By Sam Guiberson
It has been said that generals always prepare to fight the last war. Our legal system has done those generals one better. American courts begin to deal with surveillance technologies only when newer technologies have obsolesced them.
The advent of surveillance drones is unlikely to break this pattern. Now moving from the battlefield to your backyard, automated robotic drones weighing up to 25 pounds have recently been approved by the FAA for low-level reconnaissance. This approval is the first step towards the general use of surveillance drones by law enforcement at every level. The much larger consequences are coming our way just beyond this first generation of small drones.
The Expectation of No Privacy is a Self-Proving Hypothesis
In no way has American citizens’ privacy from aerial surveillance been protected by legal precedent. Since 1989, aircraft overflight of private property for law enforcement purposes has been constitutional (see Florida v. Riley, 488 U.S. 445). Satellites have been used for surveillance in criminal investigations since at least since 1983. The expectation of privacy that exists ever more marginally in longitude and latitude does not apply at any altitude.
Why does privacy have no vertical dimension? The Supreme Court’s analysis of when an expectation of privacy exists has set us on a path of parity between private overflight prerogatives and government surveillance. The logic of the ruling was that if privately owned helicopters would be expected to fly at 400 feet over a greenhouse, a police helicopter is not violating the owner’s privacy flying over that same greenhouse looking for traces of marijuana plants. If the public expects that a technological platform could be used for private surveillance, the Court held that law enforcement surveillance employing the same technology will be permitted. This logic has guided aerial surveillance practices for over twenty years.
This reasoning tries to balance privacy and invasive technology on a false scale, setting the public perception of the ultimate capabilities of surveillance technology as a counterweight to how much of our privacy we must lose to accommodate it. Whether the surveillance is conducted by a private or public entity is immaterial if privacy evaporates once there is an expectation of its absence.
There are many laws of nature, but the one immutable law of government surveillance is that every technology capable of a surveillance purpose will eventually be put to that surveillance purpose by government. Applying the tautological fait accompli inherent in the Riley analysis of the public’s privacy expectation assures that no emergent surveillance technology can offend the public’s expectation of privacy because we have come to expect that there will always be a newer technology surveilling us.
The coming generation of micro robotic surveillance tools will determine, with finality, whether our privacy is in a steady state or merely a state of flux in which privacy shrinks to whatever remains after the sum total of all the overt and opaque prerogatives of government surveillance have been subtracted from the calculation of what is private.
The Fading Restraint of Logistics
Piloted aircraft can remain over a surveillance target for only so long before the expenditure of human resources, fuel and mechanical wear and tear exceeds the value of the continued surveillance of a specific person or site. The practical rules of logistics enforce restraints on the scope and duration of surveillance that our laws do not.
Just as tailing a suspect in an unmarked car has manpower and equipment costs that limit the duration of its practical use more so than a GPS locator affixed to a vehicle’s undercarriage, so too do the efficiencies of unmanned drones have dramatically less impact on law enforcement’s fiscal limitations on engaging in 24/7 aerial surveillance. Given the same police resources, the more constant use of a more efficient surveillance technology is predictable.
The courts will see a drone’s wings, propeller and a camera and will analogize to surveillance aircraft – expensive to operate, highly specialized, limited use assets that are employed selectively. Drones have limited initial expense, and operating costs so low that, with solar power, they are likely to become an ubiquitous presence flying overhead in all but the smallest population centers. The functional dynamics of aircraft and drones as surveillance platforms are at opposite ends of the spectrum. Why should the legal precedent for manned surveillance overflight guide the introduction of flying robot drones into our local and national policing?
Surveillance in Society
What we think is a technological encroachment on our privacy is in fact a judicial one, stemming from a failure to recognize that privacy is not calculated against the specifications of a flying machine, but by anticipating the disruptive potential of its use.
The conventional concept of a personal expectation of privacy is so compromised because new technologies are analogized to previous technology thought to be comparable, rather than by assessing the potential risks of each new generation in the unique context of their deployment among an array of other complex surveillance technologies. What surveillance a satellite, an airplane, a helicopter or a drone can perform is not beyond our expectation of privacy merely because we know these machines are over our heads. Each technology has specific capabilities that frame the compromise of privacy that their law enforcement application will evoke.
