He pleaded guilty to a count of possession of marijuana, reserving his right to appeal, and was put on a year’s unsupervised probation. Although the punishment was light, a principle was involved and he tenaciously fought his conviction. The Court of Appeals considered his case three times and the Supreme Court twice. The judges agreed on the key point, that Davis’ conviction had to be reversed, though they disagreed about why. Finally, in 2015 they settled on the rule that low-altitude aerial surveillance by police is unconstitutional unless authorized by a judge.
I was reminded of the case when I heard about the fleets of drones sighted over northeastern Colorado and southwestern Nebraska in recent weeks. According to CNN and The New York Times, the drones are large (“wingspans of up to 6 feet”) and fly in formations of as many as 30 aircraft. They fly after dark, which suggests some purpose other than mapping.
I assume there’s a mundane explanation, which may have come out by the time this column appears. In the meantime, everyone agrees there’s nothing unlawful about a private company sending drones to hover over people’s homes. Highly intrusive surveillance that would be unconstitutional if done by our government is legally hunky-dory when done by any random private company.
Over the past year, an outfit called World View Enterprises has been sending up high-altitude surveillance balloons from Spaceport Tucson. As explained by Wired magazine, “stratospheric balloons promise cheap access to incredibly high-resolution images that can be collected anywhere on Earth.” The balloons “can take photos with 15-centimeter resolution from 75,000 feet,” with even higher resolution coming soon. The company’s CEO boasts that’s good enough to tell if a person on the ground is “holding a shovel or a gun.” What World View is capable of doing isn’t just similar to a creepy neighbor taking pictures over your back wall. It’s actually the same thing.
Now imagine the detail a similarly equipped drone could capture from 300 feet.
The Federal Aviation Administration is considering baby steps toward regulating the spy cams over our heads. It’s proposed a rule that would require drones larger than 0.55 pound to emit identifying signals. While remote ID (as it’s known) might clear up mysteries such as the Colorado drone swarms, it would do nothing in itself to stop the intrusiveness of private surveillance.
Some forms of private tracking have been with us for ages, of course. Until the rise of telemarketing, a listed phone number was just a convenience. Frequent buyer cards allow stores to monitor our shopping habits. The banks that issue our credit and debit cards know all our fiscal secrets. But those forms of surveillance are knowingly invited and can be stopped at any time. The same can’t be said about camera-equipped drones and balloons. Or internet trackers, for that matter, which work like pen registers, a type of phone tap.
Government surveillance can send a person to jail. But it wouldn’t be true to say that private surveillance can never be used as evidence in a criminal prosecution. What’s to stop private spies, acting on their own, from gathering data and then deciding to share it with the government? In some circumstances, a private surveillance company might even have an ethical duty to turn over material to authorities – for example, if it records a clandestine burial on the West Mesa. Uses in civil litigation are limited only by lawyers’ imaginations.
More generally, what makes surveillance by low-flying police helicopters unconstitutional isn’t the possibility that criminals might be prosecuted. The law isn’t opposed to enforcing the law. Rather, the Constitution protects against unreasonable “intrusions on personal dignity and privacy,” in the words of the late Justice Thurgood Marshall. The intrusion itself doesn’t become less obnoxious because the intruder works in the private sector.
Google camera cars aren’t a problem, in my opinion, because they record what’s visible to anybody on the street. Low-resolution aerial images on internet maps duplicate what anyone can see looking out a plane window. It’s the level of prying detail and real-time monitoring that distinguishes the new forms of aerial surveillance. We shouldn’t allow companies to treat our physical privacy as ore to be strip-mined.
If we as a society are actually concerned about shielding citizens against intrusions on their dignity and privacy, then surveillance that’s unconstitutional for the police without a warrant should be unlawful for private companies, period.
Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org