I used to have a remote control helicopter. OK, I still do. One of the great things about technology is that as it becomes economical to make and distribute the coolest gadgets and gizmos, they become increasingly accessible, and new uses and creative innovations arise that make our lives better. Or at least more fun. Yes, that means that you can operate cool new remote control helicopters from your smart phone. One startup company is even offering a taco delivering service—you place an order using your smart phone, and a flying robot will deliver the taco to you. Taco bout convenient! But we should remember that with great power comes great responsibility.When technology advances to the point of materially advancing law enforcement capabilities, society should be alert to the increased risks to individual privacy and be prepared to delineate the proper boundaries of police conduct. Drone technology, in particular, demonstrates the risks accompanying technological progress. Drones equipped with cameras could drastically reduce costs and drastically increase the effectiveness of search and rescue missions. Drones could also improve tactical awareness by offering multiple vantage points to aid in the execution of dangerous operations. Drones offer significantly improved coverage, and unlike manned surveillance, some advanced drones may be able to operate without breaks. Indeed, the taco delivery service boasts, “Our unmanned delivery agents are fast and work tirelessly.” But further advances in drone technology could also enable pervasive mass surveillance, raising questions about what Big Brother should be entitled to monitor and record and under what circumstances.
In February of 2012, President Obama signed into law provisions that incorporate drones into US airspace. As local police have asked for FAA approval to incorporate drones into police operations, local outcry has created surprising opposition. Although current commercial drone technology consists of small systems often weighing less than 5 lb. and with fly time limited to 15 minutes, technology moves rapidly, and these limits may soon be surpassed. It’s no wonder that more than 30 states are considering legislation limiting the use of drones.
This past February, Virginia became the first state to pass legislation that would require a moratorium on drone use by law enforcement until 2015. Last week, however, Governor Bob McDonnell proposed some amendments to allow police to use drones for search and rescue missions. The Governor has the right idea. An outright ban on drone use is unnecessarily overinclusive. Regulations should be tailored to permit uncontroversial uses that could drastically improve public services. The moratorium exception for search and rescue missions is just one example. States should also consider permitting drone use upon a judicial finding of probable cause—modeled after the Federal Wiretap Act—side-stepping the constitutional question of whether or not an advanced technology fly-over constitutes a search. Probable cause has always been considered adequate protection for individual privacy. There is little reason to believe otherwise, even in the context of advanced surveillance technologies.
*Wesley Horner is a J.D. Candidate at NYU School of Law, Class of 2013