Privacy, like technology, is an ecosystem. Its preservation or degradation is the consequence of interwoven and interdependent economic, technological, industrial and political progressions from the technological environment that existed before. For each new disruptive evolution of our advancing surveillance technologies, there is no such thing as stare decisis.
With other scientific advances, like biomedical engineering and pharmaceuticals, we understand that their benefits and companion risks of unknown consequences must be subject to rigorous clinical trials before they enter the mainstream of general use. We understand that biotechnology, medical and pharmaceutical advances have such an impact upon our collective well being that the public interest requires them to be subjected to a presumption of harm, absent scientific proof of benefit far outweighing risk. Comparing an airplane or a helicopter’s impact on privacy to that of a tiny drone is like approving a new drug because it is dispensed in a pill similar to the last drug approved.
With surveillance technologies, whether they are computing machines or flying machines, their introduction into the petri dish of our civil society causes a systemic response that changes far more than hardware. Lulled by the parade of evolutionary technologies of only marginal social impact, we seem unprepared to hold truly disruptive technologies to a higher standard of justification for their use as tools of police surveillance.
A Drone is a Drone is a Drone?
Drones are now at the same stage as cell phones were in the eighties, when phones were the size of bricks. Thirty years of technological evolution has transformed cell phones from incidental luxuries into practical necessities. This transformation has made the cell phone networks an equally robust surveillance tool in 5 billion peoples’ pockets, subject to governments’ harvesting of network, cell tower, GPS and messaging data.
It was not the invention of the cellphone that was the disruptive technology that altered our civic relationship to government intrusion. The disruptive event was the universal adoption of cell phones. It was the miniaturization and manufacturing techniques that could produce billions of phones at a price almost anyone anywhere could afford. It was the proliferation of cell technology that disrupted the existing patterns of global communications and changed the modality of their surveillance by governments. Cell phones have become such powerful tools of surveillance, not because they are hand held telephones, but because they are in everyone’s hands.
While we debate the scope of police, corporate and personal use for drones the size of model airplanes, the next evolution of micro-robotic drones the size of large insects is almost upon us. As with every previous generation of disruptive technology, the equilibrium of normative practices and legal standards will again be shaken and adjusted to a new normal. The cultural and privacy consequences that will result from micro robotic drones will produce much greater civil instability than the first wave of airborne police drones.
Micro drones, mass-produced for less than the price of an iPhone, would universalize surveillance, making everybody somebody’s Big Brother. A miniature surveillance drone can land in a tree, on a windowsill, follow a target into a building, circulate in an office or follow your children from your home to soccer practice, video capture and facially ID who you meet with, or patiently conceal itself on a curtain rod in your bedroom. The miniaturization cycle will continue from the bird sized drones of today to butterfly sized drones tomorrow.
While government may have micro-drones first, the massive global economic forces that push tens of millions of cell phone purchases every month will drive sales of personal consumer drones that will be as equally helpful to you watching your kids as they are helpful to the police watching you. Anyone could own one micro-drone or a dozen micro-drones and operate them in anonymity. The radio control points for these tiny drones would be traceable only after a considerable time airborne. Rapidly switching radio frequencies would allow longer interims without detection. A fleet of police drones could be programmed to assemble like a school of fish to conduct intense surveillance of an event like an outdoor political rally or protest march. Transmissions from a smart phone controller could be encrypted, so that a drone’s innocent intentions would be indistinguishable from less innocent ones.
Although visualized only as a surveillance device, a miniature drone could also be used as a weapon, with guidance to its target by an operator standing a few yards away or a few thousand miles away, similar to the guidance systems of Predator drones in Afghanistan, Pakistan and along the U.S.-Mexico border.
With arguments of life saving exigent circumstances overwhelming arguments against the domestic weaponization of drones, it wont be long before miniature ballistic munitions evolve, allowing the tiny robo-butterfly drones to be armed with a needle-sized arrow with a neurotoxic or explosive tip. What legislator or jurist would argue with police that stopping a terrorist or an armed robber holding hostages with a miniature drone would be illegal, when lives hang in the balance? Miniature drones could become a much more effective weapon for assassination or police action than any sniper.
