1859 Media interviewed University of Oregon law professor and Constitutional scholar, Ofer Raban to talk about the implications of domestic drones and privacy for American citizens. The following is Professor Raban’s response.
The 4th Amendment’s prohibition of unreasonable searches and seizures is the principal Constitutional check against drones’ threat to our privacy. Note that this protection is only vis-a-vis government drones, and does not govern drones in private use.
The threshold question under the Fourth Amendment is whether the activity in question violates a person’s reasonable expectation of privacy. Only if it does, the activity is classified as a “search” subjected to 4th Amendment limitations.
The United States Supreme Court held that observing a person’s back yard by naked eye from an aerial vehicle traveling at normal altitudes was not a search — because such observation fell under the “plain view” doctrine (the back yard was “in plain view”).
The issue would be different if drones traveled at lower altitudes not commonly traveled at, or used sensors (visual or otherwise) that go beyond what is normally observable by the naked eye or by technology that is widely used by the public. All will depend on the particularities of the case at hand.
In a recent Supreme Court decision (dealing with the use of a GPS device), however, five justices opined that there may be a limit to the “plain view” doctrine if the amount of information collected is great and detailed (as in GPS monitoring of a vehicle over four weeks).
Finally, note that even if drone activity is categorized as a search, it can still be carried out if the police obtain a search warrant (which ordinarily requires probable cause to believe that the target of the surveillance engaged in criminal activity or has evidence of criminal activity).
The Constitution, of course, is only one level of protection against potential invasions of privacy. Legislation—both federal and state—is likely to limit the use of drones and the information they collect.