Thursday, March 10, 2011

Can the Police Use Drones for Surveillance?

Police are starting to use a new technology – drones – to fight crime.  A news source in Miami reports that the police are using military style drone aircraft to support SWAT operations.  (Credit to for citing this first.)

The drones currently aren’t being used for surveillance, but there is no reason to think that this won’t happen in the future as police agencies seek to replace expensive helicopter fleets with cheaper unmanned aircraft.

Is this constitutional?  Almost certainly the answer is yes.  In a 1986 decision, Dow Chemical, the Supreme Court held that the government can conduct aerial surveillance over outdoor spaces without a warrant.  The Court acknowledged that while people (and chemical companies in this case) have a reasonable, legitimate, and objective expectation of privacy in the interior of buildings, that expectation of privacy does not extend to the outside.  This is true even if the owner erects fences and other barriers to vision from ground level. 

The Supreme Court in Dow made sure to protect “intimate activities associated with family privacy and the home.”  The Court also warned that new technology could change its thinking:  “It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.”

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