Cyberlaw2013 Laura Nielson UAV s and the 4th Amendment Introduction On February 14, 2012, the president signed

into law the FAA Modernization and Reform Act of 2012 (FMRA), marking the beginning of what is sure to be an era of increased government surveillance. The FMRA requires that the Federal Aviation Administration (FAA) initiate a plan to begin phasing unmanned vehicle aircrafts ( UAV ) into the National Airspace System (NAS), with a target completion date of September 30, 2015.1 Currently, the NAS has a limited number of operational UAV s, but that number is expected to skyrocket as the FAA opens the UAV over the next few years.2 Anticipated operators of UAVs will include federal agencies as well as local police departments, which will use UAV primarily to conduct aerial surveillance.3 Under current law, there is no warrant requirement for conducting aerial surveillance above private or commercial property, provided that the aircraft operates within navigable airspace, as defined by FAA regulations. This narrow protection of the Fourth Amendment reflects the limited amount of relevant case law on the subject of warrantless aerial surveillance. The current state of the law is however, widely considered to be inadequate and outdated, as it was established at a time when the idea of cheap, ubiquitous, unmanned aerial surveillance was the stuff of science fiction. For that reason, the opening of the NAS to UAV surveillance and the

1 2

FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 332, 126 Stat. 11, 74. Richard M. Thompson II, Congr. Research Serv., Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses 1 (Sept. 6, 2012). 3 25 NO. 3 Air & Space Law. 1, 20

rapid advancement and availability of this technology is certain to usher in a new era of Supreme Court jurisprudence on the subject of warrantless aerial surveillance. This paper addresses the coming legal challenges to the Supreme Court's jurisprudence by examining the capabilities of UAV technology and their consequences for privacy rights. The paper then reviews the Supreme Court's aerial surveillance case law and its limitations in the UAV context. Finally, the author argues that both legislative and judicial (but especially legislative) action is necessary to adequately protect Fourth Amendment rights currently being threatened by the rapidly evolving UAV technology. I. What Unmanned Aerial Vehicles Are and How They Are Used. a. The Definition and Common Uses of UAV s. An Unmanned Aerial Vehicle (UAV) is an aircraft with no pilot on board. UAVs can be remote controlled aircraft (e.g. flown by a pilot at a ground control station) or can fly autonomously based on pre-programmed flight plans or more complex dynamic automation systems.4 UAVs are currently used for a number of missions, including reconnaissance and attack roles.5 The military role of UAV is growing at unprecedented rates. In 2005, tactical and theater level unmanned aircraft vehicle (UAV) alone, had flown over 100,000 flight hours in support of Operation ENDURING FREEDOM (OEF) and Operation IRAQI FREEDOM (OIF).6 Rapid advances in technology are enabling more and more capability to be placed on smaller airframes which is spurring a large increase in the number of SUAS being deployed on the battlefield. The

4 5

http://www.theuav.com/ Id. 6 Id.

use of SUAS in combat is so new that no formal DoD wide reporting procedures have been established to track SUAS flight hours.7 UAV no longer only perform intelligence, surveillance, and reconnaissance (ISR) missions, although this still remains their predominant type.8 Their roles have expanded to areas including electronic attack (EA), strike missions, suppression and/or destruction of enemy air defense (SEAD/DEAD), network node or communications relay, combat search and rescue (CSAR), and derivations of these themes.9 These UAV range in cost from a few thousand dollars to tens of millions of dollars, and the aircraft used in these systems range in size from a Micro Air Vehicle (MAV) weighing less than one pound to large aircraft weighing over 40,000 pounds.10 b. Controversial and Future Uses of UAVs. Drones can also be outfitted with thermal devices, license plate readers, and laser radar, making them useful to local law enforcement teams as well.11 Law enforcement expects that in the near future drones can be outfitted with facial recognition or biometric recognition capacity that can recognize and track individuals based a multitude of personal, physical characteristics.12 The advent of Google goggles makes this all the more likely. While the possibility of drones with facial recognition capacity may seem like something out of Hollywood, the innovative potential of UAVs does not end there. The Defense Advanced

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Id. Id. 9 Id. 10 Id. 11 Richard M.Thompson II, Congressional Research Service, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Reponses (2012); available at https://opencrs.com/document/R42701/2012-09-06/. 12 Id.

