Is There a Drone in Your Backyard?

Even when we don't have an expectation of privacy, we do have a right to be left alone.

Earlier this week, the federal government announced that the Air Force might be dispatching drones to a backyard near you. The stated purpose of these spies in the sky is to assist local police to find missing persons or kidnap victims, or to chase bad guys.

If the drone operator sees you doing anything of interest (Is your fertilizer for the roses or to fuel a bomb? Is that Sudafed for your cold or your meth habit? Are you smoking in front of your kids?), the feds say they may take a picture of you and keep it. The feds predict that they will dispatch or authorize about 30,000 of these unmanned aerial vehicles across America in the next 10 years. Meanwhile, more than 300 local and state police departments are awaiting federal permission to use the drones they already have purchased -- usually with federal stimulus funds.

The government is out of control.

If the police use a drone without a warrant to see who or what is in your backyard or your bedroom, or if while looking for a missing child the drone takes a picture of you in your backyard or bedroom and the government keeps the picture, its use is unnatural and unconstitutional.

I say "unnatural" because we all have a natural right to privacy; it is a fundamental right that is inherent in our humanity. All of us have times of the day and moments in our behavior when we expect that no one -- least of all the government -- will be watching. When the government watches us during those times, it violates our natural right to privacy. It also violates our constitutional right to privacy. The Supreme Court has held consistently that numerous clauses in the Bill of Rights keep the government at bay without a warrant.

Even when we don't have an expectation of privacy, we do have a right to be left alone. But merely watching us in public isn't enough for the police, as many street corner cameras are equipped with listening devices and tiny megaphones. We can expect that these devices will soon bark commands: "Put down that BlackBerry." "Look to your right before crossing." "Don't kiss her; a car is coming." Actually, Big Brother is coming, and he's not smiling.

Big Brother is watching from the skies, as well as the streets. This started when the Department of Defense decided to offer help to police -- and they are prepared to accept. Never mind that the military may not lawfully operate within our borders, except in the case of rebellion, and then only when publicly authorized by the president. Never mind that the military may not lawfully be used for law enforcement, except in the case of disaster, and then only when publicly authorized by the president. And never mind that this use of drones by the Air Force was not the result of legislation debated and enacted by Congress, but was done under the authority of the president alone.

Add to all this the use of drones to kill people. President Obama has argued that he can use drones to kill Americans overseas, whose deaths he believes will keep us all safer, without any constitutional due process whatsoever. His attorney general has argued that the president's careful consideration of each target and the narrow use of deadly drones are an adequate substitute for due process. Of course, no court has ever ruled that way. The president's national security adviser has argued that the use of drones is humane since they are "surgical" and only kill their targets. Of course, that's not true, but it misses the point. Without a declaration of war, the president can't lawfully kill anyone, no matter how humane his killing.

How long will it be before the Air Force and the police adopt the unconstitutional arguments of the president's wrongheaded advisers and use the drones not only to spy but also to kill Americans in America?

The whole reason we have a Bill of Rights is to assure that tyranny does not happen here, to guarantee that the government to which we have supposedly consented will leave us alone. Do you think the government accepts that? Would you feel safe with a drone in your backyard? Would you feel like you were in America?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."

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  • NotSure||

    Whether one likes this or not (and probably most people like this) it is inevitable that these drones will soon be everywhere in the world, monitoring everything.

    I just have a question regarding what kind of people would take a job that requires them to watch others the whole day, I mean who could honestly claim job satisfaction because he caught somebody using their cellphone in a car.

  • ||

    "...who could honestly claim job satisfaction because he caught somebody using their cellphone in a car."

    A cop.

  • Heroic Mulatto||

    Lies.

    Cops love cellphones. (At 1:03, the lip reading is accurate!)

