Disrupting Expectations: How Changes in Technology and a New FAA Rule May Have Eroded Fourth Amendment Rights in the United States

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By: Anne LaBarbera, Esq.

In today's world, we have become accustomed to disruptive technology and its effects on everyday life. As lawyers, we have become used to the changes in regulation that inevitably follow. Some disruptions are directly foreseeable. For example, ride sharing applications have led to challenges to regulations governing taxis, while home sharing services have challenged rules regulating hotels. Other effects are less predictable, as an increasing number of technologies enabling the gig economy have in many ways circumnavigated labor laws that were enacted to protect workers.
But one new technology, namely small unmanned aircrafts, may inadvertently threaten our civil liberties. The root of this burgeoning issue dates back to a series of cases in the 1980's involving the use of manned helicopters employed by police departments in the war on drugs to conduct warrantless searches of private property. For a detailed discussion of these cases I direct the reader's attention to a 1989 article by John R. Dixon entitled Florida v. Riley 109 S. Ct. 693 (1989), 17 Fla. St. U. Law Rev. 157. where he discusses the Supreme Court's decision in Florida v. Riley, 109 S. Ct. 693 (1989).

In Riley, the Supreme Court held that an aircraft flown at 400 feet above a residence did not constitute a warrantless search. Id. However, the limits of the decision were left open ended. See Taking Flight by Darlene Ricker, ABA Journal July 2017. In Florida v. Riley, 109 S. Ct. 693 (1989), Dixon opines that the Riley holding existed as a mere limit on the current technology of the time. Dixon points out that the decision seriously disrupted the "expectation of privacy" test applied in Katz v. United States, 389 U.S. 347 (1967), noting that the "Court reasons that the warrantless inspection of Riley's property was permissible because it took place in publicly navigable airspace. The plurality thus defines open view as anything that can be seen from a legal altitude according to Federal Aviation Administration (FAA) regulations." Dixon, Florida v. Riley 109 S. Ct. 693 (1989) at 171.

Dixon criticized the Court's decision due to its linking of FAA regulations, only intended to provide for safe operation of aircraft, with civil liberties. Enter the new FAA Regulations Part 107, regulating Small Unmanned Aircraft, and what Dixon found problematic in the 1989 decision now becomes alarmingly threatening to Fourth Amendment jurisprudence. As it stands now, the FAA regulates airspace much closer to areas in which we all think we enjoy a reasonable expectation of privacy, but which the Riley case unfortunately suggests we do not.

How long before police departments start using small drones, weighing less than 55 pounds to spy on backyards? When they do, will motions to suppress evidence be defeated because of legal arguments citing Part 107 in combination with the Riley decision's reliance on FAA regulations as the limit on police intrusion?

In Riley, the Court did not base its reasoning entirely on FAA regulations. In discussing a preceding case, the Court stated that "Ciraolo's expectation of privacy was unreasonable not because the airplane was operating where it had a right to be, but because public air travel at 1,000 feet is a sufficiently routine part of modern life that it is unreasonable for persons on the ground to expect that their curtilage will not be observed from the air at that altitude." internal citations omitted. Riley citing California v. Ciraolo, 476 U.S. 207 (488 U.S. p. 453). The Court clearly relied upon the prevalence of the technology in question in its analysis as to whether police were using that technology within the FAA regulations. As far as drone technology is concerned, it is doubtful that this reasoning would provide for any limitation on the liberal use of drones for warrantless searches, as Part 107 was a reaction to the prevalence of drone use.

While the public is well aware of the disruptive effect of drone technology on modern life, it is unlikely that many are aware of the potential threats small unmanned aircrafts pose to Fourth Amendment jurisprudence. The legal definition of what constitutes a reasonable expectation of privacy may have become unreasonable due to the disruptive effects of new technology and the resulting regulation thereof.

Further complicating the legal picture is the competing interests of civil lawyers, hoping for a federal regulatory landscape and their counterparts working in the world of criminal law where Constitutional limits on the government can represent a real and immediate effect on clients, but who may be less aware of FAA regulations as they creep into the world of civil liberties.

In Drones and Aerial Surveillance: Considerations for Legislatures, a report published by the Brookings Institute as part of The Project on Civilian Robots Series, Gregory McNeal wrote in November 2014 about the issue. McNeal suggested that warrant-based analysis be rejected and that State legislatures follow five core recommendations that are more restrictive than limits placed on the government by the Riley holding.

While I would join McNeal in his suggestions, the reality is that not all State legislatures are "civil liberties minded." Therefore, we may find ourselves in a situation where residents of some States enjoy protections arguably closer to what the authors of the Constitution intended than those afforded by the decision in Riley, than residents of other States.

Also problematic for a State centric approach is one argument put forth in Boggs v. Merideth, filed in the Western District of Kentucky. (Complaint filed in the United States District Court for the Western District of Kentucky, Louisville Division, Case no. 3:16-cv-00006-DJH, January 4, 2016). The plaintiff in Boggs sought a declaratory judgment asking the court to decide that FAA regulations effectively preempted State laws which created a cause of action for trespass and trespass to chattel, arguing, inter alia, that the drone remained in the possession of its pilot while it was physically in a space most reasonable people would likely consider to be the real property of another. Id.

If State laws were to provide tighter restrictions on aerial surveillance through the use of unmanned aircrafts by police than the restrictions set forth in Riley, it may not be long before prosecutors begin to appeal successful motions to suppress, making similar arguments to those put forward in Boggs. If this were to come to pass, the results would be uncertain, as the Western District of Kentucky never decided Boggs on substantive grounds, as the case was ultimately dismissed for lack of jurisdiction.

Absent a case brought to the Supreme Court in which the use of FAA regulation in defining limits on aerial surveillance is given negative treatment, criminal and civil law practitioners alike need to work with civil libertarians to ensure that the changing landscape of regulation does not provide an unprecedented opportunity for a federal agency unrelated to law enforcement to erode one of the most basic and fundamental limits placed on the government by the Constitution- the prohibition on unreasonable searches and seizures.

Further Reading:

Will "Drones" Outflank the Fourth Amendment? By John Villasenor. Forbes. September 20, 2012.

If You Fly a Drone, so Can Police: What the Fourth Amendment says about law enforcement use of unmanned aerial vehicles. By Stephen E. Henderson. Slate Magazine. May 26 2016.

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This page contains a single entry by Justin Batten published on September 1, 2017 12:00 PM.

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