At the time of this writing, with the exception of our border regions, the use of drones within the United States is extremely limited. Under Federal Aviation Administration (FAA) rules, commercial use of drone technology is entirely banned. The few police agencies that are deploying them can only do so under very tight strictures: below 400 feet in altitude, line-of-sight only, during daylight hours only, not over densely populated areas, with a spotter present in addition to a pilot, and with both of those operators possessing certain certifications.1 Most of the drones being used by police agencies are noisy and can only stay aloft for short periods of time (less than an hour).2
Nevertheless, the prospect of drones in US airspace has attracted an enormous amount of attention and concern over privacy issues from across the political spectrum. In fact, this issue has led to an outpouring of legislative activity unlike anything we’ve seen in the privacy area in years, if ever. Strong legislation to regulate this technology has been introduced in Congress3 and in more than forty-two state legislatures in 2013—with eight states having enacted bills into law as of this writing.4 Polls have found large majorities of Americans concerned over the privacy issues surrounding drones,5 and the subject has attracted an enormous amount of media attention.
The significant gap between the amount of fuss that drones have generated and the limited nature of their current deployment has led some to suggest that concerns are based on paranoia and misinformation.
Nothing could be further from the truth. While there are undoubtedly many people who are not familiar with the details of just how limited drone use in the United States still is today, there are very good reasons for Americans to be concerned, even putting aside the large Predator drones that have been deployed at US border regions,6 and which raise privacy questions on their own. The biggest danger is that drones will come to be used for routine, pervasive surveillance and tracking. That might seem far-fetched today, but there are good reasons for thinking that we may find ourselves living in such a reality.
Drones are an enormously powerful surveillance technology. Not only is the underlying technology evolving rapidly and almost certain to become even more powerful, but the legal strictures on their use will certainly loosen over time—perhaps radically. Congress has already ordered the FAA to begin loosening the rules. The FAA Modernization and Reform Act of 20127 requires the FAA to simplify and accelerate the process by which it issues licenses to government agencies to use drones. The act requires the FAA to integrate drones into the national airspace no later than September 2015, legalize the commercial use of drones, and allow any “government public safety agency” to operate any small (under 4.4 pound) drone as long as certain conditions are met.8 It is far from certain that the FAA will actually meet this deadline, but the gears are in motion for a significant loosening of the rules surrounding the deployment of drones in American airspace.
Looking further into the future, it is possible that radical new approaches to air traffic management could eventually clear the way even further for the use of drones—for example through systems in which aircraft automatically alert one another to the other’s presence and route around each other, like packets on the Internet.
Police and government agencies, meanwhile, are likely to seek to use this technology for pervasive, suspicionless mass surveillance. To begin with, there is a long history of government agencies seeking to engage in mass surveillance, from the Cold War spying abuses to today’s deployment of license plate scanners and surveillance cameras in our public places, to the sweeping NSA programs that were revealed by Edward Snowden. And when it comes to drones, it is already clear that some agencies would leap at the chance to deploy pervasive aerial surveillance. In 2011, the city of Ogden, Utah, sought FAA permission to deploy an autonomous unmanned blimp as “a deterrent to crime when it is out and about.”9 Similarly, Hawaii took steps toward federal approval to fly drones for surveillance over its harbors.10 In both cases, permission was ultimately denied by the FAA, but the desire is clearly there.
As the FAA loosens strictures on the use of drones, it is probable that more and more police departments will begin using them, as there is pent-up demand among police departments for cheap aerial surveillance. Ownership of drones could quickly become common among departments large and small. From there, it’s not hard to envision how things may develop in the absence of strong privacy protections. Organizations of police drone operators would be formed to exchange tips and advice. We would begin to hear about their deployment by federal agencies (other than on the border) with increasing frequency. And we would start to hear more stories about how they’re being used; most departments and agencies would be relatively careful at first, and we would hear of drones being put to use in specific, mostly unobjectionable police operations, such as raids, chases, and searches supported by warrants.
