Watching from the air: What should be the limits?

Scott Forsyth, The Daily Record Newswire

See the small aircraft circling overhead multiple times? What is it doing? Looking for somebody on the ground or following the expressway traffic? Or might it be owned by the FBI and conducting surveillance of some gathering on the ground or the houses and cars in the area?

The last activity may sound far-fetched but is true. Four weeks ago, the director of the FBI confirmed to Congress the agency flew aircraft over Ferguson and Baltimore during the protests following the deaths of Michael Brown and Freddie Gray.

Aerial surveillance of protests raises a whole bunch of questions – what kind of equipment is used, what type of data is collected and saved, with whom is the data shared and under what circumstances, when is the data purged, does and should law enforcement obtain a court order before engaging in the surveillance, and, last but not least, does the surveillance have a chilling effect on speech and assembly?

The media and the ACLU have been gathering information about the FBI’s surveillance program. Here is what we know.

The FBI has set up several dummy corporations, which own at least 50 planes. Last spring during a 30-day period it conducted more than 100 flights in 11 states. In Baltimore, between April 29 and May 3, it flew 36.2 hours, mostly at night. We do not know what all these flights yielded.

The FBI director assures us, “We don’t fly planes around America looking down to see if somebody might be doing something wrong.”

On the other hand, the planes are not the simple prop planes that fly banners over football stadiums. They are tricked out with the latest surveillance technology – infrared cameras, thermal imagers, optical cameras and laser illuminators for recording at night, per the FAA. They are also capable of engaging in “electronic surveillance,” but the FBI declined to be more specific to the ACLU.

The AP did report the planes “occasionally” use cell-site stimulators called Dirtboxes. A Dirtbox is the aerial version of a Stingray, a tracking device increasingly popular with local law enforcement. A Dirtbox forces all mobile devices in an area to connect to it, thereby revealing the location and the address of the devices and the addresses of the calls made to and from the devices.

While you may expect the portion of your property not visible from the street or engulfed by darkness to be private and thus not viewable from the air without a warrant, you would be wrong. The Supreme Court has ruled that visual observation and the use of normal cameras from a plane are not searches, subject to the Fourth Amendment, see, e.g., Florida v. Riley, 488 U.S. 445 (1989) (visual observation by day of marijuana growing in a backyard greenhouse by a sheriff flying at 400 feet).

On the other hand, police cannot use a thermal imager to detect marijuana growing inside a home without first obtaining a warrant, Kyollo v. United States, 533 U.S. 27 (2001).

Infrared cameras, laser illuminators, and Dirtboxes are advances in surveillance technology which raise the potential of invasions of privacy. As we are finding out elsewhere, constitutional law has not kept pace with the advances. Into this gray area government has asserted its authority to monitor.

Manned aircraft today, drones tomorrow. The latter are cheaper to fly and at the moment are not as easy to track online. Drone surveillance would be a natural evolution of the FBI’s current practice.

Ironically, the Department of Justice has issued a privacy policy on its use of drones, a policy missing on its use of manned aircraft for surveillance. The policy prohibits the use of drones “solely for the purpose of monitoring activities protected by the First Amendment.” The language sounds fine, but any good agent can circumvent the restriction by coming up with a reason not related to the First Amendment.

The policy on drones must be tightened and expended upon. A clear line must be drawn between aerial surveillance that promotes public safety and aerial surveillance that constitutes unjustified mass surveillance. The government must then disclose information about its compliance with the new policy.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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