Drone Surveillance and the Fourth Amendment

Drone Surveillance and the Fourth Amendment

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Welcome to the Regulatory Transparency Project’s Fourth Branch Podcast series. All expressions of opinion are those of the speaker. Hello, and welcome to the 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 their 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. Yeah. Thank you, Colton.

And thank you to everyone joining us. As Colton said, my name is Brent Skorup. 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 would be surprised at the capabilities of drone systems. On the commercial side being used for drone delivery in the US and around the world on small projects. But as we'll talk about today being used on the government side as well for civil and 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 I would ask I'll ask Jay and then Trace, just briefly, how long you've been working on drone issues, emerging tech issues, and any any opening remarks that you would like to make. Sure.

Thanks, Brent. This is Jay Stanley. Again, a Senior Policy Analyst with the ACLU 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, you know, drones were sort of kind of an issue.

They were out there for like, you know, in the Bush years and in the first Obama administration. But they were just sort of like a sexy thing that, you know, the press would call up about once in a while. But they really got real around 2011, 2013 in that range. You know, like many technologies, they sort of hang out there for a while and 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 That is absolutely right. This is Trace Mitchell.

Again, Litigation Fellow with the Institute for Justice. Brent, you know, 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, we'll be a little bit familiar with this, but I've been working on drone issues for for four or five years now. You know, 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 kind of balancing those interests. And then when this issue came across and really lined up well with the Fourth Amendment, you know, the Institute for Justice kind of knew it was an area that they needed to get involved in and and bolster some of our other work on the Fourth Amendment.

And so, you know, 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, further issues that are going to need to be grappled with and courts are going to need to sink their teeth into. You know, before we get too far down the line. Yeah, thank you for that.

And yeah, I hope it's evident... we've got two national leaders on this issue and national thinkers – people who have thought about this for a long time and and on that note... yeah, we’ve talked about, you know, 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 just the broader stakes and context for attorneys? 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 (Electronic Frontier Foundation) Atlas of Surveillance, there are about 1,400 police departments that are using drones. Those drone uses typically fall into such uses as, you know, dealing with emergency situations, monitoring public events, which can be problematic in our view, if they, you know, if they're surveilling First Amendment protected activity, you know, 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, you know, 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, you know, 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 has 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 that a person reported to be holding a gun is actually holding a cigarette lighter shaped like a gun. So when the law enforcement arrives, they're less likely to shoot the person. But at the same time, you know, most 911 calls are for very minor things and so this is a lot of police drones that 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 can see that it covers most of the inhabited parts of Chula Vista.

So one question is what what do we think of these programs now? And the other question is, you know, is this really a stepping stone to really broad police use of drones for all manner of things? That sort of collectively leads to communities in which there's always like police drones overhead and, you know, 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 sort of 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 are very powerful cameras. And so it's kind of 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, wondering if some police drone is watching them 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 and departments use these technologies in different ways. In fact, you know, the case we're going to discuss in just a little bit... it’s a Michigan case and just even more recently than the case itself... Grand Rapids had a proposal to to get more drone use and it for its law enforcement department. And it received some pushback.

And, you know, 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, you know, the difficulty there and what a lot of the community highlighted was you don't know where it's going to stop. You know, you can say that these drones are going to be used for a specific purpose without sort of 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. You know what happens when a police drone crashes and hits somebody or what happens when, you know, 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 kind of jumped into this head first and have shown that they're eager and willing to be using this technology really across the board. I would add, as both you indicated, you know, there are, you know, pro-social uses of drones, certainly commercially, but also for law enforcement. Frankly, there are probably many communities that and people who welcome the added capability that drones offer.

You know, 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 I’ll just cover a few... just to point out that this is not... these

are real cases courts are now seeing in earnest in the last couple of 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... warrantless drone use for investigations and code enforcement for unpermitted land uses, junkyard conditions, grading and drainage improvements – this is from their drone policy statement – and also can be used for surveillance inspection upon reasonable suspicion alone.

So that's... it's hard to find these, you know, private use policies publicly but this one did come out in litigation. I’d 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, you know, what they believed to be the car involved in that 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 – said when you fly an aircraft above land, they said in 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 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 US government’s All Writs Act order to do drone surveillance in North Carolina based on property considerations. Another case in Colorado, a marijuana growing case – People v. Tuck – that came out last year, a warrantless search. The interesting thing in that case... that I was... I believe was a judge, local judge said because Colorado vested air rights with landowners, that was one reason the judge found it was a impermissible search and suppressed the evidence.