Fairly quickly, however, we would begin to hear that a few departments are deploying drones for broader, more general uses: drug surveillance, marches and rallies, and generalized monitoring of troubled neighborhoods. Meanwhile the technology for carrying out mass surveillance with drones will be improving. Innovations will likely allow for drones to stay aloft for longer periods of time more cheaply—involving blimps, perhaps, or solar-powered flight—which could become key in permitting their use for persistent surveillance. They will develop the ability to mutually coordinate, so that multiple drones deployed over neighborhoods can be linked together (the technologies for doing this are already surprisingly advanced).11 This could allow a swarm of craft to form a single, distributed wide-area surveillance system. Meanwhile, “wide-area surveillance” systems that can monitor a wide area from a single craft will also likely improve.
At the same time, drones and the computers behind them will become more intelligent and capable of analyzing the video feeds they are generating. Without privacy protections, what we could see is that drones could be used not only to track multiple vehicles and pedestrians as they move around a city or town, but also to store that data for an extended period of time. And increasingly, the data would be mined. With individuals’ comings and goings routinely monitored, databases would build up records of where people live, work, and play; what friends they visit, bars they drink at, doctors they visit; and what houses of worship, political events, or sexually oriented establishments they attend—and who else is present at those places at the same time. Computers would comb through this data looking for “suspicious patterns.” This could mean anything from looking for the extremely remote possibility that someone is planning a terrorist attack, to looking for someone planning a protest, to someone who, because of the places they’ve been, is suspected of having a higher-than-average possibility of driving under the influence. When the algorithms kick up the alarm that someone is “out of the ordinary,” the person involved would become the subject of much more extensive surveillance.
That’s the nightmare scenario. But at least one important part of this scenario is already rapidly becoming reality: the technology that allows drones to engage in “wide-area persistent surveillance” is already here. The government has developed a system dubbed ARGUS-IS, which is basically a super-high, 1.8 gigapixel resolution camera that can be mounted on a drone. Gigapixel cameras have received attention through high resolution photographs created at Obama’s first inauguration and at a Vancouver Canucks fan gathering where individual faces can be zoomed in on and made out in a crowd of many thousands of people.12 ARGUS is basically a video version of such photographs, able to simultaneously photograph a 38-square-mile area with a resolution high enough to make out a pedestrian waving his arms. The technology, its developer boasted, is “equivalent to having up to a hundred Predators look at an area the size of a medium-sized city at once.”13
ARGUS does not merely photograph a city. It also automatically detects moving vehicles and pedestrians and tracks their movements—where they start and finish each journey and the path they take in between. The surveillance potential of such a tracking algorithm attached to such powerful cameras should give us pause. To identify an individual, it is not necessary to use technologies such as face or license-plate recognition, cell phone tracking, or gait recognition. Even knowing where a set of moving pixels starts and finishes its day can reveal a lot, because even relatively rough location information about a person will often identify them uniquely. For example, according to one study, just knowing the zip code (actually census tract, which is basically equivalent) of where you work, and where you live, will uniquely identify five percent of the population. If you know the “census blocks” where somebody works and lives (an area roughly the size of a block in a city, but larger in rural areas), the accuracy is much higher, with at least half the population being uniquely identified.14
However, ARGUS-type tracking could be used to get more precise data than that. In many cases, it could determine a vehicle’s home address, which most likely reveals who you are if you’re in a single-family home, and narrows it down considerably even if you’re in a large apartment building. Academic papers have been written about inferring home address from location data sets.15 Add work address and that would most likely identify virtually anybody. And of course lodged in the data set would be not just where a particular vehicle starts and finishes its day, but all the places it stopped in between.
In fact, these kinds of capabilities have already been deployed in the United States. A company called “Persistent Surveillance Systems” is trying to sell a similar capability to domestic police agencies. The city of Dayton, Ohio, actually tested and considered deploying a system that is in many respects similar to ARGUS. And although it shares many of the features that are causing so much concern over drones, it has escaped all the limits placed on drones simply by using a manned aircraft rather than unmanned drones. Manned aircraft are more expensive than drones and so are unlikely to be used as widely as drones may eventually be, but this deployment shows the desire of some police departments for this capability and points toward what we could see in the future.
According to a Dayton Police Department slide presentation obtained by Ohio activists, the department is pursuing a program called “Trusted Situational Awareness.” The slide show, entitled “2013 Aerial Surveillance Project,”16 portrays a test of the system that was conducted for eight days in June 2012 during daylight hours over Sinclair Community College in Dayton.
