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Session: Drones and the Fourth Amendment
September 29 @ 3:00 pm - 4:00 pm EDT
Presented By: Mary Mara and Henry McGowan
Does the Fourth Amendment apply when officers use a drone to fly over a person’s house? The Supreme Court has ruled that individuals lack a reasonable expectation of privacy in the airspace above their property and that police could therefore conduct warrantless aerial surveillance of private property without running afoul of the Fourth Amendment. This was established in a pair of decisions dating back to the 1980s. Surveillance in these cases was accomplished with the use of traditional aircraft (i.e. helicopters and fixed-wing airplanes). What happens, however, when aerial surveillance is conducted with modern-day drone technology rather than traditional aircraft? Does the Fourth Amendment analysis change? Does such surveillance rise to the level of a search for purposes of the Fourth Amendment? And, does reliance on FAA flight safety rules continue to provide the guidance needed to determine not only safe air operations but also Fourth Amendment protections? Neither Congress nor the Supreme Court have provided guidance on these important issues. This one-hour presentation will discuss the potential Fourth Amendment implications of drone surveillance by law enforcement today. We will explore the current state of the law, what we know, and questions still remaining regarding this new technological frontier.