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Two Birds With One Stone,

The Consequences of Ubiquitous Government


Drone Surveillance on the 1st and 4th Amendments


Author: Justin Hosman
Date: April 19, 2014


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Synopsis: Emerging technologies in drone surveillance create unique philosophical and
legal decisions about 4th and 1st Amendment protections. This paper discusses the
issues inherent in surveillance, how drones magnify those issues, and what can be done
to mitigate the potential harms to privacy and freedom of speech.
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Introduction
The world has witnessed a dramatic increase in the use of Drones, or unmanned
aircraft, over the past decade. What was once the substance of science ction books
and movies has sprung to life in the form of ight capable robots that are warfare, law
enforcement, and surveillance ready. The earliest conception of a drone started in
Austria. Austria tried to bombard Italy by oating bomb carrying balloons over the
enemy lines into Venice. Many other countries tried similar tactics. Rudimentary
1
1
Remote Piloted Aerial Vehicles : An Anthology, http://www.ctie.monash.edu/hargrave/
1
rpav_home.html#Beginnings
balloons were followed by the invention of radio control technology. In 1897 Ernst
Wilson was given a patent for wirelessly controlled torpedoes.
2
The U.S. government uses drones in many contexts; the military, law
enforcement, and the CIA. Unmanned ariel vehicles, or UAVs, were rst used to spy on
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the Soviet Union and were heavily used in Vietnam for intelligence gathering purposes.
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Many of the UAVs were shot down, but they were used to minimize the loss of pilots on
dangerous missions. Cruise missiles became another form of drone because they are
navigated remotely into their targets. The US also used surveillance drones in
Afghanistan as early as the year 2000. New innovations in the militarys surveillance
capability are completely staggering. The ARGUS (Autonomous Real-Time Ground
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Ubiquitous Surveillance Imaging System) is a drone that is equipped with a camera
capable of tracking specic object movement over a 36 square mile area!
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As technology has advanced the price of drone technology has dramatically
decreased and drones have become a consumer item and are being used for
photography, video production, recreation, and inspection. Some drones are small
enough to navigate through the inside of a house with precision and can still be
2
Benjamin Franklin Miessner, Radiodynamics: The Wireless Control of Torpedoes and Other
2
Mechanisms 83 (New York, D. Van Nostrand company, 1916)
Kimberly Dvorak, Homeland Security increasingly lending drones to local police, Washington Times,
3
http://www.washingtontimes.com/news/2012/dec/10/homeland-security-increasingly-loaning-drones-to-l/
Ian G. R. Shaw, The Rise of the Predator Empire: Tracing the History of U.S. Drones, Understanding
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Empire, http://understandingempire.wordpress.com/2-0-a-brief-history-of-u-s-drones/
Argus Panoptes is a hundred-eyed giant found in Homers Iliad. He is the inspiration for Benthams
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Panopticon and apparently the militarys ARGUS.
Ryan Gallagher, Could the Pentagons 1.8 Gigapixel Drone Camera Be Used for Domestic
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Surveillance?, Slate, http://www.slate.com/blogs/future_tense/2013/02/06/
argus_is_could_the_pentagon_s_1_8_gigapixel_drone_camera_be_used_for_domestic.html
equipped with sensory equipment. Other drones are being acclaimed for their ability to
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stay airborne for very long periods of time, including drones that can theoretically stay
airborne for years at a time. Amazon, the massive online marketplace, is currently
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trying to nd a way to implement drones in the way they deliver products to their
customers. There are even some private companies that have equipped consumer
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drones with the ability to re a taser at a target.
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All of this drone use and emerging drone technology begs the question of how
this new technology will be used domestically for law enforcement purposes. Can it be
used domestically and for law enforcement purposes at all? And if it can be used, under
what circumstances will it be allowed? Drones bring up many privacy issues that force
us to reevaluate our understanding of 4th Amendment protections. What is a reasonable
search when a constant surveillance would effectively result in a perpetual search?