Research Projects Agency (DARPA) of the Department of Defense13 is investing millions of dollars14 in an attempt to insert electronics into moths and other insects.15 DARPA anticipates that the resulting insect cyborgs will enable the U.S. to better locate and combat terrorists, even in remote terrorist training camps in places such as the hills of northern Pakistan.16 Mandyam Srinivasan, professor of visual neuroscience at the University of Queensland, envisions the cyborgs flying inside buildings, entering through windows and doors inconspicuously, and taking movies and recording sounds while perching unsuspected on a wall.17 Whatever capabilities these cyborgs could perform on terrorists could also be used on citizens. Thus, these insects could be used in a variety of military and homeland security applications, including detecting explosives, toxins, or drugs as well as potentially hunting down robbers.18 Many people assume UAVs are currently only being used abroad in counterterrorism efforts. While UAVs have become a centerpiece in counterterrorism strategy, domestic use has already begun.19 In 2012, President Obama authorized the Federal Aviation Administration (FAA) to develop specific rules to accelerate the incorporation of unmanned aircraft into the

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Jonathan Richards, Can Cyborg Moths Bring Down Terrorists?, Times Online, May 24, 2007, http://technology.timesonline.co.uk/tol/news/tech_and_ web/article1831494.ece?. 14 DARPA's Microsystems Technology Office (MTO) has devoted more than US $2 million to the Hybrid Insect MEMS (HI-MEMS) program. Roland Piquepaille's Technology Trends: How New Technologies Are Mod ifying Our Way of Life, Autonomous Insect Cyborg Sentinels, June 22, 2007, http:// www.primidi.com/2007/06/22.html. 15 R. Colin Johnson, Insect Cyborgs Go Undercover, http:// www.tectrends.com/cgi/showan?an=00168087. (last visited July 26, 2008). 16 Richards, supra note 10 17 Richard Macey, The Name's Bogong - James Bogong, The Sydney Morning Herald, Oct. 13, 2007, http://www.smh.com.au/news/national/the-names-bogong-- james-bogong/2007/10/12/1191696173795.html, see also George Dery, Cyborg Moth's War on Terror: The Fourth Amendment Implications of One of the Federal Government's Emerging Surveillance Technologies, 11 SMU Sci. & Tech. L. Rev. 227 (2008) 18 Bill Christensen, Implants Create Insect Cyborgs, Live Science, Feb. 4, 2008, http://www.livescience.com/strangenews/080204-cyborg-insect.html. 19 37-FEB Champion 9, 9-10

national airspace system by 2015. It is estimated that drones will be a $5 billion-plus industry.20 The FAA predicts that 30,000 drones will be deployed within 20 years.21 Other domestic agencies are already utilizing UAVs. In 2005, U.S. Customs and Border Protection (CBP) became the first domestic law enforcement agency to put a UAVs into action.22 CBP assigned Predator B UASs to Arizona to patrol and secure the United States border with Mexico.23 The CBP's Predators monitor thirty-mile stretches of the border from three miles above the desert floor, relaying images from their infrared cameras to a ground control station.24 If a seismic sensor is triggered on the ground, the Predator can investigate and, upon finding drug smugglers, tag them with its laser illuminator.25 With the GPS coordinates and the infrared illuminator, agents have no difficulty intercepting the smugglers.26 The Predator's effectiveness in drug interdiction was demonstrated on January 11, 2008, when CBP agents seized over a thousand pounds of marihuana from a truck illegally crossing the border.27 With the assistance of

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Editorial, The Dawning of Domestic Drones, Without Proper Controls, The Use of Unmanned Aircraft Could Threaten Privacy, N.Y. Times, Dec. 26, 2012, at A24. 21 Richard M.Thompson II, Congressional Research Service, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Reponses (2012); available at https://opencrs.com/document/R42701/2012-09-06/. 22 Travis Dunlap, We've Got Our Eyes on You: When Surveillance by Unmanned Aircraft Systems Constitutes A Fourth Amendment Search, 51 S. Tex. L. Rev. 173, 180 (2009); see also, Press Release, U.S. Customs & Border Prot., CBP Makes History with the Launch of Predator B (Sept. 29, 2005), http:// www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2005_press_ releases/092005/09292005.xml (last visited Nov. 4, 2009). 23 Id. Just like its military counterpart, the General Atomics Predator B is designed to [p]erform multi-mission lowto high-altitude surveillance, reconnaissance, and Hunter-Killer missions. It has a sixty-six foot wingspan, a 3,850 pound payload capacity, a maximum altitude of over 50,000 feet, a maximum endurance of over thirty hours, and the ability to carry missiles and bombs. General Atomics Aeronautical Systems, Inc., Predator B/MQ-9 Reaper Brochure 2 (2007), http://www.ga-asi.com/products/aircraft/pdf/Predator_ B.pdf. 24 Jeff Wise, No Pilot, No Problem, Popular Mechanics, Apr. 1, 2007, at 64, available at http://www.popularmechanics.com/science/air_ space/4213464.html. 25 Id. 26 Id. 27 Press Release, U. S. Customs & Border Prot., Border Patrol Agents Seize More Than a Ton of Marihuana This Past Weekend (Jan. 14, 2008), http:// www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2008_news_releases/jan_ 2008/01142008_6.xml (Last visited Nov. 4 2009).

