Tech Roundup Episode 20 – Drone Surveillance and the Fourth Amendment

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

Colton Graub:  Hello, and welcome to Regulatory Transparency Project’s Tech Roundup podcast. My name is Colton Graub. I’m the Deputy Director of RTP. Today, we are excited to host a discussion on drone surveillance and the Long Lake Township v. Maxon case. We are pleased to have Trace Mitchell, Jay Stanley, and Brent Skorup to discuss this important issue with us.

 

Trace is a litigation fellow at the Institute for Justice, a national civil liberties law firm that represents everyday people against the government violating their constitutional rights. Jay is a Senior Policy Analyst with the ACLU’s Speech, Privacy, and Technology Project, where he researches, writes, and speaks about technology-related privacy and civil liberties issues and the future. 

 

Brent is a Senior Research Fellow at the Mercatus Center. His research areas include transportation technology, telecommunications, aviation, and wireless policy. In the interest of time, I’ve kept my introductions of our guests brief, but if you’d like to learn more about any of them, you can find their full bios at rtp.fedsoc.org.  

 

With that, I’ll hand it over to Brent to guide the discussion. Brent, the mic is yours.

 

Brent Skorup:  Yeah, thank you, Colton, and thank you to everyone joining us. As Colton said, my name is Brent Skorup, and I’m a Senior Research Fellow and attorney at the Mercatus Center at George Mason University. And I’ve been studying emerging technology policy for over a decade, and drones have really developed rapidly in the last few years. If you don’t follow this technology sector very closely, I think you’d be surprised at the capabilities of drone systems, on the commercial side, being used for drone delivery in the U.S. and around the world, on small projects, but as we’ll talk about this today, being used on the government side, as well, for civil, criminal investigations. And I think of it much like previous waves of technology, GPS, internet, cell phones, computers. You have new technology putting — raising new questions for courts, for law enforcement, for regulators, and the time is ripe, as we’ll discuss, for discussing the Fourth Amendment, privacy, property rights, as it pertains to drones.

 

So with that, I would ask — I’ll ask Jay and then Trace, just briefly, how long have you been working on drone issues, emerging tech issues, and any opening remarks you’d like to make?

 

Jay Stanley:  Sure. Thanks, Brent. This is Jay Stanley, again, a Senior Policy Analyst for the ACLU’s Speech, Privacy, and Technology Project. I’ve been at the ACLU a long time. I started five weeks before 9/11 and following emerging technology since then, and drones were kind of an issue. They were out there for — in the Bush years and in the first Obama administration. But they were just like a sexy thing that the press would call up about once in a while. But they really got real around 2011, 2013, in that range. 

 

Like many technologies, they hang out there for a while, then one day, you wake up and they’re really real. And so, we did an ACLU report on police use of drones in 2013, and it’s a technology that I’ve been following since then. And as you said, Brent, it is really on the cusp of expanding dramatically right now, including law enforcement uses.

 

Trace Mitchell:  That is absolutely right, Jay. This is Trace Mitchell, again, Litigation Fellow with the Institute for Justice. Brent, I want to start by thanking you so much for hosting this conversation, and I also want to thank the Regulatory Transparency Project and FedSoc for really giving it a platform.

 

Well, Brent will be a little bit familiar with this, but I’ve been working on drone issues for four or five years now. I’m currently a litigator with the Institute for Justice, but before that, I was really a technology policy researcher and actually got my start at the Mercatus Center under Brent Skorup himself, and we worked on some of these issues back then. But I’ve been interested in these sort of issues since then. 

 

I became Policy Counsel with NetChoice, which is a technology-focused trade association that covers a variety of areas but really talks about all emerging technologies and the importance of both limited government but also, on the other side of the coin, free markets, when it comes to emerging technology and so, balancing those interests. And then, when this issue came across and really lined up well with the Fourth Amendment, the Institute for Justice knew it was an area that they needed to get involved in and bolster some of our other work on the Fourth Amendment. And so, I think as this becomes, as Jay said, an increasingly popular area of law and one that’s really starting just now to mature, I think this is going to pose even further issues that are going to need to be grappled with and courts are going to need to sink their teeth into before we get too far down the line.

 

Brent Skorup:  Yeah. Thank you for that, and I hope it’s evident we’ve got two national leaders on this issue and national thinkers. People have thought about this for a long time, and on that note, we’ve talked about this technology has rapidly matured, and I think that’s the right word. I mean, it’s becoming not just commercially viable but also a practical use of law enforcement investigation. 