The case was then dropped. There was another case in Indiana. All that to say that these are live legal issues before courts and courts are coming down in different ways on this. There's not consistency. So my 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 court system 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 interest in the case. Absolutely. I want to thank you so much for highlighting those cases. You know, the Colorado Tech 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 a brief overview, the way this case came about was that Todd and Heather Maxon and the Maxons live in northwest Michigan, and they live on a rural piece of property. And Todd's a bit of a tinkerer, you know, 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 has never really bothered anybody.

You know, 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 long-standing dispute with the local township where all the way back as early as 2007, 2008, they were like, we don't 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, like, look, you know, 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 kind of come after him again. And so what they did was instead of, you know, 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. You know, this is something where the drone was well outside of the visual line of sight of the operator of this drone. And so, you know, that's something worth noting is 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 kind of that. So what they did, though, was they said, 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, you know, 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, you know, 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. You know, 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 is 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 kind of 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 said... 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, you know, 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 is inapplicable.

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, you know, enforcing a civil law could break down the door to your home, intrude all in it, collect any evidence they want, 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 know, you relegate it to “an empty promise”. And so we appealed.

We thought 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? You know, one of the things that that Jay and Brent both highlighted is how incredibly complex this area becomes.

And part of that is because Fourth Amendment jurisdiction 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 kind of hard to figure out what's going on here. And so we think it's time to kind of step back and adopt a more plain, straightforward approach. But 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 as a fundamental matter the Fourth Amendment does become a little... becomes having little to no meaning if you can't say that, you know, if you obtained evidence in violation of my rights, I get to keep that out of a court of law.

Yeah, so it's, you know, this drone case is now more than a drone case. This is a pure Fourth Amendment case. And 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... That’s absolutely right, you know, and I think that that's why the Institute for Justice was so interested in this case. You know, 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. You know, this premise that civil enforcement agents, especially as the body of civil law continues to grow and expand, have carte blanche, you know, 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, you know, what our founders thought.

You know, that's become kind of the increasing through line in modern constitution 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, you know, own your property to the depths of the earth up to the heavens. And, you know, while courts have kind of 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 kind of 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 like a 12 -to 14-story building with an open window and you fly a drone into it, so long as you don't touch anything, no trespass, you know. No Fourth Amendment violation.

And we think that that just can't be right. So, you know, as you said, it's about emerging technologies. But much more fundamentally, this is a core Fourth Amendment case. Jay, I wonder if you have thoughts on the Maxon case or some of these other...

you know... drone litigation, drone uses by police, thoughts about their use, and the stakes at play here. Yeah, and I should specify that I'm not a lawyer, but, you know, it is remarkable how unformed the jurisprudence is around the Fourth Amendment and drones. But, you know, 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, you know, 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 a drone – a Air Force drone – like a Predator, to the Minneapolis Police Department, and those drones can be flown well over 400 feet.

And, you know, so, of course, there are issues there. In some ways maybe that falls under the same body of law that like Ciraolo that covers, you know, fixed-wing aircraft and their ability to do surveillance. Lurking behind all of this, of course, is satellite imagery.

Satellites are a rapidly developing technology. New micro-satellites that are 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... you know, below 400 feet. But and of course, the other thing that drones can do is they can make surveillance cheap and easy.

In a way that fixed-wing aircraft that police helicopters... you know, than something like, you know, a Predator drone, which are threats to privacy but, in some ways, there are inborn natural limits to 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, you know, 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... a rooftop on top of a building.

And the police denied any wrongdoing in that case. So, 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, you know, I think that, you know, 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 tradeoff of allowing free reign to this new technology, to the potential for innovation and the potential advantages, including for government and law enforcement, of it versus, you know, 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. You know, I think Jay really hits the nail on the head and, you know, 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 have kind of seen what's going on is, you know, hasn't the court already answered this was Ciraolo or with Riley when it comes to kind of fixed-wing aircrafts and I think the answer is absolutely not.

You know, this technology is unlike any we've seen before. You know, Justice Brennan nearly three decades ago posited something like this technology – 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. You know, 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. You know, they're flying below the tree line in some circumstances, well below 200 feet over people's property.

One of the things was they're 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, you know, anybody that was in the 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.

You know, 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 an affidavit to support, you know, what he was looking to obtain. And none of that's at issue here.

You know, we have these incredibly high quality cameras attached to a unmanned aircraft. You know, no individual could get inside of a vehicle and go this low over their property. The rudders would have hit the trees beside them.

But even more, you know, it would have been incredibly loud, incredibly intrusive. Everybody would have known what was going on here. But that's not the case with drones. You know, this individual from a large way away was able to fly it over the property without, you know, being anywhere near close to it. And that really does pose risk.

