Representative Austin Scott (R-GA) introduced a bill in the House of Representatives on Thursday, 7 June, that would place significant restrictions on the use of Unmanned Aerial Systems (UASs) by federal law enforcement agencies for those purposes, including requiring warrants to conduct these activities outright or to use incidental evidence collected in the legal pursuit of other investigations and activities.
It seems to me that the Constitution is quite clear on this issue already, given that the 4th Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Not only is it clear that warrants must be issued pursuant to probably cause before a search can be initiated, it also prohibits searches of a broad and general nature (formerly known as “Writs of Assistance”) – both of which seem to proscribe UASs as routine regulatory options for law enforcement. Additionally, the United States Supreme Court (USSC) recently ruled that the advent of advanced surveillance technologies does not supersede the 4th Amendment’s fundamental protections or intent. But as is so often the case regarding the USSC, it has nonetheless set dangerous and incorrect precedence in previous unrelated but similar cases such as California v. Ciraolo (1986), Florida v. Riley (1989), Dow Chemical Co. v. United States (1986), and United States v. Place (1983).
Unfortunately, all of these decisions, in one form or another, have eroded civil liberties concerning privacy and the appropriateness of searches and seizures in America in part because they were reached largely along narrowly technical lines that justified the searches after the fact, rather than broad principled ones as the 4th Amendment intended that should have prevented the searches in the first place. Such precedent has effectively shifted the burden on government for establishing probable cause to an illegitimate burden on the individual to establishing privacy. The implications are clear: constant overhead surveillance, by which any and all gathered information obtained through highly advanced imagery and communications sensors can presumably be used indiscriminately, will undoubtedly aid in subverting criminal activity. This is not in dispute within the scope of this post. But practicality is no excuse to violate the provisions laid forth in the very agreement that grants government its authority to wield force while simultaneously limiting its reach with fundamental civil protections. Such broad, intrusive surveillance will undoubtedly have the unconstitutional side effect of stifling dissent, free expression, organization and assembly, and security in persona and property as it nearly always does.
I bear no naïve illusions that such a bill has even the modest of chances for advancement through the Senate even if it can pass a vote in the House but given our current state of Big Government overreaches in power this is a step in the right direction. Political assertions of supposed safety concerns cannot be a legitimate reason to ignore the underlying social compact that the Constitution represents. USSC Justices David Davis and George Southerland acknowledged this basic principle:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.