Aerial reconnaissance is conducted by using reconnaissance aircraft. Reconnaissance aircraft has taken various forms over the years, particularly of use by the military forces that wish to collect imagery intelligence on unknown regions and potential enemy maneuvers. While manned aircraft and aerial photography have been used to assist military reconnaissance since the early 20th century, high-speed reconnaissance aircraft in World War II and the invention of drone planes, also known as unmanned aerial vehicles, took reconnaissance to another level. While manned reconnaissance aircraft are faster, more maneuverable, and more versatile in their assignments, drones have other strategic advantages. Drones can fulfill any “dull, dirty, or dangerous” job. Dull refers to long flights that would otherwise fatigue pilots having to circumnavigate the globe. Dirty refers to situations where an area that was hit by a nuclear or biological weapon must be surveyed, and dangerous refers to a mission where a particular government might want to fly over a hostile enemy territory to observe the area and does not want to risk a pilot’s life while flying over the area. While drones can collect more intelligence than humans could possibly analyze, they also have a higher crash rate than manned aircraft because drones require satellites and satellite links to relay information to and receive information from the pilots who operate the drones via remote control.
Surveillance aircraft comes in all shapes and sizes. Drones are now competing with airplanes and helicopters in the skies. While the military has utilized drones for decades, domestic drones for commercial and recreational use have caught on, with domestic drone production anticipated to have an $82.1 billion domestic economic impact between 2015 and 2025. Domestic use of drones is currently limited only to those who receive specific approval from the Federal Aviation Administration (FAA). With the passage of the FAA Modernization and Reform Act of 2012, the FAA has been assigned the task of creating regulations for government and civilian drone use by September 2015. The FAA has designated six test ranges with specific airspace throughout the United States to be used to operate drone flights in order to develop better certification and air traffic standards and to learn more about the safe operation of drones. Cameras can be attached to almost any drone and can stream video back to a tablet or a smartphone that has Wi-Fi. Aerial surveillance has become much easier with the invention of drones. Local police departments that could not have afforded a helicopter or an aircraft, a pilot, and aircraft storage fees can now have access to a powerful surveillance tool at a fraction of the cost. Not only are drones used for law enforcement purposes, but drones are also being used to film movie scenes, assist first responders in search-and-rescue missions, inspect pipelines and oil rigs, survey and monitor crops, monitor storm damage and flooding, monitor wildlife populations and track poachers, count sea lions in Alaska, monitor drug trafficking on the U.S. and Mexico border, monitor high-crime neighborhoods during drug investigations, monitor traffic, monitor farms for cruelty to animals, assist realtors in marketing real estate, and conduct weather and environmental research.
Domestic aerial surveillance is much more controversial. Many, including the American Civil Liberties Union, worry that with the advent of drone technology and possible routine aerial surveillance of public life in the United States, we are one step closer to a 24-hour surveillance state in which every move is monitored, tracked, recorded, and scrutinized by government authorities, commercial businesses, and even our neighbors.
The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures by law enforcement. The U.S. Supreme Court determines whether a government action constitutes a search if the action violates a person’s reasonable expectation of privacy or if the action constitutes a trespass. The Supreme Court has developed a body of Fourth Amendment case law, which spells out which investigatory tools law enforcement has at its disposal that would not trigger the protections a citizen is given under the Fourth Amendment. Prior to drone technology, aerial surveillance was not considered a “search.”
