Part 1: Research Proposal
Introduction
The Constitution has always protected the privacy of citizens, but the increased advancement of technology is becoming a threat. Technology is threatening to redefine the privacy of individuals for it to operate efficiently. One of the inventions that have collided with the individual expectations of privacy, which are protected by the Fourth Amendment, is drones. These devices can be used for surveillance (especially against terrorism) and aid in the achievement of the requirements of the Patriot Act. The drones can capture high-resolution images and videos from a distance and transmit them to the source. The American citizens fear that the introduction of the drones into the American airspace after the FAA bill was passed into law will violate their rights of privacy.
Problem Statement
The law that allows the unlimited use of drones within the American airspace has been criticized for the negligence of the privacy of individuals. The American citizens believe that drones can be used to collect data from private places such as their residences, which are protected by the Fourth Amendment. It is, therefore, vital to determine if the use of drones is redefining the established concepts of privacy.
Research Question
Does the use of drones erode the concept of privacy and privacy rights for the American citizens?
Research Methodology and Design
The study will be secondary data review and analysis. The sources are filled with extensive information, and the researcher will select the appropriate sources using the judgmental sampling method.
Data Collection and Analysis
The collection of data will adopt a systematic process. First of all, a wide collection of sources that relate to the topic of investigation will be assembled. The sources will be of different types. They will include journal articles, books, websites (such as government websites), periodicals and newspaper and magazine articles. All the sources will be analyzed and relevant information from them will be used to inform the final content of the final paper. It is hoped that at end of this project, accurate conclusions and deductions about drones and the concept of privacy and privacy rights will be derived from the information contained in sources chosen.
Part 2: Annotated Bibliography
ACLU (n.d.). Domestic Drones. Retrieved March 04, 2016, from https://www.aclu.org/issues/privacy-technology/surveillance-technologies/domestic-drones
The website discusses the merits and demerits of technology in association with technology. It observes that the drones will become accessible to the government and private sectors for a myriad of uses. It is, however, coy on the exploitation of these devices to infringe the privacy rights of individuals. It observes that tiny drones can go unnoticed when peering through the windows of private residences or tracking individuals. It recommends usage limits, policy on the drones, abuse prevention and accountability and prevention of unnecessary data retention.
Calo, R. (2011). The drone as privacy catalyst. Stanford Law Review Online, 64, 29-33.
The review observes that drones are a necessary addition to the world to assist people in redefining their privacy. Calo notes that the technology has quickly evolved since the time the Constitution was drafted. He observes that what was defined as privacy at that time such as taking photographs is no longer a privacy issue in the modern world. Therefore, the definitions of privacy should also be altered to match the technological changes that have been experienced in the modern day world. He concludes that rather than drones changing the perception of privacy, they will enable the revolution on the definition of the word.
The website is dedicated to information about the Patriot Act that was passed to counter the increased threats of terrorism. The government passed that the security teams should use any appropriate tools to help in the fight against terrorism. President George Bush signed the bill after the September 11, 2001, attacks and its application period was extended to 2019 by President Obama. Drones are one of the critical tools that can be used to achieve the objectives of the Patriot Act, which are stipulated in this website.
Federal Aviation Administration. (n.d.). FAA Aerospace Forecasts. Retrieved March 04, 2016, from https://www.faa.gov/data_research/aviation/aerospace_forecasts/
The Federal Aviation Administration is tasked with the regulation and monitoring of the drones in the domestic airspace after the FAA bill was passed into law. The FAA predicts that there will be more than 30,000 drones in the American airspace by the year 2030. The drones will be owned by the government that shall use them for law enforcement as well as private owners that will use them for other functions. The FAA expects the commercial markets of the UAVs to mature rapidly after the development of the regulatory structure and industry standards.
Matiteyahu, T. (2014). Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy. Colum. JL & Soc. Probs., 48, 265.
McDougal, C. (2013). From the battlefield to domestic airspace: An analysis of the evolving roles and expectations of drone technology. PublicINReview, 1(2), 92-102.
McKnight, V. E. (2015). Drone Technology and the Fourth Amendment: Aerial Surveillance Precedent and Kyllo Do Not Account for Current Technology. California Western Law Review, 51(2), 4.
