For those of you who may be a little rusty on their American history and the American Constitution, James Madison is known as the ‘Father of the Constitution’ owing to his massive contribution to its contents, while George Washington was the President of the United States when the Constitution came into being. And why would they be scratching their heads? Because the Constitution is at the center of a heated debate over the rights of the police to use drones.
In truth it is not an overall right for the police to use drones, but more a case of drilling down on what drones can and should be used for where the purposes of law enforcement are concerned. The particular element of the Constitution is the Fourth Amendment which relates to a critical “right of the people” and that right is to be secure in our “persons, houses, papers, and effect…../…against unreasonable searches and seizures.”
At the time of the drafting of the Fourth Amendment society was not one rife with legal and political machinations where every single word and phrase would come under microscopic scrutiny. The Constitution was taken as genuine in its intent with no sense of ambiguity implied. So yes, you guessed it, it’s that word “reasonable” rearing its ugly head again, a word more often discussed in the context of “reasonable force.”
The question at hand where the law is concerned is what constitutes a need for the issuing of a judicial warrant and in relation to what the search or seizure is related to. It would seem that this is such a hot potato of a debate that rather than pass legislation on a state-by-state basis, the country has decided to leave it up to the Supreme Court to decide what would be considered unreasonable governmental intrusions without a warrant. What we may be referring to here is whether the police might have the right to fly a drone over your property – what exactly is the tipping point between when a warrant is and is not going to be necessary. In other words, what does “unreasonable” really mean today, because the world has changed since The Constitution was created. There was no CIA or DEA, or the problems they have to deal with today.
At the root of the Fourth Amendment lies the tenet that the police are allowed to do to us what we would do to ourselves or today, doing unto others what you want the police to do today. But it gets a little more complicated as the First Amendment allows for the right “to record”. Now obviously they didn’t have the GoPro Hero back then, so it could not have been imagined that aerial photography would have been included. But while it is not included, it is not excluded either. In other words, the right does exist for drones to capture images and the government is basically toothless to stop you.
If limits could be placed, it might be on the length of time a drone might be allowed to hover over a property, or the altitude at which it flies. However, the dilemma lies with the fact that if we are prepared to fly drones over other people’s property, even if it is just for a very short period of time, we therefore are allowing the police the right to do the same and this will not interfere with what is referred to as “reasonable expectation of privacy.”
What is curious and few may not be aware of this, but a few years ago in Seattle, the mayor and police department chose to return the drones they had to the manufacturers in order to allay community concerns. The fact the drones actually ended up with the LAPD instead is neither here nor there. However, the situation has escalated to the point where in 2016 41 states have drone legislation up for consideration. For as long as we want to fly drones, the police have the right to, and maybe Michigan will become the pacemaker (not peacemaker!) having already provided state-wide authorization for the piloting of drones for certain law enforcement purposes.