 

So first, to Jay, I would ask — I say this — to some extent, it’s kind of hard to understand fully how often drones are used. I wonder if you could talk about the drone programs that are out there, some examples, how common is it for police and regulators to use drones, and, yeah, just the broader stakes and context for drone use?

 

Jay Stanley:  Yeah. So there are estimated to be roughly 18,000 law enforcement agencies in the U.S., which is kind of mind boggling, but it’s a big country. And according to the EFF’s—the Electronic Frontier Foundation’s—Atlas of Surveillance, there are about 1,400 police departments that are using drones. Those drone uses typically fall into such uses as dealing with emergency situations, monitoring public events—which can be problematic, in our view, if they — if they’re surveilling First Amendment protected activity—accident and crime scene photography, finding lost people in the woods, and so forth. The law enforcement use of drones has been pretty sharply curtailed by the FAA’s rules, which ban — generally ban flights beyond the visual line of sight—or BVLOS—of the operator. So that has prevented Amazon delivery drones and UPS delivery drones and burrito copters and everything from flying around our communities. And it’s also curbed law enforcement use of drones.

 

There are, however, some law enforcement agencies—probably a couple dozen, maybe—that have gotten special exemptions from the FAA to allow them to engage in BVLOS flights. And those led, initially, by Chula Vista, California, have started doing what they call Drones as First Responder programs. And I’m coming out with a white paper on this next week, actually. And in those programs, when you dial 911, they send a drone over your house, and the drone often gets there in, like, 90 seconds, so it’s before police officers arrive. 

 

And law enforcement makes arguments, which we take seriously, that it can help them significantly and also that it can actually decrease bad interactions with law enforcement. For example, if the drone sees that somebody who’s been reported as acting suspiciously is not acting suspiciously, maybe they’re just a black person who’s doing something normal—which is something that law enforcement deals with, unfortunately—or the person reported to be holding a gun is actually holding a cigarette lighter shaped like a gun, and so when law enforcement arrives, they’re less likely to shoot the person. 

 

But at the same time, most 911 calls are for very minor things, and so this is a lot of police drones that are going to be zipping across cities. And Chula Vista—which, to its credit, has been very transparent—they post the flight paths of all their drone flights. If you map them all out, you could see that it covers most of the inhabited parts of Chula Vista. So one question is, what do we think of these programs now? And the other question is, is this really a stepping stone to really broad police use of drones for all manner of things that, collectively, leads to communities in which there’s always police drones overhead?

 

And if there’s a drone overhead, first of all, you may or may not know whether it’s a police drone or not—depending on how the FAA’s rules around drone identification go—but also, you don’t know if it is a police drone if it’s zoomed in on you. These things have very powerful cameras. And so, it’s no way to live, in our view, that people have to have the chilling effects from the moment they step out of their house in the morning until they get home at night, wondering—and even in their backyard, potentially—if some police drone is watching them.

 

Trace Mitchell:  Yeah. I think to build on some of what Jay is saying — I think it is important to highlight that different law enforcement agencies and departments use these technologies in different ways. In fact, the case we’re going to discuss in just a little bit is a Michigan case. And just even more recently than the case itself, Grand Rapids had a proposal to get more drone use for its law enforcement department, and it received some pushback, and the response on behalf of the department was, “Well, we’re not really going to be using this to survey the community. We’re really going to be using this for crime scene investigation or,” as Jay highlighted, “first responder incidents.” But the difficulty there—and what a lot of the community highlighted—was you don’t know where it’s going to stop. You can say that these drones are going to be used for a specific purpose, but without limiting legislation—and as we’ll discuss later, even with limiting legislation or restrictions—on how it can be used, it still poses this dangerous problem of a drone always being overhead and even problems that a lot of people might not think about when it comes to liability. 

 

What happens when a police drone crashes and hits somebody, or what happens when it captures some information that’s really very private on the inside of someone’s house? And so, these are things that are really going to need to be fleshed out. But law enforcement have jumped into this headfirst and have shown that they’re eager and willing to be using this technology, really, across the board. 

 

Brent Skorup:  I would add, as both of you indicated, there are pro-social uses of drones, certainly commercially, but also for law enforcement, and frankly, there are probably many communities that — and people who will welcome the added capability that drones offer—very rapid response and high fidelity photos, and so on. But of course, there are some obvious risks to public trust and also to constitutional protections of property and privacy that are at play with small drones and photography at very low altitudes, something that courts have not dealt with to that degree.

