Drones, Public Surveillance and Privacy

Drones, or unmanned aerial vehicles (UAVs), are remotely piloted aircraft equipped with various surveillance technologies, including cameras and audio recording devices. Originally developed for military applications, their use has expanded into civilian arenas, where they are often employed by law enforcement and for recreational purposes. This shift has sparked significant concerns regarding privacy, as drones can easily capture images and video from angles inaccessible to traditional photography. Additionally, the low cost and ease of access to drones have raised fears about their potential misuse for invasive surveillance by both individuals and authorities.

In the United States, the Fourth Amendment protects citizens from unreasonable searches, a principle crucial in discussions about drone surveillance. Legal interpretations of what constitutes a "search" have evolved, particularly as drone technology becomes more accessible, prompting debate about what privacy rights individuals can expect in an age of pervasive aerial monitoring. The future of drone technology, characterized by ongoing miniaturization and increased capabilities, poses further challenges, as smaller drones may go unnoticed while collecting data, potentially leading to a society where privacy becomes a privilege only for the wealthy. Consequently, regulatory discussions are becoming increasingly urgent, as privacy advocates seek to establish boundaries for drone use to safeguard individual rights.

Published in: 2024

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Subject Terms

Drones, Public Surveillance and Privacy

Abstract

Drones are small, remotely piloted aircraft built to carry surveillance equipment such as microphones, wireless network antennae, and video cameras. They are not large enough to carry passengers. Originally developed for military purposes, drones can observe the positions and movements of enemy forces or assist with long-range targeting of missiles and similar weapons. Technological advances over the years have made smaller and smaller drones feasible, and recent models are about the size of a laptop computer, although much lighter. Law enforcement agencies have purchased many drones, and this has given rise to concerns about privacy.

Overview

Drones have been high priorities for consumers for some time, and their popularity has begun to replace more traditional hobby items such as model airplanes and remote controlled toy aircraft and vehicles. It has become common at parks and in other public spaces to see hobby enthusiasts piloting drones equipped with camera-bearing smartphones, recording video and taking photographs from angles and altitudes that would be impossible for an earthbound photographer to achieve. Private companies have even begun to explore the possibility of using drones to deliver products to customers, from office supplies to orders of fast food; the prospect of delivery mechanisms that use rechargeable energy cells instead of gasoline and that are not bound by the limitations of traffic jams attracts these companies.

While consumers may be in favor of this type of delivery mechanism, or at least indifferent to it, regulatory agencies such as the Federal Aviation Administration (FAA) have expressed concerns that too many drones flying around under the control of inexperienced pilots could eventually interfere with air traffic, especially in urban centers. Aircraft attempting to assist firefighters, by making observations and by dumping fire retardant chemicals, had to be called off because of the presence of drones piloted by onlookers seeking to get a better view of the fire. This type of situation represents an extreme threat to people’s lives and property, making regulation of drones in emergency situations an urgent issue for many people (McKown, 2015).

Even though drones can be a source of education and entertainment for those interested in photography and aviation, they do have less savory purposes also. The main purpose of a drone is to gather information, regardless of what form this information takes - audio, video, and so on. In some cases, people have used drones to help them spy on others for their own amusement, profit, or titillation. The most expensive drones that are commercially available are virtually silent, designed for situations where it may be difficult for the observed to detect what is going on. This opens up many privacy concerns, exemplified by the often-referenced hypothetical situation in which a family’s teenage daughter decides to sunbathe in the backyard, which is enclosed by a fence, and is spied upon by a camera-equipped drone hovering overhead.

Indeed, this scenario has become a reality for some celebrities; at one time, paparazzi had to wait patiently outside the entrance to a star’s mansion, hoping for a glimpse and a photo when he or she drove through. Now, paparazzi routinely send drones whizzing about the estates of the rich and famous in the hope of capturing a private moment. Private citizens ordinarily do not need to worry about such monitoring, but there are grave concerns about the ability of the government to use drones to invade the privacy of citizens (Olivito, 2013).

Unreasonable Search.Some countries do not place a high value on the privacy of individual citizens and allow the government to inquire into people’s lives to maintain order and prevent potential threats to the nation from developing. The United States does not use this approach and places a premium on every citizen’s right to privacy, to such an extent that the Fourth Amendment to the United States Constitution protects people’s right to be free from “unreasonable searches and seizures.” This right was important to the Framers of the Constitution because when the American colonies were under British rule, agents of the government frequently entered private spaces to conduct searches and seize goods, and there was no basis for resisting these actions.

Under the Constitution, the government can conduct searches only under certain conditions, and individuals can later challenge the validity of searches in court. Note that in the context of the study of privacy and related issues, a search does not necessarily mean that someone is physically rifling through one’s possessions; its meaning is broader and includes many different kinds of information gathering, with the common denominator being that the information is obtained through some expenditure of effort beyond what could be learned through passive observation (West & Bowman, 2016).

