Right now, in the United States, law enforcement can put you under drone surveillance without a warrant — as long as the drone never lands on your property. What the hell is going on here? How can this be legal?
First of all, let me assure you that this kind of surveillance is going on right now. Law enforcement can choose to watch you with a drone, and they don’t have to get permission from a judge (AKA a warrant) to do it.
The FBI recently sent a letter detailing their drone surveillance practices to Senator Rand Paul. Paul wanted to know how the agency justified using drones in this way under current privacy law. The FBI’s Stephen D. Kelly replied that the FBI believes that people watched by drones do not have “reasonable expectation of privacy” because “there is no physical trespass involved.” So if a drone hovers quietly above your backyard, filming everything you do, it’s just fine — because it never actually touched your personal property.
Privacy as Trespass
This disturbing little rule comes to you via a very literal interpretation of U.S. privacy laws. Most of our laws associate violation of privacy with trespassing. It makes sense, when you think about it. For most of U.S. history, a person had to walk onto your property or search your person into order to gain access to your private stuff. But over the past couple of decades, trespass has started to seem like a metaphor for privacy that’s “from the past,” as Roy on The IT Crowd would say.
In fact, “trespass” is a terrible way to think about privacy violation, according to Parker Higgins, an activist with the Electronic Frontier Foundation. Technologies like drones make it obvious that FBI agents can peep into your windows without walking into your backyard. “It was once a fact that trespass served as a good proxy for [privacy], Higgins told io9. “Increasingly we see examples that that proxy has failed.”
Higgins thinks the drone rule is a perfect example of this failure. “Whether the drone touches down or not is irrelevant to most people,” he said. “They’re not offended that it touched down. They’re offended that it’s invading their privacy.”
Alan is serial entrepreneur, active angel investor, and a drone enthusiast. He co-founded DRONELIFE.com to address the emerging commercial market for drones and drone technology. Prior to DRONELIFE.com, Alan co-founded Where.com, ThinkingScreen Media, and Nurse.com. Recently, Alan has co-founded Crowditz.com, a leader in Equity Crowdfunding Data, Analytics, and Insights. Alan can be reached at alan(at)dronelife.com