The program is important, according to the slide show, because it “can be utilized to prevent and minimize acts of terrorism, crime and murder.” A slide boasts, “Real-time and imagery technology allows Law Enforcement to: Identify and interrupt illegal activity while providing valuable forensic intelligence.” “Forensic intelligence” usually means something like, “keeping records of everything everybody is doing so we can go back and carry out retroactive surveillance whenever we need it.” The slide show describes how the police “selected 18 incidents for aerial surveillance,” including a burglary in progress and a robbery spree at three commercial locations. “Analysts were able to track the primary suspect to all of these locations as well as to a Clark gas station prior to the robberies,” the police boast.17
Of course it is a good thing to solve and prevent crime. But in the United States it does not accord with our tradition, law, or Constitution to allow the government to look over everybody’s shoulders (literally or figuratively) just in case they engage in wrongdoing. We require the police to have individualized suspicion of wrongdoing before they invade our privacy in that way.18 There is no question that there are some crimes the police will solve if we allow our country to turn into a total surveillance state, but that is a bad tradeoff. The police here want to “identify” illegal activity, which is fine, but not if that’s accomplished by watching all activity.
A group of citizen activists assisted by the ACLU of Ohio pushed back against this program in Dayton, and eventually the police department decided to discontinue it. But companies that manufacture these technologies are still seeking domestic markets, including not only Persistent Surveillance Solutions but also other small companies, such as Logos Technologies, maker of the Kestrel surveillance system that has been extensively used in Afghanistan,19 as well as defense giants such as BAE Systems, the contractor on ARGUS-IS.20
In addition, the Kestrel system has been deployed on a test basis along the US-Mexico border.21 It’s important to note that the US government defines the “border” as extending 100 miles inland from the actual external boundaries of the United States—an area that, the ACLU once calculated, contains two-thirds of the entire American population.22 As of this writing, Customs and Border Protection has not issued a Privacy Impact Assessment on its deployment of Predator drones in domestic border “regions” (although it is reportedly preparing one)23 and has not established regulations to protect privacy, despite a formal call to do so from the privacy community. As a result, we do not know what the agency’s current practices are, but it is possible that it is already carrying out persistent surveillance of large land areas within the United States.24
One of the biggest problems with allowing wide-area persistent surveillance is the invasive nature of the location tracking it would enable. Location tracking represents a significant invasion of privacy. While the government has argued that because we have no “reasonable expectation of privacy” when we are in public, neither rational policy nor the Constitution offers any protection against the police or other government bodies carrying out extended tracking of individuals’ locations. The government made this argument before the Supreme Court in the case U.S. v. Jones, in which two men were convicted of drug possession after the government followed one of their vehicles for nearly a month using a hidden GPS tracker without a warrant.25
There are two flaws with the government’s argument. First, just because people who are in public are susceptible to being viewed by those in their immediate vicinity as they travel about does not mean they are susceptible to being viewed over an extended period of space and time. No one is surprised to encounter an occasional police officer or patrol car. But if that officer were to follow you around for weeks at a time, you would likely be uncomfortable and unhappy. If we are all followed 24/7 by our own personal police officer, elected officials would hear about it very quickly from angry constituents. Yet that is the equivalent of what tracking technologies do.
Second, when you encounter a police officer in public, the officer can, of course, observe you—but you can also observe the police officer, and so your sense of when and how you are being observed follows the ancient and well-known-to-all rules of human eye contact. That fundamental equity evaporates when you’re watched through technologies such as GPS trackers or high-flying aircraft. The fact that most location tracking takes place silently and invisibly adds a significant element to the invasion of privacy.
And there should be no doubt that persistent tracking of location does constitute an enormous invasion of privacy, potentially revealing a deep array of information about people such as their political, religious, and sexual activities. As the D.C. Circuit explained in its ruling on the case that later went to the Supreme Court as Jones:
A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.26
What would be the effect on our public spaces, and our society as a whole, if everyone felt the keen eye of the government on their backs whenever they ventured outdoors? Psychologists have repeatedly found that people who are being observed tend to behave differently, and make different decisions, than when they are not being watched. This effect is so great that a recent study noted that “merely hanging up posters of staring human eyes is enough to significantly change people’s behavior.”27 Ultimately, the chilling effects of mass drone surveillance would lead to an oppressive atmosphere in which people learn to think twice about everything they do, knowing that it will be recorded, charted, scrutinized by increasingly intelligent computers, and possibly used to target them.
