Law and Technology Quickly Converging to Allow Unblinking Aerial Surveillance

Posted on September 5, 2019

As its law enforcement application continues to evolve and proliferate, drone deployment in municipalities across the country has attracted spirited resistance by civil libertarians. Considering the degree to which drones can compromise the privacy of individuals, notably in their ability to probe where even sprawling urban CCTV camera networks can’t, these organizers are right to insist on strict legal restrictions governing their use, short of outright prohibition.

However, recent news articles have illustrated that the threat of surveillance from the air extends far beyond drones, and has such ample legal precedent that curtailing it would prove difficult. A piece published in The Atlantic last month notes that the airspace over practically all property is considered public, and therefore permits law enforcement agencies to take photographs of private property from this airspace. So long as the device recording still images or video is located within public airspace and the equipment used to perform this is considered “publicly accessible technology,” there are no real limits on what law enforcement may monitor without a warrant or suspicion of wrongdoing.

In light of significant improvements in camera hardware, this means that even police departments without access to drones may fly helicopters or other small manned aircraft over any property at any time to observe and retain footage of it, all in astonishing resolution.

The prospect of unremitting aerial monitoring is even more unsettling when this legal purview is combined with recent test flights by the Pentagon of high-altitude surveillance balloons. As invasive as surveillance conducted by drone, helicopter, or single-engine aircraft can be, the presence of these vehicles can be directly observed by the human eye, and thus the incidence of surveillance can be inferred. But in the case of these prototype balloons, they fly at more than twice the altitude of a commercial airliner, making them all but impossible to spot.

These developments together paint a grim picture of the distinctly possible near future of policing, as they combine established case law with rapidly maturing technology. It is therefore incumbent on civil liberties defenders to be mindful of the full scope of possible means of surveillance, and not to be drawn into skirmishes over just one.