Supporters argue that drones can do work better suited for robots than people, such as flying into hurricanes and forest fires. Brookings's Bennett, for one, says that while the concerns of privacy groups are legitimate and merit "sober contemplation," the benefits are too good to pass up. "The upsides are big. They have a lot of applications in the disaster relief setting, environmental mapping, and [monitoring] traffic patterns," he says. "There is a lot you can do with less money and less danger to people than you could do otherwise."
The FAA has been directed to have a working regulatory regime up and running in two years, and it remains unclear to what extent the agency can, or will, take privacy concerns into account. Still, if Congress doesn't act within that time to clarify the state of the law, the courts will be forced to referee.
The U.S. Supreme Court has previously sanctioned aerial surveillance without a warrant, concluding that if contraband such as marijuana plants lies in plain view of an aircraft, then the Fourth Amendment is not implicated. But the enhanced detection capabilities of drones likely renders that decision less than instructive.
A case involving the use of a GPS tracking device decided by the court just last term suggests a thicket of technology-versus-privacy concerns that awaits any judge who weighs in on drones. While a majority of justices held that the suspect's rights were violated because police committed a physical intrusion by placing the device on his car, others said that the court missed the point entirely. "Physical intrusion is now unnecessary to many forms of surveillance," warned Justice Sonia Sotomayor, adding that the threat of monitoring from afar has constitutional, as well as societal, implications. "Awareness that the government may be watching chills associational and expressive freedoms. And the government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse."
Justice Samuel Alito, too, called for new guidance from Congress. But given the institution's incipient paralysis (witness the fiscal cliff), the complexity of the issues involved, and even the presence of interest groups (drones already have their own Washington trade association that includes giants such as Raytheon Company and Lockheed-Martin Corporation), a fix may be long in coming. By then, Big Brother may have already taken wing.
This article originally appeared in The American Lawyer.
This article originally appeared in The American Lawyer under the headline “Spying on Ourselves.”