In California v. Ciraolo (1986) , the Court determined that law enforcement’s observation of marijuana grown in the defendant’s backyard from a fixed-wing aircraft flying at 1,000 feet was not a Fourth Amendment search. Since law enforcement agents were acting just as the public would by flying in FAA-regulated airspace designated for fixed-wing aircraft, and were seeing the same things the public would at 1,000 feet, the observations made by law enforcement during the flight were not a “search” under the Fourth Amendment. In the helicopter case of Florida v. Riley (1989) , the Court also found that law enforcement’s observations at 400 feet were done within current FAA guidelines and should not be considered a Fourth Amendment search as any member of the public could have done the same. Last, in Dow Chemical Co. v. United States (1986) , the Environmental Protection Agency had an aerial photographer take pictures of Dow’s manufacturing facility while within navigable airspace. Because Dow’s industrial facility was in plain view, the Environmental Protection Agency was flying in public airspace, and members of the public could have used the same type of commercially available camera to take the pictures, the taking of the aerial photographs was not deemed a Fourth Amendment search. Under the plain view doctrine, what a person knowingly exposes to the public is not granted Fourth Amendment protection. However, curtilage, the area immediately surrounding a dwelling in which the intimate, daily activities of family life are conducted, is protected. Aerial surveillance is not considered a technique that has the ability to pierce into the privacy of one’s home or curtilage; rather, it is considered to be acceptable if the aircraft is flown in public airspace where the aircraft would be unable to see inside citizens’ homes.
Certain circumstances surrounding the use of domestic aerial surveillance, situations, and questions that remain undecided by the Supreme Court possibly jeopardize the legality of this technique by law enforcement: if the aircraft is flown outside FAA-navigable airspace, if the aircraft collects information emanating from within the home, if the aircraft utilizes highly sophisticated technology that is not readily available for public use, or if the aircraft, and more specifically a drone, hovers around the home for a long period of time or creates an undue amount of wind, noise, or dust that could constitute a trespass. All of these concerns could trigger a “search” and subsequent Fourth Amendment protections.
Guidelines and restrictions will likely be imposed on private drone users when the FAA publishes its new regulations in September 2015. In the meantime, citizens concerned about privacy rights can rely on the common law torts of trespass, nuisance, invasion of privacy, stalking, and harassment to keep drone abuse in check. To succeed in a nuisance claim, a landowner must argue that the aircraft substantially and unreasonably interfered with the use and enjoyment of the land. With an invasion of privacy claim, the landowner would argue that the flight was an intrusion that was highly offensive to any reasonable person.
If unrestricted drone use goes too far, private drone users, such as journalists, hobbyists, and commercial operators, may soon fear that their First Amendment right to free speech and press may be infringed on as the state legislatures begin to focus on limiting private use. Government restrictions that prevent private citizens or journalists from recording events from the air may infringe on a citizen’s right to gather or record information under the First Amendment. On the flip side, an overabundance of drones in the sky might actually curb one’s First Amendment right to free speech and assembly for fear that they may be monitored. Aerial surveillance in the drone age touches on both Fourth and First Amendment issues.
Whether the prospect of inexpensive, small, portable aerial surveillance machines that can capture still images, video, and audio will create pervasive surveillance, police fishing expeditions, nosy neighbors, and an elimination of privacy as we know it are concerns open to debate. What is certain is that in the coming years, both the federal and state legislatures will continue to pass new legislation restricting the use of drones for aerial surveillance and other purposes. These guidelines and restrictions will affect all users, from law enforcement and the intelligence community to hobbyists and businesses.
See also American Civil Liberties Union and Electronic Privacy Information Center ; Drones, Commercial Applications of ; Google Earth ; Katz v. United States (1967) ; Privacy, Right to ; Technology
American Civil Liberties Union. Report: Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft. New York, NY: Author, 2011. https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf (Accessed October 2014).
Bohm, Allie. “Status of 2014 Domestic Drone Legislation in the States.” American Civil Liberties Union (April 22, 2014). https://www.aclu.org/blog/technology-and-liberty/status-2014-domestic-drone-legislation-states (Accessed October 2014).
California v. Ciraolo, 476 U.S. 207 (1986).
Dillow, Clay. “What Is the Drone Industry Really Worth?” Fortune (March 12, 2013). http://tech.fortune.cnn.com/2013/03/12/what-is-the-drone-industry-really-worth (Accessed October 2014).
Dow Chem. Co. v. United States, 476 U.S. 227 (1986).
Dycus, Stephen, et al. National Security Law (5th ed., Aspen Casebook Series). Alphen aan den Rijn, Netherlands: Wolters Kluwer, 2011.
Florida v. Riley, 488 U.S. 445 (1989).
Jacobsen, Annie. Area 51: An Uncensored History of America’s Top Secret Military Base. New York, NY: Little, Brown, 2011.