Domestic drone surveillance raises Fourth Amendment questions: CRS


The technology that makes unmanned aerial vehicles so attractive to hunting down and killing terrorists overseas also is setting up a major clash between security and privacy advocates in the U.S., the Congressional Research Service says.

In a Sept. 6 report posted online by Secrecy News, the CRS notes that legislation already has been introduced requiring a warrant before using drones for domestic surveillance, and allowing UAV surveillance only to investigate felonies.

The clash is expected to come sooner rather than later.

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. The question, the CRS notes, is whether surveillance from public airspace is reasonable. Technology plays a major role, including emerging technology allowing law enforcement to see through walls and ceilings.

The Federal Aviation Administration predicts 30,000 drones will fly in U.S. skies in less than 20 years, according to the report. The FAA Modernization and Reform Act, enacted by Congress in February, calls for UAVs to be integrated into the national airspace system by 2015.

"Police officers who were once relegated to naked eye observations may soon have, or in some cases already possess, the capability to see through walls or track an individual's movements from the sky," the report notes. "One might question, then: What is the proper balance between the necessity of the government to keep people safe and the privacy needs of individuals?"

Drones are being used to patrol the borders to control smuggling and illegal crossings, and are being tested by the Department of Homeland Security and local law enforcement for situations as varied as firefighting, finding missing persons, monitoring hostage situations and detecting radiation, according to the report.

CRS notes UAVs already can be outfitted with equipment including cameras, thermal-imaging devices, license-plate readers and laser radar (LADAR). Up next, according to the report: facial recognition or "soft biometric recognition," tracking individuals resembling a target based on height, gender and skin color, among other biometrics.

The "ability to closely monitor an individual's movements with pinpoint accuracy may raise more significant constitutional concerns than some other types of surveillance technology," CRS says.

When it comes to securing Fourth Amendment rights, the Supreme Court previously has ruled that surveillance by manned flight did not comprise unreasonable search and seizure, the report notes.

"Pervasive tracking" and tracking a suspect into his or her home is less likely to pass muster, CRS suggests. The legality of aerial surveillance of a private backyard without a warrant is less clear, the report notes, in part because drones are far less common in public airspace than helicopters.

"Unless a meaningful distinction can be made between drone surveillance and more traditional forms of government tracking," the report notes, "existing jurisprudence suggests that a reviewing court would likely uphold drone surveillance conducted with no individualized suspicion when conducted for purposes other than strict law enforcement."

Julie Bird is a freelance reporter.

For more:
-download the CRS report (.pdf)
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