 

And for listeners, just cover a few — just to point out, this is not — these are real cases courts are now seeing in earnest in the last couple years. Just a few I’ve come across in litigation. I saw drone policies in Sonoma County, California, dated to 2017, but it probably has been changed somewhat but also resembles probably what many counties and states and cities have. But it allowed drone use — warrant-list drone use for investigations in code enforcement, for unpermitted land uses, junkyard conditions, grading, drainage improvements—this is from their drone policy statement—and also can be used for surveillance, inspection upon reasonable suspicion alone. It’s hard to find the private use policies publicly, but this one did come out in litigation. 

 

I point to an Ohio appellate court case, Ohio v. Stevens. This was an unfortunate hit-and-run car accident. Police used — with a tip, used a drone to identify what they believed to be the car involved in the hit and run. 

 

In rural Ohio, this reached an appellate court who said — essentially said—this is the Riley case, the helicopter case from a couple decades ago—“When you’re flying aircraft above land,” they said, “and above open fields –” they said — this was outside the curtilage, so it was 300 feet or so from the home. They said, “It’s open fields. There’s no need for a warrant,” when the police did identify a car with drone photography. But there was a dissent to that, which is interesting.  

 

I would also note some drug cases—drug surveillance cases. I’m aware of one in North Carolina where a court denied the U.S. government All Writs Act order to do drone surveillance in North Carolina based on property considerations. 

 

I know of a case in Colorado—a marijuana growing case, People v. Tuck—came out last year, a warrantless search. The interesting thing in that case — I believe it was the judge — local judge said, “Because Colorado vested air rights with landowners,”—that was one reason the judge found it was an impermissible search and suppressed the evidence. The case was then dropped. 

 

There was another case in Indiana. All that to say, these are live legal issues before courts, and courts are coming down in different ways on this. There’s not consistency.

 

So my next question would be for Trace. You are working on litigating a case before the Michigan Supreme Court, Long Lake Township v. Maxon. I’ve been following this case for several years. It’s gone up and down the courts in Michigan for years now. I wonder if you could provide us an update, a little bit about the case, the facts, the procedural history, and where the case is now, and your interests in the case?

 

Trace Mitchell:  Absolutely. A, I want to thank you so much for highlighting those cases. The Colorado Tuck case is particularly of interest. It’s something that we actually discussed throughout our briefings and something that really is very relevant to the issues at play in the Maxon case. And so, yeah, just as brief overview, the way this case came about was that Todd and Heather Maxon—the Maxons—live in Northwest Michigan, and they live on a rural piece of property, and Todd’s a bit of a tinkerer. He likes to collect vehicles. He likes to modify them, repair them, all that kind of stuff and is well within his rights to do so. And this hasn’t ever really bothered anybody. He gets along very well with all of his neighbors. You can’t see any of this from the roadway or even outside of his property. His property is protected by trees. This isn’t something you could see. 

 

But he has this kind of longstanding dispute with the local township where — all the way back as early as 2007/2008, they were like, “We don’t really like what you’re doing here. We think it looks a little bit messy, and, really, we think you’re running more of a salvage yard.” And so, they brought an enforcement action against him, which he won, and so they actually had to settle. And they entered into an agreement where they agreed to pay some of his attorney’s fees, and they also said, “Look. Yours is a permitted use, and we’re going to let you do this for a while.” 

 

Well, you fast forward about ten years, and in 2017/2018 they amended their local ordinance on this issue and really started to come after him again. And so, what they did was, instead of reaching out, instead of obtaining a warrant or anything of the like, without a warrant, they hired a private drone operator to fly above the Maxon’s property, record photos, record videos, really scan all over, get up close to the house, get inside of — this kind of obscure word you used earlier, “curtilage” that means very little to non-lawyers but means a lot to lawyers, especially in the Fourth Amendment context — and really recorded a lot. And they did so on three separate occasions. 

 

And one of the things that you highlight earlier is the visual line of sight. This is something where the drone was well outside of the visual line of sight of the operator of this drone. And so, that’s something worth noting as we go along — is how these drones are being used, whether they’re in compliance with federal laws and what that means for the Fourth Amendment implications here. And so, on the third flight, Todd Maxon actually saw it, drove out and asked the operator for his license, and he said, “Well, you’re not law enforcement, so I don’t have to give it to you.” And that was that.

 

So what they did, though, was they said, “Well, we think you’ve exceeded the use that we previously allowed you to do.” And so, they wanted to bring an enforcement action against him and did so. And they tried to use this evidence against him in court, and he moved to exclude the evidence, saying, “Hey. You didn’t have a warrant for this. You filmed all around my property. You’ve trespassed on my property with your drone in my airspace, and so I think this evidence should be excluded. I think it stands in direct violation of the Fourth Amendment.” And so, the local court said, “No. We don’t think that this was necessarily a search.” 

