1 Cyberlaw—2013 Laura Nielson UAV s and the 4 th Amendment Introduction On February 14, 2012, the president signed into law the FAA Modernization and Reform Act of 2012 (FMRA), marking the beginning of what is sure to be an era of increased government surveillance. The FMRA requires that the Federal Aviation Administration (FAA) initiate a plan to begin phasing unmanned vehicle aircrafts ( UAV ) into the National Airspace System (NAS), with a target completion date of September 30, 2015. 1 Currently, the NAS has a limited number of operational UAV s, but that number is expected to skyrocket as the FAA opens the UAV over the next few years. 2 Anticipated operators of UAVs will include federal agencies as well as local police departments, which will use UAV primarily to conduct aerial surveillance. 3 Under current law, there is no warrant requirement for conducting aerial surveillance above private or commercial property, provided that the aircraft operates within navigable airspace, as defined by FAA regulations. This narrow protection of the Fourth Amendment reflects the limited amount of relevant case law on the subject of warrantless aerial surveillance. The current state of the law is however, widely considered to be inadequate and outdated, as it was established at a time when the idea of cheap, ubiquitous, unmanned aerial surveillance was the stuff of science fiction. For that reason, the opening of the NAS to UAV surveillance and the 1 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332, 126 Stat. 11 , 74. 2 Richard M. Thompson II, Congr. Research Serv., Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses 1 (Sept. 6, 2012). 3 25 NO. 3 Air & Space Law. 1, 20
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1
Cyberlaw—2013
Laura Nielson
UAV s and the 4th
Amendment
Introduction
On February 14, 2012, the president signed into law the FAA Modernization and Reform
Act of 2012 (FMRA), marking the beginning of what is sure to be an era of increased
government surveillance. The FMRA requires that the Federal Aviation Administration (FAA)
initiate a plan to begin phasing unmanned vehicle aircrafts ( UAV ) into the National Airspace
System (NAS), with a target completion date of September 30, 2015.1 Currently, the NAS has a
limited number of operational UAV s, but that number is expected to skyrocket as the FAA
opens the UAV over the next few years.2 Anticipated operators of UAVs will include federal
agencies as well as local police departments, which will use UAV primarily to conduct aerial
surveillance.3
Under current law, there is no warrant requirement for conducting aerial surveillance
above private or commercial property, provided that the aircraft operates within navigable
airspace, as defined by FAA regulations. This narrow protection of the Fourth Amendment
reflects the limited amount of relevant case law on the subject of warrantless aerial surveillance.
The current state of the law is however, widely considered to be inadequate and outdated, as it
was established at a time when the idea of cheap, ubiquitous, unmanned aerial surveillance was
the stuff of science fiction. For that reason, the opening of the NAS to UAV surveillance and the
1 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332, 126 Stat. 11, 74.
2 Richard M. Thompson II, Congr. Research Serv., Drones in Domestic Surveillance Operations: Fourth Amendment
Implications and Legislative Responses 1 (Sept. 6, 2012). 3 25 NO. 3 Air & Space Law. 1, 20
Research Projects Agency (DARPA) of the Department of Defense13
is investing millions of
dollars14
in an attempt to insert electronics into moths and other insects.15
DARPA anticipates
that the resulting insect “cyborgs” will enable the U.S. to better locate and combat terrorists,
even in remote terrorist training camps in places such as the “hills of northern Pakistan.”16
Mandyam Srinivasan, professor of visual neuroscience at the University of Queensland,
envisions the cyborgs flying “inside buildings, entering through windows and doors
inconspicuously,” and taking movies and recording sounds while perching unsuspected on a
wall.17
Whatever capabilities these cyborgs could perform on terrorists could also be used on
citizens. Thus, these insects could “be used in a variety of military and homeland security
applications,” including detecting explosives, toxins, or drugs as well as potentially hunting
down robbers.18
Many people assume UAVs are currently only being used abroad in counterterrorism
efforts. While UAVs have become a centerpiece in counterterrorism strategy, domestic use has
already begun.19
In 2012, President Obama authorized the Federal Aviation Administration
(FAA) to develop specific rules to accelerate the incorporation of unmanned aircraft into the
13
Jonathan Richards, Can Cyborg Moths Bring Down Terrorists?, Times Online, May 24, 2007, http://technology.timesonline.co.uk/tol/news/tech_and_ web/article1831494.ece?. 14
DARPA's Microsystems Technology Office (MTO) “has devoted more than US $2 million to the Hybrid Insect MEMS (HI-MEMS) program.” Roland Piquepaille's Technology Trends: How New Technologies Are Modifying Our Way of Life, Autonomous Insect Cyborg Sentinels, June 22, 2007, http:// www.primidi.com/2007/06/22.html. 15
