A Drone the Size of a Mosquito Buzzing Over Your Backyard?

Michael Toscano, president and CEO of the Association for Unmanned Vehicles Systems International, added that drones have been used to assess the flooding of the Red River in the upper Midwest, battle California wildfires and are being used to study everything from hurricanes in the Gulf of Mexico, tornadoes in the Great Plains, and volcanoes in Hawaii.

“Unlike military UAS, the systems most likely to be used by public safety agencies are small systems, many weighing less than five pounds, with limited flight duration,” Toscano said. “As for weaponization, it is a non-starter. The FAA prohibits deploying weapons on civil aircraft.”

But the low cost and compact nature of drones make them a perfect device for surveillance, raising significant Fourth Amendment questions. Amie Stepanovich, director of the Domestic Surveillance Project at the Electronic Privacy Information Center, noted that drones can “be equipped with sophisticated surveillance technology that makes it possible to spy on individuals on the ground.”

While her organization recognizes that drones provide “many positive applications,” they can also be used to obtain evidence in a criminal proceeding, intrude on a reasonable expectation of privacy, and gather personal data.

“Rules are necessary to ensure that fundamental standards for fairness, privacy and accountability are preserved,” she said. “The technology in use today is far more sophisticated than most people understand. Cameras used to outfit drones are among the highest definition cameras available. The Argus camera...has a resolution of 1.8 gigapixels and is capable of observing objects as small as six inches in detail from a height of 17,000 feet. On some drones, sensors can track up to 65 different targets across a distance of 65 square miles. Drones may also carry infrared cameras, heat sensors, GPS sensors that detect movement and automated license plate readers.”

The U.S. Supreme Court hasn’t considered the limits of drone surveillance under the Fourth Amendment. Twenty years ago the justices determined that law enforcement could conduct manned aerial surveillance from as low as 400 feet without a warrant. There is no federal statute providing safeguards to protect privacy against increased drone use, although Congress has directed the FAA to come up with a plan to integrate UAS into the domestic airspace.

“Accordingly, there are substantial legal and constitutional issues involved in the deployment of aerial drones by law enforcement and state and federal agencies that need to be addressed,” Stepanovich said.

Ryan Calo, an assistant professor at the University of Washington School of Law, noted that drones “have a lot of people worried about privacy -- and for good reason.”

“Drones drive down the cost of aerial surveillance to worrisome levels,” he said. “Unlike fixed cameras, drones need not rely on public infrastructure or private partnerships. And they can be equipped not only with video cameras and microphones, but also the capability to sense heat patterns, chemical signatures or the presence of a concealed firearm. American privacy law, meanwhile, places few limits on aerial surveillance.”

The American public, Calo said, enjoys “next to no expectation of privacy in public” and the Supreme Court has made it clear that law enforcement doesn’t need a warrant “to peer into your backyard.”

“I see no reason why these precedents would not extend readily to drones,” he said.