Drones at Home: Domestic Drone Legislation -- A Survey, Analysis and Framework

Abstract

Can the government employ drones domestically without running roughshod over personal privacy? In an effort to preemptively rein in potential government overreach, most states have proposed legislation that restricts or forbids government drone use. The intent is to prevent drone use for warrantless information and evidence collection. Ironically, many of these proposals will have the opposite affect intended. State-­by-­state drone legislation may lead to consequences such as the erosion of Fourth Amendment jurisprudential principles, losses of life and property, procedural windfalls to criminals, and deleterious effects on the military.

Lawmakers should take a nuanced approach to government drone use rather than selectively revising constitutional protections. A nuanced approach would allow the federal government to use drones to their full potential while also protecting personal privacies. There are four principles that should guide drone legislation: (1) apply the Fourth Amendment agnostically; (2) ensure operational purpose language distinguishes between law enforcement and non-­law enforcement professionals; (3) focus new regulations focus on information collection, dissemination, and retention; (4) develop narrowly tailored remedies that deter specific behavior consistent with their historical purpose. Drone legislation drafted with these principles in mind will protect our national security and our civil liberties.

Keywords: drone; privacy; drone legislation; constitution; Fourth Amendment; military; intelligence law

JEL Classification: K19; K29; K39