Nov 152011

Fast evolving concern

In a world in which nearly anyone can purchase a device capable of photographing locations behind walls, gates and fences, will anyone be able to keep a secret?

Technology, as Supreme Court Justice Antonin Scalia wrote in a 2001 Supreme Court opinion, has the power “to shrink the realm of guaranteed privacy.” Few other technologies have as much power to do this as drones. Because they can perch hundreds or thousands of meters in the air, drones literally add a new dimension to the ability to eavesdrop. They can see into backyards and into windows that look out onto enclosed spaces not visible from the street. They can monitor wi-fi signals or masquerade as mobile phone base stations, intercepting phone calls before passing them along. Using a network of drones, it would be possible to follow the movements of every vehicle in a city—a capability that would be invaluable to a police department tracking the getaway car in a bank robbery but invasive if used to track a patient driving to a clinic to get treatment for a confidential medical condition.

The growth in nonmilitary use of drones is too recent to have generated a significant body of legal precedents specifically addressing their implications with respect to privacy. But closely related legal cases and evolving legal and societal standards regarding privacy make it clear that the issue will be complex. For example, in 1986 the United States Supreme Court ruled that law enforcement’s use of a private plane to view otherwise hidden marijuana plants growing in a California backyard did not constitute a violation of the Fourth Amendment right of freedom from unreasonable search and seizure. The reason? The police observations were made from “public navigable airspace.” This might be interpreted to suggest that the owners of drones operated in public airspace will enjoy broad latitude to use them for surveillance in the U.S.

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