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Beyond War: New Uses of Unmanned Aerial Vehicles at Home Brings New Concerns

An Unmanned Aerial Vehicle (UAV) is precisely what it sounds like, an aircraft without a pilot on board. It can fly autonomously based on pre-determined flight paths or it can be manually controlled from a remote location. Popularly called drones, th

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technology has come under scrutiny due to its use in the

wars inIraqandAfghanistan. The reality is that unmanned aerial systems of varying types have been around for quite some time. Though one may not immediately think about it, long-range missiles are a type of unmanned aerial vehicle system because they are controlled or routed remotely and often have some of the same features of today’s UAVs such as GPS tracking. The technology began before World War I though the utilization of UAVs as a tool in war was not fully realized until World War II when Nazi Germany used UAVs for surveillance missions. The German’s use of UAVs and the notable absence of the tool by the allied forces spawned theU.S.’s further interest in the technology and since then the technology has grown. The ability to use UAVs (or UASs, meaning unmanned aerial systems) for jobs other than surveillance and information gathering has grown to include missile strikes and communications relays among other uses. Those missions come with their own set of pros and cons.

With the downsizing of theUSpresence in theMiddle Eastbusinesses are turning technologies that were designed for war and finding new uses for it at home. One of the technologies that is particularly useful but also troublesome from a privacy point of view is the use of synthetic aperture radar (or SAR) which has been used to search for terrorists but also has implications for law enforcement and other mapping uses domestically. SAR uses radar waves and antenna to see in complete darkness, through rain, snow, clouds, and even foliage. SAR is generally used to map terrain. UAVs armed with SAR technology, for example, can find a marijuana field or a fugitive on the run.

While the Supreme Court recently ruled in US v. Jones that long-term GPS surveillance of a suspect required a warrant, the court was narrow enough in its ruling that other modern technologies used for surveillance is an open question. The court’s reasoning, as Scalia’s dissenting opinion points out, largely ignored the technology itself (the GPS) but attached great significance to the methodology (attaching the GPS to the suspect’s car to track where he went). The “open fields doctrine” however still stands. This doctrine, very simply, is that what you do in the open, that can be seen from the air, with or without a fence or other obstacles, is not private and therefore not a protected privacy interest under the law. A scenario recently depicted in a LA Times article where local law enforcement used a drone to track down three suspects is becoming the norm. Another use is for businesses such as real estate brokers using them to photograph properties, or farmers using UAVs to dust crops with fertilizer. Some point to their possible future use for emergency evacuations both on the battlefield and in a natural disaster. There are also uses for movies and TV shows to have easy access to aerial views for a scene.

Proponents say that drones or UAVs are a great invention that should be harnessed to its fullest potential in both the business and the law enforcement world. UAVs are quieter (than conventional aircraft), require zero manpower, can fly non-stop, fly longer and can be flown undetected and without interference with commercial aircraft. Skeptics point to the very real danger of constant and preventative surveillance. There is a real concern about the lack of legislation and limitations around such surveillance. This is a technology that is moving faster than our laws are prepared for and it opens up questions about privacy, safety, probable cause, and government intrusion.

While the Federal Aviation Administration has controls over flight space and has some limitations in place, like flying below 400 feet, such limitations may be next to impossible to enforce with an emerging technology that the average person can build themselves. See http://diydrones.com/. Also, there is an emerging technology for micro aerial vehicles (MAVs), surveillance vehicles so small that it can take off and land in the palm of an operator’s hands. Countries such as theU.S.,Great Britain,Korea, andIsrael are in the race to develop and utilize MAVs. Once such example is the Black Widow MAV, weighing only 2 ounces and with a small 6 inch wingspan has been developed by AeroVironment. The difficult question of how to regulate and enforce regulations on something the size of a pencil has yet to be determined but will certainly need to be addressed sooner rather than later. Something that is clear is that there are serious privacy and security concerns that warrant great scrutiny considering the competing interests at stake. This will require thinking outside the normal legal framework of property and trespass theories and perhaps even traditional theories on what constitutes a search. There will need to be careful balancing between the need and desire to utilize the technology for commercial and law enforcement purposes with private citizen’s expectations and the potential abuse and infringement on private rights that such technology threatens.

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