McKnight defines drones and puts them into a legal perspective by analyzing their impacts on the Fourth Amendment and various state laws such as Texas, Oregon, and California. The article further discusses the use of surveillance and how the Fourth Amendment deals with the issue of invasion of privacy. In the end, the author recognizes that the court needs to create a new Fourth Amendment test for the use of drones since its technology would not have been imagined by the drafters of the constitution.
O'Brien, J. (2013). Warrantless Government Drone Surveillance: A Challenge to the Fourth Amendment. J. Marshall J. Info. Tech. & Privacy L., 30, 155.
O’Brien notes that the drones are bound to become the newest tools for surveillance to be used by the law enforcement after the signing of the FAA bill into law. He is, however, concerned whether the utilization of the drones will require a warrant to fulfill the requirements of the Fourth Amendment. The paper surveys numerous cases that have been decided by the Supreme Court on the use of technology for surveillance in reaching a conclusion. It also presents several approaches that can be taken to ensure that the government can use these important investigative tools while protecting the privacy of its citizens at the same time.
Schlag, C. (2012). New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights, The. Pitt. J. Tech. L. & Pol'y, 13, i.
Drones have become an exciting and thriving technology that has elucidated concerns about privacy. The author acknowledges that the passage of the FAA Modernization Act of 2112 and the availability of affordable drones have made them readily available. The unlimited potential of drones does not come without risks. One of the pitfalls of the drones is their ability to infringe the privacy rights. The article argues that the current law that protects against privacy invasions is not robust to deal with the threats posed by the drone technology. The author concludes that new legislation that will limit the use of drones and stringent monitoring of their activities will help combat their ability to infringe the privacy laws.
Thompson, R. M. (2012, September). Drones in domestic surveillance operations: Fourth Amendment implications and legislative responses. Congressional Research Service, Library of Congress.
Part 3: Research Paper
Background
The present day world is filled with numerous technological advancements that have made life easier, cheaper and efficient. One of the ingenious inventions of the modern era is the Unmanned Aerial Vehicle (colloquially known as drones or UAVs). In 2012, President Obama signed the FAA bill into law that allows the navigation of the UAVs in the domestic airspace (Matiteyahu, 2014). The Federal Aviation Administration predicts that there will be more than thirty thousand drones in the American airspace in the next ten years. The information has caused more alarm than jubilation. There are widespread fears and anxieties among the citizens that these drones will violate their constitutional rights of privacy that are covered under the Fourth Amendment (Schlag, 2012).
The Constitution has always protected the privacy of citizens, but the increased advancement of technology is becoming a threat. The intersection of human activities and technology is increasingly becoming unpredictable and complex. The law enforcement, like other fields, has adopted the modern technologies such as listening devices, aerial surveillance, thermal imaging and tracking devices. These advanced technologies have been incorporated into weapon systems, routine police work, and police procedures. Drones are hailed as the technology that can help the government in surveillance, especially in the modern times that are filled with threats of terrorism. Drones have the ability to collect clear images from a distance. However, citizens feel that they could also be used to spy on them. It, therefore, produces a constitutional conundrum (Matiteyahu, 2014).
The Fourth Amendment has been the hallmark of privacy protection of the American people since its inception in 1791. It protects the citizens to be secure in their “persons, houses, papers, and effects, against unreasonable searches and seizures” (Kanovitz, 2015, p.187). Each citizen should have legitimate, justifiable or reasonable expectations of privacy within their residences. For a law enforcement officer to breach this rule, the individual must have a warrant of search that is taken under oath. The warrant should have a judicial approval, particularity, and probable cause. The law has managed to protect these privacy rights throughout the years despite numerous technological advancements that have threatened its interpretation. However, the advent of drones has made it possible to collect data on individuals without the warrant of search even in areas that individuals have a reasonable expectation of privacy.
Problem Statement
The law that allows the unlimited use of drones within the American airspace has been criticized for the negligence of the privacy of individuals. The American citizens believe that drones can be used to collect data from places that they have a legitimate expectation of privacy. The use of drones to collect data does not require any judicial warrant, and if they collect private information of an individual, they will be violating the regulations of the Fourth Amendment (O’Brien, 2013). The government, however, defends the use of the drones and believes that they can operate within the legal jurisdictions. It is, therefore, vital to determine if the use of drones is redefining the established concepts of privacy.
