Considering Privacy Issues Raised by the Use of Unmanned Aerial Vehicles

Consider the following scenario:

A camera-equipped unmanned police aerial vehicle (UAV) is on routine patrol at an altitude of 50 feet—just over treetop level. The police operator flies the UAV past an apartment house, where people on upper floors can be seen in varying states of undress through several open windows. The occupants notice and are shocked by the presence of the UAV and immediately complain to the local police chief. Soon, an attorney representing several apartment house residents threatens to file a civil lawsuit against the police department alleging the invasion of personal privacy.

The potential uses for police UAVs seem, at present, almost limitless. Many UAV models are cheaper than cruisers and helicopters to purchase and operate, and their ability to fly and hover at varying heights makes them more nimble than conventional helicopters and fixed-wing aircraft. Finally, they can be sent into hazardous areas that would otherwise be unsafe for police officers to go, such as toxic waste spill sites, flooded areas, and forest fires. Their use, however, is fraught with many legal issues and might interfere with citizens’ expectations of privacy, leaving police departments vulnerable to civil lawsuits.

UAVs on Patrol

Looking to the future, it is likely that many legal challenges to police use of UAVs will involve allegations that their use violated a suspect’s “reasonable expectations of privacy,” rooted in the Fourth Amendment.1 All citizens, however, have an additional expectation of privacy that is protected by state (civil) tort law. Though police UAV use is still in its infancy and potential civil liability for their use far from certain, some predictions as to the extent of police liability for errant UAV use can be made by reviewing several past U.S. Supreme Court cases and recent trends in UAV-related law.

In several cases from the late 1980s the U.S. Supreme Court analyzed the reasonableness of warrantless police surveillance using aircraft. In 1986, the Supreme Court decided that police did not violate a criminal defendant’s reasonable expectation of privacy when they flew over his backyard in a plane at 1,000 feet and observed marijuana growing.2 The court decided that, the police did not require a warrant when “traveling in the public airways at this altitude… in order to observe what is visible to the naked eye.” 3 Three years later, the court decided that police hovering in a helicopter at 400 feet over a residence looking for marijuana plants were not conducting a warrantless search.4 Thus, it appears that there is a prima facie assumption that the use of police UAVs for routine patrol and for surveillance of criminal suspects might be within the scope of warrantless police behavior already allowed by the Supreme Court.
Recent Developments

For several important reasons, however, police officials should exercise great caution before considering using UAVs on routine patrol.

First, both of the prior cases mentioned above were narrowly decided, with neither decision indicating broad judicial acceptance of the warrantless police behavior in question. In fact, in the 1989 case, Florida v. Riley, Justice William Brennan was concerned enough about the privacy issues raised by police helicopter use to pose the following question:

Imagine a helicopter capable of hovering just above… [a] patio without generating any noise… at all… [and s]uppose the police… discover… what books they [people] were reading and who their dinner guests were.… Would… [this court]…continue to assert that… [the fourth amendment] was not infringed by such surveillance?5

Second, the Supreme Court has recently expressed concern over the “mosaic theory” of government intelligence gathering. Borne out of post-9/11 surveillance demands, this theory postulates that many small amounts of information gathered by law enforcement over a lengthy period of time reveals a great deal about a person’s private routine and habits. As the Supreme Court noted, however, this raises some troubling privacy issues:

Prolonged surveillance… can … reveal more about a person than does any individual trip viewed in isolation… [for instance] a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.6

Third, in a 2012 case, United States v. Jones, the court recognized the reasonableness of a criminal defendant’s expectation of privacy in their movements on public roads.7 In Jones, the court held that police had violated a drug suspect’s Fourth Amendment expectation of privacy when, without a warrant, they surreptitiously attached a hidden transmitter—considered trespassing—to the suspect’s vehicle for 30 days, allowing them to track his movements in public.8
Cause for Concern

There is, therefore, reason to believe that Supreme Court justices may be at a crossroads, weighing the public’s need for privacy against the state’s need for high-tech prolonged police surveillance and intelligence gathering in the post-9/11 United States. This may very well translate into determining that some long-term police surveillance behavior by UAV might, like the Jones case, be unconstitutional—even if done from a vantage point in the public domain (e.g., public airspace). That possibility should be of concern to police officials contemplating the future use of UAVs for patrol. UAV use that violates a person’s privacy in the realm of criminal law may translate into civil liability for their operators and police departments deploying such crafts.
Civil Privacy Concerns

As articulated by U.S. Supreme Court Associate Justice Louis Brandeis in 1890, privacy “is the right to be let alone.”9 While the public accepts many government intrusions into their lives, such as automatic license plate readers on police cruisers and cameras at toll booths, a 2012 survey found that U.S. citizens were wary of having UAVs flying overhead compromising their personal privacy.10 There are also other various police behaviors that are considered an invasion of personal privacy and resulted in large settlements in favor of the citizens’ initiating lawsuits, including a forceful, warrantless taking of a DNA sample and the police’s repeated access of a motorist’s driver’s license information.11 States like Florida, Virginia, and California have responded to privacy concerns, enacting legislation prohibiting or limiting the use of UAVs by the public.12 As the number of states recognizing a personal right to privacy against UAV use continues to grow, it follows that anti-drone legislation will soon be paired with the tort of invasion of privacy in a lawsuit against police.