R. Colin Johnson, Insect Cyborgs Go Undercover, http:// www.tectrends.com/cgi/showan?an=00168087. (last visited July 26, 2008). 16
Richards, supra note 10 17
Richard Macey, The Name's Bogong - James Bogong, The Sydney Morning Herald, Oct. 13, 2007, http://www.smh.com.au/news/national/the-names-bogong-- james-bogong/2007/10/12/1191696173795.html, see also George Dery, Cyborg Moth's War on Terror: The Fourth Amendment Implications of One of the Federal Government's Emerging Surveillance Technologies, 11 SMU Sci. & Tech. L. Rev. 227 (2008) 18
Bill Christensen, Implants Create Insect Cyborgs, Live Science, Feb. 4, 2008, http://www.livescience.com/strangenews/080204-cyborg-insect.html. 19
national airspace system by 2015. It is estimated that drones will be a $5 billion-plus industry.20
The FAA predicts that 30,000 drones will be deployed within 20 years.21
Other domestic agencies are already utilizing UAVs. In 2005, U.S. Customs and Border
Protection (CBP) became the first domestic law enforcement agency to put a UAVs into action.22
CBP assigned Predator B UASs to Arizona to patrol and secure the United States border with
Mexico.23
The CBP's Predators monitor thirty-mile stretches of the border from three miles
above the desert floor, relaying images from their infrared cameras to a ground control station.24
If a seismic sensor is triggered on the ground, the Predator can investigate and, upon finding drug
smugglers, tag them with its laser illuminator.25
With the GPS coordinates and the infrared
illuminator, agents have no difficulty intercepting the smugglers.26
The Predator's effectiveness
in drug interdiction was demonstrated on January 11, 2008, when CBP agents seized over a
thousand pounds of marihuana from a truck illegally crossing the border.27
With the assistance of
20
Editorial, The Dawning of Domestic Drones, Without Proper Controls, The Use of Unmanned Aircraft Could Threaten Privacy, N.Y. Times, Dec. 26, 2012, at A24. 21
Richard M.Thompson II, Congressional Research Service, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Reponses (2012); available at https://opencrs.com/document/R42701/2012-09-06/. 22
Travis Dunlap, We've Got Our Eyes on You: When Surveillance by Unmanned Aircraft Systems Constitutes A Fourth Amendment Search, 51 S. Tex. L. Rev. 173, 180 (2009); see also, Press Release, U.S. Customs & Border Prot., CBP Makes History with the Launch of Predator B (Sept. 29, 2005), http:// www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2005_press_ releases/092005/09292005.xml (last visited Nov. 4, 2009). 23
Id. Just like its military counterpart, the General Atomics Predator B is designed to “[p]erform multi-mission low- to high-altitude surveillance, reconnaissance, and ‘Hunter-Killer’ missions.” It has a sixty-six foot wingspan, a 3,850 pound payload capacity, a maximum altitude of over 50,000 feet, a maximum endurance of over thirty hours, and the ability to carry missiles and bombs. General Atomics Aeronautical Systems, Inc., Predator B/MQ-9 Reaper Brochure 2 (2007), http://www.ga-asi.com/products/aircraft/pdf/Predator_ B.pdf. 24
Jeff Wise, No Pilot, No Problem, Popular Mechanics, Apr. 1, 2007, at 64, available at http://www.popularmechanics.com/science/air_ space/4213464.html. 25
Id. 26
Id. 27
Press Release, U. S. Customs & Border Prot., Border Patrol Agents Seize More Than a Ton of Marihuana This Past Weekend (Jan. 14, 2008), http:// www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2008_news_releases/jan_ 2008/01142008_6.xml (Last visited Nov. 4 2009).
6
the UAS, the agents successfully deployed a tire deflation device, stopped the vehicle, and
arrested the driver.28
Local law enforcement agencies have also used drones to apprehend criminal suspects.
The Los Angeles Times recently reported the first instance in which military “drone” aircraft
participated in the arrest of United States citizens on United States soil.29
Armed with a search
warrant, Nelson County Sheriff Kelly Janke went looking for six missing cows on the Brossart
family farm in the early evening of June 23, 2011.30
Three men brandishing rifles chased him off
the property.31
Knowing the gunmen could be anywhere on the 3,000-acre spread in eastern
North Dakota.32
Fearful of an armed standoff, Janke called in reinforcements from the state
Highway Patrol, a regional SWAT team, a bomb squad, ambulances, deputy sheriffs from three
other counties, and a Predator B drone.33
As the drone circled 2 miles overhead the next
morning, sophisticated sensors under the nose helped pinpoint the three suspects and showed
they were unarmed.34
Police rushed in and made the first known arrests of U.S. citizens with help
from a Predator.35
The use of this surveillance technology to assist local law enforcement has drawn
criticism.36
Former U.S. House Representative Jane Harman (D-CA36) told the Los Angeles
Times that during her tenure on the House Homeland Security Intelligence Subcommittee, there
28
Id. 29
Id. 30
Id. 31
Id. 32
Id. 33
Id. 34
Id. 35
Id. 36
Id. See also Brian Bennett, Police Employ Predator Drone Spy Planes on Home Front, L.A. Times. Dec. 10, 2011, at Nation. (quoting former Reprsenetative Jane Harman as saying that “[t]here is no question that this could become something that people will regret.”)
