The Federal Aviation Administration Modernization and Reform Act of 2012 aims to integrate drones into the United States national airspace by 2015. While the thought of prevalent private and public daily drone use might seem implausible now, the combination of this new legislation and the increasing availability of inexpensive, technologically advanced small drones will make it a reality. From detectaphones to pen registers and most recently, the GPS, the Supreme Court has faced a plethora of unreasonable search challenges to the warrantless use of such sense augmentation devices by law enforcement to collect information. Acting as the privacy safeguard of the Constitution, the Fourth Amendment has been invoked to challenge the warrantless governmental use of this ever-evolving timeline of devices. The gauge of Fourth Amendment protection has been society’s view of what is or is not a reasonable expectation of privacy. However, with the voluntary in-crease in the dissemination of personal, private information society’s objective view of reasonable expectations of privacy has become blurred. With the ability to capture high-resolution images and video, sustain mass surveillance, and long-term data retention, the drone presents one of the greatest challenges to society’s privacy expectations under the Fourth Amendment.
As the drone is poised to become the newest in a long line of surveillance tools available to law enforcement, an important inquiry is whether such use will require a warrant. This Comment will analyze United States Supreme Court case law concerning various surveillance devices challenged under the Fourth Amendment and argue for several approaches to be taken to ensure the protection of privacy rights with-out needlessly hindering government use of a potentially important investigative device.
Jennifer O'Brien, Warrantless Government Drone Surveillance: A Challenge to the Fourth Amendment, 30 J. Marshall J. Info. Tech. & Privacy L. 155 (2013)