Research Question
Does the use of drones erode the concept of privacy and privacy rights for the American citizens?
Literature Review
Privacy
The definitions of privacy have become blurred in the contemporary world as compared to the eighteenth century when the Fourth Amendment was drafted. Private information is all over the internet and social media for every individual to see. The newspapers are colored with instantaneous photos for every prowling eye. Individuals voluntarily share information that would have been a few years ago considered private. People have become more eager to share their activities as they happen even to strangers (Calo, 2011). The public has access to a lot of information, which has made the objective view of privacy to erode completely. The drafters of the Constitution would not have certainly envisioned the world as dynamic as the present one when they were making the Fourth Amendment.
The Fourth Amendment Jurisprudence
The Fourth Amendment stipulates that ‘’the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (Kanovitz, 2015, p. 187). It demands a warrant to search the places an individual considers private. The Fourth Amendment has expanded beyond the trespass of places to the expectation of privacy of persons (Kerr, 2004). However, these expectations should be legitimate, objective or reasonable. Expectations of privacy can either be subjective or objective. Subjective expectations are defined by the individual and may not necessarily be considered as private areas by the public. They are based on the opinions by a person that the place is private and the measures the person has put to ward off people from access. The objective expectations are those that the whole society consents to be private at a particular time. Examples include private residences, phone booths, washrooms in public places and public belongings such as purses and briefcases.
The expectations of privacy are limited to the objective and subjective views. The individual’s expectations for privacy are not protected in areas that are accessible to the public or information that is available in the public domain. Open fields, temporary residences without permits and abandoned property are also not protected by the privacy rights of the Fourth Amendment. The Amendment is only applicable to government officials. It was created to shield the individuals from the power of the state. It does not prohibit private citizens from intruding into their private spheres. Therefore, the evidence presented to courts by nosy neighbors, surveillance by suspicious spouses or even the shopping mall guards is admissible to the courts (Kavonitz, 2015). On the other hand, government officers should have a search warrant to obtain similar information that these private parties can get without one.
Drones and Intrusion of Privacy
Unmanned Aerial Vehicles operate autonomously or remotely without human passengers on a flight path that is preprogrammed. Their sizes vary from as small as insects to large like the commercial planes. They are equipped with facial recognition software, thermal scanners, laser radars, high-resolution power cameras and license plate readers (Thompson, 2012). These features are employed by different institutions such as the government agencies, environmental advocates, and the military to collect relevant information. The UAVs collect high-resolution images from long distances and transmit them back to the source. Their uses are infinite. The military employs the weaponized drones for various attacks. The drones that are allowed on the American domestic airspace are non-weaponized. They can be used for mapping, search and rescue missions, environmental protection, delivering packages, crop dusting and wildlife tracking (Cavoukian, 2012).
The September 11 attacks prompted the state to respond. The government enacted the Patriot Act and the Homeland Security Act in retaliation (McDougal, 2013). These acts were primarily designed to reduce the vulnerability of the country to the terror attacks and prevent any future attacks on the land (Department of Justice, n.d.). The homeland security can collect any information on individuals that it suspects to be involved in terrorism activities. Drones can provide a critical tool for this mission. However, the ability of the drones to sustain mass surveillance, retain data for extended time periods and capture high-resolution images and videos are the cause of privacy anxiety among the citizens. The fear is coupled with the fact that these drones can capture these images from long distances while other drones can be as small as insects and may be used to track individuals. The availability of the drones on the national airspace will make citizens feel that their activities are being spied.
Drones have come under intense scrutiny for their ability to infringe the fundamental privacy rights of citizens. They could also be used under the umbrella of the Patriot Act as law enforcement investigatory tools. In as much as this is appropriate to prevent terror attacks, it threatens the privacy of the citizens (Zulaika, 2012). These drones may record details about an individual’s private life that may be embarrassing. Academic scholars, politicians and parts of the public are voicing their concerns about the inability of these drones to respect their privacy rights. Operations on the Mexican and Canadian borders using this equipment have shown that they have a great ability to overstep the requirements of the Fourth Amendment.
