My Moot Court coach, Robert Molko, wrote an excellent law review article on the unique fourth amendment problems from drone surveillance. Here’s an excerpt:
Published inThe Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that protection. Over the years, we have learned to cherish our privacy and shield it from not only governmental intrusion but also from everyone else if we so choose. It is probably our most cherished “possession”. For more than forty years, the courts have used the Katz “reasonable expectation of privacy” (REP)test to determine whether government conduct is constitutional. This test has been highly criticized by the courts and scholars when applied to advancing technology. Yet, it still survives and, as this paper will demonstrate, it will continue to survive in drone surveillance cases. However, the United States Supreme Court may alter its manner of application.Over the years, the courts have permitted aerial surveillance from navigable airspace where civilian planes or helicopters routinely fly, but have disallowed such surveillance if it occurred from unusually low altitudes. However, the advances in surveillance and optics technology have made it possible to detect very small objects from high altitudes. If we add to that the stealth nature of drones, we are suddenly faced with silent monitors in the sky that can observeeverything we do in any area exposed to the sky.14 Carried to an extreme, we would not be able to enjoy any privacy in even a secluded and fenced-in backyard or private estate.