Mass surveillance is the biggest privacy concern created by drones, but it is not the only one. Drones also raise—often in intensified fashion—many of the same issues that pervasive video surveillance causes in other contexts. For example, video surveillance is susceptible to individual abuse, including voyeurism. In 2004, a couple making love at night on a pitch-black rooftop balcony in New York, where they had every reason to expect they enjoyed privacy, were filmed for nearly four minutes by a New York Police Department (NYPD) helicopter using night vision. This is the kind of abuse that could become commonplace if drone technology enters into widespread use. (Rather than apologize, NYPD officials flatly denied that this filming constituted an abuse, telling a television reporter, “[T]his is what police in helicopters are supposed to do, check out people to make sure no one is . . . doing anything illegal.”)28
Discriminatory targeting poses another danger. Individuals operating surveillance systems bring to the job all their existing prejudices and biases. In Great Britain, which has embraced surveillance cameras more than any other country and where they have been intensively studied, camera operators have been found to focus disproportionately on people of color. According to a sociological study of how the systems were operated, “Black people were between one-and-a-half and two-and-a-half times more likely to be surveilled than one would expect from their presence in the population.”29
In addition to abuse by what are arguably the inevitable “bad apples” within law enforcement, there is also the danger of institutional abuse. Sometimes, bad policies are set at the top, and an entire law enforcement agency is turned toward abusive ends. That is especially prone to happen in periods of social turmoil and intense political conflict. During the labor, civil rights, and anti-Vietnam War movements of the 20th century, the FBI and other security agencies engaged in systematic illegal behavior against those challenging the status quo. And once again today, we are seeing an upsurge in spying against peaceful political protesters across America.30
Finally, there is the prospect of armed drones. From their controversial deployment for targeted killings and other uses abroad, we know that armed drones can be incredibly powerful and dangerous weapons. When domestic law enforcement officers can use force from a distance, it may become too easy for them to do so. When it becomes easier to do surveillance, surveillance is used more, and when it becomes easier to use force, force will be used more. We have seen this dynamic with “less lethal” weapons such as Tasers. Between 2001 and August 2008, 334 people in the United States died after being tased, according to Amnesty International,31 and Tasers are often used in clearly unnecessary situations—for example, in retaliation against nonviolent people who have angered a police officer. Force applied via drone may also be more likely to result in harm to innocent bystanders.
Efforts to arm domestic drones are widely seen as beyond the pale, and for the most part have not yet been seriously contemplated. The International Association of Chiefs of Police has recommended against arming Unmanned Aerial Vehicles, for example.32 But exceptions have arisen. One sheriff in Texas mused about mounting less-lethal weapons like rubber bullets on unmanned aircraft.33 The Electronic Frontier Foundation uncovered Customs and Border Protection documents suggesting possible future enhancements to its drone program including “non-lethal weapons designed to immobilize TOIs [targets of interest].”34 Customs and Border Protection denied any plans to arm its drones with “weapons of any kind.”35 Still, there is good reason to think that, once current controversies subside and the spotlight of public attention shifts elsewhere, we will see a push for drones armed with lethal weapons.
Overall, it is clear that despite the limited nature of current police deployments of drones, the high levels of public anxiety over this technology are abundantly justified.
Supporters of surveillance drones sometimes ask why there should be such a fuss over drones, given that the police and federal government have used manned helicopters for aerial surveillance for decades. For one thing, drones erase the “natural limits” that have always applied to aerial surveillance using manned aircraft. Manned helicopters and fixed-wing aircraft are expensive to acquire, staff, and maintain. A police helicopter costs from $500,000 to $3 million to acquire, and $200–$400 an hour to fly. Manned aircraft are large, complex machines requiring expert ground crews, multiple shifts of pilots and co-pilots, and (unlike drones which can often be hand-launched) runways or helipads. Such expenses mean there are inevitably going to be far fewer of them—which in turn means the police are likely to use them only where they are most needed. With drones, on the other hand, it’s easy to foresee a day when even a professional police drone could be acquired for less than a hundred dollars, including maintenance costs. And if technology and laws eventually reach the point where drones can fly autonomously, they would become even cheaper because police departments wouldn’t even have to pay staff to control or monitor them.
