New law review article on drones as “searches”

Joel Celso, Comment: Droning on about the Fourth Amendment: Adopting a Reasonable Fourth Amendment Jurisprudence to Prevent Unreasonable Searches by Unmanned Aircraft Systems, 43 U. Balt. L. Rev. 461 (2014). Introduction:

With the introduction of new legislation in 2012, Congress set the stage for drones, or Unmanned Aircraft Systems (UAS), to become regular fixtures in United States’ skies no later than 2015. UAS platforms offer law enforcement agencies unprecedented tactical advantages in aerial surveillance based on their technological capabilities and affordable cost. Nevertheless, the use of UAS raises many questions about their effect on personal privacy and what limitations there may be on their use.

Historically, the Fourth Amendment to the United States Constitution has protected citizens’ privacy rights against unreasonable government intrusion. The Supreme Court has previously considered how Fourth Amendment protections apply to the government’s use of manned aerial surveillance, sense-enhancing technologies, and electronic tracking devices. However, the Court has never addressed anything with the technological capacity to threaten privacy to the extent that UAS can.

This comment surveys current UAS developments and examines whether, and to what extent, the Fourth Amendment will protect privacy against the government’s use of UAS. Part I provides an overview of the UAS market, uses, and technological capabilities, with an emphasis on law enforcement uses. Part II outlines the Supreme Court’s Fourth Amendment jurisprudence, particularly addressing aerial surveillance, sense-enhancing technologies, and electronic tracking. Part III provides an analysis of how current jurisprudence might apply to a constitutional challenge to UAS surveillance, and examines the need for greater privacy protections.

Finally, Part IV argues for courts to adopt a new jurisprudence to prevent the erosion of privacy expectations in the face of advancing technology. Under the Court’s current decisions, it is only a matter of time before UAS platforms erode Fourth Amendment protections. Further, the test for determining when a Fourth Amendment search occurs is fundamentally flawed. The government’s use of UAS surveillance for law enforcement purposes should be presumptively considered a “search,” which requires a warrant.