Slide from internal FBI documents laying out the Bureau’s legal case for drone surveillance
That the Federal Bureau of Investigation is intensely interested in drone technology should come as no surprise. The combination of low visibility and minimal price tag make drones an attractive option for surveillance. But what guidelines must the Bureau follow? Newly released internal documents show the FBI believes it has thorough precedent for legally conducting drone surveillance without warrants.
Given the controversy around using drones in domestic airspace, the FBI’s Office of Legal Counsel has studied the issue quite a bit. Its summary: “You can’t look through walls of a home without a search warrant,” but there’s no need for a warrant for basic aerial surveillance, whether conducted by unmanned system or manned helicopters and planes.
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Among the hundreds of documents the FBI was forced to release to Citizens for Ethics and Responsibility in Washington (CREW) in late November is an extensive slide deck that outlines statutory and case law restrictions on drone deployments. Titled “Legal Challenges to the Use of UAS (Unmanned Aerial Systems),” the slides outline Bureau lawyers’ instructions to field agents on calling in the drones, as well as their collective pining for a future with fewer restrictions on evidence-gathering tactics.
The presentation, dated February 2012, opens with a straightforward question: “Is UAS [unmanned aerial system] surveillance constitutional?”
After a brief reminder that the FBI operates under “rigorous obedience to the Constitution” and the Fourth Amendment’s protection against unreasonable searches and seizures, the presentation takes a quick detour to bemoan the American legal system’s hard stance on improper evidence.
The exclusionary rule discards as inadmissible any evidence that law enforcement gathered by unconstitutional means. FBI counsel seemingly considers this requirement quaint and burdensome. One slide notes an Australian High Court judge’s warning that the American high evidence standard puts it in danger “of becoming something of a legal backwater.” It’s not a great start to a defense of drone’s “rigorous” constitutionality.
The slides continue to examine current constitutional limits on surveillance, though. They review five key cases around aerial surveillance, thermal imaging and warrant requirements, our of them involving drug trafficking, and three for marijuana cultivation.
The Supreme Court has ruled in three cases that aerial surveillance does not require a warrant, even to monitor private backyards. In 1986, in California v. Ciraolo, SCOTUS decided that Santa Clara police did not violate the Constitution in flying over a pot grower’s twice-fenced backyard at 1000 feet. Since “any member of the flying public” could have seen Ciraolo’s growing operation from the air, police do not need a warrant to take the same peek.
The Court echoed this holding in another aerial photography case in the same year, Dow Chemical Co. v. United States, as another slide notes:
It cemented the issue in another pot case in 1989 in Florida v. Riley, where police flew over a grower’s backyard at 400 feet. While Justice Brennan dissented in that case, saying that law enforcement had used “very expensive and sophisticated piece of machinery to which few ordinary citizens have access,” the Supreme Court has made unmistakably clear that police do not require a warrant to conduct visual surveillance from public vantage points, whether those are across the street or from the air.
Where things get trickier, though, is when investigators use technology to peer inside walls.
The fourth relevant case in the FBI slides is Kyllo v. United States, where the Court ruled in 2001 that investigators needed to obtain a warrant prior to using thermal imaging on a suspected pot grower’s house. FBI lawyer’s summarize the SCOTUS finding: “Put simply, you can’t look through walls of a home without a search warrant.”
Thermal sensors are incredibly common on drones. Thus, the FBI seems to interpret the Kyllo holding as restricting warrantless drone deployments to visual surveillance exclusively.
The final case is from the Supreme Court’s 2012 docket, United States v. Jones, where justices ruled that police require a warrant to place GPS trackers on suspect because of the inherent physical trespass. FBI lawyers note that the Court offered airborne surveillance as an alternative to bugging a suspect.
In its July letters to Senator Rand Paul, the FBI elaborated on its application of Jones, emphasizing that since “there is no physical trespass involved” in deploying a drone, no warrant is required for their use. The Court did, however, leave open the question of whether long-term surveillance was a violation of privacy that requires a warrant, even if it is conducted by non-intrusive means. The FBI indicated to Paul that “we do not use UAVs to undertake such [long-term] surveillance.”
The constitutionality segment of the slides concludes with a side-by-side summary of warrant requirements.
While the following slide was withheld from release, it’s safe to assume that the FBI considers drone surveillance to be immune from warrant requirements except where it involves thermal imaging.
The FBI has several thousand more pages of documents to release on its drone program. It has so far redacted all operational protocols from disclosures, as well as all numbers and figures that indicate how many or what types of unmanned aerial vehicles the FBI owns, how many agents are trained to fly them and where they are authorized to fly. Even as the FBI is pushing for nationwide authority to fly drones, its policies continue to evolve along with case law and federal regulations on unmanned vehicle flights.
See the full presentation below:
