Duke Law Journal

Drones and the Fourth Amendment: Redefining Expectations of Privacy

Abstract

Drones have gained notoriety as a weapon against foreign terrorist targets; yet, they have also recently made headlines as an instrument for domestic surveillance. With their sophisticated capabilities and continuously decreasing costs, it is not surprising that drones have attracted numerous consumers—most notably, law enforcement. Courts will likely soon have to decipher the limits on the government’s use of drones under the Fourth Amendment. But it is unclear where, or even whether, drones would fall under the current jurisprudence. Because of their diverse and sophisticated designs and capabilities, drones might be able to maneuver through the Fourth Amendment’s doctrinal loopholes.

This Note advocates analyzing drones under an adapted approach to the reasonable-expectation-of-privacy test in Katz v. United States. Courts should focus more on the test’s oft-neglected first prong—whether a person exhibited a subjective expectation of privacy—and analyze what information falls within the scope of that expectation, excluding information knowingly exposed to the plain view of the public. This analysis also considers instances when, although a subjective expectation exists, it may be impossible or implausible to reasonably exhibit that expectation, a dilemma especially relevant to an analysis of drones.

Courts that adopt the recommended analysis would have a coherent and comprehensible approach to factually dynamic cases challenging the constitutionality of drone surveillance. Until then, the constitutional uncertainties of these cases will likely linger.