Additionally, the cost-effective nature of drones brings up questions about the ubiquity of
surveillance and how that will effect 1st Amendment protections. Does a citizen feel
comfortable speaking freely about his government when he is concerned that he could
be watched at all times? These questions of privacy and constitutional protections
become especially acute when it comes to the governments plans using these drones
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Think Geek, This tiny robotic dragony drone only costs $119, http://www.geek.com/news/this-tiny-
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robotic-dragony-drone-only-costs-119-1533241/
Popular Science, A Solar-Powered Drone Designed to Fly for Five Years Nonstop, http://
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www.popsci.com/article/technology/solar-powered-drone-designed-y-ve-years-nonstop
Amazon, Amazon Prime Air, http://www.amazon.com/b?node=8037720011
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Kyle Chayka, Watch this Drone Taser a Guy Until He Collapses, Time, http://time.com/19929/watch-
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this-drone-taser-a-guy-until-he-collapses/
for law enforcement and surveillance purposes. The difculty arises in the compelling
nature of both privacy and protection arguments.

Fourth Amendment Considerations
During the colonial era and in response to the growing smuggling problem the
King of England authorized Writs of Assistance or search warrants to those who were in
charge of searching shipping vessels. Writs of Assistance gave their owners the power
to search anything at anytime and was not held responsible for anything that was
damaged during the search. The colonists were repulsed by the abuses that stemmed
from the Writs of Assistance. In large part, the Fourth Amendment was created in
response to the Kings abuses of power. It states,
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
afrmation, and particularly describing the place to be searched, and the
persons or things to be seized.
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This amendment was created to protect citizens of the United States from the
overwhelming police power of the government. Functionally, it prohibits police searches
and seizures and requires the state to attain a warrant by showing that there is probable
cause to search an individual or the individuals property and to seize a person and/or
their property. The police power of the colonies pales in comparison to the police power
of the United States Government today. Fourth Amendment protections are more
4
U.S. Const. amend. IV.
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important now than they were when they were constructed because the balance of
power weighs so heavily on the side of the government and its monopoly on police
power. Furthermore, the ready availability of technological enhancements and
replacements (drones) for law enforcement tasks destroys most historical natural
barriers to surveillance.
The Fourth Amendment enshrines privacy and Katz v. United States
demonstrates that privacy is protected by the constitution. Katz represents the gold
standard for privacy concerns in the legal realm. This case established that the right of
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privacy is in the person and not in the place and coined the phrase, reasonable
expectation of privacy. The court has applied the reasonable expectation of privacy
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test to many cases that have followed. Included in those cases is a series of cases
involving manned ights over the tops of individuals property and whether someone
has a reasonable expectation of privacy in those things that can be seen from above.
These types of cases provide the closest analogy to the use of drones for law
enforcement purposes. In California v. Ciraolo, the police received a tip that someone
was growing marijuana in their backyard. The police were unable to corroborate the tip
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because of the fence that surrounded the home. The police ew an aircraft 1,000 feet
over the backyard and conducted an inspection. The ofcers were able to spot the
marijuana in the backyard and the individual was convicted. The court held that the
owner of the home did not have a reasonable expectation of privacy in his backyard
5
Katz v. United States, 389 U.S. 347, 351 (1967).
12
Id.
13
Ciraolo, 476 U.S. at 213.
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area that was visible from above because anyone that ew in a plane over his house
could have looked down and seen his backyard. In a similar case, Florida v. Riley, the
police were informed that someone was growing marijuana in a greenhouse near his
mobile home. The inside of the greenhouse could not be seen from outside and the
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police decided to y a helicopter at an altitude of 400 feet over the greenhouse. The
police were able to see the marijuana through a hole in the roof and the suspect was
convicted. The court found that this was not a search because the air above the
greenhouse was navigable airspace. Finally, in Dow Chemical v. United States the
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EPA hired a professional ariel photographer to take photos of an industrial plant and its
surrounding area. The court found that areas surrounding industrial complexes do not
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have the same protection as the curtilage surrounding a home. In other words, an
industrial complex carries less of an expectation of privacy in its curtilage than the
curtilage of a home. Given these cases and their reasoning it seems highly unlikely that
the court would suggest that the use of a drone or UAV for a law enforcement search
would be unconstitutional.