Proponents of the use of drones argue that the benefits of these drones outweigh the challenges they pose. If the aerial surveillance provided by the drones present in the September 11 attacks, the disaster would have been averted. Terrorist groups will also be uneasy knowing that there is a possibility that they are being monitored and may be caught any moment. It will drastically reduce terror attacks, and the crime rate will go down (Calo, 2011). The privacy concerns of the citizens might be overblown and overtly paranoid. Even in instances that drones collect images of an individual, it will not be any different than the pictures that they fill in the social media and other internet sites for the public to see. Law abiding citizens do not have to worry about the presence of drones in the airspace.
Methodology
Research Design
The study was a secondary data review and analysis. It was an extensive analysis of cases found in the worldwide web to find relevant information that pertains to drones and privacy. The data was collected from articles and backed with real-life cases and legislation. The research method was significant to the researcher as it enabled acquisition of vast knowledge on the research question using cost-effective means.
Sampling
The judgmental method of sampling was used. The method was critical since the researcher needed only particular information regarding the use of drones and privacy rights from the secondary sources. The sources that were deemed to provide the adequate information were selected for analysis and interpretation. The information was collected from a vast pool of academic and worldwide website sources. However, the sample number was not large since there is a lot of information on the topic. Only the sources that were deemed to provide quality results were chosen.
Data Collection and Analysis
The data collection was based on unstructured methods to filter the right information for analysis of the study question. The data was then analyzed using non-statistical methods, which were based on the judgment and interpretation of the researcher.
Results
McKelvey, Diver, and Curran, (2015) note that the use of drones will be necessary to stop the rise of terrorism. They note that the drones could be used to track the terrorists and other criminals instead of their military applications that cause injuries and deaths to people. The threats of terrorism rose by 43% in 2013. The drones can harvest information that can aid the arrest and execution of terrorists and criminals. They can also investigate crimes that are hard to monitor such as cyberbullying and other digital crimes that have led to the loss of personal bank details and highly sensitive military information. The drones are critical tools to arm the law enforcement officers in the prevention of terrorism as needed by the Patriot Act (McDougal, 2013).
The use of drones will affect the privacy of the American citizens. However, like all aspects of life, the expectations of privacy have changed. In the early nineteenth century, a journalist needed to get consent from high profile personalities or other public figures before taking their photographs for newspaper articles (Calo, 2011). The scenes are different now with pictures of private weddings filling the front pages of magazines. Technology has changed but so has privacy. It is, therefore, absurd to limit the use of present technology with definitions of privacy that were formulated in the eighteenth century. Technology has gradually changed the concepts of privacy, and the privacy laws should follow suit (Schlag, 2012). For instance, a few decades ago, it would be absurd for an individual to keep telling other people their locations. The advent of companies like Google and Facebook has made it possible for most people who have digital tracks to be tracked and the information used for security purposes. Therefore, claiming privacy protection from drones will be asking for rights that were voluntarily surrendered.
Various court rulings have been made on the use of technologies in legal operations. The Supreme Court (in the Lopez v. U.S. case) ruled that the police can record whatever they can lawfully hear and see. The courts also allowed aerial surveillance by helicopters up to 400 feet above the ground. However, other technological devices such as unauthorized tapes (U.S. v. Katz), a spike mic (Silverman v. U.S.), GPS tracker (Jones v. U.S.) and thermal imaging device (Kyllo v. U.S.) were disallowed by the courts (Simmons, 2001). Drones have characteristics of those technologies that have been allowed and those that were disallowed. In an interview with John Oliver, McKnight notes that drones are the third most annoying things in the air after the mosquitoes and plastic bags. It can be annoying to see them flying above as one walks across the street. It gets nasty and scary when they are seen hovering near windows of houses, which makes people scared. It is this feeling that makes them feel that they are being spied (Bennett, 2014).
The American Civil Liberties Union (ACLU) and other organizations that advocate for human rights have called for privacy regulations in the use of drones. In as much as they recognize the potential benefits of the drones, they fear that they will infringe the privacy rights of the citizens and cause legal repercussions. ACLU believes that the FAA does not have the proper equipment or capacity to create and implement regulations that will ensure the drones maintain the privacy laws. The Union believes that the drones may be used to monitor the daily activities of citizens after observing the use of drones in the Mexican and Canadian borders. The use of drones for mass tracking and surveillance of people is their greatest fear.
