We’ve been fighting against aerial surveillance for decades because we recognize the immense threat from Big Brother in the sky. Even if you’re behind within the confines of your backyard, you are exposed to eyes from above.
Aerial surveillance was first conducted with manned aircrafts, which the Supreme Court held was permissible without a warrant in a couple of cases the 1980s. But, as we’ve argued to courts, drones have changed the equation. Drones were a technology developed by the military before it was adopted by domestic law enforcement. And in the past decade, commercial drone makers began marketing to civilians, making drones ubiquitous in our lives and exposing us to be watched by from above by the government and our neighbors. But we believe that when we’re in the constitutionally protected areas of backyards or homes, we have the right to privacy, no matter how technology has advanced.
This year, we focused on fighting back against aerial surveillance facilitated by advancement in these technologies. Unfortunately, many of the legal challenges to aerial and drone surveillance are hindered by those Supreme Court cases. But, we argued that these cases decided around the same time as when people were playing Space Invaders on the Atari 2600 and watching the Goonies on VHS should not control the legality of conduct in the age of Animal Crossing and 4k streaming services. As nostalgic as those memories may be, laws from those times are just as outdated as 16k ram packs and magnetic videotapes. And we have applauded courts for recognizing that.
Unfortunately, the Supreme Court has failed to update its understanding of aerial surveillance, even though other courts have found certain types of aerial surveillance to violate the federal and state constitutions.
Because of this ambiguity, law enforcement agencies across the nation have been quick to adopt various drone systems, especially those marketed as a “drone as first responder” program, which ostensibly allows police to assess a situation–whether it’s dangerous or requires police response at all–before officers arrive at the scene. Data from the Chula Vista Police Department in Southern California, which pioneered the model, shows that drones frequently respond to domestic violence, unspecified disturbances, and requests for psychological evaluations. Likewise, flight logs indicate the drones are often used to investigate crimes related to homelessness. The Brookhaven Police Department in Georgia also has adopted this model. While these programs sound promising in theory, municipalities have been reticent in sharing the data despite courts ruling that the information is not categorically closed to the public.
Additionally, while law enforcement agencies are quick to assure the public that their policy respects privacy concerns, those can be hollow assurances. The NYPD promised that they would not surveil constitutionally protected backyards with drones, but Eric Adams decided to use to them to spy on backyard parties over Labor Day in 2023 anyway. Without strict regulations in place, our privacy interests are at the whims of whoever holds power over these agencies.
Alarmingly, there are increasing numbers of calls by police departments and drone manufacturers to arm remote-controlled drones. After wide-spread backlash including resignations from its ethics board, drone manufacturer Axon in 2022 said it would pause a program to develop a drone armed with a taser to be deployed in school shooting scenarios. We’re likely to see more proposals like this, including drones armed with pepper spray and other crowd control weapons.
As drones incorporate more technological payload and become cheaper, aerial surveillance has become a favorite surveillance tool resorted to by law enforcement and other governmental agencies. We must ensure that these technological developments do not encroach on our constitutional rights to privacy.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2024.
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