Will the technology that one day has been used to track enemies of the state and to haunt terrorists be used in domestic surveillance of the U.S citizens on U.S soils??. Is it possible that we may see thousands of these drones roaming freely in the skies of the U.S?? . Actually, According to the federal Aviation Administration (FAA)’s expectations the U.S airspace is going to have over 30,000 drones moving freely in less than 20 years. The Usage of drones in domestic surveillance fuels the steaming debate taking place nowadays between advocates of full civil liberties and the proponents of stricter measures to track unlawful acts and especially the ones related to National security threats and terrorism. It also adds more to the controversy of whether the usage of these drones in domestic surveillance is considered a search that needs a warrant according to the U.S constitution’s 4th amendment or not. Due to the dynamism of science, everyday there is something new concerning this technology. Surveillance drones have several types. They differ in the degree of sophistication and precision. Drones with the ability to see through walls may be available in the very near future. These developments just add more to the concerns over civil liberties and stimulate a legislative interference to end the controversy or at least try to.
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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”. These are the mere words of the constitution in its 4th amendment which forms the basic right of privacy for the U.S American people. In the light of this text, and the many Supreme Court rulings which were accordingly uttered, legislators should find their paths to a legislation which regulates the usage of drones on U.S soil and at the same time be compatible with the U.S constitution. In order to do that they should tackle more than one issue. First, Location of surveillance whether it’s in homes, backyards or public places or even the national borders of the country. Second, the sophistication of the technology used and its lawfulness and finally, the duration of surveillance.
Starting with the location, according to the mentioned words from the constitution above and the Supreme court ruling in (Katz v. United States),there is a direct relation between the location of surveillance and the assumption of privacy by the targeted person. In (Katz vs. United States) the court loudly set the perception that as long as the targeted person is not expecting to be publically seen or witnessed and as long as he/she took the considerations not to be seen then any surveillance or search performed without a warrant is considered unlawful. Thus In homes, privacy is expected by public and cannot be invaded unless there is a warrant.
Regarding the curtilage of a private property, it is also considered a part of the property secured from unwarranted surveillance. Yet this does not negate the fact that curtilage can be seen and monitored by the naked eye and from several vantage points. As long as the action of monitoring does not involve sophisticated equipment and through a vantage point it is allowed without a warrant. In two main precedents of the Supreme Court (In California v. Ciraolo and In Florida v. Riley) the police officers received tips that both individuals were growing marijuana in their backyard. The officers flew an aero-plane few feets above their backyards where they saw with their naked eyes the action of growing unlawful substances. In both cases, this action was not considered a search that needs a warrant since officers saw the action and the convicted never tried to prevent the action of seeing and they did not assume privacy since the place was already exposed. By applying these two incidents on the usage of drones for surveillance it may be assumed that it would be reasonable enough to consider using them instead of launching planes to monitor an action. As a matter of fact, this assumption may be a bit far from truth simply since there is another factor which was not taken into consideration. This factor is the degree of expectancy by the suspect to be monitored. Due to the rarity of drones in the U.S skies nowadays (around 300 licenses), being watched by a drone would never be deemed by the public as an expected thing in the contrary to planes which normally travel over houses. This would raise questions around the legitimacy of the usage of drones in the first place.
Finally, when it comes to the borders of the U.S, one of the main missions of the U.S government is to defend the U.S soil against any kind of attack or illegal entry of aliens or substances. The Supreme Court has been quite conservative when dealing with the issue of borders’ security. They consider it as a holy duty of the U.S law enforcement and army and they try as much as they can not to interfere. The usage of drones to monitor the borders would be of less controversy due to the deep need of all kinds of security measures to prevent the unlawful violations that take place almost daily on the borders nowadays.
Regarding the technological breakthroughs each and every moment in the world of drones, a regulation that determines the level of sophistication accepted to be used is severely needed. These drones now have the ability to wander in the air for very long times and it is expected in the near future to theoretically have the ability to stay in air forever. The drones may be equipped with face recognition devices or even laser radars which may allow seeing through walls. On one side this may be good news for law enforcement institutions that things is going to be way easier in capturing the bad guys and would help in diminishing of the budgetary expenses. On the other hand it really raises a factual concern over the constitutionality of anticipating such technological developments or at least shows the need of a strict regulation of usage or things may get messy.
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As a legislative solution I see that the usage of drones on U.S soil in domestic surveillance should be considered an action of search that needs a warrant under the 4th amendment and any action of surveillance without a warrant should be considered unlawful. A warrant should be initiated according to tangible evidence or plausible suspicions that an individual/group is doing an action that is considered according to the U.S laws unlawful. The court should assess the suspicion and accordingly determine the duration by which after it the warrant expires with maximum of 30 days to be renewed according to new evidence or a probable cause. There may be some exceptions by which law enforcement may automatically respond by using drones without the need of warrants and these exceptions are as follows: The existence of an imminent danger that threaten the U.S borders and needs to be obstructed or monitored closely. By imminent danger illegal entry of aliens/ illegal substances / arms is meant. Another exception would be in the case of emergencies like (natural disasters or fires etc…). Third exception would be a threat to the national security of the country assessed by the department of National security. The secretary of homeland security takes the decision of using the drones. In all exceptions stated above a warrant shall be initiated after 48 hours from the decision of using the drones.
The legislative frame work above just offers a compromise between making use of such a fascinating technology and ensuring that civil liberties to the maximum extent possible are safe and sound. I would like to conclude with words of Justice Scalia (Associate Justice of the Supreme Court of the United States) which sums up the whole dilemma we’re living through here. He says and I quote” It would be foolish to contend that the degree of privacy secured to citizens by the fourth amendment has been entirely unaffected by the advance of technology ….. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. “
 In Katz v. United States, decided in 1967, the Court held that an FBI agent’s use of a bug to listen to the private conversations of Mr. Katz while in a telephone booth violated his Fourth Amendment rights. Although he was in a public telephone booth and there was no physical invasion, the Court noted that what a person “seeks to preserve private, even in an area accessible to the public, may be constitutionally protected.
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