the UAS, the agents successfully deployed a tire deflation device, stopped the vehicle, and arrested the driver.28 Local law enforcement agencies have also used drones to apprehend criminal suspects. The Los Angeles Times recently reported the first instance in which military drone aircraft participated in the arrest of United States citizens on United States soil.29 Armed with a search warrant, Nelson County Sheriff Kelly Janke went looking for six missing cows on the Brossart family farm in the early evening of June 23, 2011.30 Three men brandishing rifles chased him off the property.31 Knowing the gunmen could be anywhere on the 3,000-acre spread in eastern North Dakota.32 Fearful of an armed standoff, Janke called in reinforcements from the state Highway Patrol, a regional SWAT team, a bomb squad, ambulances, deputy sheriffs from three other counties, and a Predator B drone.33 As the drone circled 2 miles overhead the next morning, sophisticated sensors under the nose helped pinpoint the three suspects and showed they were unarmed.34 Police rushed in and made the first known arrests of U.S. citizens with help from a Predator.35 The use of this surveillance technology to assist local law enforcement has drawn criticism.36 Former U.S. House Representative Jane Harman (D-CA36) told the Los Angeles Times that during her tenure on the House Homeland Security Intelligence Subcommittee, there

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Id. Id. 30 Id. 31 Id. 32 Id. 33 Id. 34 Id. 35 Id. 36 Id. See also Brian Bennett, Police Employ Predator Drone Spy Planes on Home Front , L.A. Times. Dec. 10, 2011, at Nation. (quoting former Reprsenetative Jane Harman as saying that [t]here is no question that this could become something that people will regret.)

was no discussion about using Predators to assist local police on routine matters.37 She asserts that the use of these drones without public debate or clear legal authority is a mistake.38 Should such a case be appealed, the Supreme Court could issue a judgment articulating a new standard controlling how the Fourth Amendment governs robotic surveillance. One of the most controversial uses of UAV s is to target and kill enemy combatants abroad in the name of national security and pursuant to counterterrorism measures. In recent years, the United States has generated controversy as targeted killings and drone strikes have been used to kill al Qaida leaders, even those embedded in civilian populations. A targeted killing is extra-judicial, premeditated killing by a state of a specifically identified person not in its custody.39 A drone strike occurs when a targeted killing is carried out through the use an unmanned Predator drone aircraft.40 Drone aircrafts are armed with laser guided missiles and are controlled by an operator at a television monitor hundreds of miles away.41 Their radar, infrared sensors and color video camera can track vehicles at night and through clouds.42 The video is sharp enough to make out people on the ground from more than three miles away.43 Drone strikes are a way for the United States to kill specific targets without endangering the person responsible for actually pulling the triggerthe military may have its proverbial cake and eat it too.44 Drone strikes have been defended as a form of self-defense specific to counterterrorism as

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Id. Id. 39 Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 Cardozo L. Rev. 405, 437 (2009). 40 Id. 41 Eric Schmitt, Threats and Responses: The Battlefield: US Would Use Drones to Attack Targets, N.Y. Times (Nov. 6, 2002), http://www.nytimes.com/2002/11/06/world/threats-responses-battlefield-us-would-use-drones-attackiraqi-targets.html?pagewanted=all&src=pm 42 Id. 43 Id. 44 Id.; see also Tom Tschida, Predator Drones and Unmanned Aerial Vehicles (UAVs), N.Y. Times, (Nov. 25 2012), http://topics.nytimes.com/top/reference/timestopics/subjects/u/unmanned_aerial_vehicles/index.html

opposed to an offensive attack method (which is illegal if pre-emptive under international law). The reason why this argument has any support is because terrorism has defied all preconceived notions regarding state sovereignty and self-defense. Still, the use of UAV s in this context is likely to become one of the most controversial issues of this century, if not in the near future. II. The Costs and Benefits of UAVs.

