Andrew B. Talai,
Drones and Jones : The Fourth Amendment and Police Discretion in the
102 Cal. L. Rev. 729
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol102/iss3/4
Law enforcement agencies have begun deploying drones for routine domestic surveillance operations, unrestrained by constitutional scrutiny. Indeed, Congress has mandated a comprehensive integration of unmanned aerial systems into the national airspace no later than September 30, 2015. But does the Fourth Amendment to the United States Constitution proscribe such drone surveillance as an unreasonable search? While this question cannot be easily answered under conventional precedents, doctrinal inconsistency raises this Comment's central question: What role will the Fourth Amendment play in an age of pervasive digital surveillance and limited privacy rights? In the last few decades, the Supreme Court has narrowed its vision of Fourth Amendment rights to an opaque privacy rationale. The Court has muddled doctrine and strained to avoid difficult issues involving technological progress. A recent example of this phenomenon came in the 2012 decision, United States v. Jones, where the Court paradoxically revived the common law trespass test for Fourth Amendment searches, as a proxy for the "degree of privacy that existed" at the founding.
This Comment argues, instead, for a "pluralist" approach to understanding Fourth Amendment searches that would-in addition to securing privacy and property-proscribe any search that disproportionately impinges on personal liberty. It offers a factual foundation based on an actual account of law enforcement drone surveillance and explores a recently obscured anxiety that drone surveillance fosters in a free society-unfettered police discretion. This Comment also describes the tension between drone surveillance technology and existing Fourth Amendment jurisprudence, revealing shortcomings in the current search inquiries: the trespass test, the reasonable expectation of privacy test, and the mosaic theory. The Court's narrow understanding of Fourth Amendment rights excludes relevant considerations of personal liberty and gives short shrift to abusive governmental practices in public, not because they are normatively unworthy, but because the Court is unduly focused on "privacy." This Comment also suggests a more comprehensive understanding of a Fourth Amendment search. The Fourth Amendment should be conceptualized as securing interests in (at least) privacy, property, and personal liberty. In so arguing, this Comment builds upon the work of Tracey Maclin, using recent scholarship on panopticism to gesture toward a structure that balances the desirability of drone surveillance against the threat of abuse by proscribing searches that unduly restrict freedom of movement through surveillance.