North Dakota’s police forces can outfit drones with any variety of “nonlethal” weapons, according to a Daily Beast article. This really shouldn’t be surprising, given the increased militarization of the United States’ police forces. Six years ago, when I wrote about LRADs (Long Range Acoustical Devices) being deployed in Pittsburgh during a G-20 summit, the use of such “nonlethal” weapons by police forces was seen as somewhat unique. Now, though, with police forces engaging in wanton teargassing of subdued Occupy protesters at UC-Davis and the police behavior in Ferguson, MO several months ago, it is a logical progression for police forces to want to take to the skies.
Drones are one of the more interesting gizmo-related developments to come along in the past couple of years. For just a few hundred dollars, anyone can purchase a machine that is highly maneuverable, can provide high definition surveillance, and can even carry a payload. They are seemingly ubiquitous to the point where news articles are published about how the use of drones bothers grizzly bears and interferes with firefighting efforts.
Ubiquity is a Problem
The fact that drones are so easily obtainable raises the question that is presented in the Daily Beast article:
Grand Forks County Sheriff Bob Rost said his department’s drones are only equipped with cameras and he doesn’t think he should need a warrant to go snooping [as is required by the bill].
‘It was a bad bill to start with,’ Rost told the Daily Beast. ‘We just thought the whole thing was ridiculous.’
Rost said he needs to use drones for surveillance in order to obtain a warrant in the first place. (Emphasis in original.)
Drone surveillance is much like the FLIR surveillance central to Kyllo v. United States, 533 U.S. 27 (2001). In summary, the Supreme Court of the United States held that using FLIR to detect heat emanating from grow houses was an unconstitutional because it constituted the use of a sense-enhancing technology to obtain information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area. Kyllo at 34. This holding, however, has always had a poison pill attached to it: “at least where (as here) the technology in question is not in general public use.”
This qualifying language has been used in the context of WiFi signal analysis to prosecute an individual in Maine for interstate cyberstalking and identity theft. United States v. Sayer, 2012 U.S. Dist. LEXIS 82729 (D.Me. 2012). The defendant in this case argued that it was an illegal warrantless search to do a “wireless survey of WiFi/Internet signals”, relying on the holding in Kyllo. As the Court stated, “Moreover, the technology that they used [to do the WiFi analysis] is in general public use; anyone with a laptop with wireless capability can find evidence of WiFi signals. This is not Kyllo’s advanced technology ‘not in general public use.'”
What Impact Does a Drone Have?
The pace of technology is both beneficial and problematic. 20 years ago, Windows 95 launched. The Internet was barely a “thing,” and Broadband and WiFi was still something that was in its infancy. The result in Sayer would have been very different at that time. Six years later, by the time Windows XP came out, the Internet was absolutely a thing, so much so that Pets.com’s sock puppet had become a symbol of the dot-com bubble burst.
WiFi was still not ubiquitous at that time, however. Many laptops shipped with PCMCIA slots into which you slid wireless cards; these wireless cards often cost over $100 at the time, and unless you had access to a wireless network, there was little need to purchase them. Even in 2001, the holding in Sayer would likely have been different.
Now, however, in 2015, our phones have robust WiFi adapters built in, and the technology is thoroughly ubiquitous.
Drones have come a long way in a very short period of time. One of the first videos of GRASP lab’s “autonomous quadrotors” was put on YouTube in 2010.
Since then, prices for drones have come down substantially, to the point where Amazon.com has an entire shop devoted to a wide range of the devices with a wide range of capabilities, including taking infrared video. Someone even posted a video to YouTube this summer showing a quadrotor that was able to fire a pistol.
Drones, in short, are quickly approaching ubiquity status, meaning that the protections provided by Kyllo can easily be side-stepped. Admittedly, it is very easy to engage in slippery slope discussion about Constitutional protections. Nonetheless, it’s always important to remember that our Constitutional protections are not always as strong as we believe them to be.