The unmanned aspect of UAVs makes them an ideal tool to enhance a broad range of government functions beyond monitoring borders and counterterrorism efforts. For example, police departments could use UAV to conduct dangerous operations without risking the lives of officers or the public; kidnappings, hostage situations, and bomb threats are just a few examples of situations where police officer safety could be directly impacted by the substitution of drones for manpower. The use of UAVs could also limit administrative waste; the Environmental Protection Agency (EPA) could use UAV to ensure industry compliance with environmental regulations without wasting manpower.45 However, the obvious appeal of using technology instead of manpower should not deter the government for creating safeguards for constitutional rights. In a December 2011 whitepaper, the American Civil Liberties Union (ACLU) warned that [t]he prospect of cheap, small, portable flying [video-surveillance] machines threatens to eradicate existing practical limits on aerial monitoring and allow for pervasive surveillance, police fishing expeditions, and abusive use of these tools in a way that could eventually eliminate the privacy Americans have traditionally enjoyed in their movements and activities.46 Nevertheless, such corruption need not come to pass. A balance must be struck between the technology's merits and the potential
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25 NO. 3 Air & Space Law. 1, 19 Jay Stanley & Catherine Crump, ACLU, Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft 1 (Dec. 2011), http:// www.aclu.org/files/assets/protectingprivacyfrornaeriaIsurveillance.

detriment to civil liberties. Ryan Calo, a UAV expert and the director of Privacy and Robotics at Stanford Law School, notes that [l]ike almost any technology, drones can be misused. It is important to put in place appropriate frameworks to ensure that they are operated responsibly.47 III. The Fourth Amendment and UAV s.

The Supreme Courts most recent case on warrantless aerial surveillance took place nearly 25 years ago, prior to the advent of today's UAV technology. This section will briefly review the relevant Supreme Court cases that led one commentator to conclude that states have the power to continually monitor [their] citizens from above.48 It will then address the possibility of statutory protection from government use of unmanned aircraft. The seminal privacy case relevant to the issue of warrantless surveillance is the 1967 case of Katz v. United States.49 Justice Harlan's concurrence in Katz set the precedent that the Fourth Amendment protects individuals' reasonable expectation of privacy.50 In Katz, the FBI wiretapped a public telephone booth in order to record the Katz phone calls.51 Justice Harlan observed that the government needed a warrant to eavesdrop on Katz's conversation because even though it occurred in a public phone booth, he had a reasonable expectation of privacy.52 Specifically, Katz had demonstrated a subjective expectation of privacy by entering the phone booth and closing the door behind him, and that expectation was objectively reasonable from a societal perspective (i.e., as a society, we expect to be able to hold a private

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Ryan Calo, Ten Myths About Drones, Huffington Post (May 22, 2012), http://www.huffingtonpost.com/ryancalo/drones-myths_b_1537040.html. 48 See Joseph J. Vacek, Big Brother Will Soon Be Watching--Or Will He? Constitutional, Regulatory, and Operational Issues Surrounding the Use of Unmanned Aerial Vehicles in Law Enforcement, 85 N.D. L. Rev. 673, 676-77 (2009) 49 Id. at 679-84. 50 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring). See, e.g., California v. Ciraolo, 476 U.S. 207, 211 (1986); Kyllo v. United States, 533 U.S. 27, 33 (2001). 51 Katz, 389 U.S. at 349. 52 Id. at 361 (Harlan, J. concurring).

conversation in a phone booth).53 Katz held that a governmental activity is a search if it violates an actual (subjective) expectation of privacy . . . that society is prepared to recognize as reasonable.54 Nearly two decades later, during the late 1980s, the Court applied Katz in three decisions involving surveillance by manned aircraft. These cases illustrate how little reasonable expectation of privacy the Court believed society had from warrantless surveillance by manned aircraft. The Court first addressed aerial surveillance in 1986 with California v. Ciraolo, in which the Court held that the police could look into a suspect's backyard, even the protected curtilage55 around the suspect's home, from a plane 1,000 feet above the ground.56 In an opinion by Chief Justice Burger, the court wrote that society was not prepared to honor an expectation of privacy from observations that took place within public navigable airspace because [a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.57 Accordingly, Ciraolo reflects the principle that Fourth Amendment protections do not extend to what a person knowingly exposes to the public.58 The second case addressing warrantless aerial surveillance, Dow Chemical Co. v. United States, was decided on the same day as Ciraolo.59 In this case, the court held that the government