The previous paragraph speaks only to manned aircraft ights and does not
speak to drones and how they will inform our understanding of privacy. In order for
privacy to be protected in United States courts drones must be distinguished from
manned ights. Otherwise it is very unlikely that the court will hold that drones used for
law enforcement purposes are any different than manned ights. A court decision such
as that would lead to the evisceration of the Fourth Amendment and we would live in an
6
Florida v. Riley, 488 U.S. 445, 448 (1989).
15
Id.
16
Dow Chemical co., 476 U.S. 227.
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almost complete surveillance state. Drones can be distinguished from manned ights in
a number of ways.
First, drones are much less expensive than a police ofcer and a patrol car, a
police helicopter, or any sort of airplane that could be used for law enforcement
purposes. This distinction is important because, historically, privacy was protected by
the sheer practical aspects of police work. There were natural economic and manpower
barriers to full-scale perpetual surveillance. Searches were limited to the amount of
resources available to law enforcement. In the past, police departments were forced to
carefully choose how they allocated their resources. A similar distinction was made in
United States v. Jones. In Jones law enforcement placed a tracking device on the
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suspects vehicle without a warrant. The case described that the GPS device could track
the vehicles location within 50 to 100 feet of its actual location and the device relayed
more than 2,000 pages of data over a 4-week period. The court held that placing the
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tracking device on the vehicle was search because it constituted a trespass on the
private property of the suspect. Justice Sotomayer, in the concurring opinion
commented that the inexpensive nature of the GPS tracking device, evades the
ordinary checks that constrain abusive law enforcement practices: limited police
resources and community hostility. With the advent of inexpensive drones, small
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camera sizes, and other advances in surveillance technology the natural barriers that
protected privacy have all but disappeared. The debate must now shift to discuss the
competing values of privacy and the merits of surveillance as a means of protection.
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United States v. Jones 132 S. Ct., 945, 181 L.Ed.2d 911 (2012)
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Id.
19
Id. at 956 (Sotomayor, J., Concurring)
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How much privacy are we willing to give up for the promise of protection? How much
protection are we willing to give up for the sake of privacy? These questions bring a new
reality with them as total surveillance has never before been an option for law
enforcement.
Second, drones will be traveling much closer to their intended targets than the
manned ight Supreme Court cases. Ciraolo, Riley, and Dow Chemical were all manned
ight cases where the observation took place at altitudes of 1,000 to 400 feet above the
ground and the court held that they were not searches. The altitude of ight sustained
by a drone is much different than manned aircraft. The exibility provided by drones
would allow them to y at altitudes well below 100 feet and, in some cases, into homes.
This is much closer than most manned ights would ever be willing to go. If altitude of
ight or proximity to the target subject become a factors in the use of drones for law
enforcement how will the court draw a line between what is close enough to be
considered a search and when is it far enough away that it is no longer a search.
Additionally, in light of rapidly expanding technology capabilities the altitude of the ight
may be an irrelevant question. Advanced Photographic lenses, LIDAR (reects a laser
at a target and measures the distance from the point of origin to its target by using the
reection of the laser), and thermal sensors can easily be attached to drones and can
make the question of altitude completely irrelevant.
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Third, drones also carry the potential capability to stay in constant ight. In
addition to their constant ight capabilities drones can maintain a xed position in the
air. This is radically different than observing something in plain sight while merely
8
National Ocean Service, LIDAR - Light Detection and Ranging - Is a remote sensing method used to
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examine the surface of the Earth, http://www.webcitation.org/6H82i1Gfx
passing by or ying over someones property. This is more akin to building a tower next
door and setting up a watch-post. This is reminiscent of the Fifth Circuit Court of
Appeals case United States v. Cuevas-Sanchez. In Sanchez the police suspected
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that an individual was using his home as a drop off location for drug dealers. The police
were able to get a court order to place a video camera on a utility pole that overlooked
the individuals 10-foot fence. Because of the video camera footage, the ofcers were
able observe as the individual removed drugs from cars gas tanks. The individual was
later arrested and tried to suppress the evidence arguing that the warrant was defective.
The court rst addressed the question of a search. The court decided that there was a
search and stated that this was not a one-time overhead ight or a glance over the
fence by a passer-by . . . it does not follow that Ciraolo authorizes any type of
surveillance whatever just because one type of minimally-intrusive aerial observation is
possible. A stationary oating drone shares many characteristics with the camera that
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has been placed on a fortuitously situated utility pole and should be treated the same
way by the law.
