Government Drone Use in Civilian Airspace: Will Private Citizens Have a Reasonable Expectation of Privacy?
Last month, President Obama signed into law H.R. 658, the Federal Aviation Administration (FAA) Modernization and Reform Act of 201
2, which funds the FAA and sets policy for the aviation industry. One policy measure of particular concern is the law’s requirement that the FAA establish safety rules that will facilitate broad civilian (government) use of drones by 2015.
Government drone use in civilian airspace is currently limited to government agencies that secure a severely restricted waiver, which is granted on a case-by-case basis. By the end of 2011, the FAA had only approved 300 waivers. However, with the enactment of H.R. 658 it is not difficult to foresee increased government use of drones in civilian airspace in the near future. Already, Customs and Border Patrol anticipates expanding from nine to twenty-four predator drones, which the agency has successfully used to seize over twenty tons of illegal drugs and complete approximately 7,500 arrests along the US border over the past six years. Transportation Secretary Ray LaHood recently stated that the Department has considered how civilian drone use could “help meet a number of challenges, from spotting wildfires to assessing natural disasters.”
With widespread use in civilian airspace, we can expect government drone use to present constitutional privacy concerns. The constitution does not prohibit the government from using drones for police surveillance. In fact, it is well established that the constitution permits the police to surveil property- from ground or air- that is within plain view without a warrant. This means that the constitution may allow government drones to hover over private homes without the consent of the homeowner and
without a warrant.
One limitation that could prevent improper government drone surveillance is the constitutional requirement that the government secure a warrant to use a surveillance device that is “not in general public use.” However, Jonathan Zittrain, a professor at Harvard Law School recently made a key observation that civilian drone use can determine how the government will be able to use drones in the future. Chiefly, with the advent of widespread commercial and recreational drone use, it could be difficult to argue that drones are “not in general public use.” The result could mean widespread government drone surveillance as a norm; a circumstance the American Civil Liberties Union (ACLU) assumes will lead to a surveillance state.
It is often the case in the U.S. that cutting edge technology initially used in the military is ultimately introduced into general public use, e.g., the internet and cellular phones. Therefore, it is not difficult to imagine widespread government use of drones by 2015 – H.R. 658’s mandatory FAA deadline for civilian drone use safety rules. While increases in the governmental use of drones will undoubtedly provide positive crime-fighting results, we can nevertheless expect to see numerous legal challenges that will ultimately determine the extent to which the government can take advantage of this technology in civilian airspace.