Thursday, June 30, 2011

Is something in plain view if you can only see it by flying a toy helicopter with a camera over my back fence to peer onto my property?

Reports the Fort Worth Star-Telegram ("Arlington police testing surveillance aircraft," June 29):
Arlington police are testing small unmanned aircraft designed to take high-resolution video and photos of traffic accidents, hostage situations, pursuits of suspects and other emergency situations too dangerous to send personnel.

Data from the testing, which will continue through next January, will help Arlington and law enforcement agencies across the nation evaluate the feasibility and effectiveness of using such remote-controlled surveillance devices for public safety purposes, Police Chief Theron Bowman said.

The aircraft, which look like oversized toy helicopters, can also be equipped with night-vision cameras or thermal-imaging equipment to help officers locate suspects or victims thrown from crash sites, he said.

"These devices are literally eyes in the sky to us," Bowman said. "They have the potential to help law enforcement and the department become more efficient working with just a few people instead of having to employ many people" in certain situations.

For example, Bowman said the aircraft could quickly take hundreds of photographs of a multi-vehicle pileups, allowing a roadway to be opened hours sooner than if an accident investigator was taking pictures from the ground.

The city, working with the Federal Aviation Administration and the U.S. Justice Department, is participating in a national evaluation program. Its data will help develop training and equipment standards for agencies that use the aircraft as crime-fighting tools.

Both the Houston and Miami Dade police departments have also tested unmanned aircraft, and other cities have expressed an interest, FAA spokesman Les Dorr said. He added that his agency does not disclose who has applied, citing security and privacy reasons.

"Eventually, it's conceivable police departments could be authorized to conduct operational flights," Dorr said. (See the rest.)
This technology raises all sorts of Fourth Amendment questions which I fear will be answered destructively to those rights given the current makeup of the Texas Court of Criminal Appeals, the 5th Circuit, and the US Supreme Court. For example, is something in plain view if you can only see it by flying a toy helicopter with a camera over my back fence to peer onto my property? That wasn't a question that would have ever occurred to the people who wrote the constitutional prohibition on unreasonable searches and seizures, but I suspect the practice wouldn't be well received.

All sorts of other issues arise: What metrics should be assessed to judge whether such technology "works"? What restrictions should be put on information and pictures gathered? Who should have access to it? What should it be used for? What uses should be prohibited? Should the video be a public record (I tend to think so)? What other questions are raised by this development? Let me know in the comments.


Anonymous said...

The Mineral Rights to your home prohibits police from diggin below the home for evidence but it is interesting to note above.
I am suprised this has not yet been ligitated given the satellites already above our head and the ability to use google earth to get a sky eye view of ones backyard.

Anonymous said...

Just ask Osama bin Laden!

Anonymous said...

Pretty sure something like this has been decided for quite awhile. Courts have already said that the Fourth Amendment doesn't prevent pictures from planes or what can be seen with the naked eye from a helicopter.

Gritsforbreakfast said...

Though of course this is new technology and thus new, particular facts, I agree the general principle has been decided, which is why I said I don't trust the array of courts who would answer the question in the headline to get it right.

My point is as technology continues to get more invasive, those old "plain sight" doctrines, which are court-created, begin to make Fourth Amendment rights so narrow as to be absurd. I get, like it or not, why cameras in public spaces don't violate the Fourth Amendment. But when the same doctrine justifies the government flying a toy helicopter over my fence and into my yard at night to point a camera through my window without a warrant, IMO we've about hit the point in the slippery slope where further erosion becomes intolerable.

Another question: Who gets to have one of these and if the answer isn't "anyone with cash or a credit card," under what authority would sales be restricted? If the cops can have one why can't criminals, private security companies, hobbyists, etc., buy or build one too, and couldn't they use it to spy on people's houses based on the same plain sight doctrine? What's good for the goose ... There are some unhappy ramifications - unintended consequences, in the parlance - to being reflexively pro-cop on these 21st Century personal privacy issues.

Leejay said...

At the risk of sounding paranoid,this step by the law enforcement community is IMO just another invasive stride into what has laughingly become referred to as the publics privacy...when does it become excessive to someone other than me? This reminds me of the old joke about the woman who calls the police and claims there is obscene behavior going on next door... the police show-up and tell her all they see is a tall privacy fence...she says " HERE JUST STAND ON THIS BOX" How big of a box are we going to give them?

The Homeless Cowboy said...

I think it's going to be tried, c'mon this is Texas. "Your Honor I entered the room and stood on my head and there it was in plain sight"
It just depends on the BS quotient that is being accepted in that courtroom by that Judge on that day.
That's my story and Im stickin to it.

Anonymous said...

What is the legal distinction between manned and unmanned helicopters peeking in your window?

I agree that there are privacy issues hanging in the balance, but I think the courts will wind up treating drones "the same as" helicopters and just stick to the established erosion of our rights as the guiding case law.

Now, the FAA may decide that flying drones over cites is just too dangerous, but that's not about privacy.

john said...

As with traffic "crimes" and other events where you Public-Info-Request or subpoena tapes of your exchange with the "authorities," any portion of the tape to your benefit will disappear. Re-read the ending to "Fahrenheit 451."
It's the 21st Century?, you don't have to wait any longer to get paranoid or cynical.
But you're right IT MUST ALL BE PUBLIC RECORD, or there's no chance of any oversight of any kind. Everyone in power will use OUR tax dollars to buy more high-tech toys to use against us.

rodsmith said...

let them have their little toy! as long as i can have auto cannon to shot down anything that flies OVER my property!

after all it's my propety i have a legal right to defend it from anything trespassing on or OVER it!

Anonymous said...

Of course folks with RC experience could build their own kamikaze RCs to take the spies out.

Anonymous said...

Thanks Gritz for the post, I found it very informative. I feel so sickened by the thought of this whole thing! Like ya, sure they say these gadgets would serve to "aid in clearing up accidents", but I'm pretty sure these would mainly be used for other kinds of privacy intruding situations. Kinda Scary!

Anonymous said...

My question would be, if they buzz your neighborhood enough to create a public Nuisance, what happens to the good 'ole boy that takes this sucker down with a well aimed shotgun blast?

Injury Compensation Ireland said...

I would bookmark this page and be back soon to see more useful stuff.

Anonymous said...

It's funny how people were making fun of Alex Jones videos about our becoming a police state. Who's laughing now?

Ever since 911 the police state has escalated at an alarming rate and after the Gestapo in Washington voted on Nov 30th to allow indefinite detention by the military of American citizens just makes me sick. Coryn and Hutchinson voted yea by the way.