Oh yeah. This is one of those situations that can go either way depending on what the law and precedent decide.
On the one hand: no, it's common sense that you can't just fly a plane over everyone's house and surveil them from above. That smells deeply of privacy violation.
On the other hand... Why not? The cops can drive down the street and look at the front of people's houses. The street is a public thoroughfare. The shared airspace is also a public thoroughfare. So the top of the house and exposed land is, maybe, just another side? Maybe if you don't want anybody seeing what you're doing you need a "top fence," i.e. more roofs? And if we declare "No, you really can't just look at people from above," that's gonna have serious consequences for how we make maps in this day and age.
So it's a meaty problem and I'm glad the EFF is dug into it.
This was "just" a violent drug dealer with assault rifles. If the police got a report of people being held in slavery, and observed it from the air, would that change matters?
I think in your scenario the phrase they'd use is "probable cause", having which allows them to eg. enter the premises vs. have to come back with a warrant.
That's always the crux of it isn't it? Safety vs privacy exist in a tradeoff space together, and where you want the government to be is going to depend a lot on your values.
No. The right to privacy should be inviolable. This is no different than the state trying to shove client side CSAM scanning on everyone. "Think of the theoretical children" / "think of the theoretical slaves" doesn't move the needle.
I don't know how to square this with satellite imagery, etc. But intentional surveillance from the sky is pretty messed up.
First, the police can often get a warrant very quickly (like, an hour) in am emergency.
Second, there are some exceptions in the case of an immediate threat of harm or destruction of evidence.
But if you have time to get and fly the drone, you probably have time to, in parallel to planning the observation -and your likely response- to get a warrant as well.
It's really a fascinating question. Is it warrant-requiring surveillance if they capture a photo once per year as part of a survey? What if they park a drone over your house 24x7?
For maps, though, it's likely we'd take the same exemption we take for a lot of other surveillance data: buy it from commercial entities... Which then raises the question of what a random company can collect from the air, which this ruling does not address.
IANAL, but were I arguing this case for the side of the property owner that is the precedent I would lean into: "We already have an understanding that you can't just capture whatever electromagnetic radiation happens to flux through someone's house and consider that non-privacy-violating, so why is it okay to intentionally go up in the air and capture the flux reflecting off their private property?"
There's already straightforward legal precedent around privacy re: what my neighbors can see from their property. If police want to set up surveillance from my neighbor's house, they can get permission from them, and/or a court order for it.
The question is, can the government put a camera in a place you can't (in principle) walk to, even with permission, specifically to perform surveillance on you. And part of the threat here is that an independent "researcher" could just habitually fly a drone over a bunch of houses, then offer to sell the footage from those flights that they were already doing to the government. And so it doesn't violate any currently existing laws or obvious extensions to those laws, but law enforcement still gets to see into "private" spaces without a warrant.
I think the straightforward answer here is that the police cannot use footage taken from places they can't walk to, without a warrant, as evidence, period. Further, warrants for aerial surveillance must be closely tailored such that "incidental" surveillance of things not named in the warrant (e.g., the neighbor's house) can't be used in court either. Want to use google earth images as evidence in court? Fine, but first you use the images as justification for a warrant and send up your own drone.
This reminds me of the scene in which ever Cheech & Chong movie where their blue tarp "roof" gets a hole in it, and he lays on a ladder to make it look like a swimming pool just to fool the aerial viewers.
However, I do appreciate the logic that the judges apparently used. No, this is not the same thing as Google Earth type imagery, as it's not real time capable. Also, I have around my yard a specific type of fencing called privacy fencing. I would absolutely expect a sense of privacy in my yard within that area.
Conversely, every single argument presented in the article by the police just reeks of desperation and bottom of the barrel scraping for any justification for their actions.
I'm just happy that there's an actual supreme court somewhere within the country that seems to have gotten it right.
It's not about what is or isn't a public thoroughfare. It's about what is or isn't "a reasonable expectation of privacy." It just turns out that, because people are expected to walk/drive on streets, and people are also generally expected to have functional eyes, your front yard doesn't have a reasonable expectation of privacy.
It's both. The problem is that the cost to just be passing by in the air has come way down, and that creates a new question of privacy that wasn't practical to worry about before.
(If it weren't being addressed by the cops specifically right now vis-a-vis warrentless searching, it'd have to be addressed by society eventually as we get into questions like "Who's eyes are on the camera feeds from all those Amazon delivery drones?").
I think erring on the side of needing warrants for law enforcement can help with some of the incidental vs targeted surveillance debate. Law enforcement driving past while on regular patrol and noticing something vs spending time and resources to launch a drone, fly a plane, or stake out a property for surveillance has a distinction that feels neat enough for a court to rule on.
I believe a test that would pass muster could be a "passer-by" test. If a person, unaided by technology, can from a public property, see something in or on the property, while passing by at a walking pace, no warrant is needed. Anything further should require a warrant.
Being Alaska, my first thought is that your "passer-by" may also be on horseback - so long as he's in a location where a somewhat prudent horseman might ventured while mounted.
And maybe add similar tests for the passer-by hearing or smelling things?
> If a person, unaided by technology, can from a public property, see something in or on the property, while passing by at a walking pace, no warrant is needed.
Is the person allowed to wear glasses? If so, what do you view the limit to be for allowed technology? Binoculars and telescopes use similar technology.
I'm reading the actual opinion [1], and I feel The EFF article misrepresents it. The case doesn't really hinge on aerial surveillance, but the telephoto lens they used on the flight. The cases sited in the opinion suggest that a naked eye aerial surveillance flight could be acceptable, and to me leaves open the questions of drones with normal cameras. The discussion around curtilage is interesting, but people's subjective impression of what the private spaces around their home are, are going to vary widely by context (as discussed in the opinion).