Discussion
The debate on the use of drones presents a new challenge in the growing conflict between technology and the law that has stood for two centuries. In the past, the conflict has been settled by a compromise for either of the two sides. However, as the threats to the nation increase with terrorists, there is a sudden need to embrace technology. The September 11 attacks called for a resolute action that involved the adoption of the Patriot Act and the Homeland Security Act (McDougal, 2013). These acts need crucial tools for the surveillance and prevention of terror attacks. Drones could be the solution that the law enforcement agencies need to achieve an effective counter-terrorism initiative. Their ability to infringe the privacy of individuals depends on the set standards. However, the security of a person is more important than the privacy rights because privacy will not be of much help to a dead person.
The Fourth Amendment needs to be changed to match the rapidly evolving world of technology. It does not mean that the privacy laws should be abandoned altogether, but they should be adjusted to meet the present circumstances. The rules have become blurred and ambiguous in the contemporary setting, and they should be modified to increase clarity in their implementation. The drones should force a reexamination of the doctrines that are trying to prevent its use due to privacy limitations (Calo, 2011). They have the potential to create a coherent mental model of privacy that meets the modern technological advancements. The terror threats and increased insecurity provide new challenges that were not in existence in the early times. The criminals are advancing quickly in the technologies they are using, and the government needs to react quickly by adopting more efficient tools such as drones (McDougal, 2013). The traditional physical searches that required warrants are time-consuming and ineffective in curbing more organized terror and criminal groups.
Conclusion
The use of drones may infringe the privacy rights of citizens that are stipulated in the fourth amendment. However, their use is necessary to meet the growing threats from terror and criminal groups, who are increasingly employing more sophisticated technologies in their operations. The security of citizens is more vital than their privacy. Therefore, the changing scene of the technology in the world demands new expectations of privacy. The privacy policies need to be updated to match the quickly evolving world, and one of the approaches will be the modification of the Fourth Amendment to meet the present demands. The country needs to be protected from the enemies and drones could provide a timely solution. However, their use should also be regulated to prevent them from causing havoc.
References
ACLU (n.d.). Domestic Drones. Retrieved March 04, 2016, from https://www.aclu.org/issues/privacy-technology/surveillance-technologies/domestic-drones
Bennett, W. C. (2014). Civilian Drones, Privacy, and the Federal-State Balance. Brookings. edu (September 2014), http://www. brookings. edu/research/reports2/2014/09/civilian-drones-andprivacy.
Calo, R. (2011). The drone as privacy catalyst. Stanford Law Review Online, 64, 29-33.
Cavoukian, A. (2012). Privacy and drones: Unmanned aerial vehicles (pp. 1-30). Information and Privacy Commissioner of Ontario, Canada.
Federal Aviation Administration. (n.d.). FAA Aerospace Forecasts. Retrieved March 04, 2016, from https://www.faa.gov/data_research/aviation/aerospace_forecasts/
Kanovitz, J. R. (2015). Constitutional law. Waltham, MA: Anderson Publishing.
Kerr, O. S. (2004). The fourth amendment and new technologies: constitutional myths and the case for caution. Michigan Law Review, 801-888.
Matiteyahu, T. (2014). Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy. Colum. JL & Soc. Probs., 48, 265.
McDougal, C. (2013). From the battlefield to domestic airspace: An analysis of the evolving roles and expectations of drone technology. PublicINReview, 1(2), 92-102.
McKelvey, N., Diver, C., & Curran, K. (2015). Drones and Privacy. International Journal of Handheld Computing Research, 6(1), 44-57.
McKnight, V. E. (2015). Drone Technology and the Fourth Amendment: Aerial Surveillance Precedent and Kyllo Do Not Account for Current Technology. California Western Law Review, 51(2), 4.
O'Brien, J. (2013). Warrantless Government Drone Surveillance: A Challenge to the Fourth Amendment. J. Marshall J. Info. Tech. & Privacy L., 30, 155.
Schlag, C. (2012). New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights, The. Pitt. J. Tech. L. & Pol'y, 13, i.
Simmons, R. (2001). From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies. Hastings LJ, 53, 1303.
Thompson, R. M. (2012, September). Drones in domestic surveillance operations: Fourth amendment implications and legislative responses. Congressional Research Service, Library of Congress.
Zulaika, J. (2012). Drones, witches and other flying objects: the force of fantasy in US counterterrorism. Critical Studies on Terrorism, 5(1), 51-68.
