which amendment?

Considering Liberty and Law in Uncharted Airspace

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GRAND FORKS, N.D. — One of the current issues with expanding drone use is that there isn’t much legal precedent, said Elizabeth Skarin from the American Civil Liberties Union. She is the ACLU’s policy director for both South and North Dakota, which has beena pioneer in the use of unmanned aviation systems, or UAS.

Although some Supreme Court cases have established precedents for issues that apply to UAS—aerial surveillance, for example—none of the cases are particularly recent, she said.

ACLU Policy Director Elizabeth Skarin (far right) took part in a moderated panel discussion of the moral, ethical and legal issues associated with unmanned systems at the UAS Action Summit in June.

Matt Benoit / Student Reporter

ACLU Policy Director Elizabeth Skarin (far right) took part in a moderated panel discussion of the moral, ethical and legal issues associated with unmanned systems at the UAS Action Summit in June.

One example, Dow Chemical Co. v. United States (1985),involved the issue of whether the company’s Fourth Amendment rights were violated when the U.S. Environmental Protection Agency used a commercial photographer to take aerial photographs of a Dow facility. Ruling in favor of the EPA, the court said that cameras are a conventional technology and their use in that instance was both expected and legal, Skarin said.

A more recent case, Kyllo v. United States (2001), involved similar Fourth Amendment issues. In the case, law enforcement officers used a thermal imaging sensor to determine whether a man was growing marijuana in his home. The court ruled that the search required a warrant and because there wasn’t one, the search violated the man’s Fourth Amendment rights. Skarin said that in this ruling it was noted that infrared equipment was not readily available to the public and its use wouldn’t be expected.

Though the Supreme Court has yet to see a case involving unmanned aerial vehicles, or UAV, Skarin said she expects to see one in the next five to 10 years.

The Federal Aviation Administration has recently been involved in two drone-related cases before the lower courts. Hobbyists may fly small UAS as model aircraft under certain conditions, but any commercial use is illegal until rules are finalized next year, according to the FAA. Law enforcement and agencies can apply for certificates of authorization to fly drones.

In 2011, Raphael Pirker was fined $10,000 after getting aerial footage of the University of Virginia for a commercial, using a small foam UAS. But an administrative law judge said the FAA couldn’t enforce rules on model aircraft. The FAA is appealing.  

In July, a search and rescue group that uses drones, Texas EquuSearch, took the FAA to court to challenge a cease-and-desist email. The case was thrown out, with the judge saying that the email had no legal consequences.

The agency has been warning individuals about using drones for everything from filming a wedding to flying through fireworks, but fines have been rare.

Skarin said any policy regulating UAV use and the First Amendment rests heavily on neutral policies, where a regulation is applied fairly for everyone involved. She discussed a scenario involving aerial drone photography in a national park, where creating a noise was a concern.

If the park instituted a decibel limit for all sound-making devices, it would be a neutral policy, Skarin said. Simply banning drones, she added, would walk a finer constitutional line.

“As a journalist, or as a concerned citizen, or an artist, you have a First Amendment right to take photographs or take video and create art and do reporting,” she said. “I don’t know specifically about the FAA regulations, but I think looking at the purpose of those is kind of going to be a linchpin.”

Featured image source: flickr / citizensheep under Creative Commons

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