In California, for instance, a civil lawsuit may be filed by an individual against a UAV operator based on the tort of invasion of privacy.[13] The violation of the law can expose UAV operators to civil liability under state tort law and the awarding of monetary damages to the injured party. Though intended to deter private UAV operators and specifically acknowledging the lawful activities of law enforcement personnel, the statutes do not automatically grant immunity to unlawful police activity from civil suit.[14] Thus, police may be liable under the state law if the capturing of images via UAV is unlawful—that is, unconstitutional. Accordingly, police UAV use deemed unconstitutional in a criminal court proceeding may result in a later civil action, based on the same set of facts, against UAV operators and their police departments to recover monetary damages.
Civil Litigation

The Restatement Second of Torts is a set of rules created by the American Law Institute guiding judges in their analysis of civil tort claims. According to the Restatement, an intrusion into a person’s privacy occurs when an actor “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs…if the intrusion would be highly offensive to a reasonable person [emphasis added].”15 Thus, the invasion of privacy claim covers physical intrusion as well as mechanically assisted invasion of privacy—including accessing vehicle records, listening in on private conversation, or photographing a person without consent. The essence of the privacy tort is the offensiveness of the intrusion, not the method of intrusion. Thus, it may very well be that any invasion of privacy tort claim made against police involving a UAV in a state wherein an anti-UAV law exists may result in civil judgements against the police.

Though no civil tort claim based on police UAV use has yet been filed, police chiefs should be wary of using UAVs for routine patrol. In almost all instances, a person in a public place has little expectation of privacy from prying eyes, but persons inside their home or in their backyard have heightened expectations of privacy from police action. For example, in Kyllo v. United States, the U.S. Supreme Court determined that police had violated a criminal defendant’s expectation of privacy by using a thermal imaging device to determine heat sources through the walls of his home, in essence, seeing through the walls of a home. The court observed, “The [device] might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath.”16

Though the Supreme Court’s disapproval of the police use of a thermal imaging might not seem troubling at first, police chiefs should be cognizant of the 2012 Jones case, as it established a criminal suspect’s expectation of privacy from the police in public. Taken together, it is evident that the court is wary of some police behavior revealing a person’s actions outside his or her home, as well as inside the home. UAV surveillance, involving cutting-edge technology, might be viewed by courts as involving the type of police behavior that was deemed unconstitutional in the Kyllo and Jones cases. Adding to the unease of UAVs hovering overhead is their ability to carry powerful microphones, high-resolution cameras, and facial recognition software.
Cause for Caution

A UAV’s single, brief pass over private property would likely not form the basis of an invasion of privacy claim against a UAV operator or police department, but prolonged or repeated surveillance of people in situations where they have a heightened expectation of privacy might indeed support a tort claim. And, although people have a lessened expectation of privacy in public, they may certainly expect that their movements are not being followed by police UAVs. This is a level of personal privacy that many civil courts may be willing to recognize on behalf of the public and against police interests.

Referring back to the opening scenario, a UAV’s single pass by an open window of a home may not necessarily rise to the level of an unreasonable intrusion into a citizen’s privacy recognizable by a civil court. A pattern of continuous police conduct similar to that, however, might very well be a much different story and lead to civil tort liability for both the operator and department. UAVs have the potential for being very valuable assets to police departments, but the drawback is that, if not used prudently, they have the potential for entangling departments in unnecessary civil lawsuits over state-recognized violations of personal privacy. Therefore, police chiefs contemplating using UAVs for routine patrol should consult with legal counsel and draw up strict operational guidelines before deploying UAVs in the field to ensure that their use respects the constitutional rights of law-abiding citizens and does not run afoul of state privacy laws. ♦
1 The text of the Fourth Amendment to the U.S. Constitution reads in part, “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated…”
2 California v. Ciraolo, 476 U.S. 207 (1986).
3 Id. at 216.
4 Florida v. Riley, 488 U.S. 445 (1989).
5 Id. at 462–463.
6 United States v. Maynard, 615 F.3d 544, at 561-62 (D.C. Cir. 2010), referring to CIA v. Sims, 471 U.S. 159, 178 (1985).
7 United States v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012).
8 Id.
9 Samuel Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review 4, no. 5 (December 15, 1890): 193 (accessed August 23, 2016).
10Voters Are Gung-Ho for Use of Drones but Not Over the United States,” Rasmussen Reports, February 13, 2012 (accessed February 17, 2015).
11 Steven Luke, “City Settles Invasion of Privacy Lawsuit,” NBC 7 San Diego; Paul Demko, “Mounting Data Privacy Lawsuits Threaten to Swamp Governments,” Capitol Report, September 20, 2013 (both accessed December 14, 2015).
12 Freedom from Unwarranted Surveillance Act, Fl. SB 92 (July 1, 2013); Virginia Rev. Code §29.1-52.1 (2013); DL Cade, “California Updates Invasion of Privacy Law to Ban the Use of Camera Drones,” PetaPixel, October 14, 2014 (accessed February 17, 2015).
13 Privacy can be “invaded” in several ways: intrusion of personal solitude, the malicious public disclosure of private facts, portraying someone in a false light, or the appropriation of someone’s likeness for personal gain.
14 California, Rev. Code §1708.8, Section 7 (G) (2014).
15 The American Law Institute, Restatement of the Law, Second, Torts (1997) § 652 (b).
16 Kyllo v. United States, 533 U.S. 27 (2001), at 38.