Searches of this sort require a warrant issued by a magistrate, based upon an officer of the law having probable cause to believe that evidence relevant to a crime is present in the planned search area. A search warrant is not required when evidence of criminal conduct is visible in plain sight, without investigation being necessary. For example, if a police officer standing on a public sidewalk can see onto private property well enough to observe the sale or manufacture of contraband such as illegal drugs, the officer would not need a search warrant to enter the property and investigate. From time to time, officers have used the plain view exception to the warrant requirement in unconventional ways; for example, there have been cases where law enforcement officers have suspected that marijuana was being grown on private property surrounded by an opaque fence.

Lacking probable cause, the officers did not have enough information to be able to obtain a warrant, until they used a helicopter to look down on the property from above. The property owners claimed that this was a violation of their Fourth Amendment rights because obtaining the helicopter and flying it over the property constituted a search that was unreasonable under the circumstances (Jensen, 2016). The government responded by asserting that their observation of the property from the air was no different than if the officer had been standing nearby on a hill or similar vantage point that made it possible to see down into the property. Courts have generally sided with law enforcement, holding that such aerial observation does not constitute a search unless law enforcement uses sophisticated equipment of a type generally unavailable to the public to gather information, such as a telescopic array attached to an airplane flying over an entire region at high altitude.

The availability of drones turns this whole area of the law on its head, opening up numerous additional ways in which privacy could come under attack. Before the advent of drones, the expense and inconvenience of obtaining access to a plane or helicopter made many of the privacy concerns raised by aerial surveillance seem unimportant. Most law enforcement agencies attached to small towns in rural areas around the nation simply did not have the resources to use such information-gathering techniques. Drones are a far different matter. For a few hundred dollars, a police department can purchase a drone and train its officers in how to use it, and from that point on, plain sight takes on a meaning that is entirely different from what most people are prepared to accept (Ison, Terwilliger & Vincenzi, 2014).

One of the lessons that emerged from past court cases like the one described above is that part of what defines “plain sight” is that it is characterized by the lack of effort or of specialized equipment that is required. A flight overhead by a plane or a helicopter is considered simple enough that it does not constitute a search, yet observing property with (for example) a thermal imaging camera designed to determine whether there are signs of the excessive amounts of energy that would be required for an indoor marijuana growing operation is considered invasive enough to qualify as a search, mainly because the thermal imaging equipment is not widely available.

This suggests that back in the days when drones were rare and expensive, they might have met the criteria for a search if they had been used by the government to conduct surveillance of its own citizens. This is no longer the case. Drones are now available and affordable enough to give as gifts for birthdays and holidays. The question that remains to be satisfactorily answered is whether the universal access to drones can be taken to mean that private citizens may now expect to have these devices flying all over their property at all hours of the day and night. And, if this is permitted, what is to prevent a drone from peeking in through the windows of a home to observe whether or not criminal conduct is in progress?

The response of the courts has been to cling to the term “unreasonable” in the Fourth Amendment, by which is meant that one purpose of the Amendment is to prevent warrantless searches and another purpose is to prevent unreasonable searches. The implication is that drones searching people’s backyards while hovering inches or feet above the ground, or peering through windows, is something that any court would find unreasonable and therefore illegal (McNeal, 2016).

Further Insights

One of the main advantages to using drones is their ability to enter areas that would be inaccessible or inhospitable to human beings. For many years, law enforcement officers have used what might be termed land-based drones, that is, robots, for this very purpose. Remotely controlled robots have been used to defuse bombs, to disarm attackers, and to scout out areas that are unsafe before officers go in to secure them (Fargeas, Kabamba & Girard, 2015). Seen in this context, one might not expect drones to provoke such intense concern from privacy advocates. Part of these concerns stem from the fact that drones are able to enter far more areas than robots can, at least for the time being.

What is more, law enforcement officers use robots primarily in emergencies where there is an immediate threat, such as an active shooter, a gas leak, or a hostage situation. Drones are designed more to observe than to engage, so they are used less frequently in emergencies and more often in contexts where it seems that the authorities have the discretion to use a variety of approaches. One has the feeling that sending in a robot is a kind of futuristic last resort, while using a drone to gather intelligence, at least domestically, feels somehow unfair or underhanded, perhaps a reflection of the quality of unreasonableness. This sense of unfairness stems from the feeling that spying on one’s own citizens is a distinctly un-American activity, as evidenced by the Constitution’s strong predilection to protect privacy.

Some have suggested that the negative view of surveillance drones that is prevalent today is due in large part to their relatively recent arrival, and that once people have had time to get used to them, their objections will begin to lose their strength. Futurists have portrayed this type of society in the next few years, describing a society where drones are so common as to seem invisible because people simply tune them out. Should this happen, it may well be that society will adjust its expectations regarding privacy, whether it wishes to or not, to accommodate the new reality of constant observation (Matiteyahu, 2015).