 

But interestingly, they did highlight — they said, “This could pose other problems when it comes to things like trespass.” Now, why the court didn’t realize that trespass is a core Fourth Amendment issue is neither here nor there, but they ruled that it wasn’t a Fourth Amendment violation. And so, as you said, this has been up and down the court system. It’s a little bit fascinating. 

 

It goes up to the Court of Appeals, and the Court of Appeals says, “No. In fact, this was a Fourth Amendment violation. We think that this was a Fourth Amendment violation because it violated their reasonable expectation of privacy under Katz. And we also think that the trespass argument’s interesting, but we don’t necessarily need to reach it because we find that it violated their reasonable expectation of privacy,” and said, “This evidence should be excluded.”

 

Well, the city appealed it up to the Supreme Court of Michigan, and the Supreme Court of Michigan did a number of things. First, it said, “Okay. We want to hear briefing, and we want to hear argument on this.” And so, it ordered briefing. And then about — they ordered it specifically on the search question—whether a Fourth Amendment search occurred. And then it paused about two weeks later and said, “No. No. No. We really want some briefing on this exclusionary rule question.” And so, then it went through that a little bit, and it said, “You know what? We’re going to send it back down.” And so, instead of doing a ruling on this, it told the Court of Appeals, essentially, “We’re curious about whether this evidence should have been excluded even if it’s a Fourth Amendment violation. So think about that a little bit, and let us know.” 

 

And so, sent it back down, and the Court of Appeals reheard the case and, essentially, I think they were trying to read the tea leaves a little bit of what the supreme court wanted. And they said, “Well, we don’t need to reach—even though we already did—whether this was a search because we think that this doesn’t need to be excluded.” And so, they essentially said that, in the civil context, the exclusionary rule isn’t applicable. “So if we want to send you to jail, if we want to bring criminal prosecution, sure, we got to follow the Fourth Amendment. And if we obtain any evidence in violation of the Fourth Amendment, that’s got to go. That can’t be used against you. But in the civil context, the exclusionary rule means nothing. What are you talking about over here? They can do whatever they want,” which we think is a really dangerous precedent because, really, at the end of the day, as people have highlighted, the growing body of civil law and civil enforcement is massive, and it’s being added to each and every day. 

 

And the implication of this is that a civil code enforcement or even an officer enforcing a civil law could break down the door to your home, intrude all in it, collect any evidence it wants, and you may have a constitutional claim against them down the road, but that evidence can be used against you in a court of law. And, really, that violates a lot of the principles upon which our Fourth Amendment jurisprudence has been founded. 

 

And there’s some really good case law, especially from the early days, that said, “Look. Without exclusion, the Fourth Amendment means nothing.” You relegate it to “an empty promise.” And so, we appealed. We thought that that was a wrong decision to refuse to apply the exclusionary rule, and we were applying for cert. We were hoping they would take it up. Thankfully, they have. And so, now we’re in the process of getting that briefing done and arguing before the supreme court, essentially saying, “Yes, this was a search under either the reasonable expectation of privacy, the trespass test or what we would advocate for, which is the ordinary meaning test.” And that asks, “Was there a purposeful investigative act?”

 

One of the things that Jay and Brent both highlighted is how incredibly complex this area becomes, and part of that is because Fourth Amendment juris doctrine is so confused. It’s become this kind of hodgepodge of rules and exclusions to rules and exemptions from the exclusions. And it’s really hard to figure out what’s going on here. And so, we think it’s time to step back and adopt a more plain, straightforward approach. Regardless of what test you apply, we think that a Fourth Amendment violation occurred, and we think that just because this is the civil context doesn’t mean that the evidence shouldn’t be excluded. And we think that’s supported by both case law, but we think it’s a fundamental matter. The Fourth Amendment does — becomes having little to no meaning if you can’t say that “if you obtain evidence in violation of my rights, I get to keep that out of a court of law.”

 

Brent Skorup:  Yeah. This drone case is now more than a drone case. This is a pure Fourth Amendment case in what happens — do you exclude evidence in a civil case of any kind when that evidence is gathered without a warrant? Although the drone is how this came about. This has much larger ramifications than just drones. It’s about the exclusion —

 

Trace Mitchell:  That’s absolutely right, and I think that that’s why the Institute for Justice was so interested in this case. We care about the Fourth Amendment and rights, and we enjoy developing technologies, but, really, we’re here for the core protection of people’s constitutional rights, and that’s really what’s posed here. This premise that civil enforcement agents—especially as the body of civil law continues to grow and expand—have carte blanche, free rein to violate your Fourth Amendment rights and use that evidence against you in court we think is really dangerous. And we do think that there’s a lot of problems posed by this growing technology that can be solved by just going back to the — what our founders thought. 