While the court must interpret the 4th Amendment, Congress has the ability to
extend its protections as long as they are constitutional. Congress has made efforts to
do just that by drafting bills that would apply strict rules to the use of drones for
surveillance purposes. First, There is the Preserving Freedom from Unwarranted
Surveillance Act. This bill would require law enforcement to get a warrant before using
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drones. There are specic exceptions to the requirement laid out in the bill including, (1)
9
United States v. Cuevas-Sanchez, 821 F. 2d 248 (5th Cir. 1987).
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Id. at 251.
23
H.R. 972, 113th Cong. (1st Sess. 2013).
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preventing entry of illegal persons or substances into the United States; (2) when a law
enforcement ofcer has reasonable suspicion to believe that action must be taken to
protect someone from harm, prevent damage to property, or stop the destruction of
evidence or escape of suspect.
Second, the Preserving American Privacy Act restricts government drone use by
regulating the surveillance of information that would likely identify an individual or reveal
things about the individuals property that are not in plain view. This act would make all
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evidence obtained as a result of an illegal drone search inadmissible in court.
Finally, there is the Drone Aircraft and Transparency Act, which amends the
previously enacted FAA Modernization and Reform Act of 2012 to regulate all
government actors use of drones. This bill would rst require government agencies
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planning to use drones to study any potential threats to privacy that would result from
drone use. It then requires the potential drone user to create a data collection
statement that includes,
(1) a list of the people who will be operating the drones;
(2) the geographic location where the drone will be used;
(3) the amount of time that the drone will be used; and
(4) what kind of information the drone will be collecting (making it explicit if the
drone will be used to collect information about individual people).
If the drone will be collecting personal information about individuals then the statement
must include,
10
H.R. 637, 113th Cong. (1st Sess. 2013).
25
H.R. 1262, 113th Cong. (2d Sess. 2013).
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(1) how the information will be used;
(2) what kind of information will be collected;
(3) how the agency will minimize the data that will be collected;
(4) whether the information will be sold;
(5) the length of time that the information will be stored;
(6) how the agency will destroy data that is not relevant to their use.
The statement must also include a section that details the privacy ramications of their
specic drone usage. Additionally, it is required that the FAA post the data collection
statement online. This bill is probably the most comprehensive and was given the most
teeth in that an individual/agency that does not comply with the standards can have
their drone license revoked. It would also create a private right of action for someone
who is injured as a result of a violation of the legislation. All of these bills seem to be
very helpful in the battle for privacy, but one must keep in mind that the bill must be
passed by congress and become law in order to become effective. Which may be a tall
order for our current legislative body.

First Amendment Considerations
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In the late 18th century Jeremy Bentham wrote a series of letters describing a
theoretical prison. The prison was called the Panopticon. Inside the panopticon it was
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possible that a single guard could see any of the inmates at any given moment, but the
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The author is aware that drone use could potentially increase freedom of the press in its ability to equip
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reporters and news agencies with inexpensive and efcient ways to gather and disseminate information.
There is a tension within the First Amendment that will not be discussed in this paper.
Jeremy Bentham, Panopticon (1787)
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inmates were not able to see where the singular watchmen was looking. The whole idea
and purpose was to create an atmosphere where the specter of being watched was
ever-present in the mind of each inmate. Bentham described the panopticons effects on
both the inmate and the observer as, a new mode of obtaining power of mind over
mind, in a quantity hitherto without example. Furthermore, he went on to describe the
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Panopticon as a mill for grinding rogues honest. For Bentham the grinding and
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power of mind over mind that took place for the prisoners was the result of a culture
where one can potentially be watched at all times. Drones are one way that the United
States could effectively become a nation-sized or worldwide panopticon. Ubiquitous use
of drones to surveil citizens of the United States would necessarily have a similar
grinding effect. The fascinating distinction between the United States and Benthams
panopticon is that the panopticon is a prison, whereas the United States, for the most
part, is populated by law abiding citizens. If the the threat of perpetual surveillance
grinds a rogue into an honest man, what does the grind produce when an honest man is
perpetually surveilled or under threat of perpetual surveillance? Whos power of mind
will have power over the minds of law-abiding individuals as a result of surveillance?
