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Blakeman examines drones and Fourth Amendment

By Scott Tappa
Use of unmanned aerial vehicles – known commonly as drones – has increased dramatically in recent years. The Federal Aviation Administration projects that by the end of the decade tens of thousands of drones could be in use nationwide in a variety of applications.
Drones’ use in law enforcement was the topic of research conducted this summer by John Blakeman, chair of the University of Wisconsin-Stevens Point Department of Political Science. Blakeman authored “Unmanned Aerial Vehicles and Police Procedures,” a chapter in a new book, Privacy in the Digital Age: 21st Century Challenges to the Fourth Amendment. The book is edited by Nancy S. Lind, a 1980 UW-Stevens Point alumna and professor in the Department of Politics and Government at Illinois State University.
“Nancy was putting together a collection of research articles on privacy and the Constitution, and with the Fourth Amendment, which limits the power of the government to search your premises, drones naturally fall into that,” Blakeman says. “The government uses drones for a variety of reasons. It’s easy to see how law enforcement agencies could say, ‘Hey, we can collect evidence by flying over a person’s house. Maybe we don’t need a search warrant after all.’ So that piqued my interest.”
Cutting-edge technology has always piqued the interest of law enforcement agencies. “If you go back 30 or 40 years, they experimented with using helicopters or fixed wing aircraft to search property for people illegally growing marijuana or other drugs, or the Bureau of Alcohol, Tobacco and Firearms will use them to search for moonshine,” Blakeman says. “The Supreme Court addressed that and under certain circumstances law enforcement can use manned aircraft without a search warrant to search for illegal contraband. Then law enforcement started using heat signature guns to search for people who grow marijuana indoors, which the Supreme Court said you could not do under most circumstances.”
By taking the human element out of the equation, drones are generally used for situations that have been described as the “three Ds” – dull, dirty or dangerous missions. That changes the scope of the laws for drones as they pertain to the Fourth Amendment.
“It turns out the law is very unsettled, unclear,” Blakeman says. “I think the U.S. Supreme Court is waiting for a big drone Fourth Amendment case to come up so it can be settled – at least temporarily.”
And when it does, how does Blakeman expect the Court to rule? “I really have no idea,” he says. “I think the court would be more inclined to require a search warrant, partly because a drone is not a manned aircraft. When you inject the human element into it there’s time for judgment and reflection right there as you’re flying an aircraft. With a drone the operator is miles away.”
Blakeman has not yet introduced the drone conversation into Fourth Amendment classroom discussions. After all, there is no shortage of material when the topic is technology and privacy.
“Students are very aware of the Fourth Amendment. This generation takes privacy issues very, very seriously,” he says. “I grew up with TV shows in the ‘70s where the Fourth Amendment was nonexistent. Starsky and Hutch did whatever they wanted to! When I started studying constitutional law in college I remember thinking, ‘Wow, the Fourth Amendment is actually pretty serious.’”
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