 

That’s become the increasing throughline in modern constitutional jurisprudence — is what was going on at the time of the founding? And specifically, in the Fourth Amendment, courts have routinely held that our modern protections must be, at minimum, as protective as it was at the time of the founding. And at the time of the founding, we still followed the ancient Roman maxim that you own your property to the depths of the earth up to the heavens. And while courts have curtailed that a little bit and you don’t quite have those same protections, you at least own the property directly above your home. 

 

And it’s an interesting thing because federal law says you can’t fly drones above 400 feet, and the government’s using that to say, “Well, that means that you can fly drones anywhere below 400 feet,” which is just a wild proposition because that would mean that if I have a 12 – 14 story building with an open window and you fly a drone into it, so long as you don’t touch anything, no trespass—no Fourth Amendment violation. And we think that that just can’t be right. So as you said, it’s about emerging technologies, but much more fundamentally, this is a core Fourth Amendment case. 

 

Brent Skorup: Yeah, Jay, I wonder if you have thoughts on the Maxon case or some of these other drone litigation, drone uses by police, thoughts about their use, and the stakes at play here?

 

Jay Stanley: Yeah, and I should specify that I am not a lawyer, but it is remarkable how unformed the jurisprudence is around the Fourth Amendment and drones. But clearly, we need to land somewhere, as a policy matter, where people can feel safe from intrusion on their own property and they can feel safe from pervasive surveillance anywhere. And I think that there are other issues as well. I mean, one of the things that we learned during the Black Lives Matter protests was that CBP loaned an Air Force drone—like a Predator—to the Minneapolis Police Department. And those drones can be flown well over 400 feet. And so, of course, there are issues there. In some ways, maybe that falls under the same body of law that — like Ciraolo, that covers fixed-wing aircraft and their ability to do surveillance.

 

Lurking behind all of this, of course, is satellite imagery, which — and satellites are rapidly developing technologies. New micro-satellites—they’re the size of shoeboxes—are being sent into orbit by the hundreds and thousands and pass over every spot on Earth. Now, their resolution isn’t nearly as high as a drone is going to be that’s flying in your — below 400 feet. And, of course, the other thing that drones can do is they can make surveillance cheap and easy in ways that fixed-wing aircraft, that police helicopters, than something like a Predator drone — which are threats to privacy, but in some ways, there are in-born natural limits all of those forms of surveillance, just because they’re so expensive. 

 

And one of the things — and one of the reasons why I think that drones are challenging laws, even though we’ve had police helicopters since the late 1940s — I think police helicopters do raise privacy issues. There have been controversies in communities that are subject to heavy police helicopter surveillance, over the noise, the feelings of surveillance, etc. There was a case in New York City where a police helicopter was supposedly monitoring a bicycle protest and used its night vision, swung its camera over, and filmed a couple making love in a pitch-black balcony rooftop on top of a building. And the police denied any wrongdoing in that case. 

 

But I think a lot of the privacy issues that have been lurking with other aircraft are becoming intensified and are coming to a head because drones hold out the possibility of making surveillance so cheap, so pervasive, so easy, and in addition to, of course, being much lower altitude. And so, I think that that case really is a harbinger of some very basic decisions that we as a society are going to need to make, in terms of the trade-off of allowing free-rein to this new technology, to the potential for innovation, and the potential advantages—including for government and law enforcement of it—versus preserving our way of life that we’ve always enjoyed, in terms of not having to worry about being spied on by robotic flying cameras.

 

Trace Mitchell:  I think Jay really hits the nail on the head. And I don’t want to drone on here too much, but one of the main questions that I do tend to get from attorneys that have been following this case or seeing what’s going on is, “Hasn’t the court already answered this with Ciraolo or with Riley when it comes to fixed-wing aircrafts?” And I think the answer is, “Absolutely not.” This technology is unlike any we’ve seen before. Justice Brennan, nearly three decades ago, posited something like this technology, this, what he called, “miraculous technology,” and said, “Well, what about the crazy implications that would come from that?” And I think that that’s something that needs to be grappled with. 

