March 2016 Bar Bulletin
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March 2016 Bar Bulletin

Drones and Civil Liberties

By Jared Friend

 

Privacy, free speech, and freedom of assembly and expression are the core civil liberty concerns associated with the use of drones.

With respect to privacy there is a potential for intrusion onto private property and snooping into homes, and for systematic surveillance of civilian activities. As for free speech, drones can be used as another tool for creative expression and speech. Regulations that limit their use may run afoul of the First Amendment if they are not properly tailored. Finally, systematic surveillance of protests or other First Amendment-protected expression without evidence of wrongdoing may have substantial chilling effects on the rights of freedom of assembly and expression.

Government Use of Drones

As a general purpose technology, drones may be used by the government in a variety of nonviolent and non-surveillance manners:

• Search and rescue;

• Crime scene photography

• Traffic monitoring;

• Safety and equipment inspections;

• Ecological surveys, atmospheric studies and scientific research;

• Disaster relief and fighting wildfires; and

• Construction planning and mapping.

Surveillance uses for drones are abundant. Because of their far reach and their ability to capture information surreptitiously, drones possess the ability to gather information in a historically unprecedented manner. These concerns are exacerbated if drones are used in a dragnet, indiscriminate manner to monitor the public or if judicial review is not a safety check against their use.

However, even uses with a purpose that does not directly trigger civil liberty concerns may have collateral privacy implications as a result of the information collected by drones. Is certain information redacted (or access restricted) if it does have privacy implications? Is information deleted if no longer needed? Is access limited to those who need the information to fulfill the original purposes of data collection? Are there gating mechanisms in place to ensure that the purpose of the collected information does not change over time?

Privacy Concerns

Drones do not pose inherent privacy problems, but may be outfitted with a variety of sensing technologies that greatly increase the government’s ability to monitor the public. In the Fourth Amendment landscape, key questions are: (1) is the use of the drone a “search” for purposes of Fourth Amendment analysis; and (2) was the search supported by a warrant or was it otherwise “reasonable”?


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