Thursday, February 11, 2016
Question of the Week No. 5
Congress mandated that the FAA by November of
2015 pass regulations integrating the use of drones into the U.S. airspace by
2015. The FAA failed to meet its
deadline and various states, including Utah, have enacted laws regulating the
use of drones. Should the FAA prohibit
the use of drones by law enforcement for surveillance purposes without first
obtaining a search warrant?
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Yes. The FAA should prohibit the use of drones without a search warrant. Because drones are unmanned, they will be cheaper to operate (not counting the cost of the plane itself, which I will assume is about the same, whether or not it's manned). This will lead to far more ubiquitous surveillance efforts. Furthermore, drones have a nationwide field of use--therefore, they should be regulated by federal regulation, rather than leaving their regulation to the states. Because drones will have the ability to do very detailed surveillance in places where people have a legally recognized expectation of privacy (e.g. in their homes), a search warrant should be required. However, the Supreme Court has held that police officials do not need a warrant to observe an individual's property from public airspace (Florida v. Riley). I would distinguish this case from the use of drones because drones are unmanned. As a consequence, associated with the use of drones is the danger of pervasive surveillance. Therefore, the use of drones by law enforcement should be regulated by federal regulation and a search warrant should be required for their use.
ReplyDeleteNo, the FAA should not prohibit the use of drones by law enforcement (LE) without a warrant. The FAA’s role is to regulate civil aviation with the ultimate goal of safety. Included in this role are things like developing air traffic control and airspace standards, providing standards for pilot and aircraft certification, and publishing standardized flight publications. When it comes to UAVs, the FAA should develop standards for registering UAVs and regulating the airspace in which these UAVs could be flown. In this role, the FAA would require law enforcement register their UAVs, file any required flight plans, and observe any airspace restrictions (or follow the proper procedures for exceptions). However, when it comes to making sure that LE has a warrant every time they want to fly a UAV, this would both exceed the role of the FAA and create additional regulation where there is already a remedy for violations of the Fourth Amendment. In non-aviation contexts, the mechanism for ensuring that LE complies with search warrant requirements is the exclusionary rule. Search warrants should be required in some, if not most, cases where UAVs are used by LE, but the mechanism for enforcement of the search warrant requirement should be the exclusionary rule, not the FAA.
ReplyDeleteNo. The fact that the FAA has missed the deadline on final regulation in this area speaks to the complexity of promulgating regulations related to drones. The FAA is an administration within the Department of Transportation (DOT), and 49 U.S.C. § 106(g) (See https://www.law.cornell.edu/uscode/text/49/106 (g) “Duties and Powers of Administrator”) are limited to promulgating transportation regulations related to aviation safety. The enabling statute does not grant the FAA the authority to promulgate rules that define how law enforcement agencies may carry out their own duties, and promulgating rules that require law enforcement agencies to obtain a search warrant would clearly exceed the scope of the FAA’s rulemaking authority. Regulating the actions of law enforcement agencies is in the domain of state law, and the FAA’s role is limited to ensuring that drones do not violate FAA regulations related to aviation safety.
ReplyDeleteIn Reilly the Court has held that “police officials do not need a warrant to observe an individual's property from public airspace.” (Florida v. Riley). In Florida v. Riley, one must ask whether or not the reasonable expectation of privacy spoke to the air space above—which arguably it did—and if it did then at the time the decision was handed down, the reasonable expectation of privacy was partly dictated on the reasonable person’s expectation of what technology could in fact accomplish. The 1989 pubic air space and capability is vastly different from today. Was part of Rehnquist’s opinion due to the technology available at the time? If so, any member if the population could be flying over the home, and police did no more; does this mean that in society today that there is no violation of the e4th amendment where society in general has the same technology as police? The case in riley in the world today just doesn’t seem to apply—the assumption that no 4th Amendment issue arises when using technology as a police officer that the public at large itself does not have? in O’Connor’s concurrence felt that plurality focused on too much on FAA regulation which was relied too significantly on space regulation. I agree with O’Connor that the legality of the footage height of flight was irrelevant to the legality of a reasonable expectation of privacy.
ReplyDeleteYes, if the FAA has authority to create such a regulation. If not I would hope that the next time the issue comes before the courts that it is found to be an unlawful search. The thought that law enforcement could fly drones around spying on everyone without a warrant scares me. The use drones even with a search warrant is a little unnerving because with the use of a drone at 100 or 200 feet in the air almost everything would be in "plain view". At least with a warrant there would be an argument that they should only be focusing on a particular area, house, or individual. This would make it easier to argue that the "plain view" doctrine should be restricted to the reasonable area covered by the warrant. With free rein to use drones with no warrant required, it would be very difficult for police to refrain from violating the public's reasonable expectation of privacy, and constitutional rights.
ReplyDeleteNo, (And I forgot to say No) I don't think it is the place of the FAA.
ReplyDeleteNo the FAA should not prohibit searches with drones without a search warrant.Insofar as drones do not use sensory enhancing technology to detect what is going on inside a house or other edifice, people do not have an expectation of privacy in their activities or possessions that are in plain view from above. Given the current state of the Katz test, it is hard to imagine how a person has subjectively expressed an expectation of privacy in activities or items that are in plain view from the airspace above. I think the FAA should not require search warrant for drone surveillance until congress or the judiciary abrogates the Katz test and modifies the analysis for determining whether a person has an expectation of privacy.
ReplyDelete