by Joseph Jerome
While most Americans continue to think of unmanned aerial vehicles, commonly called drones, as one tool in the United States’ overseas fight against terrorism, their domestic use is rapidly on the rise. For example, the Federal Aviation Administration says upwards of 30,000 drones “will fill the nation’s skies in less than 20 years.” As drone manufacturers eagerly await a piece of the $89 billion market for UAV production and technology, a September poll by The Associated Press and the National Constitution Center discovered that more than a third of Americans are concerned about the privacy implications of domestic drone usage.
While several measures have been introduced in Congress to require police seek warrants before using drones to engage in domestic surveillance, there still remains a role for the Court in strengthening Fourth Amendment protection against unreasonable searches. Responding to increasingly sophisticated wiretaps, the Warren Court recognized that the Fourth Amendment protects an individual’s “reasonable expectation of privacy” in Katz v. United States. At first blush, the use of domestic drones appears to be an extension of the Supreme Court’s decision that Americans have no reasonable expectation of privacy in being surveilled from above, but like bugging a phone in 1967, the practical and technical capabilities of drones suggest the time has come to reevaluate how we understand Fourth Amendment protections.
The sophistication of drones reveals two key flaws in how the Supreme Court has understood our reasonable expectation of privacy. First, the high court has tied privacy to societal expectation of privacy, creating a degree of circularity in its doctrine. Judicial rulings are to be guided by societal expectations, but societal expectations are necessarily influenced by judicial rulings. More problematic, as law professor Derek Bambauer explains, this produces a one-way ratchet against privacy since “government can reduce our reasonable expectations of privacy by abusing our privacy.” Some members of the Supreme Court have conceded that a “tradeoff” of privacy for convenience and security may be both “worthwhile” and “inevitable.”