Viewpoints

Another source of concern about the use of drones also looks to the future, and concerns the trend of most technology - drones included - toward miniaturization. As stated previously, at one time drones were the size of small airplanes; indeed, some still are this size, particularly those used by the military to attack distant targets without risking the lives of soldiers. With the passage of time, drones have reduced in size until they are now approximately equivalent to a remote controlled airplane (Frazier, 2016). Yet technology marches forward without pause, and there is continuous research and development being carried out to make new generations of drones that are smaller, lighter, use less power, and that are even capable of recharging themselves without returning to their pilots.

Experts suggest that within a few years, the largest drones will fit in the palm of one’s hand while the smallest will begin to rival tiny insects, almost undetectable in most situations. This scenario, sometimes referred to as the death of privacy, is a point at which miniscule, airborne drones with video and audio capturing capabilities will float through the air like dust, following everyone everywhere. These descendants of today’s drones will start out as military projects, in the same way that other life-changing inventions such as the Internet did, but will eventually make their way into the private sector for use in every conceivable type of information collection: corporate espionage, investigations pertaining to civil litigation, and even divorce proceedings, as a means to prove marital infidelity (Kindervater, 2016).

Privacy advocates state that the question is no longer whether these devices should be developed—clearly they will be—but what to do about them, and more important, how to regulate and restrict them. One of privacy advocates' greatest fears, and one that has a significant chance of actually coming to pass, is that in the not-too-distant future, privacy may become a commodity that is too expensive for any but the most wealthy to afford. This would be a world in which those with sufficient money and power could afford to protect themselves against surveillance and other forms of intrusion, while the rest of the population would have no choice but to give up any semblance of privacy to function in society from one day to the next. This would be a far cry from the ideals of the U.S. Constitution for the protection of the individual’s right to be left alone.

Terms & Concepts

Aerial Surveillance: Observation of a place from the air, usually through an aircraft such as a helicopter or airplane.

Drone Pilot: The person who controls a drone remotely. If a drone is not equipped with a camera, then the pilot must maintain direct visual contact with it in order to avoid obstacles. Live video from a drone allows a pilot to steer the drone remotely, offering a “first person” navigation experience.

Fourth Amendment: The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures and is one of the main privacy protections available to U.S. citizens.

Plain View: A legal doctrine that exempts some conduct from the warrant requirement, if the evidence is in plain view.

Probable Cause: Government agents wishing to search private property are required to obtain a warrant based on probable cause, that is, they have good reason to believe that evidence of criminal conduct exists in the place to be searched.

Unmanned Aerial Vehicle: An alternative term for drones, used more often in military contexts and frequently abbreviated as UAV.

Essay by Scott Zimmer, JD

Bibliography

Fargeas, J. L., Kabamba, P., & Girard, A. (2015). Cooperative surveillance and pursuit using unmanned aerial vehicles and unattended ground sensors. Sensors, 15(1), 1365–1368.

Frazier, A. (2016). Commentary: Unmanned aircraft systems: What constitutes a surveillance? Public Administration Review, 76(4), 660–661. Retrieved October 23, 2016, from EBSCO Online Database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=116465661&site=ehost-live

Ison, D. C., Terwilliger, B., & Vincenzi, D. (2014). Privacy, restriction, and regulation involving federal, state and local legislation: More hurdles for unmanned aerial systems (UAS) integration?. Journal of Aviation / Aerospace Education & Research, 24(1), 41–80.

Jensen, O. B. (2016). New “Foucauldian boomerangs”: Drones and urban surveillance. Surveillance & Society, 14(1), 20. Retrieved October 23, 2016, from EBSCO Online Database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=115474290&site=ehost-live

Kindervater, K. H. (2016). The emergence of lethal surveillance: Watching and killing in the history of drone technology. Security Dialogue, 47(3), 223.

Matiteyahu, T. (2015). Drone regulations and fourth amendment rights: The interaction of state drone statutes and the reasonable expectation of privacy. Columbia Journal of Law & Social Problems, 48(2), 265–307. Retrieved October 23, 2016, from EBSCO Online Database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=101109410&site=ehost-live

McKown, M. (2015). The new drone state: suggestions for legislatures seeking to limit drone surveillance by government and nongovernment controllers. University of Florida Journal of Law and Public Policy, (1), 71.

McNeal, G. S. (2016). Drones and the future of aerial surveillance. George Washington Law Review, 84(2), 354.

Olivito, J. (2013). Beyond the fourth amendment: Limiting drone surveillance through the constitutional right to informational privacy. Ohio State Law Journal, 74(4), 669.

West, J. P., & Bowman, J. S. (2016). The domestic use of drones: An ethical analysis of surveillance issues. Public Administration Review, 76(4), 649–659.

Drones, Public Surveillance and Privacy

On this Page

Subject Terms

Drones, Public Surveillance and Privacy

Abstract

Overview

Further Insights

Viewpoints

Terms & Concepts

Bibliography

Suggested Reading