 

In Riley itself, the helicopter was above 400 feet, and one of the core issues that the court tapped into was, “Well, this is flying within FAA regulated airspace.” And that’s not what’s going on here. They’re flying below the tree line in some circumstances, well below 200 feet over people’s property. One of the things was they were like, “Well, helicopters are loud and noisy,” and all that kind of stuff. “You see what’s going on.” Drones aren’t. They’re quiet. They’re stealthy. They can zoom in and out of various areas very quickly.” 

 

Another thing was, “Well, anybody that was in this helicopter or plane — one of the very premises upon which the Open Fields Doctrine is based, is that anybody flying up there can view you and can view you just as clearly. The Ciraolo case, especially, they emphasized that it wasn’t pictures that was at issue. It was, really, the officer’s visual line of sight that he saw while up in the plane that he used in the affidavit to support what he was looking to obtain. And none of that’s at issue here. 

 

We have these incredibly high-quality cameras attached to an unmanned aircraft. No individual could get inside of a vehicle and go this low over their property. The rudders would’ve hit the trees beside them. But even more, it would’ve been incredibly loud, incredibly intrusive; everybody would’ve known what was going on here. But that’s not the case with drones. This individual from a large way away was able to fly it over the property without being anywhere near close to it. And that really does pose risk. What happens when somebody flies a drone — a government official flies a drone next to somebody’s window and captures intimate moments or captures other things that are — the individual might not want to be seen. 

 

And as I said, we have this complex, interwoven nature of Fourth Amendment doctrines, with things like the Plain View Doctrine, the Open Fields Doctrine, the Third Party Doctrine that all pose these major risks to where if we don’t have strong, vigorous enforcement here, if we don’t have what happened in Carpenter — which is where the court grappled with new technology and said, “No. This is different.” Right? “This is intrusive.” 

 

And you know what? I don’t necessarily think we have to reach the question of whether it’s different because this is a trespass just like it would’ve been in the old days. But it is different, in that this technology poses new threats, and if we don’t have the court grapple with that, I think our Fourth Amendment rights are going be relegated to virtually not in an area where drones could be flying over your property 24/7 and just record anything that goes on outside.   

 

Jay Stanley:  And, you know, I’ve participated in a couple FAA advisory committees and talked to a fair number of people in the drone industry pretty regularly, and I started asking some hard questions once about exactly what the FAA views as the national airspace. I think I even used something similar to what you said, Trace, which was like, “If you’re in a car and you have your windows down, is the interior of your car national airspace?” And it was really striking to me just how little anybody, including people who spend their entire lives just thinking about drones — just people have not really confronted these issues, and so there’s — even FAA officials and so forth. And so, there’s a lot of really virgin territory here.

 

Brent Skorup:  On that note, Jay, I think it was your work on some FAA advisory committees that I became aware of you and your work, and I like some of the things you were pointing out. I thought similarly. I mean, some of these courts — a couple of these drone cases, courts will say, “Oh, well, these drones were flying consistent with federal drone regulations,” which I regard as almost a non-sequitur. I mean, that’s — the FAA, in its determinations about airspace and whether a drone is safe, has nothing to do with what state or local laws might apply or what constitutional norms might apply. The FAA is not a constitutional law agency. It’s an aviation safety agency, and drones are required—with a few exceptions—to fly at very low altitudes. But the FAA acknowledges, expressly, there are local laws and constitutional norms that you must abide by, and that’s often lost.

 

I would add—and both of you touched on it—there are some intriguing — I know this is a complicated area of law in a lot of ways, not the least of which is property rights issues of airspace, and it’s complicated. I wrote a law review article in the Akron Law Review a couple years ago about airspace and property. The long and short of it is the U.S. Supreme Court says you own the immediate reaches above your land, much like your — just like your land, but the immediate reaches has not been well defined, and hence, why courts are all over the place about some of these issues.

 

In the time we have left, I would like to talk a little bit about what’s ahead. I’m sure Maxon will not be the last supreme court case—state supreme court case—on this, and I think it’s quite possible this even reaches the U.S. Supreme Court—some of these issues—because courts are finding themselves all over the place. And these are very, very powerful law enforcement tools and commercial tools—these drone systems. 

 

So with the time we have left—I’ll go to Trace and then Jay—if you have thoughts about public policies that should be in place, whether police departments should adopt them, whether they should be codified by states — of course, states are within their rights to provide more protection than what the U.S. Constitution provides. But to Trace and then Jay, what policy protections should be in place, what are in place, and what seems to work well?

