Moo-ving toward privacy in the Drone Age

Once upon a summer’s eve in 2010, three cows and their calves grazed their way onto the 3,000-acre Brossart family farm in Nelson County, N.D. Months later, this common rural happenstance resulted in the first known Predator drone-assisted arrests of American citizens.

The arrests reflect a growing trend among American law enforcement agencies to use drones (Predator and otherwise) for civilian policing purposes. In fact, according to the LA Times, North Dakota law enforcement agencies used “two unarmed Predators based at Grand Forks Air Force Base” between June and December 2010 “to fly at least two dozen surveillance flights.”

Nelson County Sheriff Kelly Janke and his fellow deputies arrested Rodney Brossart for failing to report and return the missing bovines to their rightful owner(s). Officers also arrested Brossart’s daughter, Abby, for reportedly hitting an officer during her father’s arrest.

When Janke and his fellow deputies later returned to the compound to find and collect the cattle, Brossart’s three gun-toting sons — Alex, Jacob and Thomas — chased them off the property.

“Fearful of an armed standoff, [Janke] called in reinforcements from the state Highway Patrol, a regional SWAT team, a bomb squad, ambulances and deputy sheriffs from three other counties. He also called in a Predator B drone,” reported the LA Times.

The Predator B drone — similar to those used in the War on Terror to hunt, stalk and kill suspected terrorists — is one of nine currently employed by U.S. Customs and Border Protection to patrol America’s northern and southern borders for drug smugglers and illegal immigrants.

The drone circled two miles above the Brossart farm for 16 hours while delivering Janke and his team live video footage of the property. This allowed officers to determine when it was safe for them to storm the compound and apprehend the Brossart brothers.

This begs the question: are drone-assisted police searches legal in America?

A recent decision by the U.S. Supreme Court offers us a hint. On Jan. 24 all nine Justices ruled police cannot legally attach Global Positioning System (GPS) tracking devices to the vehicles of suspected criminals without a valid search warrant.

Four Justices argued that doing so constitutes trespassing on private property and infringes upon suspects’ “reasonable expectation of privacy,” as established in Katz v. United States (1967).

Five Justices argued that attaching GPS tracking devices to suspects’ vehicles violates the Fourth Amendment, which guarantees Americans the right “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”

Justice Sonia Sotomayor’s concurring opinion indicates how the Justices might rule if the case had involved drone, rather than GPS, surveillance.

Justice Sotomayor wrote (on page 17):

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring — by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track — may “alter the relationship between citizen and government in a way that is inimical to democratic society.”

As Matt Waite at the Drone Journalism Lab points out, replace “GPS” with “drone” and the tone remains the same.

News reports of the Brossart incident do not explicitly state where the Brossart brothers were located on their property when the drone was overhead. However, it seems reasonable to assume they were in their home at some point during the 16-hour standoff (note: the Daily Mail reports police “stormed the compound,” indicating the men were inside). That being the case, the drone search conducted by Janke and his team might have violated the Brossart’s “reasonable expectation of privacy” and infringed upon their Fourth Amendment right to be secure in their houses if the officers had failed to obtain a valid search warrant first.

While the officers in this case completed the appropriate paperwork, rights groups are concerned that the use of drones by law enforcement agencies poses a significant threat to civil liberties. The U.S. Supreme Court’s decision on warrantless GPS tracking, however, provides a glimmer of hope for individual privacy rights in the drone age.