Page 60 - Privacy in a Cyber Age Policy and Practice

MORE COHERENT, LESS SUBJECTIVE, AND OPERATIONAL 45

wide bandwidth, highly sensitive, highly cybernated personal information
to be collected by law enforcement. Once again, the discussion that follows
assumes a constant level of threat to the public good and holds constant the
benefits of surveillance programs.
The increasing use of drones by public authorities (privacy violations
110
by private actors are beyond the subject of this chapter ) raises still more
complex issues. On one hand, drones are mainly engaged in primary col-
lection. From this viewpoint, if one applied Jones, the use of drones would
constitute a search in Fourth Amendment terms because they collect large
quantities of information. The CAPD would add that drones provide infor-
mation that is of a much broader bandwidth than the information pro-
vided by a GPS. At the same time, drones are often used for purposes such
as finding lost children or skiers or delivering help to stranded victims of
earthquakes and floods—all acts for which consent by those involved can
be presumed. What about their deployment for routine police surveillance?
This issue is now being sorted out by regulatory agencies and the courts.
In one case, the court ruled wireless surveillance did not constitute a
search, coming up with a different rationale than the ones previously used
in the courts; in the course of events that led to this court case, the gov-
ernment used unmanned aerial vehicles in addition to wireless surveil-
lance technologies. The case concerned a group of far-right extremists
known as the Montana Freemen that issued in 1995 a “citizens declara-
tion of war” against the U.S. government, occupied a 960-acre ranch in
Montana following its foreclosure, and initiated an armed standoff with
law enforcement. 111 The resulting case, United States v. McGuire, 112 held
in part that federal agents had not violated the Freemen’s right to freedom
from unreasonable searches and seizures. “FBI agents could not have con-
ducted on-site surveillance of the Freemen property because of its remote,
rural location and group members’ alertness to law enforcement activities,
which created grave dangers. Agents also would have faced risks in execut-
ing any search warrant at the compound, because of the group’s known
violent propensity and undisputed possession of assault weapons. Federal
agents would have had difficulty infiltrating the group with FBI infor-
mants [and interviewing] witnesses would have helped little.” 113 Because
direct surveillance posed a danger to the agents working on the case, and
there were no alternative reasonable options available to the agents, the
court ruled a number of search techniques constitutional under the cir-
cumstances, namely electronic surveillance. (The agents also used aerial
surveillance to monitor the ranch. 114 ) The CAPD would reach the same
conclusion, but a court following the CAPD would hold that given the high
amount and considerable bandwidth of the information collected, even of
low sensitivity, drones should be allowed only if cybernation is limited.