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«JOURNAL OF LAW, ECONOMICS & POLICY VOLUME 10 SPRING 2014 NUMBER 2 EDITORIAL BOARD 2013-2014 Steve Dunn Editor-in-Chief Crystal Yi Meagan Dziura Sarah ...»

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30 Lynetta Bowen, GPS-Guided Drones Present Privacy and Security Concerns, ROCKY MOUNTAIN TRACKING DAILY GPS NEWS (Sept. 6, 2012), http://www.rmtracking.com/blog/tag/drones/ (discussing the GPS capability of drones).

31 Geiger, supra note 4 (citing Kris Gutiérrez, Drone Gives Texas Law Enforcement Bird’s-Eye View on Crime, FOXNEWS.COM (Nov. 16, 2011), http://www.foxnews.com/us/2011/11/16/drone-givestexas-law-enforcement-birds-eye-view-on-crime/#ixzz1dw9bVOh8/) (discussing the use of drones with license plate reading technology).

2014] AN ECONOMIC PERSPECTIVE 445 obtained from aerial surveillance.32 Drones have the ability to break into wireless networks, monitor cell-phone calls, and monitor entire towns while flying at high altitude.33 These rapid technological advancements present privacy challenges that were not contemplated when our existing laws were developed.

II. BACKGROUND––PRIVACY AND LEGAL FRAMEWORK

Since courts have yet to specifically address drone surveillance, we must begin by examining the constitutional and common law sources of the right to privacy.

A. The Right to Privacy The right to privacy is an old concept. It was famously traced back to the development of the common law and viewed as an evolution from the existing common law.34 From this beginning, four common law privacy torts evolved: (1) intrusion upon seclusion35; (2) publicity placing person in false light36; (3) appropriation of name or likeness37; and (4) publicity given to private life.38 The tort of intrusion upon seclusion provides a cause of action against “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns... if the intrusion would be highly offensive to a reasonable person.”39 The tort of publicity placing a person in false light offers a cause of action against one who gives publicity to a matter concerning another that places the other before the public in a false light... if, (a) the false light... would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter.40 32Shachtman, supra note 22.

33Andy Greenberg, Flying Drone Can Crack Wi-Fi Networks, Snoop on Cell Phones, FORBES (July 28, 2011), http://www.forbes.com/sites/andygreenberg/2011/07/28/flying-drone-can-crack-wifinetworks-snoop-on-cell-phones/; Ellen Nakashima & Craig Whitlock, With Air Force’s Gorgon Drone ‘we can see everything’, WASH. POST (Jan. 2, 2011, 12:09 AM), http://www.washingtonpost.com/wpdyn/content/article/2011/01/01/AR2011010102690.html.

34 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890).

35 RESTATEMENT (SECOND) OF TORTS § 652B (1977).

36 Id. § 652E.

37 Id. § 652C.

38 Id. § 652D.

39 DANIEL J. SOLOVE & PAUL M. SCHWARTZ, INFORMATION PRIVACY LAW 80 (4th ed. 2011) (quoting RESTATEMENT (SECOND) OF TORTS § 652B).

40 Id. at 205–06 (quoting RESTATEMENT (SECOND) OF TORTS § 652E).

75446 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2

Also, the tort of appropriation of name or likeness provides a common law cause of action for “invasion of privacy” against “one who appropriates to his own use or benefit the name or likeness of another.”41 Finally, the tort of publicity given to private life provides for a cause of action for “invasion of privacy” against “one who gives publicity to a matter concerning the private life of another... if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”42 The tort of intrusion upon seclusion is the most likely to be implicated by the domestic use of drones. A claim of publicity given to private life would require a publication action and would not accrue simply because of surveillance.43 In addition to the common law right to privacy, U.S. citizens have a constitutional right to privacy.44 Although not directly enumerated in the Constitution, the right to privacy is derived from several Amendments in

the Bill of Rights to the U.S. Constitution45:

[T]he right to privacy is nowhere specifically mentioned in the U.S. Constitution or in the Bill of Rights. Nevertheless, because privacy flows from the general concept that there are certain freedoms beyond the power of [the] government to restrict, many view the federal Bill of Rights as a firm judicial mandate empowering the courts to protect both enumerated and unenumerated rights.46 The First Amendment guarantees that Congress “shall make no law respecting an establishment of religion, or prohibiting the exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”47 Accordingly, the First Amendment protects an individual’s right to privacy regarding speech, assembly, and religion.48 The First Amendment potentially applies to domestic drone use since widespread drone surveillance may have a chilling effect on protected activities.