You know, what happens when somebody flies a drone? You know, a government official flies a drone next to somebody's window and captures intimate moments or captures other things that the individual might not want to be seen. You know, and as I said, you know, 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 sort of major risks to where, you know, if we don't 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 this is different, right? This is intrusive. And, you know, 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 have 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, you know, I think our Fourth Amendment rights are going to 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. You know, I've participated at a couple FAA advisory committees and, you know, talked to a fair number of people in the drone industry pretty regularly. And, you know, I started asking some hard questions once about exactly what the FAA views as the “national airspace”. You know, I think I even used something similar to what you said, Trace, which was like, you know, if you're in a car and you have your windows down is the interior of your car in national airspace.

And it was really striking to me just sort of how little anybody, including people who spend their entire lives just thinking about drones, like, you know, just people have not really confronted these issues. So there's... you know, even FAA officials and so forth. And so there's a lot of really virgin territory here 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, well, I like some of the things you're pointing out. I've thought similarly... some of these courts, you know, a couple of these drone cases, courts will say, oh, well, these drones are 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 you know, what state or local laws might apply or what constitutional notice 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... and 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 of 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... just like your land. But the immediate reaches has not been well defined and hence why courts are kind of 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 state Supreme Court case on this.

And I think it's quite possible this even reaches the U.S. Supreme Court. You know, some of these issues because courts are finding themselves kind of 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, you know, 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? Brent, 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, as 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, you know, I think as an initial matter, the FAA could certainly put out a statement... a policy guidance explaining like, look, you know, you have to be in compliance with our rules and regulations, but do not interpret this as providing any additional sort of 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. You know, 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. You know, 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, you know, the Fourth Amendment has and has always been part and parcel with trespass and property rights analysis. You know, we even saw this with new technology... it's a couple of years ago... in cases like Jardines and Jones and Kylo, where the courts have said that new technologies may pose some risk, but that the old protections 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 know, 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 that 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 that can do is the court can clear up a lot of this confusion when it comes to the doctrine.

So as I highlighted earlier, you know, the Institute for Justice advocates for something called the ordinary meaning test. Under the recent approach to Fourth Amendment jurisprudence, they've kind of lumped... you know, 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 kind of lumped the search question, the reasonability into one assessment and said, what 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, you know, 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 bet 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, you know, 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, you know, I think everyone's got a little bit, you know, I think federal regulators, I think states and localities.

But I think the court also has some work to do to kind of clear up a lot of the confusion that's been created. Jay, could you speak to public policies in place to protect the privacy and property expectations of of residents and also just good governance and trust in government agencies and law enforcement agencies? Yeah. So, you know, when it comes to law enforcement use of drones, sort of a threshold question for us is, you know, has the community given permission for it through its elected representatives? Often one of the things that, you know, we've seen across the country is what I've called “policymaking by procurement”, where law enforcement gets a bag of money...

falls in its lap either through, you know, 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, you know, we think that police shouldn't have drone programs at all unless they get, you know, democratically legitimate permission for doing so. But that's the threshold. Beyond that, we think that there should be restrictions on law enforcement use of drones, for example, in these ‘drones as first responder’ programs, limiting them to real emergencies and not like 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, you know, these usage limits. And, you know, 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 sort of deploys drones? What are the performance and results? Are the drones actually producing the benefits that, you know, 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's 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 particular, you know... find

me an Asian man carrying a violin case between the ages of 30 and 40. And you know, people are going to want to use, you know, sort of 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, you know, code violations on their property. You don't need a human to pour through video anymore in order to to use it against people. So, what are the recording policies, what kind of data sharing, retention, what's the policies around, you know, whether private contractors get access to police video and things like that.

So and, you know, in terms of, you know, I think that having an established, you know, 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’ notions are of what's intrusive and what isn't and what their sort of reasonable expectations are. And so whether that's 200 feet or 400 feet or whatever that these immediate reaches are, that sounds like something that would go far towards protecting Americans from the potentially oppressive uses of law enforcement drones. And then I guess, you know, I have 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, you know, because they're not getting their deliveries or what have you, then they'll 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 Leaders of a Beautiful Struggle v. Baltimore Police Department, which is very important. In Baltimore it was actually a crewed 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 violation of the Fourth Amendment to carry out that kind of mass surveillance. And so, I mean, that's one case, and that was not a Supreme Court case, but that's sort of 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, be very easy for a police department and cheap to buy a fleet of, you know, 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. Can't be done as a regulatory matter right now.

But, you know, 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. 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. 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. On behalf of The Federal Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch Podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at regproject.org.

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2023-07-24 03:50

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