In addition, police helicopters do raise privacy issues. Because of the expense of using manned police aircraft, privacy invasions have not risen to the level that our legal system has felt compelled to address them. But incidents do happen—such as the New York City rooftop voyeurism incident mentioned above. And any police helicopter that followed a citizen around town for no reason, or hovered over the backyard of an innocent homeowner whose daughter was sunbathing with her friends, would probably draw complaints. With drones, scenarios like those are bound to happen much more frequently because unmanned flight is so much less expensive. In addition, technologies like ARGUS have now emerged and could be attached to a helicopter; the nation simply hasn’t had the chance yet to confront that possibility.
The issues raised by the private use of drones are different and more complex than those raised by police and other government use. While a push by police and government agencies to use drones for broad surveillance purposes is entirely predictable and inevitable, it’s probably too early to know to what extent drones will be used to invade privacy by the private sector, or how.
In addition, there are important countervailing values when it comes to private drones, such as the right to photography. We have seen photographers questioned, harassed, and arrested around the country for such activities as photographing bridges, trains, and government buildings, and for photographing police carrying out their public duties. Some photographers have had their cameras (or camera-phones) seized, and photographs destroyed.36 The ACLU has challenged such interference with photographers, and the courts have all but unanimously held that photography of things visible from a public place where a photographer has a right to be is protected by the First Amendment.37
What happens when photographers—whether certified reporters or citizen photographers—seek to exploit drone technology for similar purposes? While we don’t want the government watching citizens without suspicion of wrongdoing, it is important to preserve the right of citizens to watch their government, and such uses of drones implicate First Amendment rights.
Drones will certainly have positive uses on the government side—helping with search and rescue missions, wildfires, environmental or geological surveys, or disaster relief, for example—and they will have beneficial uses on the private-sector side as well. In fact, the technology is likely to become the subject of incredible innovation as thousands of hobbyists, tinkerers, and companies explore the technology and invent helpful and imaginative ways of exploiting it. Ideally we can protect our privacy without curbing such innovation or interfering with First Amendment-protected uses of the technology.
That said, there are several foreseeable ways in which drones could be used by private actors to invade privacy. Voyeurism is an obvious one; state “Peeping Tom laws” already exist in every state to prevent surveillance,38 and trespass and nuisance laws may also be used to exclude low-flying drones from property. However, the language and scope of these laws varies widely from state to state.
Another privacy threat from private drones includes the persistent observation of landowners’ back yards or other areas of private property. While the Supreme Court ruled in the 1986 case California v. Ciraolo39 that police flying a fixed-wing aircraft did not need a warrant to look for marijuana plants in a private, fenced back yard because “any member of the public flying in this airspace who glanced down could have seen everything that these officers observed,” it is not clear such logic would apply in the case of persistent, prolonged surveillance of private property. Many homeowners who don’t think twice about having an occasional Cessna fly overhead would react strongly if they were to learn an aerial camera was trained on their yard for weeks at a time.
For that matter, private-sector persistent surveillance of public spaces would also raise many of the same privacy issues as public surveillance by the government. Imagine a live version of Google Earth. Location tracking by private companies would be just as serious an invasion of privacy as by the government, as would the simple act of blanket 24/7 aerial photography of all our public spaces.
But it’s not clear that such uses will be realized, and given the important countervailing interests of the First Amendment and the benefits of protecting innovation, the bottom line is that because of the different issues they raise, private drones should be approached by policy makers separately.
We’re at a crossroads today. We are at a highly significant moment in the history of drones. This new technology is part of today’s broader technology revolution, which has made it possible to monitor and record the smallest details of what we do—our every movement, our every purchase, and our every communication.
If we do nothing, there should be little doubt that these new technological capabilities will be exploited to the limit by government agencies. We have learned just how sweeping the National Security Agency’s (NSA) surveillance programs are—for example, keeping records on the communications of every American. Many police departments are using automated license plate recognition cameras to record location information not just on wanted vehicles, but on everybody who drives a car.