53 54

Id. Id. at 361 (finding a search where the police attached a microphone to the outside of a phone booth). 55 Curtilage is a common law concept which extends protection of the home to the area immediately surrounding the home. United States v. Dunn, 480 U.S. 294, 300 (1987). An area is within the curtilage of a home if it is intimately tied to the home itself, as evidenced by four factors: [(1)] the proximity of the area claimed to be curtilage to the home, [(2)] whether the area is included within an enclosure surrounding the home, [(3)] the nature of the uses to which the area is put, and [(4)] the steps taken by the resident to protect the area from observation by people passing by. Id. at 301. 56 Ciraolo, 476 U.S. at 209-13. 57 Id. at 209-15. 58 Id. (citing Katz, 389 U.S. at 351). 59 476 U.S. 227 (1986).

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could use a powerful camera from a plane to capture details of an industrial plant without implicating the Fourth Amendment.60 As in Ciraolo, the Court emphasized that the impacted company had not taken steps to shield itself from aerial photography and that the government had used navigable airspace.61 The Court reasoned that an industrial complex is more like an open field than the curtilage of a home. As a result, the complex was subject to warrantless surveillance by aircraft operating lawfully in the navigable airspace immediately above or sufficiently near the area for the reach of cameras.62 Representing the last of the 80s cases, a plurality of the Court held in Florida v. Riley that when a helicopter flying at 400 feet did not violate a statute or regulation, there was no Fourth Amendment search because no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury.63 In Riley, Justice O'Connor wrote a separate concurring opinion, advocated a shift away from using FAA regulations to determine reasonable expectations of privacy. She reasoned that the regulations exist to secure safety of the skies--not privacy interests. Justice O'Connor argued that the relevant inquiry should not be whether [a]ny member of the public could legally have been flying over Riley's property in a helicopter at 400 feet, but whether the public actually does travel overhead at that altitude with such regularity that Riley's expectation of privacy was not one that society could recognize as reasonable.64 Her opinion provided the crucial fifth vote in this controversial plurality decision.

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Dow Chem. Co., 476 U.S. at 239 (We hold that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.). 61 Id. at 230, 239; see Ciraolo, 476 U.S. at 209-13. 62 Id. 63 Florida v. Riley, 488 U.S. 445, 451-52 (1989). 64 Id. at 454 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).

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In 2001, the Court revisited this issue in Kyllo v. United States, when it addressed the use of high-tech surveillance tools that augment the physical senses.65 While not involving aerial surveillance, Kyllo represents a shift in the Court's analysis of how technology affects Fourth Amendment privacy rights.66 Following a tip, Federal agents came to suspect that Kyllo was using high-intensity grow lights to cultivate marijuana in his home.67 While the agents were parked on Kyllo's street, they used a thermal imaging device to determine that excessive heat was emanating from his house.68 Based on the data from this device, the agents obtained a search warrant and discovered Kyllo's marijuana.69 The Court held that a Fourth Amendment search, which would be presumptively unreasonable without a warrant, occurs when government agents use sense-enhancing technology not in general public use to obtain any information regarding the interior of a home, and when that information is not otherwise available without physical intrusion into a constitutionally protected area.70 Accordingly, in Kyllo, the Court shifted its analysis away from the Katz test of a reasonable expectation of privacy and instead focused on the limited availability to the public of sense-enhancing technology. This key factor, the Kyllo court reasoned, reduces the scope of society's reasonable expectations of privacy, at least in the context of private homes.71 Thus, the Court in Kyllo held that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained

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533 U.S. 27, 34 (2001). Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment , 125Harv. L. Rev. 476, 496-98 (2011). 67 Kyllo, 533 U.S. at 34. 68 Id. at 29-30. 69 Id. at 30. 70 Id. at 34-35, 40. 71 See Vacek, supra note 29, at 683 (the test seems to turn on whether Wal-Mart sells it or not).

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without physical intrusion into a constitutionally protected area . . . constitutes a search--at least where . . . the technology in question is not in general public use.72 IV. The Challenge to Privacy Presented by UAV s Today.