The First Amendment protects our ability to communicate. It states,
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
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12
Id. at 2
29
Jeremy Bentham, The Correspondence of Jeremy Bentham, iv 342 (J.R. Dinwiddy, Oxford 1988)
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U.S. Const. amend. I.
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There are three interconnected costs to surveillance and the protection that is claimed
to be had through its use; privacy, autonomy, and trust. The First Amendment seeks to
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protect all of those things. Privacy consists of our ability to dene ourselves through
giving us a degree of autonomy and protecting our dignity. Autonomy is dened as
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the opportunity one possess to present himself in the manner that he chooses. And trust
pertains to the trust that the individual has towards the person, or organization, that
surveils him. These ideals are balanced against other important interests. From a law
enforcement standpoint the benet to be derived from surveillance is the benet of
protection. This makes sense, if law enforcement can see more then it will be able to
prevent more crime and provide thorough investigations of crimes that have already
been committed. The idea is that the more a person is watched the less likely they are
to commit a crime. This was exactly what Bentham had in mind as he ponticated on
the merits of the Panopticon, it is the oppressive burden of being watched that grinds
the inmates honest. Therefore it is important to weigh the costs and benets of
surveillance. Additionally it is important to analyze the context in which the surveillance
is taking place. The costs of surveillance are inextricably linked to the rights of
association, speech, assembly, and free exercise of religion.
Benthams panopticon provides an interesting thought experiment, but it may be
wrong. It may be wrong because it consists solely of the philosophical musings and
observations of Bentham himself, which isnt exactly scientic. Psychologists have
found that people react differently when they are being observed. When this occurs, the
13
Internet Encyclopedia of Philosophy, Surveillance Ethics http://www.iep.utm.edu/surv-eth/
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Id.
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subject of an experiment will alter their behavior in order to match the expectations of
the observer. An interesting example of this phenomena is the Hawthorne effect,
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which causes the individual being observed to work more effectively because they know
they are in a special group and are watched by those conducting the study. The
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analogy between psychologist observing their subjects and the government observing
its citizens breaks down at a certain point. Unfortunately, the breakdown only tends to
highlight the dire nature of citizen/government relationship in the context of surveillance.
The scientist only has authority over the subject of the experiment insofar as he is an
expert and is trusted by the subjected. On the other hand, the governments authority
over the individual is much more intense. The government represents the states
monopoly on police power. If the subject of a simple experiment is likely to change their
behavior in order to produce results desirable to the researcher, simply based on the
researchers position of authority, then it is innitely more likely that a citizen will change
their behavior in order to match the expectations of a police ofcer carrying a gun. The
overwhelming surveillance force posed posed by future drone capabilities combined
with the police power of the state (guns, tear gas, and bullet-proof vests) has the
enormous potential of chilling speech. It is not hard to think of a scenario in which
specic people, groups, and ideas are deemed a threat to the state or some ideas are
held to be better than others by the government. Through surveillance the state
effectively takes power of mind over the minds of its citizens.
14
Barry Kantowitz, Henry Roediger, III, David Elmes, Experimental Psychology, 371 (Rebecca Rosenberg
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et al. eds., 9th ed. 2008).
Id. at 69.
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There must be a framework informing the government about when it is
appropriate to use drones for the use of surveillance. Obviously there are occasions
when law enforcement must be able to observe people that they reasonably suspect to
have committed a crime. It is of little debate as to whether the United States can surveil
and observe its enemies. But dragnet and widespread use of drones for the purposes
of domestic surveillance would effectively rob United States citizens of their First
Amendment rights. There are a few factors that must be taken into account and
analyzed when making these decisions.
First, who is carrying out the surveillance. Here, the observer is the government
as represented by law enforcement agencies. Where does the state gather authority to
carry out the surveillance? The states authority springs from the justifying cause to use
it in the rst place. In this case the justication for using the surveillance is protecting
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individuals. But the state loses its authority when it goes beyond the scope of its
original justication. For example, if the state is patrolling a dangerous neighborhood in
order to protect the individuals that live there the states use of surveillance is justied.