It is in the context of these programs and others like them that drones will penetrate American life. We as a society must make a fundamental decision: whether we are to become a “collect it all” society, in which records of our activities are collected and stored by the government “just in case.” This is the vision of those pushing for persistent wide-area surveillance, and we are now in the early stages of a broad debate over whether to allow such surveillance. If we accede to the “collect it all” vision in the context of drones or of the NSA, we should not be surprised when that same philosophy is extended to everything—to our financial transactions, hotel records, Internet searches, medical information, and every other possible source of data.
Throughout the history of our civilization, we have always limited the power of the authorities to intrude upon our private lives in the absence of evidence that we are involved in wrongdoing. But what we’re seeing now is the argument that just because we have new technologies that make it easy, we should allow the government to build up a sea of information on everybody to have on hand just in case investigators want to “swim through it” for a particular investigation. Some also want to assign computers to sift through all of this information searching for signs of “suspicious” behavior. It may be computers that are watching us, but we’ll be watched just the same—with all the same potential for bad consequences should some algorithm make an error, or reach a conclusion based on bad data, or misinterpret what we’re doing.40
Storage of all this information also gives the government a frightening new power it has never had before: the power to hit “rewind” on our life and see the history of our movements, transactions, and communications—to turn our life into an open book. Such “retroactive surveillance” is an enormous power that no government has ever had or should have over its people.
As Justice John Harlan observed in 1971, words are “measured a good deal more carefully and communication inhibited” when we suspect we’re being monitored, and if we allow such monitoring to become prevalent, “it might well smother that spontaneity—reflected in [the] frivolous, impetuous, sacrilegious, and defiant discourse—that liberates daily life.”41 If we allow ourselves to become a society in which our every move is recorded, we’ll find ourselves living in another country, one that we might not much like.
Unfortunately, there are many uncertainties about how our Constitution will be applied by the courts to pervasive aerial surveillance. The legal system has always been slow to adapt to new technology. For example, it took the Supreme Court forty years to apply the Fourth Amendment to telephone calls. At first, the court found in a 1928 decision that because telephone surveillance did not require entering the home, the conversations that travel over telephone wires are not protected.42 It was not until 1967 that this literal-minded hairsplitting about “constitutionally protected areas” was overturned, with the court declaring that the Constitution “protects people, not places.”43 Today, technology is moving much faster than it did in the telephone era—but the gears of justice turn just as slowly as they ever have, and maybe even slower.
Just as the new technology of the telephone broke the court’s older categories of understanding, so too will drones with all their new capabilities create new situations that will not fit neatly within existing jurisprudential categories of analysis. For example, how will the courts view the use of drones for routine location tracking? The Supreme Court started to grapple with such questions in its recent decision in the Jones GPS case, but it is far from clear what the ultimate resolution will be. The court ruled in Ciraolo that the Fourth Amendment provides no protection from aerial surveillance, and while the new factors that drones bring to the equation could shift that judgment, we cannot be certain. Legislators should not wait for cases to come before the courts; they should act to preserve our values now.
Ultimately, drones are but one technology we are now facing that confronts us with basic questions about whether we will act to preserve our fundamental privacy rights. If our Constitution is to protect the degree of privacy the framers envisioned, and which we still need today as much as ever, it will have to incorporate protection against such mass warrantless collection of information about Americans. And in case our courts do not interpret our Constitution broadly enough to provide that degree of privacy when faced with new technologies, we must insist that Congress and other policy makers protect that privacy through legislation.
1 Federal Aviation Administration, Unmanned Aircraft Systems (UAS) Operational Approval [N 8900.227] (proposed July 30, 2013), available at www.faa.gov/documentLibrary/media/Notice/N_8900.227.pdf.
2 See, e.g., Draganflyer X6 Helicopter Tech Specs, Draganfly Innovations Inc. (last visted Sept. 22, 2013), www.draganfly.com/uav-helicopter/draganflyer-x6/specifications/.
3 See Reps. Zoe Lofgren and Ted Poe Introduce Bipartisan Bill to Protect Americans’ Privacy Rights from Domestic Drones, Congresswoman Zoe Lofgren (last visted Sept. 22, 2013), lofgren.house.gov/index.php?option=com_content&view=article&id=785&Itemid=130.