In addition to the First Amendment, the Third Amendment provides for the privacy of an individual’s home by holding that “no soldier shall, in time of peace be quartered in any house, without the consent of the Owner.”49 The Fourth Amendment expands this privacy right by providing that 41 Id. at 220 (quoting RESTATEMENT (SECOND) OF TORTS § 652C).





42 Id. at 109–10 (quoting RESTATEMENT (SECOND) OF TORTS § 652D).

43 RESTATEMENT (SECOND) OF TORTS § 652D (2012).

44 See DAVID M. O’BRIEN, PRIVACY, LAW, AND PUBLIC POLICY 35–169 (1979).

45 See RICHARD A. GLENN, THE RIGHT TO PRIVACY: RIGHTS AND LIBERTIES UNDER THE LAW

21–44 (2003).

46 Id. at 35.

47 U.S. CONST. amend. I.

48 JOHN T. SOMA & STEPHEN D. RYNERSON, PRIVACY LAW IN A NUTSHELL 58 (2008); see also

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[t]he right of the people to be secure in their persons, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.50 Lastly, the Fifth Amendment promotes privacy by protecting a citizen’s right to not be “compelled in any criminal case to be a witness against himself.”51 Of these amendments, the most applicable to drone surveillance is the Fourth Amendment; however, the Fifth Amendment has potential applicability if drones use electronic surveillance to uncover inculpatory information that an individual is concealing. The First, Fourth, and Fifth Amendments, along with the majority of the Bill of Rights, have been incorporated into the Due Process clause of the Fourteenth Amendment and made applicable to the states.52 The next section will examine how current laws protect the privacy rights of U.S. citizens from surveillance.

B. Current Legal Framework

Courts have not yet addressed the issue of drone surveillance; therefore, the best way to assess the current legal framework is to review the jurisprudence on related surveillance methods to determine how a court would likely rule.

The starting place is the development of modern wiretap law, which began with Olmstead v. U.S.53 In Olmstead, the Supreme Court held wiretapping to be constitutional on the grounds that there was “no seizure” since the conversations were only heard and there was no physical entry into the defendant’s property.54 The Court reasoned that “the intervening [telephone] wires are not part of [the defendant’s] house or office, any more than are the highways along which they are stretched.”55 Almost forty years later, in Katz v. U.S., FBI agents monitored phone calls placed from a public phone booth by attaching a device to the exterior of the booth.56 The Supreme Court held that “the Fourth Amendment protects people, not places” and reasoned that “what a person knowingly exposes to the public, even 50 SOLOVE & SCHWARTZ, supra note 39, at 34; U.S. CONST. amend. IV; see also O’BRIEN, supra note 44, at 35–31.

51 SOLOVE & SCHWARTZ, supra note 39, at 35; U.S. CONST. amend. V; see also O’BRIEN, supra note 44, at 89–137.

52 JOSHUA DRESSLER & GEORGE C. THOMAS, III, CRIMINAL PROCEDURE INVESTIGATING CRIME

47 (5th ed. 2012) (quoting Duncan v. Louisiana, 391 U.S. 145, 147–48 (1968)).

