Drones and Aerial Surveillance: Privacy Protections and the Fourth Amendment Continue to Come Under Attack

    In 2015, we can all agree that the world envisioned in George Orwell’s 1984 has, for the most part, become a reality.  In fact, “Big Brother” has manifested himself in ways even Orwell was not able to imagine.  We are under constant surveillance by the government, private employers, fellow citizens standing across the street from us, and even our own friends and acquaintances.  Who knows how many times today you or I have been photographed, videotaped, audio recorded, or otherwise surveilled?
    One of the hot-button issues in this arena is the increasing use of drones and aerial surveillance by law enforcement agencies.  Such use of cutting-edge technology by the police is raising a multitude of questions about its consequences: What are the benefits?  How are our privacy rights and protections being further eroded?  What constitutional issues must be addressed, both at the federal and state level?  How should the use of drones and aerial surveillance be regulated?
    The American Bar Association Journal recently ran a very interesting article on this topic entitled “How should states regulate drones and aerial surveillance?” (http://www.abajournal.com/magazine/article/how_should_states_regulate_drones_and_aerial_surveillance/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly).  According to the article, states are increasingly turning to drones for law enforcement as a means of enhancing surveillance and gathering data.  However, many people are concerned that their right to privacy and their freedom from search and seizure under the Fourth Amendment are under assault.  A number of states have passed laws related to drones.  Some limit law enforcement’s use of drones or other unmanned aircraft.  But in California, Governor Jerry Brown vetoed a measure (AB 1327) in September 2014 that would have required law enforcement to obtain a warrant for the vast majority of uses of drones, claiming that the bill would have put greater standards on law enforcement than those required by the U.S. and state constitutions.  Constitutional law expert Erwin Chemerinsky, dean of the University of California at Irvine School of Law, was “very disappointed” when Governor Brown vetoed the measure, commenting, “AB 1327 would have been the first law in California to regulate drones.  Drones may be a very valuable tool for investigation in some cases.  Under AB 1327, the police could use drones if they demonstrated to a judge that there was probable cause.”
    What is clear to legal experts is that at some point courts will need to address the constitutionality of measures regulating law enforcement’s use of drones.  Developments in the law with respect to technology and its uses often lag far behind the incessant and rapid evolution and expansion of technology, and in the case of drone use in particular, it appears that court opinions have not caught up with the technology.  Chemerinksy noted: “It is unclear how the Fourth Amendment applies to drones.  The technology is too new for the courts to have ruled.”  Legislators will need to address the issue and get out in front of it.
    It gives many of us an eery feeling when we look around us and realize that many of the sci-fi novels and movies with which we have grown up turn into reality.  However, we all reap the benefits of all the increasingly rapid advances in technology as well.  Our legislators, courts and the lawyers who practice before them, and executive agencies must strive to strike a balance between the benefits of technology such as drones and aerial surveillance and the inalienable right to privacy we all have and cherish.
    Uploaded by Adam C. Nicolai, esq., February 4, 2015