I think people tend to forget that privacy is not any sort of "natural law" of privacy from which core principles can be gleaned - privacy as a legal principle is a modern reactionary response to government and technology.
For most of human civilization, large families shared very intimate living quarters under the direct rule of patriarchs. Modern privacy arguments would make no sense to anyone living in this world. It's only through reaction to new technologies and forms of wrongdoing that privacy principles have been established. Recordkeeping and cheap print introduced disclosure. Photography creates new norms for clothing and private areas. The birth control pill led to all sorts of new norms about public and private selves.
Locke wrote millions of words about fundamental human rights, but never once gave a thought to privacy, and never appeared in the constitution as an explicit thought. Even within our lifetimes, it seemed normal to mail a book to each house in town with a complete list of names, phone numbers, and addresses of all (or most) of the residents! And in 20 years time it might be absurd with what we are putting up with now.
A lot of these cases hinge on things that are pretty bizarre. Whether I can see something with a naked eye vs a 1.5x lens. Whether the data is real time or updated daily. Is the person specifically targeted or was their data captured en masse?
People are going to argue that these things are supposed to be cut and dry, but I have now watched enough Youtube videos of people getting into real world arguments about their right to record neighbors vs the neighbor's rights to privacy that I don't think there is ever going to be a natural equilibrium that ever makes people happy.
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[ 2.8 ms ] story [ 63.7 ms ] threadOn the one hand: no, it's common sense that you can't just fly a plane over everyone's house and surveil them from above. That smells deeply of privacy violation.
On the other hand... Why not? The cops can drive down the street and look at the front of people's houses. The street is a public thoroughfare. The shared airspace is also a public thoroughfare. So the top of the house and exposed land is, maybe, just another side? Maybe if you don't want anybody seeing what you're doing you need a "top fence," i.e. more roofs? And if we declare "No, you really can't just look at people from above," that's gonna have serious consequences for how we make maps in this day and age.
So it's a meaty problem and I'm glad the EFF is dug into it.
I don't know how to square this with satellite imagery, etc. But intentional surveillance from the sky is pretty messed up.
Second, there are some exceptions in the case of an immediate threat of harm or destruction of evidence.
But if you have time to get and fly the drone, you probably have time to, in parallel to planning the observation -and your likely response- to get a warrant as well.
Technologies that can see through your walls like thermal imaging already require a warrant: https://www.willettlaw.net/blog/criminal-law-newsletter-4/
For maps, though, it's likely we'd take the same exemption we take for a lot of other surveillance data: buy it from commercial entities... Which then raises the question of what a random company can collect from the air, which this ruling does not address.
it would potentially make looking out high windows illegal? I can't imagine much changing in this regard
The question is, can the government put a camera in a place you can't (in principle) walk to, even with permission, specifically to perform surveillance on you. And part of the threat here is that an independent "researcher" could just habitually fly a drone over a bunch of houses, then offer to sell the footage from those flights that they were already doing to the government. And so it doesn't violate any currently existing laws or obvious extensions to those laws, but law enforcement still gets to see into "private" spaces without a warrant.
I think the straightforward answer here is that the police cannot use footage taken from places they can't walk to, without a warrant, as evidence, period. Further, warrants for aerial surveillance must be closely tailored such that "incidental" surveillance of things not named in the warrant (e.g., the neighbor's house) can't be used in court either. Want to use google earth images as evidence in court? Fine, but first you use the images as justification for a warrant and send up your own drone.
However, I do appreciate the logic that the judges apparently used. No, this is not the same thing as Google Earth type imagery, as it's not real time capable. Also, I have around my yard a specific type of fencing called privacy fencing. I would absolutely expect a sense of privacy in my yard within that area.
Conversely, every single argument presented in the article by the police just reeks of desperation and bottom of the barrel scraping for any justification for their actions.
I'm just happy that there's an actual supreme court somewhere within the country that seems to have gotten it right.
(If it weren't being addressed by the cops specifically right now vis-a-vis warrentless searching, it'd have to be addressed by society eventually as we get into questions like "Who's eyes are on the camera feeds from all those Amazon delivery drones?").
And maybe add similar tests for the passer-by hearing or smelling things?
Is the person allowed to wear glasses? If so, what do you view the limit to be for allowed technology? Binoculars and telescopes use similar technology.
[1] https://casetext.com/case/state-v-mckelvey-9
For most of human civilization, large families shared very intimate living quarters under the direct rule of patriarchs. Modern privacy arguments would make no sense to anyone living in this world. It's only through reaction to new technologies and forms of wrongdoing that privacy principles have been established. Recordkeeping and cheap print introduced disclosure. Photography creates new norms for clothing and private areas. The birth control pill led to all sorts of new norms about public and private selves.
Locke wrote millions of words about fundamental human rights, but never once gave a thought to privacy, and never appeared in the constitution as an explicit thought. Even within our lifetimes, it seemed normal to mail a book to each house in town with a complete list of names, phone numbers, and addresses of all (or most) of the residents! And in 20 years time it might be absurd with what we are putting up with now.
A lot of these cases hinge on things that are pretty bizarre. Whether I can see something with a naked eye vs a 1.5x lens. Whether the data is real time or updated daily. Is the person specifically targeted or was their data captured en masse?
People are going to argue that these things are supposed to be cut and dry, but I have now watched enough Youtube videos of people getting into real world arguments about their right to record neighbors vs the neighbor's rights to privacy that I don't think there is ever going to be a natural equilibrium that ever makes people happy.