was no discussion about using Predators to assist local police on routine matters.37
She asserts
that the use of these drones without public debate or clear legal authority is a “mistake.”38
Should
such a case be appealed, the Supreme Court could issue a judgment articulating a new standard
controlling how the Fourth Amendment governs robotic surveillance.
One of the most controversial uses of UAV s is to target and kill enemy combatants
abroad in the name of national security and pursuant to counterterrorism measures. In recent
years, the United States has generated controversy as targeted killings and drone strikes have
been used to kill al Qa’ida leaders, even those embedded in civilian populations. A “targeted
killing” is extra-judicial, premeditated killing by a state of a specifically identified person not in
its custody.39
A “drone strike” occurs when a targeted killing is carried out through the use an
unmanned Predator drone aircraft.40
Drone aircrafts are armed with laser guided missiles and are
controlled by an operator at a television monitor hundreds of miles away.41
Their radar, infrared
sensors and color video camera can track vehicles at night and through clouds.42
The video is
sharp enough to make out people on the ground from more than three miles away.43
Drone
strikes are a way for the United States to kill specific targets without endangering the person
responsible for actually pulling the trigger—the military may have its proverbial cake and eat it
too.44
Drone strikes have been defended as a form of self-defense specific to counterterrorism as
37
Id. 38
Id. 39
Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 Cardozo L. Rev. 405, 437 (2009). 40
Id. 41
Eric Schmitt, Threats and Responses: The Battlefield: US Would Use Drones to Attack Targets, N.Y. Times (Nov. 6, 2002), http://www.nytimes.com/2002/11/06/world/threats-responses-battlefield-us-would-use-drones-attack-iraqi-targets.html?pagewanted=all&src=pm 42
Id. 43
Id. 44
Id.; see also Tom Tschida, Predator Drones and Unmanned Aerial Vehicles (UAVs), N.Y. Times, (Nov. 25 2012), http://topics.nytimes.com/top/reference/timestopics/subjects/u/unmanned_aerial_vehicles/index.html
8
opposed to an offensive attack method (which is illegal if pre-emptive under international law).
The reason why this argument has any support is because terrorism has defied all preconceived
notions regarding state sovereignty and self-defense. Still, the use of UAV s in this context is
likely to become one of the most controversial issues of this century, if not in the near future.
II. The Costs and Benefits of UAVs.
The ‘unmanned’ aspect of UAVs makes them an ideal tool to enhance a broad range of
government functions beyond monitoring borders and counterterrorism efforts. For example,
police departments could use UAV to conduct dangerous operations without risking the lives of
officers or the public; kidnappings, hostage situations, and bomb threats are just a few examples
of situations where police officer safety could be directly impacted by the substitution of drones
for manpower. The use of UAVs could also limit administrative waste; the Environmental
Protection Agency (EPA) could use UAV to ensure industry compliance with environmental
regulations without wasting manpower.45
However, the obvious appeal of using technology instead of manpower should not deter
the government for creating safeguards for constitutional rights. In a December 2011 whitepaper,
the American Civil Liberties Union (ACLU) warned that “[t]he prospect of cheap, small,
portable flying [video-surveillance] machines threatens to eradicate existing practical limits on
aerial monitoring and allow for pervasive surveillance, police fishing expeditions, and abusive
use of these tools in a way that could eventually eliminate the privacy Americans have
traditionally enjoyed in their movements and activities.”46
Nevertheless, such corruption need
not come to pass. A balance must be struck between the technology's merits and the potential
45
25 NO. 3 Air & Space Law. 1, 19 46
Jay Stanley & Catherine Crump, ACLU, Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft 1 (Dec. 2011), http:// www.aclu.org/files/assets/protectingprivacyfrornaeriaIsurveillance.
9
detriment to civil liberties. Ryan Calo, a UAV expert and the director of Privacy and Robotics at
Stanford Law School, notes that “[l]ike almost any technology, drones can be misused. It is
important to put in place appropriate frameworks to ensure that they are operated responsibly.”47
III. The Fourth Amendment and UAV s.
The Supreme Court’s most recent case on warrantless aerial surveillance took place
nearly 25 years ago, prior to the advent of today's UAV technology. This section will briefly
review the relevant Supreme Court cases that led one commentator to conclude that states have
the power “to continually monitor [their] citizens from above.”48
It will then address the
possibility of statutory protection from government use of unmanned aircraft.