  • ||

    well, i do like being exempt from the laws that forbid talking on cell phones while driving

    DOUBLE STANDARD DERP DERP DERP!!! ATTICA!!! FREE MUMIA!!! DERP DERP

  • affenkopf||

    Well, there are enough people taking a job using these same drones to murder others the whole day.

  • Ron||

    Who needs people to watch, all you need is a MS Kinect on one of these things and then program a few behaviors that are deemed improper and before you know trial by computer simulation. No court needed. Finally swift and equal justice/punishment for all and I mean all.

  • ||

    well, at least no racial bias there!.

    unless it's inherent in the system and shit

  • ||

    Unless?

  • Fist of Etiquette||

    The stated purpose of these spies in the sky is to assist local police to find missing persons or kidnap victims, or to chase bad guys.

    It's just our luck that all of us without badges or office are classified as "bad guys".

  • ||

    righhhhht.

    because i am sure the drones aren't going to be looking into cops' backyards, too.

    jesus fucking christ, get a clue

    i realize the anticopbigorati loves framing everything into them against us, but as a cop, i am certainly against such drones, as i suspect many if not most (real iow local not feds) cops are.

    considering, all your double standard rubbish aside, cops have been fired for mowing their lawn in boxer briefs (that cover more than most bathing suits), god knows what these drones would catch. omg, KISSING in ... PUBLIC!!!!

    flabby pecs!

    the mind boggles

  • box_man||

    I wonder how air space rights as they are currently defined - that a landowner owns only so much of the airspace above their property as they may reasonably use in connection with their enjoyment of the underlying land - will factor into the idea that any evidence obtained with drones over someones backyard would be a violation of the fourth amendment.
    I would hope that there would at least be some merit to the claim that evidence inadvertently gathered by drones above private property is unreasonable search and seizure due to the property owners air space rights.

  • CE||

    Fourth Amendment? You crack me up....

  • luohuluohu||

    So cool it is,I like it very much.

  • SugarFree||

    Drones are fun toys and all, but could never compare with the thrill of frisking a teenage girl until she starts crying, or throwing down a baggie of pills in some black kid's car, or the rich, satisfying buck of your service weapon as you kill that schmuck's dog who had the audacity to live at the address you got wrong.

    These are the memories you cherish forever, not grainy images on some screen.

  • ||

    Drones are fun toys and all . . .

    With a couple slight alterations to provide context, I'd like to post this to my Facebook. I'll just need to know how you prefer to receive your royalties.

  • Almanian...still||

    how you prefer to receive your royalties

    "Good and Hard!" Or so I've heard...

  • SugarFree||

    Just make a small contribution to my bail fund when the occasion inevitably arises.

  • JW||

    Remember that time when we caved in that black kid's head in with our sticks, who mouthed off to us at the Dunkin'? And then planted drugs and a gun on him and then "lost" the security cam tape, to make it look legit?

    Fucking salad days, man.

  • ||

    the correct term is 'sprinkle crack'

  • Lord Humungus||

    oh, look at that cute little drone, flying so high and free in the sky. Who would want to hurt such a little thing?

  • mr lizard||

    How long till we have Blue Thunder-style urban drone on drone combat?

  • Almanian...still||

    As long as it comes with Roy Scheider's Ghost, not soon enough.

  • Almanian...still||

    Also, that girl in the SnorgTees® ad needs to zip up her jeans. Her underwear is showing.

  • ||

    Her underwear is showing.

    I'm glad I'm not the only one who was bothered by that!

  • Rich||

    "Police drone crashes into packed elementary school playground"

  • sarcasmic||

    Apparently no on told The Judge about the "Fuck you, that's why" clause in the Constitution that allows the government to do whatever the fuck it wants.

  • ||

    fortunately, THIS 'the judge' KNOWS no such clause exists.

    unfortunately to say, far too many other judges have found it lurking somewhere around the penumbras and emanations forest

  • Bardas Phocas||

    Fuck it. I'm just going to walk around all day in a gilly suit.