 

Trace Mitchell:  Brent, A, I think you teed it up really well with a lot of your discussion, which is that, to begin, the FAA regulations really say nothing about the Constitution or where drones can operate. That’s something we saw in this case, actually — is the government tried to argue that because they were prohibited—really, is what the language is—from flying 400 feet above, it says, “Well, drones can’t operate 400 feet above. The government’s saying, “Well, that means they can operate below 400 feet, pretty much anywhere they want.” And that’s just wrong. And so, I think, as an initial matter, the FAA could certainly put out a statement, a policy guidance, explaining, like, “Look. You have to be in compliance with our rules and regulations, but do not interpret this as providing any additional rights or remedies you wouldn’t have in regards to state and local laws.” And I think that that’s where it builds into — is state and local laws.

 

This is something that we actually worked on a little bit together back at Mercatus, but a number of states have taken steps to say, “Look. You do own the airspace above your place.” Some leave it open-ended how much you own. Some set definitive boundaries. They say 250/300 feet. Again, just to highlight, the drone here was flying well below 200 feet. We know that because it was flying below the top of a tree, and the tallest tree that’s ever existed in Michigan is only 155 feet tall. So we assume that he doesn’t have some miracle tree on his property that we wouldn’t have known about otherwise. 

 

But all this to say, states can and do play a role in this, and Michigan, in fact, has. Michigan has a law that says if you use a drone to record video of an individual in violation of their reasonable expectation of privacy, that’s illegal. And they were specifically concerned about drone surveillance from law enforcement officers when they passed it. That was part of the legislative history that led to the enactment of this statute. And so, I think that states have a large role to play in this in defining what airspace is, defining what property rights are because, at the end of the day, the Fourth Amendment has and has always been part and parcel with trespass and property rights analysis. We even saw this with new technologies a couple years ago in cases like Jardines and Jones and Kyllo where the courts have said that new technologies may pose some risk but that the old protections that we still have at play are at play. 

 

And so, in one of these cases, there was a GPS tracker placed on the bottom of a vehicle, and the court said, “Well, sure, we can talk about reasonable expectation of privacy, but this was a trespass. You put a piece of property on another piece of property.” And that’s — what we really have going on here is that we have a trespass, part and parcel, especially as it would have been understood in the enactment of the Constitution back in the late 1700s. That’s pretty clearly answered. 

 

Now, I think the other thing it can do is the court can clear up a lot of this confusion when it comes to the doctrine. So as I highlighted earlier, the Institute for Justice advocates for something called the ordinary meaning test. Under the recent approach to Fourth Amendment jurisprudence, they’ve lumped — the Fourth Amendment has this provision that says, “If the government searches, it must be reasonable,” and then it lists a number of things that they search. But we’ve lumped the search question and the reasonability into one assessment and said, “Well, if you didn’t have a reasonable expectation of privacy, then no search occurred.” But as several individuals—including Scalia, Thomas, and Gorsuch—have pointed out, these are separate questions. 

 

And when the government takes a purposeful investigative act, that’s a search. Now, then we can move to the reasonability question, but as an initial matter, we need to clear up the confusion about what a search is. And a search is just any purposeful investigative act on behalf of the government. And I think it’s important to highlight that that triggers Fourth Amendment scrutiny. Again, whether it’ll ultimately survive or not based on the reasonability, I think that that’s a big question that needs to be resolved and just a continued reinvigoration of this trespass analysis and an emphasis that just because we have adopted this Katz rule, this reasonable expectation of privacy approach, doesn’t mean that our old approach isn’t still very viable and that when the government does something that violates property rights that constitutes a trespass, that poses Fourth Amendment problems that need to be grappled with and need to be understood. 

 

And so, I think everyone’s got a little — I think federal regulators, I think states and localities, but I think the court also has some work to do to clear up a lot of the confusion that’s been created.

 

Brent Skorup:  Yeah, Jay, could you speak to public policies in place to protect the privacy and property expectations of residents and also just good governance and trust in government agencies and law enforcement agencies?

 

Jay Stanley:  Yeah. So as a — when it comes to law enforcement use of drones, a threshold question for us is, “Has the community given permission for it through its elected representatives?” Often, one of the things that we’ve seen across the country is what I’ve called “policy making by procurement,” where law enforcement gets — a bag of money falls in its lap, either through grants from DOJ or DHS or sometimes from the corrupt civil asset forfeiture practices, and just goes out and starts installing new surveillance technology without telling, let alone asking the permission of the communities that it serves. And so, we think that police shouldn’t have drone programs at all unless they get democratically legitimate permission for doing so. But that’s a threshold. 