4 Allie Bohm, Status of Domestic Drone Legislation in the States, ACLU Free Future Blog (updated Sept. 25, 2013), www.aclu.org/blog/technology-and-liberty/status-domestic-drone-legislation-states.
5 U.S. Supports Some Domestic Drone Use: But public registers concern about own privacy, Monmouth University Poll (June 12, 2012), available at
www.monmouth.edu/assets/0/32212254770/32212254991/32212254992/32212254994/32212254995/30064771087/42e90ec6a27c40968b911ec51eca6000.pdf.
6 Unmanned Aircraft System MQ-9 Predator B, U.S. Customs and Border Protection (May 1, 2013), www.cbp.gov/linkhandler/cgov/border_security/am/documents/oam_fact_sheets/predator_b.ctt/predator_b.pdf.
7 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 213, 126 Stat 11 (2012).
8 Jay Stanley, Congress Trying to Fast-Track Domestic Drone Use, Sideline Privacy, ACLU Free Future Blog (Feb. 6, 2012, 2:39 PM), www.aclu.org/blog/technology-and-liberty-national-security/congress-trying-fast-track-domestic-drone-use-sideline.
9 James Nelson, Utah city may use blimp as anti-crime spy in the sky, Reuters (Jan. 16, 2011), www.reuters.com/article/2011/01/16/us-crime-blimp-utah-idUSTRE70F1DJ20110116; Tim Gurrister, Ogden blimp may be patrolling by Christmas, Standard-Examiner (Aug. 31, 2011), www.standard.net/stories/2011/08/29/ogden-blimp-may-be-patrolling-christmas; James Nelson, Utah city may use blimp as anti-crime spy in the sky, Reuters (Jan. 16, 2011), www.reuters.com/article/2011/01/16/us-crime-blimp-utah-idUSTRE70F1DJ20110116.
10 Jim Dooley, State Surveillance Drones ‘Under Review’, Hawaii Reporter (Feb. 1, 2011), www.hawaiireporter.com/state-surveillance-drones-under-review/123.
11 See, e.g., Rebecca Searles, Flying Robots Called ‘Nano Quadrotor’ Drones Swarm Lab (Video), Huffington Post (Feb. 2, 2012), www.huffingtonpost.com/2012/02/02/flying-robots-nano-quadrotor-drones-swarm_n_1249442.html.
12 See David Bergman, How I made a 1,474-Megapixel Photo During President Obama’s Inagural Address, David Bergman (Jan. 22, 2009), www.davidbergman.net/blog/how-i-made-a-1474-megapixel-photo-during-president-obamas-inaugural-address/; see Gigapixel.com (last vistited Sept. 22, 2013, 5:35 PM), www.gigapixel.com/image/gigapan-canucks-g7.html; see also Tokyo Tower Gigapixel Panorama, 360 Gigapixels.com (last visited Sept. 22, 2013, 5:40 PM), 360gigapixels.com/tokyo-tower-panorama-photo/.
13 NOVA: Rise of the Drones (PBS television broadcast,Jan. 23, 2013), available at www.pbs.org/wgbh/nova/military/rise-of-the-drones.html; See also Jay Stanley, Report Details Government’s Ability to Analyze Massive Aerial Surveillance Video Streams, ACLU Free Future blog (Apr. 5, 2013), www.aclu.org/blog/technology-and-liberty-free-speech-national-security/report-details-governments-ability-analyze.
14 Philippe Golle & Kurt Partridge, On the Anonymity of Home/Work Location Pairs, in Proceeding Pervasive ’09 Proceedings of the 7th International Conference on Pervasive Computing (2009), available at crypto.stanford.edu/~pgolle/papers/commute.pdf.
15 See, e.g., John Krumm, Inference Attacks on Location Tracks, in in Proceeding Pervasive ’07 Proceedings of the 5th International Conference on Pervasive Computing (2007), available at research.microsoft.com/en-us/um/people/jckrumm/Publications%202007/inference%20attack%20refined02%20distribute.pdf.
16 2013 Aerial Surveillance Project, City of Dayton, Ohio, available at www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=2&cad=rja&sqi=2&ved=0CDQQFjAB&url=http%3A%2F%2Fwww.acluohio.org%2Fwp-content%2Fuploads%2F2013%2F04%2F2013_0206AerialAirborneSurveillanceProgramPresentationToDaytonCityCommission.pdf&ei=hpo_UpbeHMTEigKlxoGIDA&usg=AFQjCNG3wxoGOaZ-CbIH9DOakzzyFk6o3A&sig2=gzvvLrIDU7E962tUV9FNoQ.