53 Olmstead v. U.S., 277 U.S. 438, 464 (1928).

54 Id.

55 Id. at 465.

56 Katz v. U.S., 389 U.S. 347, 348 (1967).

–  –  –

in his own home or office, is not a subject of the Fourth Amendment protection.”57 The Court deviated from the “trespass doctrine” of Olmstead and other decisions to hold that it was constitutionally insignificant whether the listening device actually physically penetrated the phone booth.58 Justice Harlan’s concurring opinion in Katz articulated a two-part test for evaluating a person’s expectation of privacy: (1) “a person” must exhibit “an actual (subjective) expectation of privacy,” and (2) “the expectation” of privacy must “be one that society is prepared to recognize as ‘reasonable.’”59 This test is the primary standard for determining whether an individual has an expectation of privacy protected by the Fourth Amendment.60 Specifically, a reasonable expectation of privacy does not exist in information shared with third parties, such as the numbers dialed from a telephone since this information is routinely shared with the telephone company in the “ordinary course of business.”61 In response to the Supreme Court’s decisions, Congress enacted the Federal Communications Act of 1934 (FCA) and subsequently the Electronic Communications Privacy Act (ECPA) to protect the privacy of communications.62 The ECPA included the Wiretap Act, the Stored Communications Act, and the Pen Register Act.63 The Wiretap Act protects wire, oral, and electronic communications from interception and disclosure.64 Under the Wiretap Act, “to ‘intercept’ a communication means to acquire its contents through the use of any ‘electronic, mechanical, or other device.”65 The Wiretap Act requires a judicial order before the government may intercept communications.66 In addition, the Wiretap Act contains an exclusionary rule that allows a party to “move to suppress the contents of any wire or oral communication intercepted... or evidence derived therefrom.”67 The exclusionary rule does not apply to electronic communications, which include all forms of communication other than wire or oral communications, including email.68 The Stored Communications Act prevents service providers from disclosing the content of stored communications and the Pen Register Act requires a court order before a device that tracks phone numbers may be uti

–  –  –

lized.69 The USA PATRIOT Act passed after the September 11, 2001 terrorist attacks made changes to the ECPA, including adding a provision allowing the government to delay notice of a search if the court determined that there was “‘reasonable cause’ that immediate notice would create an ‘adverse result.’”70 Turning to aerial surveillance, the Supreme Court has applied the Katz two-part test to hold that it is “unreasonable... to expect... [constitutional protection] from being observed with the naked eye from an altitude of 1,000 feet.”71 The Supreme Court also held that “aerial photographs of an industrial plant complex from navigable airspace” do not constitute a search that violates the Fourth Amendment.72 The expectation of privacy granted for the curtilage of a home does not extend to the open areas of an industrial plant.73 While the degree of vision enhancement achieved by the particular aerial photography did not raise constitutional concerns, the Court left open the question of the constitutionality of higher degrees of vision enhancement.74 The Court specifically stated that serious constitutional questions would be raised by electronic surveillance that could penetrate a building to “hear and record confidential discussions.”75 In addition, a reasonable expectation of privacy does not exist against surveillance conducted by a helicopter operating at an altitude of 400 feet, since a member of the public could legally operate a helicopter at that altitude.76 In Kyllo, the Supreme Court held that the Fourth Amendment requires a warrant any time that the Government uses a device that is not in general public use to reveal details of a home that would not otherwise be known without physically entering the home.77 There is no legitimate privacy interest in the possession of contraband.78 Accordingly, a dog sniff that only reveals the existence of contraband without physically trespassing on private property would not likely be found to be a search in violation of the Fourth Amendment.79 Therefore, drones would potentially violate a legitiId. at 320–21.

70 Id. at 332 (quoting 18 U.S.C. § 3103a(b) (2012)).

71 California v. Ciraolo, 476 U.S. 207, 215 (1986).

72 Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986).

73 See id.

74 Id. at 238–39.

75 Id.

76 Florida v. Riley, 488 U.S. 445, 451–52 (1989).

77 Kyllo v. United States, 533 U.S. 27, 40 (2001).

78 Illinois v. Caballes, 543 U.S. 405, 408 (2005) (holding that “governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest’”) (quoting United States v. Jacobsen, 466 U.S. 109, 123).

79 See Florida v. Jardines, 133 S. Ct. 1409, 1417 (applying a property-based trespass approach, the Court held that a search in violation of the Fourth Amendment occurred when police physically intruded on private property with trained police dogs).

77450 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2

mate expectation of privacy if used to reveal anything in a private home other than contraband.



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