Dan Yosipovitch

March 31st, 2016

CAS 138T
Dear Senator Pat Toomey,

In the Air:
The Ambiguousness of Americas Drone Policy
One of the biggest developments and advancements in modern
technology is the development of drones for military and commercial
use. They have revolutionized warfare through surveillance and
unmanned vehicle attacks, and have given opportunities for individuals
to document and record the world in different angles. The evolution of
drone use has become a hot topic among 4th Amendment proponents.
Increasingly drones have become more commonplace in American
society, from the use of drones as aerial photographers to surveillance
vehicles used by police and federal authorities. Soon enough drones
will continue to expand to the commercial market, like with shipping by
Amazon Prime Air. The increasing use is alarming especially since there
is a lack of a defined drone policy in America. Many groups across the
world like the European Union have approached this problem by
placing heavy restrictions on drone use domestically. Drones give
authorities and private individuals the ability to secretly target any
individual for surveillance, infringing on their private daily lives. This
extremely unrestricted policy can lead to a brutal abuse of privacy, and
eventually could translate to illegal drone strikes on domestic ground.

The Supreme Court must revisit the privacy clause of the 4th
Amendment to limit the use of drones by law enforcement and the
military in domestic airspace.
States have been left with the right to determine drone policy,
therefore enabling a lot of grey area to be explored by both police
departments and private citizens. Police departments across the
country have increasingly become equipped with drones in order to
have access to these advanced surveillance technologies, while the
commercial drone industry is booming in the US. Commercial drones
are specifically made for documenting a landscape or getting an aerial
view, but users of drones can use this technology for criminal activity.
The biggest concern of allowing American citizens to use drones is the
subject of privacy. Since the drone policy is so loose with commercial
systems, customizations can be made to these devices to be a threat
to Americans nationwide. What is frightening is that drones are
accessible to any member of the public. It might be paranoid to think
that a machine controlled by a private individual might be monitoring
every move, but it is 100% plausible. Although the drone technologies
in commercial drones arent as effective as military surveillance
drones, they are capable of doing so. The scariest part of commercial
surveillance is that it would be almost impossible to know if someone is
being tracked because drones are much harder to detect than a
human.

If drones were eradicated commercially and only for professional

and military use outside the country, society would face a much
smaller domestic threat. However, no drone policy is set in place to
prevent federal or local authorities from surveying American citizens,
or attacking American citizens. An example of this breach of
constitutional law is in the death of Anwar al-Awlaki. Al-Awlaki U.S.
citizen who defected to Yemen as an Al-Qaeda operative, but his death
sets a precedent. Al-Awlaki was the first U.S. citizen since the Civil War
to be lawfully killed by the government. Al-Awlaki faced much different
circumstances than the rest of the American population, but the
current undetermined state of drone policy both domestically and
internationally creates a huge grey area and uncertainty about what
could happen.1 Military drone strikes and surveillance have not
currently been reported on any domestic missions, but it does not
mean this practice could not change.
Recently the Pentagon filed a report, which confirmed that
military Reaper, and Predator drones have flown over U.S. soil. There
were less than 20 lawful flights over a 9-year span, used to assist with
search and rescue, fires, floods and National Guard training exercises.2
While the drones were used for the common good, policy can easily
change to make use of these military machines commonplace on
1 Taylor, Adam. "The U.S. Keeps Killing Americans in Drone Strikes, Mostly by
Accident."
2 Zoroya, Gregg. "Pentagon Report Justifies Deployment of Military Spy Drones over
the U.S."

American soil. The precedent of using military grade drones

domestically crosses a fine line. In the near future, it could lead to a
Big Brother authoritarian use of surveillance. These aircrafts are
capable of shutting down electronic systems, being equipped with
military grade explosives and ammunition as well as virtually tracking
areas without any detection. While some policy is in place to prevent
these things from happening, there is not a consensus on domestic
drone use, and states are not making significant strides in order to
prevent the use of military drones in any other situations.
According to the 4th Amendment of the United States of
Americas Constitution, the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches
and seizures, shall not be violated. By permitting the use of drones by
both the authorities and to the public, Americans rights are being
violated. In implicating federal use of drones on a legal level, the
following steps must occur. The court must determine whether a
search for Fourth Amendment reasons occurred. If it did happen and a
warrant was not issued, the court has to decide whether the search
was reasonable. Despite this process, the Supreme Court has not yet
ruled whether Federal drone use for surveillance constitutes as a
search. Legal scholars, who acknowledge the courts inability to come
to an established consensus, have heavily criticized the courts
jurisprudence on the 4th Amendment. In a paper published by the

