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American Bar Association – Continuing Legal Education notes (“Drones on the Horizon”)

by merlin on November 15th, 2013
  • Sumo

ABA CLE – Drones on the Horizon

November 15, 2013



Matt Henshon – Partner, Henshon Klein LLP


Jennifer Lynch – EFF


Theodore Ruger – Professor, UPA Law School


John Villasenor – Professor (Electrical Engineering and Public Policy),



Jennifer Lynch

“Drone” – DOD Definition; unmanned aerial, can carry lethal or non-lethal payload


Customs and Border Patrol fly 10 drones now

Used by everybody from FBI and fire research to local police


  • FAA has issued more than 1500 permits to fly domestic drones
  • Drones currently flying in/around most major US cities (according to EFF map)


Privacy Concerns:

  1. Intrusive devices
  2. Stay aloft for days at a time
  3. Hard to see
  4. Large surveillance at one time


No restrictions in place because hard to define – no case on point yet.

  • Privacy in backyard;
  • Privacy in public places
  • “reasonable expectation of privacy”


Established that law enforcement doesn’t need a warrant to fly over backyard, but 2012 case (Jones) addressed GPS tracking device, and held that it was a trespass.  Concurring opinion in case looked at it instead to find that there is no reasonable expectation that law enforcement is capable of tracking a person for a long time.


  • What about 1st Amendment issues?
    • Barbra Streisand case; coastal documentation captured her residence, and public interest therefore trumped her private interest against invasion of privacy
    • Florida Star case – privacy interest in keeping name of rape victim private


Court upheld Florida Star right to publish under First Amendment and public’s right to know


43 States have introduced some drone bill, and 6 States have passed them.  4 active federal bills.  Almost all require a warrant for drone use.


John Villasenor

  • Litigation because FAA reauthorization bill as of February 2012
  • August 2014 is when regulation due for use of small UAE’s


Whole thing comes down to “reasonable expectation of privacy” under 4th Amendment; therefore it is “public” versus “private”

  • Unreasonable to expect police to turn a blind eye to something observable with naked eye
  • However, when government uses a device not in general public use (ex. Thermal imaging),  search is presumptively unreasonable.  However, drones are now, and will be increasingly more IN GENERAL PUBLIC USE.
  • Court has purposefully not addressed when technology that is not physically invasive is used, except this thermal imaging case (ex. Use of GPS tracker on vehicle deemed unconstitutional; however Alito felt that it was based on length of time of tracking)


Remember – “public navigable airspace” is carefully defined in terms of minimum and maximum altitude (except helicopters)

  • US v. Causby – chicken farm at end of public runway, and Court decided that if landowner will have full enjoyment of his property, he owns immediate reaches of airspace above


NGO UAVs – private persons have a First Amendment right to gather info; tension with invasion of privacy (Spire v. Phelps), and Supreme Court found against the 1st Amendment BUT Schulman v. Group W Productions (California case) found a reasonable expectation of privacy in a particular situational setting (auto accident scene).

  • Industrial and business sites – less reasonable expectation of privacy than residences, but what about trade secrets?


Theodore Ruger


  • Physicality and trespass;
  • Became one of “reasonable expectation of privacy” (Katz test as the norm);
  • Evolving to a “mosaic theory” (combination of factors)


Problem with a subjective, reasonable expectation of privacy is that it is inadequate since it can be beaten by merely announcing on TV every half hour that the government is watching you at all times.

Limited police resources and community hostility were traditional restraints on government surveillance, but GPS (for example) allow it to be excessive; hence move to look at duration of surveillance (raises questions about current UAE ability stay up for days, weeks, months, years).


Olmstead – Justice Taft said Congress could AND SHOULD pass legislation to restrict use of phone/telegraph taps; hence Congressional action needed to limit use of drones for surveillance


  • Court looks primarily now at Title III (wiretap Act), not at 4th Amendment, to evaluate law enforcement surveillance methods!
  • However – what about preemption concerns given FAA regulations (State laws that conflict with FAA regulations are preempted, unless they are made to address common law of privacy as a tort, property rights, and other areas of traditional State law and NOT federal power)?
  • State regulation of its own police powers could likely withstand federal preemption (most present State initiatives in progress)

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