The Drones Are Coming!
A few weeks ago, I was sitting at my PC at home when something outside caught my eye. I looked out the window, and hovering above the palo verde tree in my front yard was a drone.
Two boys across the street had the controller. Their mother was outside as well, perhaps telling her sons not to fly the drones over Mr. Nestmann’s property. After a few minutes, the family, along with their drone, retreated to their house.
While this wasn’t my first encounter with a drone, the fact that one was flying over my property without my permission upset me. But after a little online research, I learned that it was perfectly legal.
Arizona law forbids any “unmanned aircraft or unmanned aircraft system to intentionally photograph or loiter over or near a critical facility in the furtherance of any criminal offense.” That’s the only state law that restricts personal or commercial drone use.
The only federal regulations for drones are the safety rules enforced by the Federal Aviation Administration (FAA). But since 2013, more than 30 states have enacted laws regulating drone use. The legal patchwork is anything but consistent. Some states impose restrictions on the private use of drones while others restrict drone use by police.
One thing is certain: Drone use is exploding. As of March of this year, there were over 770,000 FAA-registered drone owners in the US. That number is increasing by as much as 100,000 every three months. Of those owners, 37,000 of them are FAA-certified as “remote pilots” authorized to use drones for commercial purposes, such as filming or inspections.
Congress is debating federal legislation that would regulate drone use. But there’s only so much Congress can do, thanks your vanishing “expectation of privacy,” a consequence of a series of Supreme Court decisions over the last few decades. Basically, the only place the Supreme Court believes you have a reasonable expectation of privacy is in and around your home. With very few exceptions, if you’re in a public place, you have voluntarily relinquished any expectation of privacy.
For instance, Congress could probably enact a law forbidding private or police drones from hovering over your home. But it will be hard to prevent police from using drones to photograph all the license plates in the immediate vicinity of a demonstration.
Law enforcement already uses license plate reading technology, and there’s nothing you can do about it. If you drive on a public highway or park on a public street, you implicitly consent to this surveillance. Drones will make this surveillance much easier and more efficient.
Let’s say that to protect your privacy, you decide to walk into town, take the bus, or hail a taxi. Police drones won’t be able to follow your license plate as you drive around town. But they may still know who you are, and they can track your location.
Meet MORIS, the Mobile Offender Recognition and Information System that plugs into a smartphone. A police officer simply snaps a photo of your face and runs the image through software that hunts for a match in a criminal records database. Naturally, the law doesn't consider this a search, and you need not consent to the intrusion.
A 2016 study found that police in 16 states use this type of software. Most of them use it only to confirm the identity of a suspect who’s been detained. But some use networks of closed-circuit cameras to identify everyone walking by.
Now, imagine an army of drones, all equipped with a smartphone and a MORIS-like device, snapping photos of everyone in any public place. Since you have little or no expectation of privacy when you’re not cowering in your own home, there’s not much Congress or the states can do to restrict this practice.
Let’s go even further. Thanks to the never-ending US War on Terror, the military has developed weaponized drones capable of launching missiles at suspected terrorists. They usually hit their target, but sometimes they kill civilians as well.
The legal theory behind drone strikes is that those who are killed are (at least mostly) enemy combatants. And it’s perfectly fine if they’re US citizens. In 2014, The Washington Post published a legal memo from the Obama administration justifying the killing of an enemy combatant who was also a US citizen in a drone strike.
Of course, here at home, weaponized drones presumably wouldn’t be used if less lethal options are available. But if you live next to an enemy combatant, just hope the missile launched by the weaponized drone overhead hits the intended target.
I can’t offer a solution to the new privacy threats posed by drones, other than wearing a Guy Fawkes mask whenever you’re out in public. The only suggestion I have is to redefine an individual’s expectation of privacy, which today is based on public opinion. For instance, most Americans now believe that terrorist suspects shouldn't have the same constitutional rights as ordinary citizens. And they don’t. But at what cost?
The problem with an expectation of privacy created by public opinion is that perceived threats continually narrow it. Everyone’s privacy is affected, not only the privacy of terrorists. Without recognition that privacy is a fundamental human right, a reasonable expectation of privacy will inevitably lead to no privacy at all.
Protecting your assets (and yourself) against any threat - from the government, the IRS or a frivolous lawsuit - is something The Nestmann Group has helped more than 15,000 Americans do over the last 30 years.
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