Because of how rapidly technology is changing, it is unlikely that Kyllo alone will sufficiently protect privacy rights in the age of unmanned aerial surveillance. The Supreme Court simply has not been able to keep up with the advancements of technology fast enough to sufficiently protect individual rights. This section will outline the three major reasons why Kyllo is insufficient to protect an individuals right to privacy. First, the holdings and reasoning previously outlined in the case law above rely on outdated assumptions about manned aircraft that were formulated prior to the existence of today's UAV technology. For example, the Court of the 1980s could not foresee the small size of todays UAVs, let alone anticipate the cyborg drones attached to insects. The aircrafts relevant to a 1980s discussion on privacy were large enough to be noticeable to an individual, which allowed individuals to take necessary action to ensure their own privacy. Todays UAVs could be mistaken for a simple moth. Similarly, UAVs today allow aerial surveillance to be conducted for much longer periods of time than in the 1980s. In short, the sophistication of todays UAV technology poses a significant challenge to Fourth Amendment protections under the Court's existing doctrine. Second, the limitations that Kyllo and Riley place on warrantless aerial surveillance depend on the assumptions that such technology is either unavailable to the general public or rarely used in navigable airspace.73 However, the relatively low cost of surveillance-equipped UAV and the opening of the NAS will make this technology readily available for operation in
72 73

Kyllo at 34. 25 NO. 3 Air & Space Law. 1, 20

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public airspace.74 Moreover, as the NAS is increasingly opened to UAV operations, public exposure to UAV also will increase.75 In fact, UAV may well become a routine part of our air traffic.76 Therefore, a citizen's reasonable expectations of privacy from UAV may diminish as flights become more common.77 Third, there has long been a distinct lag between the advances of technology and the protection offered by the court. The distinct gap between the 1980s cases in Kyllo in 2001 evidences this fact. Because of this lag, society may have to wait for the Court to articulate a legal framework for determining constitutional limitations on UAV surveillance. Indeed, while many endorse a more active role for the Court in adjusting constitutional protection whenever changing technology or social practice expands government power,78 the Court is not always willing or able to respond in a timely manner. There is however, hope the Supreme Court will continue to parse out the protections afforded by the Fourth amendment in the near future. As recently as 2012, the Court addressed electronic surveillance using a GPS tracking device (albeit not in an aerial context) in United States v. Jones.79 In Jones, the Court returned to a pre-Katz property-based analysis of the Fourth Amendment and held that attaching the device to defendant's vehicle and then conducting longterm monitoring of that vehicle constituted a warrantless search in violation the Fourth Amendment.80 However, the Court did notice that an individuals expectation of privacy did change as society becomes acclimated to new technology. Justice Alito, in a concurring opinion

74 75

Id. Id. 76 Id. 77 Id. 78 Kerr, supra note 47, at 478. 79 United States v. Jones, 132 S. Ct. 945 (2012). 80 Id. at 949-50 (Scalia, J., five-justice majority opinion).

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with Justices Ginsburg, Breyer, and Kagan, emphasized that society's objective expectations of privacy are dynamic, especially in cases of [d]ramatic technological change.81 When government uses technology to increase the public's security at the expense of its privacy, even if the trade-off is highly unwelcome, the public may eventually accept it as inevitable.82 Thus, despite the seemingly victorious holding for Fourth Amendment rights, Jones alludes to a time when judicially-based protections are not enough to protect an individuals right to privacy. In such circumstances, the best solution to privacy concerns may be legislative, not judicial, in nature.83 Legislatures are well-suited to gauge changing public attitudes and balance privacy and public safety concerns in a dynamic, comprehensive manner as their members depend on public approval to maintain their position. As Justice Powell stressed in Dow, determining privacy rights based solely on the manner of surveillance in use at the time will not protect Fourth Amendment rights, but rather will permit their gradual decay as technology advances.84 Consequently, legislatures may be best suited to define the lawful use of UAV surveillance as it relates to privacy. V. Conclusion

While there may be many valuable and appropriate uses for UAV technology, such as search-and-rescue missions, hot pursuit in a dangerous criminal situation and detecting radiation leaks, history teaches that law enforcement agencies--and others--will not exercise appropriate restraint.85 In a representative democracy, societys leaders should act swiftly to establish reasonable limitations and protections against emerging technologies that alter the fundamental
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Id. at 962 (Alito, J., concurring). Id. 83 25 NO. 3 Air & Space Law. 1, 20 84 Dow Chem. Co. v. United States, 476 U.S. 227, 240 (1986) (Powell, J., dissenting). 85 37-FEB Champion 9

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balance between the privacy rights of the people and the surveillance capacity of the state. Given the importance our society places on Fourth Amendment rights, both the judicial and legislative branches should take action to ensure an individuals expectation of privacy does not gradually decay as technology advances.

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