Constitutional Cases and Comments

Will drones invade our privacy

On February 17, 2012, the New York Times reported that a new federal law signed by the President compels the Federal Aviation Administration to allow drones to be used for all sorts of commercial endeavors – from selling real estate and dusting crops, to monitoring oil spills and wildlife, even shooting Hollywood films. Local police and emergency services will also be freer to send up their own drones.

The New York Times continued that while businesses, and drug manufacturers especially, are celebrating the opening of the skies to these unmanned aerial vehicles, the law raises new worries about how much detail the drones will capture about lives down below – and what will be done with that information.

Scholars of privacy law expect that the likely proliferation of drones will force Americans to re-examine how much surveillance they are comfortable with, the New York Times continued. Possible questions that may arise are: Can drones take pictures from outside someone’s third floor window? Can images taken from a drone be sold to a third party, and how long can they be kept?

Perhaps amazingly enough, the United States Constitution does not contain a specific right to privacy. The right to privacy was established in the landmark case of Griswold v. Connecticut. The justices not finding any one amendment to the Constitution providing a right to privacy declared it a penumbral right. That is, emanating from a combination of amendments to the Constitution such as the First, Third, and Fourth Amendments.

In the case of Katz vs. United States, the Supreme Court in suppressing a recording of a telephone conversation in a telephone booth outside the home, outlined the key concept of the protections of the Fourth Amendment when it talked about an “expectation of privacy” that every American has a right to enjoy. The Supreme Court says that  “..the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

So, in this emerging age of drones which will in time become more prevalent and intrusive as they are used by not just law enforcement but your neighbors and real estate agents and others who are just snooping, the question will become what is our expectation of privacy. In this era of transformational technology which includes thermal imaging and other means by which individuals can literally see through walls and hear through walls, is there any expectation of privacy left to Americans. In the case of United States vs. Jones, the Supreme Court ruled that when law enforcement attached a GPS to a car unbeknownst to its driver to enable tracking of the whereabouts of the driver suspected of criminal activity, such actions constituted a search within the meaning of the Fourth Amendment. We’re just beginning to see the use of drones and other such technologies enter mainstream society. Pretty soon, one will be able to see drones on a daily basis going to and fro up to 400 feet above us and in plain sight otherwise. There will be information the drones capture that will be sold to other marketing entities, there will be pictures which invade the privacy of celebrities and common citizens alike which will be splashed over the Internet and newspapers.So, there will be a division that must emerge to make sense of this trend. Technologically Americans will have no expectation of privacy in this brave new world. However, legally they must always have an expectation of privacy and the question will be where to draw the line.Supreme Court Building