An anecdotal law enforcement application of an intrusive surveillance technology in a worst case scenario tends to justify its pervasive and unrestricted deployment in a thousand other much less exigent circumstances. Routine general use of essentially invisible snooping drones in great numbers will radically debase any remnant of personal freedom from constant government surveillance.
To secure personal privacy in the future, if you are wealthy enough to purchase any, will require a pocket sized personal air defense system to fend off or confuse miniature drones bearing all seeing eyeballs, deadly force, or both. Apprehensions about surveillance over flight will give way to anxieties about surveillance under flight, where tiny drone aircraft can loiter, listen to, visually monitor, or eliminate you from an altitude below your ankles 50 yards away. The quaint notion that we can ever be assuredly alone with our thoughts, our family, our friends or our politics will go up in a cloud of drones.
Anonymity of use, coupled with universal accessibility, is a drones’ world in which human aggression has little deterrence, whether the aggression is military or merely around the clock Orwellian surveillance. While we bemoan the asymmetry of government power and individual privacy today – imagine the future prospect for personal security and privacy when government, corporate and personal surveillance devices transition from micro to mini to nano scale technologies.
Aerial surveillance has been with us for several decades, but the public has not yet felt violated by the compromise of even that comparably small degree of privacy surrendered. As long as ownership of the latest technology compels a sacrifice of our individual privacy, the public will gladly exchange today’s technology for a loss of privacy tomorrow.
The Personal, Proprietary Presumption of Privacy
We proudly own our technology, but we no longer proudly own our privacy. It is our lack of ownership that has granted government and the corporations our collective consent to make us subject to an omnipresent surveillance apparatus. We have all indulged in willful ignorance as we were enveloped in a digital conglomeration of consumer items re-purposed into a network of dystopian surveillance systems. The global surveillance state to which we have acquiesced is capable of absolute awareness of every digital document we produce, our every public action, and every communication we offer or receive.
A citizen may trust his government with his or her secrets either with indifference or out of a sense of duty, but the compromise of privacy without meaningful choice to a multiplex of government, corporate and private covert surveillance networks is a diminished freedom without cause. From the shopping mall video camera to the campus police drone, it is important to take into account that all private and corporate surveillance is ultimately the State’s surveillance.
To establish privacy as a citizen’s rightful domain rather than as an incidental privilege awarded at the State’s discretion, we must forge a legal mechanism of restraint before the open ended exploitation of covert police surveillance technologies irrevocably disrupts the balance between the governments knowledge of its people’s actions and the people’s knowledge of how the government acts. The legal standards we have applied to date have only favored the emergence of a national surveillance industry in which our collective privacies are but commodities and our willing acceptance of their surveillance its commerce.
There is some leverage to be found against these forces in the principle of the presumptive intrusiveness of drone surveillance. That principle is embraced in Senator Rand Paul’s June 12th, 2012 legislative proposal to require a warrant for drone surveillance of civilians. His “Preserving Freedom from Unwarranted Surveillance Act of 2012” would require court sanction of all drone use except for the patrol of national borders and where there is an imminent danger to life or a high risk of terrorist attack. This legislation would preclude omnipresent drone surveillance, except in these delineated circumstances. The alternative calculation of privacy it offers is that freedom from aerial drone surveillance is presumptively protected. The adoption of this Act and others like it would encourage a reexamination of all surveillance technologies from a similar perspective. If our freedom from drone surveillance were recognized by the courts as a presumption, overcome only by warrant, judicial and legislative limitation of surveillance technologies might become the rule and not the exception.
A reformed judicial and legislative litmus test for the law enforcement application of a surveillance technology is not based on how a new technology compares to the expectation of privacy we settled for in the past, but what impact will it have upon us if we truly expect to keep our privacy. The loss of ownership of our privacy must be reversed, for no better reason than the certain knowledge that whoever is entirely watched is entirely captive.
Sam Guiberson advises and assists other defense attorneys in cases involving undercover operations, electronic surveillance and recorded evidence. For more information about his work, see www.guiberson.com or email firstname.lastname@example.org