According to the Associated Press,"Those attending outdoor parties or barbecues in New York City this weekend may notice an uninvited guest looming over their festivities: a police surveillance drone." There are clearly Fourth Amendment implications in the warrantless use of surveillance technology by police in observing and recording activities occurring on or in private property. In examining the constitutionality of the police use of unmanned aerial systems and devices, courts generally ask two questions:
Do people have a reasonable expectation of privacy in engaging in the activities that the police intend to surveil (or search)?
Are we as a society prepared to acknowledge and agree with this expectation of privacy? (Do reasonable people generally support it)?
So do people attending a backyard barbecue have a reasonable expectation that their activities are not going to be observed and recorded by local police? And does this use of drone technology by the NYPD comply with the Public Oversight of Surveillance Technology (POST) Act? And are we as a society prepared to consent to, endorse, and approve of the police using drone technology in this fashion? A simple 911 call reporting "a large party in a backyard" in New York City can generate a drone response "to go check on the party," according to Kaz Daughtry, an assistant NYPD Commissioner. And what if the police observe unlawful activity occurring in the backyard? What if the activity is unrelated to the original caller complaint? Say, drug use or underage drinking? And what of the legally protected privacy interests of cookout attendees from the unwanted (or unwarranted) government intrusion and recording of someone having a hotdog and a beer in a friend's backyard?
In Chula Vista, California the police department uses drones to respond to 911 calls. And while it may make sense to use drones to determine the need for a timely, in-person police response, there are concerns with the recording and retention of data that contain information implicating privacy concerns. Patrick Sisson, writing in the MIT Technology Review observed that "Many argue that it’s happening too fast. The use of drones as surveillance tools and first responders is a fundamental shift in policing, one that is happening without a well-informed public debate around privacy regulations, tactics, and limits for this technology....There’s also little evidence available on the efficacy of policing in this fashion."
If there's a dearth of research or empirical evidence that the use of drones are an effective law enforcement strategy in terms of reducing crime and keeping communities safe, then why are the police continuing to use them (even ramping up their deployment), particularly in communities that have historically borne the brunt of the police "boot-print," i.e. been overpoliced? To be continued...