Sachs on State Drone Regulations

Peter Sachs, a lawyer and notable commentator on drone laws, has posted his testimony (available to download here) where he argues against regulating both government drones and private drones. At this time, I am not sure where he gave this testimony, but based on prior events, I suspect that this may be testimony for the Connecticut state legislature's Judiciary Committee. Sachs has taken a strong position against drone restrictions in prior testimony before that committee.

I do not have much to say about Sachs's points on regulating private drones. I agree that overly restrictive regulation of private drones could hinder the development of this new technology in unpredictable ways. And I think that privacy concerns related to drone use are generally overstated and can be addressed by other laws prohibiting invasion of privacy.

But I take issue with a few of Sachs's arguments against regulating government drones. Sachs argues that there is no logical need for warrants on government drones and points out that high-powered cameras in helicopters can see far more than a government drone can see. I think this fails to address the main concern of privacy advocates, which is that drones can be used for prolonged surveillance of somebody's public movements or of somebody's home.

Drones require less fuel to operate, can be launched more conveniently, and are easier to fly than a helicopter, meaning that law enforcement officers may use this technology for continuous surveillance. The fear is not that drones will necessarily see more detail than helicopters, but that they can observe somebody's home or movements for a much longer time. Sachs needs to address this particular concern in order to meet the arguments of privacy advocates.

Sachs also argues that "there is no legal need" to require law enforcement agencies to obtain warrants before using drones, Sachs is probably (though not certainly) correct that the Fourth Amendment's prohibition on unreasonable searches does not apply to aerial observations of one's property, and cites case law supporting that conclusion.

But just because continuous observation by government drones does not violate the Fourth Amendment doesn't mean that governments should not place regulations that go beyond existing constitutional protections. In fact, the Fourth Amendment's inability to regulate government drones is what motivates privacy advocates to argue for legislative restrictions in the first place. State legislatures are free to enact laws that restrict government searches beyond the restrictions of the federal constitution. And as I argue elsewhere, the interests of both privacy advocates and law enforcement would be best served if legislatures, rather than courts, were tasked with restricting government drone use.

Sachs raises some good points about government regulation of drones. But his arguments fail to address privacy advocates' concerns that government drones may be used for continuous surveillance.