Courts in the Drone Age

Abstract

Few subjects encapsulate legal informatics more than “drones.” Aviation is nothing new in public, military, and private settings, but the use of unmanned aerial vehicles (“UAVs”) for civic, law enforcement, national security, and commercial purposes is novel. This is not because UAV technology necessarily offers anything groundbreaking in the way of aeronautics or engineering; rather, UAVs are transformational information systems in terms of digital forensics. The range of intelligence, surveillance, and reconnaissance (“ISR”) gathered by sensor suites and software solutions deployed on UAV platforms seems limitless. This boundless use extends to legal processes, where the job of litigants and triers of fact could be eased and optimized through the use of drone-acquired evidence, for example high-definition video of accident or crime scenes. Current federal and state laws inhibit the collection, storage, and use of data gathered and delivered by UAVs from finding their way into criminal court hearings, civil depositions and mediations, and trials, however. A robust system of legal rules and practices designed to ensure the reliable, resilient, and uncompromised collection and use of UAV data is imperative.

This article is the first to examine what digital information obtained by unmanned, remotely-piloted or optionally manned aviation machines means under the rules of evidence and discovery in civil and criminal cases. This analysis combines an interdisciplinary review of drone technology with the study of doctrinal legal subject matter such as tort, property, and criminal law, together with notions of personal and digital privacy under state law and the United States Constitution. While the law obviously lags technology generally and in the arena of drones specifically, this article concludes that current procedural and evidentiary rules are elastic and must be stretched to accommodate the latest advance in information technology.

Keywords: drones, unmanned aerial vehicles, UAVs, UAS, forensics, informatics, aviation

JEL Classification: I30, K40, K41, K20, K23, K11, K12, K13, K14, K19, O30, O33, O34, O38, O39, Z00, R40, L60, L62