AS NOTED, IN PART:

Originally shared by Government GangStalking and Electronic Harassment

AS NOTED, IN PART:

LEGAL FOUNDATION

Individual privacy protections implicated by UAV use are based on different areas of law depending on whether the operator is a private individual or government agent. Government agents’ UAV use may be restricted by the Fourth Amendment. Private UAV operators are not subject to these constitutional restrictions but may be subject to tort liability in some circumstances. Some states also have specific statutory restrictions on UAVs.

QUESTION

What is the state of the law protecting individual privacy interests from potential invasion by domestic use of Unmanned Aerial Vehicles or drones? The Office of Legislative Research is not authorized to provide legal opinions and this report should not be considered one.

SUMMARY

Unmanned Aerial Vehicles (UAVs), commonly known as drones, are a class of aircraft that can fly without a human operator onboard. UAVs come in a variety of sizes, ranging from small aircraft to the size of conventional aircraft. UAVs are also referred to as unmanned aerial systems (UAS), a term that includes the aircraft and any ground-based pilots, computers, or equipment supporting the UAV. Some UAVs are remotely operated while others fly autonomously along predetermined paths. The domestic use of UAVs by the government and private individuals has significant privacy implications.

Compared to traditional surveillance techniques and technologies, UAVs are a much more adaptable and flexible technology. They are able to surreptitiously track and monitor individuals for long periods, fly into areas that are difficult or dangerous for a human pilot to reach, and can carry technology, such as thermal imaging cameras, that effectively allow the operator to “peer through walls.”

The domestic use of UAVs implicates the privacy interests of private citizens in distinct ways depending on the operator. Governmental use of UAVs is subject to federal Constitutional constraints under the Fourth Amendment’s prohibition on unreasonable search and seizure. It is difficult to know how the Fourth Amendment will apply to UAVs; however, several U.S. Supreme Court cases addressing warrantless aerial surveillance suggest the government may have wide latitude in conducting warrantless surveillance with UAVs.

For private UAV operators, in the absence of statutes setting out specific rights and remedies, privacy interests could be protected in certain circumstances using the tort of invasion of privacy through an unreasonable intrusion upon the seclusion of another. Prevailing on such a claim would entitle the plaintiff to money damages and potentially a court order prohibiting further violations. The use of UAVs by government agents or private individuals may also be constrained by statute. Currently, there is no specific statutory restraint on UAV use in Connecticut. At least 16 states have adopted laws specifically addressing UAVs.

While the Federal Aviation Administration (FAA) is currently drafting regulations to govern the domestic use of UAVs, the agency has stated the regulations will not address privacy concerns. According to the agency, its obligation to regulate UAVs does not include developing or enforcing policies concerning privacy or civil liberties issues. However, in November 2013, the FAA released a privacy policy governing agency-approved UAV test sites. The policy includes requirements to: (1) have a written, publicly available privacy policy; (2) allow for public comment as part of an annual privacy policy review; (3) require all operators at the test site to have a written plan for use and retention of all data acquired by a UAV; and (4) comply with all applicable local, state, and federal laws concerning privacy and civil liberties……………. 

CONSTITUTIONAL LIMITATIONS ON GOVERNMENTAL OPERATORS

Individual privacy interests are primarily protected against government intrusion by the Fourth Amendment to the United States Constitution, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure.”

At its most basic level, this amendment requires the government to obtain a search warrant from a court before conducting a search. To obtain a search warrant, law enforcement officers must show there is probable cause to believe that sought-after evidence is present at the place to be searched. The warrant request must describe with particularity the place to be searched and the items sought. Searches that go beyond the place and items described in the warrant may be unconstitutional. But not all searches are subject to the Fourth Amendment protections.

For Fourth Amendment purposes, a search occurs when a governmental agent infringes a person’s reasonable expectation of privacy. This can include physical searches as well as surveillance. Among the many privacy interests protected by the Fourth Amendment, the strongest protection applies to a person’s home and, to a degree, certain areas around the home, known as the “curtilage.” To a lesser degree, the Fourth Amendment also protects the interests of individuals in maintaining privacy in their movements. But Fourth Amendment protections are not absolute.

Courts have upheld warrantless surveillance of private property conducted from public areas with a view of the private property. Because of the uncertainty of how UAVs will be used domestically and how they will interact with the Fourth Amendment, it is helpful to consider cases where searches were conducted from aircraft flying over private property and where police used technological aids to track suspects. 

Flyover Searches

The U.S. Supreme Court has considered at least three cases that may be instructive on how courts will treat flyover searches conducted using UAVs. READ MORE AT THE PROVIDED LINK
https://www.cga.ct.gov/2014/rpt/pdf/2014-R-0137.pdf