On the front page of the Los Angeles Times this weekend was a story about local police calling in military drones -- in this case, the Predator B -- to help apprehend civilians. Mark my words, this is just the beginning. Drones are simply too effective, too cost efficient, for police, firefighters, and even the private sector to ignore. Imagine what drones would do for the lucrative paparazzi industry, for instance, especially coupled with commercially available facial recognition technology.
So why isn't the sky already filled with drones? The Federal Aviation Administration has for years restricted the use of unmanned aerial systems absent a waiver. A few folks in the public sector have sought them. (The state of Oklahoma sought a blanket waiver of the drone ban for eighty miles of airspace.) Going forward, however, waiver may not be necessary: The FAA faces increasing pressure to relax its restrictions and is considering rulemaking to reexamine drone use in domestic airspace.
Although the FAA's rules stand in the way of many uses of drones, United States privacy law does not. There is very little in our Constitution, statutes, or case law that would prohibit the use of drones for surveillance within our borders. Citizens do not generally enjoy a reasonable expectation of privacy in public, nor even in the portions of their property visible from a public vantage.
If anything, observations by drones may occasion less scrutiny than manned aerial vehicles. Several prominent cases, and a significant body of scholarship, reflect the view that no privacy violation has occurred unless and until a human observes a person, object, or attribute. Just as a dog might sniff packages and alert an officer only in the presence of contraband, so might a drone scan for various chemicals or heat signatures and alert an officer only upon spotting the telltale signs of drug production.
It may be tempting to conclude on this basis that drones will further erode our individual and collective privacy. Yet the opposite may happen. Drones may help restore our picture of a privacy violation. They could be just the visceral jolt society needs to drag privacy law into the 21st century.
Technology has been changing at a rapid pace; privacy law has not. We are still using a statute from 1986 to govern the circumstances under which law enforcement can intercept or access electronic communications. Computers, the Internet, RFID, GPS, biometrics, facial recognition -- none of these developments has created the same sea change in privacy thinking.
One contributing factor here may be the impossibility of visualizing privacy violations in the modern age. What does a privacy violation even look like? Maybe somewhere, in some distant server farm, the government correlates two pieces of disparate information. Maybe one online advertiser you have never heard of merges with another to share email lists. At most one can picture the occasional harmful outcome; its mechanism remains obscure. This lack of a mental model for contemporary privacy harm makes it hard to inspire judges or spur legislative action.
The introduction of government and private drones into our cities will feel very different to the public and perhaps to the courts. What data there is suggests that Americans are nervous around robots. They may associate drones in particular with violence and the theater of war. The proliferation of drones in our skies could lead to a privacy moment, all of our amorphous fears about new technology watching us suddenly corporeal and immediate.
It is for this reason that I believe drones could end up being good for privacy law. The backlash against their use could unravel long-standing doctrinal presumptions against privacy in public, supporting a mosaic theory of privacy such as that on appeal to the Supreme Court from the D.C. Circuit in United States v. Jones. Moreover, it could cut against the argument that people have no privacy interest in contraband or that there has been no privacy violation as long as a person does not see anything s/he should not. These would become itchy-shirt arguments, no longer feeling quite right.