    Also, my mother is riding the crazy train and wildly paranoid about comcast and verizon. One of these little gems overhead isn't going to help her.

  • Rich||

    Just reassure her that the drones are being watched by spy satellites.

  • ||

    if you want to be paranoid, think about those GPS systems in your cars (aftermarket garmin etc. or otherwise)

    if you have one, little brother (and by extension sometimes big brother) knows where you/your car are at all times, and how fast you traveled getting there, etc. etc.

    it boggles my mind that so many privacy advocates think nothing of plugging in a device that completely gives away their location, movement patterns etc. to a company and they have no control in reality over who that company shares that info with, etc.

    heck, our union wouldn't even let our dept. install those things in OUR cars without major bargaining, and we are driving govt. owned vehicles with no expectation of privacy as to where they are at any time during shift.

    and yet people willingly cede that info to garmin w/o a second though

  • db||

    Any word on what frequency band is used for co trol of these little buggers?

  • ||

    Multiplex frequency hopping. Tough to jam. Thank Hedy Lamarr for that.

  • fried wylie||

    Spark-gap transmitters: Because when you need to jam everything within a mile...

  • DJF||

    I think we should test these out first, assign one to every politician, top level bureaucrat and police chief in the country and have them followed around 24 hours a day and put the video on the internet to see how well these work.

  • Rich||

    Excellent idea. If *anyone* "has nothing to hide", it's those folks.

  • LibertyMark||

    Look mommy, there's an airplane up in the sky...

  • Ron||

    Is anybody out there?

  • AlgerHiss||

    Directly related to this drone issue, is this story out of Memphis where they wish to use license plate scanners and red light cameras for extended purposes:

    http://www.commercialappeal.co.....er=popular

    No reason to be paranoid at all. There’s no slippery slope involved in any of this.

  • Emperor Wears No Clothes||

    Shouldn't it be "Memphisians"?

  • R C Dean||

    Was watching Fox a few days ago when this came up. Krauthammer totally teed off on it, saying it was unAmerican and needed to be killed in its cradle. That only a fool would believe that these would be used only in limited circumstances, etc.

    I was curious to see what he would do; as a reliable indicator of a certain strain of Republicanism, I found his reaction encouraging.

  • ||

    not to get all no true scotsman'y and stuff, but no real conservative imnsho would ever support this bullshit

  • gritzly||

    What size shot for drones? Is there a limit?

  • ||

    I say zeor change of surviving a Supreme Court challange.

    Flying a surveillance drone over someone's private yard is pretty clearly unwarranted search.

  • Gray Ghost||

    You'd think that, Hazel.

    Go google: California v. Ciraolo, Dow Chemical v. U.S., and Florida v. Riley. All of those cases involved the po-po flying over people's property and conducting surveillance. The defendants attempted to get the courts to say these were Fourth Amendment violations and the courts all declined to agree.

    Now, you can distinguish these cases from drones: the drones may violate a state's higher protections for privacy (like dunphy keeps reminding us about WA, or see State v. Bryant, 950 A.2d 467 (2008) for the same in VT), the drones can surveill continuously, the drones are small enough to not be seen (unlike a po-po helicopter or a larger airplane). But the position that the cops flying over your yard is an unwarranted search is simply not true.

  • ||

    your point is correct. and of course if its run by the feds, it doesn't matter, but WA leo's are WAY WAY more restricted vis a vis curtilage etc. (because people in WA have a recognized right to PRIVACY, nowhere recognized by the federal constitution, but that is only applicable if state actors/state courts, etc. feds can continue to violate privacy willy nilly)

    of course, unless one is in certain airspace, ANY private or govt. pilot CAN fly over your or at least my) yard, at given altitudes, but of course they aren't doing it to look for 'bad guys', so it isn't a search.

    if your express intent in looking is to find 'bad guys' or contraband, etc. - generally speaking, it's a search (let's not get all a wankin' about open view, plain view, searches vs. non searches vs. frisks, etc.)

