Drones ignore Dictum

February 27, 2012

Fox News reported yesterday that Federal, State and Local governments, as well as private companies are seeking permission expand the use of drones over US airspace in the near future.  Current U.S. Supreme Court law limits law enforcement from flying closer than 400 feet above your property when doing surveillance.  That is not exactly a hard and fast rule, but the court insinuated that 400 feet is the lowest they would allow police aircraft to fly above private property in a case from Florida - Florida v. Riley, 488 U.S. 445 (1989).  Technically, the rule was announced in what is called "dictum."  Dictum is not actually law, but is the Court giving a hint about what they think the law would be if a case like the one they discuss comes before them.  Nonetheless, dictum is used by courts all across the country when they make decisions.  They are free to disregard the dictum, but do so with the knowledge that if they rule against the dictum of a Supreme Court case, they stand a good chance of having the Supreme Court throw out their decision.

I doubt that the U.S. Supreme Court Justices thought about drones flying over U.S. airspace when they handed down the Riley decision.  But, just as with eavesdropping cases, technology has advanced to the point that the Court must now decide whether their earlier cases still make sense in light of the advanced abilities in today's world.  What is at stake, however, is the very lifeblood of our society - our right to be free from intrusive government action in our lives.

Soon after our nation was founded one of the primary concerns of our forefathers was the governments ability to walk into your house and search through your stuff without your permission.  They put strict controls on that when they passed the 4th Amendment.  Today, technology now allows the government to do virtually what they are prohibited from doing physically - search through your property without your consent.  Allowing private companies to do so as well is perhaps the greatest threat to our privacy rights that we have faced since the passage of the Patriot Act.

The government and private companies already have the ability to photograph you from space, download the entire contents of your smartphone - including emails, text messages, and pictures - in a matter of a few seconds, read your emails without you knowing it, listen to conversations behind closed doors, track the movement inside your house without your knowledge, see where you spend almost all of your money, know who your friends are - and what you talk about, and maintains sophisticated systems to track all of that data and more.  Do they really need to do it right above our house?

Dan Elwell, Vice President of Aerospace Industries Association's for civil aviation is quoted in the article as saying, "I don't understand all the comments about the Big Brother thing."  He says that new regulations would allow ranchers to fly drones over their land to count cattle and look for areas that need to be watered.  The problem with his argument is that ranchers already have that right.  Justifying governmental and private company intrusion through the argument that it will make us more efficient on our own land is not only disingenuous, it is downright dishonest.  

The new drones are capable of being equipped with lethal and non-lethal weapons.  Law enforcement officials have reportedly shown an interest in deploying them with non-lethal weapons.  If that happens, then it is just a matter of time before they come up with a justification to equip them with lethal weapons.  Every new thing the government does is on a slippery slope to more intrusion and greater control over our lives.  If they do it in small parts, however, it is less noticeable and objectionable.

According to the article these drones are required to weigh less than 55 pounds, and fly under 400 feet.  Since 400 feet is the minimum that the Supreme Court will allow police to fly above your property it seems apparent that the government is already ignoring the Court's warning in the Riley case.  They are already doing what the Court told them they did not want them doing - flying under 400 feet.  If the Executive Branch of the government is already ignoring what the Judicial Branch has said about protecting our privacy, why would we believe they are any more likely to heed their rules once these programs are launched on a full-time basis?  Prudent people do not believe that the government is interested in allowing farmers to fly $50,000 drones over their ranch as much as they are interested in flying $50,000 drones to look in your windows and watch you in your backyard.  

I don't know that this government push can be stopped, but I know that unless more people speak out against it we will wake up one day soon to see our privacy rights have slid a bit further down the slope to total government intrusion.  Anyone have a different take?  Do you see a way to bring voice to our expectation of privacy?  Share it will us.