Drone surveillance for COVID-19 lock down enforcement
In March, one California police force starting to use drones to monitor people in public. Since then, more states have issued stay at home and shelter in place orders. What extent can drones monitor and how does it affect a person's constitutional right?
Right now only a few jurisdictions have announced the use of drones. As they become more affordable and popular we may see a lot more people under drone surveillance. With more people being under surveillance we may see more people's rights being affected.
Each person's constitutional rights provides every person in the United States with a level of privacy. The right to privacy protects people from the government against unreasonable search and seizures. Normally, the police cannot stop, search and seize people without reason.
With the COVID-19 pandemic, many governors have ordered a stay at home order other than for essential travel. Governor Baker has also banned gatherings of people. In order to promote social distancing, beaches were closed, basketball hoops taken down, and non-essential travel banned.
The problem remains that some groups of people remain defiant and continue to play sports and gather in some public spaces. Though not in Massachusetts just yet, other towns and cities throughout the US have decided to turn to drones for surveillance.
Is this constitutional?
Well that largely depends on the situation. Let us first talk about the use of drone surveillance in public spaces. A person's constitutional rights for privacy are not as strong when they are in a public space. Massachusetts currently is in a state of emergency which increases the powers of the executive branch or the governor's powers. That combination of decreased privacy rights in public spaces with increase of the governor's powers during this crisis, drone surveillance in a public space will likely pass a constitutional challenge.
What happens when it isn't a public space?
Well then it becomes trickier. In a scenario, where the government is trying to prevent gatherings of individuals in a private home. The government flies a drone over a back yard to look at a gathering of individuals. This would be more of a constitutional issue because it is private property and not public. However, the airspace above a person's home is not as protected by the constitution. So as long as the drone is high enough from a person's back yard that type of surveillance during this pandemic may also be fine.
What about a drone measuring heat signatures inside a person's home?
There is technology out there that give drones the power to measure the heat signature of the people inside of a home. Essentially, this technology allows the government to estimate the amount of warm bodies inside of a place. If the government started to use this type of technology to enforce social distancing it would be the most problematic out of the three scenarios to pass a constitutional challenge. Under the law, a person's home is his or her castle and without a legal reason, the government is prevented to search a home. Even during a pandemic it will be difficult to argue drones measuring heat signatures would be constitutional.
This pandemic will be over at some point, but technology continues to improve. The law does not move nearly as fast as innovation. Therefore, many of these issues are waiting to be resolved, and we may not know the real answers for years.