  • Emperor Wears No Clothes||

    Flying a surveillance drone over someone's private yard is pretty clearly unwarranted search.

    So are Checkstops. But the Supremes allowed them.

  • ||

    the issue is more to seizure than to search, since the former precedes the latter, with checkstops.

    that aside, those of us who live in a state that recognizes PRIVACY :) don't have such checkpoints.

    but yea, it was based on seizure moreso than search.

  • JSebastian||

    Its like 1984 and Terminator, Rise of the Machines.

    The only solution is to destroy the Federal government. And that could mean to either physically destroy it, as in destroy its base of operations and kill all of its agents, or it could mean simply to abolish it. But one of the two must be done in order to prevent tyranny. I suppose there is a third option which is to shrink it down and return it to a Constitutional government. But it seems clear to me that a long and sustained attempt to do that has been fruitless because despite all the efforts the government has grown at an alarming pace. So that leaves its destruction (or abolition) as the only options.

  • CE||

    Agents provocateur abound....

  • Jtsulli||

    This might create a new market for targeted EMP's.

  • stout77||

    This current administration as well as the last one prove that government will tend naturally towards tyranny if left to its own devices. There seems to be a direct correlation between the growth of government and the decreasing legitimacy of our leaders. How is this happening?

    www.fiscalwars.wordpress.com

  • Social Security||

    A drone in my backyard sounds like a lawsuit.

  • ||

    "in?" yes

    over?

    good luck

  • Harry44321||

    ‎? What's the big deal if your not doing anything wrong. It's like the black college student (guy) from Watt's complaining of New York City Police frisking him when he is out on the street. As long as it is professionally done, what's the big deal. Me, I would say Thank You, it is nice to know your doing your job and making the streets safe. Now, on the other hand if they are planting illegal drugs on me, or I'm a women being frisked by a guy, then I would be upset!

  • ||

    It's a big deal because we're all doing something wrong. Smoking in your backyard, drinking from an open container on your porch, lighting off illegal fireworks on the beach on the fourth of July, jaywalking on main street, not using a turn signal when you pull into McDonald's. The use of drones will allow the police to enforce every stupid law on the books 100% of the time against us civilians. That means hundreds, if not thousands, of dollars in nuisance fines every year.

  • Emperor Wears No Clothes||

    You'd thank a cop for randomly frisking you?
    I don't think so.

  • ||

    Hey E.W.N.C., don't you know the cops in New York give 'Happy Ending' frisks? It's part of the "Open Your Heart to New York" program instituted to increase tourism/decrease crime.

  • Emperor Wears No Clothes||

    Philip K Dick was correct, turns out.

  • CE||

    Tar and feathers. Time to stock up.

  • ||

    If drones become common so will the artillery needed to bring them down, once again raising the stakes in the WAR on crime. I sure miss the good ol' days that never were.

    Crimethinc.

  • Major Arswhole||

    It's good to hear from you Judge, and excellent article at that!

    Keep fightin!

  • ||

    Depending on how the drones are equipped with sensors, you could have some fun with them.

    Optics? Give them the finger as they fly by.

    Radar detector? You can duplicate quite a bit of mil-spec electronics from the 1960s and 1970s with a trip to a 2012 Radio Shack; Ping the drone with Russian missile targeting radar.

    Thermal? Spell out rude words in heat sources then cover them with an opaque-to-visible-light panel so you don't disturb the neighbors.

    Passive night vision? Infrared searchlight with an output high enough to blind them (permanently is optional).

    Audio? Parabolic microphone connected to a directional coherent speaker. Play the motor noise of the drone back to it until the sensor explodes.

    Then there's always the option of taking a Faraday cage, cutting a hole in one side to make it directional, and putting an explosively-pumped flux compression device inside it, though that one will definitely get DARPA interested in you if you can pull it off.

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