After Congress has spent the last several years telling DOD and FAA to speed up the roll out of drones in domestic airspace, and partly in response to efforts (by Rand Paul, among others) to protect all of our privacy and other efforts (by Shelley Moore Capito) to protect farmers from observation by the EPA, someone finally thought to ask the Congressional Research Service about the Fourth Amendment implications of drones.
The analysis largely tracks what I wrote in this post: drones would be permitted to do simple observation, and would be permitted to do even more when operating close to a border. The big question about drones, though, is whether all the fancy technology they’ve got distinguishes them from the kind of naked eye surveillance a cop would be able to conduct.
Currently, UAVs carry high-megapixel cameras and thermal imaging, and will soon have the capacity to see through walls and ceilings. 98 These technologies are not generally available to the public, and under current jurisprudence, their use by law enforcement would probably constitute a search covered by the Fourth Amendment. However, the use of low-powered cameras or other unsophisticated technology to view people and objects in plain view while in their home might not trigger Fourth Amendment protections.
The crucial question, then, is whether drones have the potential to be significantly more invasive than traditional surveillance technologies such as manned aircraft or low-powered cameras— technologies that have been upheld in previous cases. In this vein, some have asked whether using sophisticated digital platforms on a drone is any different from attaching the same instrument to a lamppost or traditional aircraft. 108 Read more