The seminal privacy case relevant to the issue of warrantless surveillance is the 1967 case
of Katz v. United States.49
Justice Harlan's concurrence in Katz set the precedent that the Fourth
Amendment protects individuals' reasonable expectation of privacy.50
In Katz, the FBI
wiretapped a public telephone booth in order to record the Katz’ phone calls.51
Justice Harlan
observed that the government needed a warrant to eavesdrop on Katz's conversation because
even though it occurred in a public phone booth, he had a reasonable expectation of
privacy.52
Specifically, Katz had demonstrated a subjective expectation of privacy by entering
the phone booth and closing the door behind him, and that expectation was objectively
reasonable from a societal perspective (i.e., as a society, we expect to be able to hold a private
47
Ryan Calo, Ten Myths About Drones, Huffington Post (May 22, 2012), http://www.huffingtonpost.com/ryan-calo/drones-myths_b_1537040.html. 48
See Joseph J. Vacek, Big Brother Will Soon Be Watching--Or Will He? Constitutional, Regulatory, and Operational Issues Surrounding the Use of Unmanned Aerial Vehicles in Law Enforcement, 85 N.D. L. Rev. 673, 676-77 (2009) 49
Id. at 679-84. 50
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring). See, e.g., California v. Ciraolo, 476 U.S. 207, 211 (1986); Kyllo v. United States, 533 U.S. 27, 33 (2001). 51
Katz held that a governmental activity is a search if it violates
“an actual (subjective) expectation of privacy . . . that society is prepared to recognize as
‘reasonable.’”54
Nearly two decades later, during the late 1980s, the Court applied Katz in three decisions
involving surveillance by manned aircraft. These cases illustrate how little reasonable
expectation of privacy the Court believed society had from warrantless surveillance by manned
aircraft.
The Court first addressed aerial surveillance in 1986 with California v. Ciraolo, in which
the Court held that the police could look into a suspect's backyard, even the protected curtilage55
around the suspect's home, from a plane 1,000 feet above the ground.56
In an opinion by Chief
Justice Burger, the court wrote that society was not “prepared to honor” an expectation of
privacy from observations that “took place within public navigable airspace” because “[a]ny
member of the public flying in this airspace who glanced down could have seen everything that
these officers observed.”57
Accordingly, Ciraolo reflects the principle that Fourth Amendment
protections do not extend to “what a person knowingly exposes to the public.”58
The second case addressing warrantless aerial surveillance, Dow Chemical Co. v. United
States, was decided on the same day as Ciraolo.59
In this case, the court held that the government
53
Id. 54
Id. at 361 (finding a search where the police attached a microphone to the outside of a phone booth). 55
“Curtilage” is a common law concept which extends protection of the home to the area immediately surrounding the home. United States v. Dunn, 480 U.S. 294, 300 (1987). An area is within the curtilage of a home if it is “intimately tied to the home itself,” as evidenced by “four factors: [(1)] the proximity of the area claimed to be curtilage to the home, [(2)] whether the area is included within an enclosure surrounding the home, [(3)] the nature of the uses to which the area is put, and [(4)] the steps taken by the resident to protect the area from observation by people passing by.” Id. at 301. 56
could use a powerful camera from a plane to capture details of an industrial plant without
implicating the Fourth Amendment.60
As in Ciraolo, the Court emphasized that the impacted
company had not taken steps to shield itself from aerial photography and that the government
had used “navigable airspace.”61
The Court reasoned that an industrial complex is more like an
“open field” than the curtilage of a home. As a result, the complex was subject to warrantless
surveillance by aircraft operating lawfully in the navigable airspace immediately above or
sufficiently near the area for the reach of cameras.62
Representing the last of the 80’s cases, a plurality of the Court held in Florida v. Riley
that when a helicopter flying at 400 feet did not violate a statute or regulation, there was no
Fourth Amendment search because “no intimate details connected with the use of the home or
curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury.”63
In Riley, Justice O'Connor wrote a separate concurring opinion, advocated a shift away from
using FAA regulations to determine reasonable expectations of privacy. She reasoned that the
regulations exist to secure safety of the skies--not privacy interests. Justice O'Connor argued that
the relevant inquiry should not be whether “‘[a]ny member of the public could legally have been
flying over Riley's property in a helicopter at 400 feet, but whether the public actually does travel
overhead at that altitude with such regularity that Riley's expectation of privacy was not one that
society could recognize as ‘reasonable’.64
Her opinion provided the crucial fifth vote in this
controversial plurality decision.
60
Dow Chem. Co., 476 U.S. at 239 (“We hold that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.”). 61
Id. at 230, 239; see Ciraolo, 476 U.S. at 209-13. 62
Id. 63
Florida v. Riley, 488 U.S. 445, 451-52 (1989). 64
Id. at 454 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).