On The Radar: Government Unmanned Aerial Vehicles And Their Effect On Public Privacy Interests From Fourth Amendment Jurisprudence And Legislative Policy Perspectives

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The utility of Unmanned Aerial Vehicles (UAVs) in military operations and border security is well documented. As the technology becomes more affordable and available, domestic law enforcement agencies, other state and federal governmental agencies, and private enterprises envisage UAV technology in their future operations. As UAVs are generally introduced into domestic airspace, they will test the Fourth Amendment’s protection of citizens against unreasonable searches and seizures. Existing Supreme Court cases relevant to the issue of aerial warrantless searches are not ultimately determinative of UAVs’ constitutionality in this regard. The Supreme Court was split in each of these previous cases, which dealt with manned flight, not unmanned flight. It is possible, however, to roughly evaluate the impact of UAV aerial surveillance on citizen privacy in a contemporary timeframe by extrapolating the Court’s logic into the future. Currently, the Federal Aviation Administration (FAA) does not allow generalized UAV flight in national airspace, so the issue is not immediately at hand. The FAA, however, is formulating regulations to admit them, so this is a propitious time to consider how to maintain citizens’ rights to privacy free from government infringement through this new technology. The Fourth Amendment most likely will provide only minimal protections. Thus a responsible legislative and administrative solution is required, incorporating accountability and restrictions on visual and sensory enhancing technology without a warrant while providing necessary but clearly drawn statutory exceptions to the warrant requirement. Otherwise, UAV technology may diminish citizens’ reasonable expectations of privacy.

Originally published in 49 Jurimetrics J. 491–518 (2009).

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