17 Id. at 10.
18 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
19 Logos Technologies’ Kestrel surveillance system surpasses 60,000 operational hours in Afghanistan, Logos Technologies (Aug. 12, 2013), www.logos-technologies.com/news/08-12-2013.html.
20 Stew Magnuson, Wide Area Surveillance Sensors Prove Value on Battlefields, Nat’l Defense Magazine (Nov. 2012), www.nationaldefensemagazine.org/archive/2012/November/Pages/WideAreaSurveillanceSensorsProveValueonBattlefields.aspx.
21 Id.
22 Fact Sheet on U.S. “Constitution Free Zone,” ACLU (Oct. 22, 2008), www.aclu.org/technology-and-liberty/fact-sheet-us-constitution-free-zone.
23 Brian Bennett, Senators examine domestic drones’ effect on privacy, L.A. Times (Mar. 20, 2013), articles.latimes.com/2013/mar/20/nation/la-na-drones-privacy-20130321.
24 Electronic Privacy Information Center, Domestic Drones Petition, EPIC (last visited Sept. 22, 2013), epic.org/drones_petition/.
25 S.Ct. 945, 946 (2012).
26 United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010).
27 Sander van der Linden, How the Illusion of Being Observed Can Make You a Better Person, Scientific American (May 3, 2011), www.scientificamerican.com/article.cfm?id=how-the-illusion-of-being-observed-can-make-you-better-person; M. Ryan Calo, People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, 114 Penn St. L. Rev. 809, 836 (2010), available at www.pennstatelawreview.org/articles/114/114%20Penn%20St.%20L.%20Rev.%20809.pdf.
28 Jim Dwyer, Police Video Caught a Couple’s Intimate Moment on a Manhattan Rooftop, N.Y. Times (Dec. 22, 2005), www.nytimes.com/2005/12/22/nyregion/22rooftop.html.
29 Clive Norris & Gary Armstrong, The Unforgiving Eye: CCTV Surveillance in Public Spaces (Centre for Criminology and Criminal Justice at Hull University 1998).
30 See Spyfiles, ACLU (last visited Sept. 22, 2013), www.aclu.org/spyfiles.
31 Tasers – Potentially lethal and easy to abuse, Amnesty International (Dec. 16, 2008), www.amnesty.org/en/news-and-updates/report/tasers-potentially-lethal-and-easy-abuse-20081216.
32 Aviation Committee, Recommended Guidelines for the use of Unmanned Aircraft, Int’l Ass’n of Chiefs of Police 2 (Aug. 2012), available at www.theiacp.org/portals/0/pdfs/IACP_UAGuidelines.pdf.
33 Groups Concerned Over Arming Of Domestic Drones, CBS DC (May 23, 2012), washington.cbslocal.com/2012/05/23/groups-concerned-over-arming-of-domestic-drones/.
34 Philip Bump, The Border Patrol Wants to Arm Drones, Atlantic Wire Blog (July 2, 2013), www.theatlanticwire.com/national/2013/07/border-patrol-arm-drones/66793/.
35 Id.
36 See Jay Stanley, You Have Every Right to Photograph That Cop, ACLU (Sept. 7, 2011), www.aclu.org/free-speech/you-have-every-right-photograph-cop.
37 E.g., Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011).
38 See NDAA Voyeurism Compilation, NDAA.org (updated July 2010), www.ndaa.org/pdf/Voyeurism%202010.pdf.
39 U.S. 207, 213-14 (1986).
40 See Jay Stanley, Computers vs. Humans: What Constitutes a Privacy Invasion?, ACLU Free Future Blog (July 2, 2012), www.aclu.org/blog/national-security-technology-and-liberty/computers-vs-humans-what-constitutes-privacy-invasion.
41 United States v. White, 401 U.S. 745, 787 (1971) (Harlan, J., dissenting).
42 Olmstead v. United States, 277 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967).
43 Katz v. United States, 389 U.S. 347, 351 (1967).