 

Beyond that, we think that there should be restrictions on law enforcement use of drones. For example, on these Drones as First Responder programs, limiting them to real emergencies and not things like a 911 call about a kid bouncing a ball against a garage and things like that, which is one of the things that emerged in some local uses — that there be these usage limits. And then with a new technology like this, it’s very important to have transparency because you can’t have democratic oversight unless you actually know what’s going on. 

 

That means transparency about what kind of capabilities and sensor payloads are on these law enforcement drones. What policies does the department have around how it deploys drones? What are the performance and results? Are the drones actually producing the benefits that law enforcement and sometimes the industries behind them are proclaiming that they’re going to get? If you’re a local city council member, you should be able to know if you’re getting a bang for your budgetary buck. 

 

And then there should be very good clear rules around video of public interest. Very similar to body cameras, there’s some video that drones will collect that is very private, and there’s no reason for it to be released. For example, somebody experiencing a mental health episode or domestic violence. On the other hand, there’s other video that drones will collect that it’s vital for there to be public release of it. For example, if a police officer shoots somebody. And we can’t have police departments releasing video that makes their officers look heroic and burying the video that doesn’t, where there is a public interest in that kind of video.

 

And then, of course, there needs to be data handling rules, privacy policies around when recording takes place. Does a drone on a way to an emergency — does it need to record with a camera pointing down to and from the location, collecting all kinds of incidental video, which, in the era of AI — I mean, one of the things that I’ve looked at is that AI makes video very discoverable. You can search through oceans of video now and look for — find me an Asian man carrying a violin case between the ages of 30 and 40. And people are going to want to use vast collections of video for AI training. And you could probably have an AI that would go through it and say, “Find me anybody — any sort of incidentally collected police video that shows evidence of any of the following eight code violations on their property.” You don’t need a human to pour through video anymore in order to use it against people.

 

So what are the recording policies, what kind of data sharing retention, what’s the policies around whether private contractors get access to police video and things like that? And in terms of — I think that having an established property right—as you have discussed, Brent — I think that would go far towards protecting people’s privacy. I think it comports with what most Americans’ common-sense notions are of what’s intrusive and what isn’t and what their reasonable expectations are—and so, whether that’s 200 feet or 400 feet or whatever these immediate reaches are. That sounds like something that would go far towards protecting Americans from the oppressive—potentially oppressive—uses of law enforcement drones. 

 

And then I guess I would — I’ve also argued in the past that states and localities should have lots of authority to regulate and even ban drone flights. If a community decides that it doesn’t think that the advantages of drones are worth the disadvantages, it should be able to ban it. And if they’re missing out, then people will begin to clamor because they’re not getting their deliveries or what have you, then they’ll start to feel like they’re missing out, and eventually, they’ll come around. 

 

And I guess the last thing I would mention is a case that one of my colleagues did in Baltimore called Baltimore Police Department v. Leaders of a Beautiful Struggle, which is very important. Baltimore was running — it was actually a crude aircraft, fixed wing, that was circling over Baltimore for most of the daylight hours and recording, using a gigapixel camera, like a 30 square mile area of the city and able to trace the movements of every pedestrian and car within that area. And we filed suit, and it went up to the circuit court, and they found that it was, in fact, a violation of the Fourth Amendment to carry out that kind of mass surveillance. 

 

I mean, that’s one case, and it’s not a Supreme Court case, but that’s a bookend that, for now, I think is keeping a lot of police departments from really thinking about and engaging in mass surveillance, which, for us, is the ultimate fear of what this technology may be unleashing. Because as a technological matter, it’d be very easy for a police department, and cheap, to buy a fleet of 40 drones and have them autonomously take off and circle on patrol and then land and recharge themselves and then take off again in shifts. That could be done as a technological matter. It can’t be done as a regulatory matter right now. But that’s the kind of — that’s our primary thing that we’re trying to stave off is that kind of mass surveillance. And that court case helps a lot, but we could end up with a hell of a lot of surveillance, even if it’s not that kind of formalized mass surveillance. 

 

Brent Skorup:  All right. Thank you for that. And I want to thank Trace Mitchell at Institute for Justice and Jay Stanley at ACLU for joining me today to talk about drone technology and new civil liberties and legal issues surrounding them. And I’ll turn it over to Colton.

 

Colton Graub:  Thank you so much to Trace, Jay, and Brent for joining us today. This has been a truly fascinating conversation and one that will surely continue to remain relevant over time. To our audience, if you enjoyed this discussion, please visit rtp.fedsoc.org to take a look at the rest of our content and follow us on social media to stay up to date with new content as it’s released. Thank you so much.

 

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