But if the state is patrolling the neighborhood in order to spy on all individuals in the
neighborhood then the surveillance is not justied. Therefore the authority of the state to
carry out surveillance is not the result of the states status or from the states unique
obligation to protect its citizens, but from the specic purpose for surveillance.
Second, the necessity of the surveillance must also be scrutinized. Showing
necessity is important in that it does not allow for arbitrary drone surveillance of all
people. In order to carry out surveillance missions law enforcement must show that
15
Internet Encyclopedia of Philosophy, Surveillance Ethics http://www.iep.utm.edu/surv-eth/
36
there is a specic need that must be lled. Article 8 of the European Convention on
Human Rights includes a necessity requirement in the context of privacy,
There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others
(emphasis added).
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Many factors can be taken into account when discussing necessity. How large is the
threat? Is the threat imminent? Are there alternative means of gathering the same
information? Should drone surveillance be regarded as a last resort? How reliable is the
source that is feeding information to law enforcement about the threat? Necessity would
most likely become a totality of the circumstances type of test. Currently, the United
States faces particularly difcult questions about necessity. In the aftermath of 9/11 an
argument can be made that the devastation of a single terrorist act makes it necessary
to surveil for all potential threats. Advancement in technology has given law
enforcement the capability for a virtually complete surveillance system. The United
States sits at a philosophical junction and must choose between the promise of
protection through surveillance and privacy.
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Third, the question of who is being surveilled is very important. Warrant
requirements and a showing of probable cause to execute a search have been ways to
16
European Convention on Human Rights art. 8, Sept. 3, 1953, E.T.S. 5, 213 U.N.T.S. 221.
37
It is important to note that surveillance is not equal to protection.
38
narrow the pool of people that can be searched by law enforcement. Much ink has been
spilled dening a search and creating exceptions to the warrant requirements. People
are usually comfortable with the idea of searching someone who law enforcement has
probable cause to believe is the suspect of a crime. It is when law enforcement begins
to search everyone that there is an issue. This can easily be seen in the United States
reaction to random and thorough TSA searches in airports.
Fourth, the government must analyze how they will carry out their surveillance.
This is probably the most applicable step in the analysis because drones are one way in
which surveillance can take place. This paper has already distinguished drone
surveillance from other types of surveillance, including manned ight surveillance.
Drone surveillance has the potential to be highly invasive and incredibly pervasive.

Conclusion
Growth in technology has never come without growing pains. With the massive
growth of drones and surveillance technology the growing pains are and have been
particularly painful because they needle at some of the most cherished values
enshrined in the Constitution. The 4th amendment was created to protect us from
searches that are unreasonable and without warrant. It is meant to narrow the focus of
police searches and seizures to those people that are suspected of crimes. In the
history of the world, a complete surveillance state was never a realistic option. It simply
cost too much. We are now faced with a world where the option for a total surveillance
state is a reality.
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The technology is sufcient to equip law enforcement with tools that would allow
them to maintain a consistent and steady surveillance of every individual in the country.
In fact, it may even be less expensive to do that than it would to continue hiring ofcers
and buying patrol cars. Furthermore, it would keep law enforcement safer. But are we
willing to submit ourselves to a perpetual search? Are we prepared to shoulder the
onerous burden of lidless government eyes? The answer is no. The cost is too high and
the benets will not outweigh the costs. The use of drones by the government to watch
its citizens must be highly regulated and cannot become commonplace. If drone
surveillance were to become ubiquitous the very notion of an unreasonable search
would lose all meaning for we would constantly be searched. There wouldnt be a time
when you would not be the subject of a search.
The First Amendment allows for a vibrant and productive marketplace of ideas.
The health of the marketplace absolutely depends on the willingness of those who
participate to be honest and communicate without fear of reprisal. The more ideas that
are shared the better the marketplace will be. The nation-wide Panopticon created by
loose use of drones for surveillance purposes would grind at the very foundation of this
marketplace. It would have the effect of making all ideas the same and many of those
ideas would tend to match those of the armed observer. Again, the products of the rst
amendment are too precious to be sold for the promise of protection. The use of drones
by the government to observe its citizens should be highly regulated and narrowed with
the use of legislation and court decisions.


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