while allowing for important public safety uses.
Footnotes
[1] https://spectrumnews1.com/ca/la-west/inside-the-issues/2019/10/15/eye-in-the-sky--drone-surveillance-and-privacy
[2] https://www.pogo.org/analysis/2018/09/these-police-drones-are-watching-you/
[3] https://www.cpomagazine.com/data-privacy/eye-in-the-sky-drone-surveillance-and-privacy/
[4] https://www.theatlantic.com/politics/archive/2016/03/the-rapid-rise-of-federal-surveillance-drones-over-america/473136/
[5] https://www.usatoday.com/story/news/nation/2016/03/09/pentagon-admits-has-deployed-military-spy-drones-over-us/81474702/
[6] https://www.pogo.org/analysis/2018/09/these-police-drones-are-watching-you/
[7] Id.
[8] Id.
[9] Id.
[10] https://www.theatlantic.com/politics/archive/2016/03/the-rapid-rise-of-federal-surveillance-drones-over-america/473136/
[11] https://www.cpomagazine.com/data-privacy/eye-in-the-sky-drone-surveillance-and-privacy/
[12] https://www.technologyreview.com/s/602723/who-will-protect-you-from-drone-surveillance/
[13] https://www.cpomagazine.com/data-privacy/eye-in-the-sky-drone-surveillance-and-privacy/
[14] https://www.inc.com/betsy-mikel/amazon-just-secured-a-disturbing-new-patent-for-delivery-drones-it-raises-some-privacy-concerns.html
[15] Florida v. Riley, 488 U.S. 445, 448 (1989)
[16] Id.
[17] https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf
[18] Id.