Here’s my recent piece with the Washington Times.
President Obama has come out in support of using drones to monitor the activities of American citizens within the United States in order to help protect our liberties. But this pronouncement did not draw much attention until recently.
Last week, there was a drone sighting in Washington, D.C., that caused a major traffic disturbance as some drivers thought they were seeing a UFO. Also drawing attention to drone use in the U.S. is Sen. Rand Paul’s bill titled the Preserving Freedom From Unwarranted Surveillance Act. But in an age when surveillance cameras are in parking lots, on street corners, by ATMs, at shopping malls and at traffic lights, drone surveillance simply seems like the next step in a world that increasingly monitors our actions. Isn’t privacy just a quaint artifact? Cellphone providers and social media sites can track our locations and activities, and so can credit card companies, so why can’t the government use the latest technology to track our movements?
The use of drones to spy on Americans, particularly when no search warrant has been issued, seems in direct violation of Katz v. U.S. (1967), in which the Supreme Court came down against the use of listening devices outside of public phone booths. The court ruled there is a “reasonable expectation to privacy” under the Fourth Amendment that the listening devices violated. The court relied on Katz when it decided that thermal-imaging devices could not be used to track people’s movements inside their homes (Kyllo v. U.S., 2001). Most recently, in U.S. v. Jones (2012), the Supreme Court said the use of GPS devices attached to vehicles by law enforcement officials without a search warrant violated the Fourth Amendment. So it would seem that the use of drones, which provide real-time video and photographs, would be unconstitutional as well, especially considering that the court already has decided that law enforcement can only view your property from the air with a naked eye and not with special equipment unless a search warrant has been issued (Florida v. Riley, 1989).
This indicates that opposition to drone use is on solid legal footing and will be even more so if Mr. Paul’s bill becomes law. The use of drones is unconstitutional, something of which the president should be aware, given his background as a law professor.
But we can’t rely on courts to protect our right to privacy. The Supreme Court has consistently weakened property rights and the right to contract. Consequently, there is no reason to think it cannot eventually do the same to privacy if citizens do not remain vigorous in their defense of that right and impress upon our elected officials the need for a proper balance between safety and privacy. Of course, to do that, citizens must be well informed on the issues and not get sidetracked by the petty bickering between parties that generally garners the most media attention.
In the presidential election in November, the economy no doubt will be foremost on voters’ minds. But voters should not lose track of the big picture. Our nation’s success is dependent on its economic and military might, but what makes the United States unique and worth preserving are the rights that the Constitution was designed to protect. Americans shouldn’t let immediate issues and problems distract them from the long-term good of the country. Otherwise, by the time we notice, it will be too late.
Kyle Scott is a professor of American politics and constitutional law at Duke University.