By J.D. Tuccille | Reason | Sept. 13, 2012
It's easy to get the impression that nobody in government gives a damn about our privacy. After all, our glorious elected representatives happily brush off any concerns we might raise about TSA agents pawing through our stuff and touching us in places that our mothers told us were supposed to remain unsullied by the hands of strangers. Those same tribunes of the people just signed off on a five-year renewal for the FISA Amendments Act, which lets the feds spy on us on a just-trust-us basis. But the prospect of a future sky crowded with flying robo-snoops is apparently still able to rouse a shiver of dread in even the occasional jaded bureaucrat. At least, the Congressional Research Service recently issued a report fretting about the threats to our much-battered privacy posed by using drones in domestic surveillance.
In Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses (PDF), Richard M. Thompson II, a legislative attorney, warns us that drones are on the verge of being a very big deal, indeed:
Although relatively few drones are currently flown over U.S. soil, the Federal Aviation Administration (FAA) predicts that 30,000 drones will fill the nation’s skies in less than 20 years.
These drones of the future "can be as small as an insect and as large as a traditional jet" and it isn't really clear yet how sticking cameras on flying robots and sending them into the sky to look at us in our sun-bathing glory on our patios — or to examine the contents of our gardens — really fits into the law.
While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways or backyards.
That we're not yet sure of the legal limits on these things is a big deal, because they're getting ever-more robo-snoopy even as they become more common. Thompson points out that "UAVs carry high-megapixel cameras and thermal imaging, and will soon have the capacity to see through walls and ceilings." This kind of high-tech surveillance, beyond the ability of unaided human senses, is likely to invoke extra court scrutiny and require a warrant.
License-plate readers and facial-recognition technology raise similar concerns, but may not be resolved the same way in terms of Fourth Amendment protection since they essentially automate what people can already do, even if they make it a hell of a lot more efficient. Both are relatively uncharted legal territory even when not attached to drones.
Thompson suggests that increasing drone use could well erode what judges would consider a reasonable expectation of privacy. That is, if drones become common, we might be asked to assume that we're under surveillance with no warrant required. And they're not just likely to become common, but permanent.
[D]efense firm Lockheed Martin’s Stalker—a small, electrically powered drone—can be recharged from the ground using a laser. It now has a flight time of more than 48 hours. As this technology advances, it is reported that some drones could theoretically “stay in the air forever.”
Basically, drones are becoming more complex, more common and much more intrusive, and so raise a whole host of privacy concerns that the courts have yet to address, and the resolutions of which we can't hope to predict. Until lawmakers or judges weigh in, make friends with your inner exhibitionist — and give the sky a smile and a wave.