Duke Law Journal about the 4th Amendment and drones, there were two
methods of examining the 4th Amendment to implicate drones in
searches, the property-rights paradigm and the privacy-rights
paradigm. In property rights cases ruled on by the Supreme Court,
airspace is never properly discussed in relation to unmanned aerial
vehicles. Airspace is technically public space, so the government and
private individuals are legally capable of using surveillance outside of
public areas. Not only does the precedence developed on airspace
make it difficult to enact policy, but also the diversity of capabilities
and styles of drones enables them to slide past legal loopholes. In
terms of privacy-rights, the Supreme Court has ruled in favor of
surveillance from aerial vehicles in the past as justifiable means of
prosecution.3 However, the lack of actual judgments on the use of
drones makes the field extremely open to interpretation.
The use of police drones has risen substantially across the United
States, with numerous police departments adopting these drones.
Without the regulation of technologies used in drones, citizens rights
are infringed upon. For example in North Dakota drones are allowed to
be equipped with pepper spray, rubber bullets and tear gas. The use of
armed drones is frightening. Drones being able to use violent and
deadly force against citizens of the United States could lead to further
equipment of lethal weapons across the US. Despite these
3 Koerner, Matthew R. "DRONES AND THE FOURTH AMENDMENT: REDEFINING
EXPECTATIONS OF PRIVACY."

controversial laws, North Dakota has placed restrictive measures on

drones because of the warrants necessary in order to fly. The main
preventative measures against using drones nationally are FAA
regulations, but North Dakota has implemented restrictions in order to
prevent abuse of police surveillance.4 This move implements a positive
restrictions to the program, there are still many areas left to question
with the use of drones. Armed drones do have their benefits, but they
also can lead to a whole new breed of domestic policing in which
drones patrol the streets, monitoring peoples every move. Americans
should be concerned if their police department can freely move around
without a proper warrant as many current drone policies allow. The
vagueness and flexibility of drone policy is concerning on many levels.
Another aspect that will prevent the restriction of drone use is
the huge market opportunities drones give to the business world. Many
people believe measure behind federal restrictions of drones, is
business and government interest. Many civil liberties groups like the
ACLU (American Civil Liberties Union) have emphasized the reason
drones arent being well regulated is because of private interests to
expand the drone industry.5 Companies have campaigned to have
drones accessible to the public without putting too much consideration
of the potential risks it can pose. As technology advances we fail
sometimes to see the potential risks that it could pose. The current
4 Reese, Hope. "Police Are Now Using Drones to Apprehend Suspects and Administer
Non-lethal Force: A Police Chief Weighs in.
5 "Domestic Drones."

drone industry is growing and does not seem to stop. The FAA expects
there to be over 7,500 commercial drones by 2018.6 With the
increasing number of drones nationwide, and the price of drones
becoming cheaper it gives a substantial amount of people the ability to
monitor their communities. Neither individual, nor state should have
the possibility of monitoring their community 24/7, but these devices
could make this constant surveillance a reality. The threat of a terrorist
attack by a drone on American soil especially if drones do become
widespread is realistic and could be potentially catastrophic. Drones
can benefit American society in ways Americans have never thought
was possible, but if the government does not properly regulate them,
they could become an even bigger threat to our privacy than the
PATRIOT Act.
Drones have the possibility of threating our 4th Amendment
rights as American citizens. The government should enact policy that
restricts the use of drones and establish unambiguous policy to
prosecute violations of privacy rights. The United States should follow
the European Union in setting policy like requiring certificates and
licenses as well as not permitting various technologies to be used on
these commercial vehicles. From the federal and local authorities
standpoint, the federal government should mandate that warrants be
used during any drone flight, to prevent drones from exploiting the

6 "Busting Myths about the FAA and Unmanned Aircraft."

general public. The FAA currently has a very broad and unregulated
policy on drones currently and there seems to be no change in the
system.
As the Unmanned Aerial System technologies advance, our
understanding and regulation of drones is imperative to the safety of
the citizens of our country. The lack of policy and courts ruling on this
topic could lead to a huge abuse of privacy in this country, even to the
rampant privacy abuse of the leaked NSA scandals by Edward
Snowden. Drones have the capability of improving our society and
have an insane amount of economic and innovational potential.
However, there is a huge probability that this technology could be
exploited to oppress the citizens of our great nation. We need to bring
this issue to attention because Washington is not doing enough to
regulate the immense problem of domestic drone use that could
culminate in catastrophic and unconstitutional consequences of
invasions of privacy and safety.

Bibliography:
"Busting Myths about the FAA and Unmanned Aircraft." FAA. Web.
31 Mar. 2016.
"Domestic Drones." American Civil Liberties Union. Web. 31 Mar.
2016.
Koerner, Matthew R. "DRONES AND THE FOURTH AMENDMENT:
REDEFINING EXPECTATIONS OF PRIVACY." Duke Law Journal (2015).
Web
Reese, Hope. "Police Are Now Using Drones to Apprehend
Suspects and Administer Non-lethal Force: A Police Chief Weighs in TechRepublic." TechRepublic. Web. 31 Mar. 2016.
Taylor, Adam. "The U.S. Keeps Killing Americans in Drone Strikes,
Mostly by Accident." Washington Post. The Washington Post. Web. 31
Mar. 2016.
Zoroya, Gregg. "Pentagon Report Justifies Deployment of Military
Spy Drones over the U.S." USA Today. Gannett, 2016. Web. 31 Mar.
2016.