In the run up to Labor Day 2023 the NYPD announced their plans to use surveillance drones to keep an eye on outdoor events for any illegal activities. It was made clear that if you were outside whether on your own private property or on public lands, you were fair game for drone surveillance. Your family picnics and BBQs and your backyard sunbathing could be recorded by drone and examined by the NYPD.[i]
Needless to say, many people were upset when they learned this.
Then in October the drones were used during a number of protests in the city and facilitated arrests of over 200 people.
More recently, in May 2024, the NYPD announced that it was introducing drones to five precincts in the city. These drones would be used to “assist” officers responding to calls and for additional intelligence.
Courts in Alaska, California, Hawaii and Vermont have all found that warrantless aerial surveillance violates people's rights to privacy. I haven’t found any cases from the New York courts.
The US Supreme Court has not addressed drone surveillance but in the 1980s they had two decisions upholding aerial surveillance from planes, ruling that those were not a search under the 14th amendment.
The general test of whether something is a search under the 14th amendment is whether you have a reasonable expectation of privacy. Inside your home you expect to have privacy. On the street you don't. You understand on the street that other people can see you and could potentially record you. I feel it's a different thing to record everything that's in the public. I think it goes too far and I think it's an invasion of privacy.
Your privacy doesn’t end at your exterior walls though. There is a concept called curtilage[ii]. Curtilage is that area outside your house that is considered part of your house and where you would expect to have privacy. A patio or deck are good examples. Historically, curtilage could encompass livestock as well.
Curtilage is recognized by the Supreme Court as protected from unreasonable searches and seizures, but is treated differently from the inside of the home. In United States v. Dunn, 480 US 294, 107 S.Ct. 1134 (1987)[iii] the court held that the curtilage is not protected from surveillance if it was generally available to the public.
The New York State Constitution has a similar protection from searches and seizures, with some additional protections. As a general rule,[iv] States are free to restrict government action to a greater extent than the US Constitution, but must, at a minimum, match it.
In California v. Ciraolo, 476 U.S. 207 (1986)[v] and Florida v. Riley, 488 U.S. 445 (1989)[vi] the Supreme Court ruled that aerial surveillance that discovered marijuana fields was perfectly okay.
Now we have State of Alaska V. John William Mckelvey III[vii]. It is a similar fact pattern, the police use an airplane and a telephoto lens to spot some marijuana being grown near someone’s house. The Alaska Constitution has the same language against unreasonable search and seizure, but they have a different method of interpreting it. Alaska holds that the plain view doctrine from ground level does not apply to the sky. You can build a fence to protect against observation from the ground, but you don’t necessarily expect surveillance from above and you can’t build a roof over everything. So Alaska says that their residents have a reasonable expectation of privacy within their curtilage.
State of Vermont v. Bryant,[viii] likewise held that the police violated the Vermont Constitution when they hovered over the defendant’s farm for up to 30 minutes without a warrant. People v. Cook,[ix] in California and State v. Quiday[x], in Hawaii had similar findings. In People v. Reynolds, 71 NY2d 552, 528 NYS2d 15 (1988) the New York Court of Appeals declined to go further than matching the Supreme Court’s test. However, they acknowledged that the case had different facts.[xi] I’m not aware of any New York case that addressed this matter for aerial surveillance.
No courts have directly addressed drones as opposed to planes and helicopters. I think that drones are much more invasive. Smaller drones can peer right into your bedroom window and under a covered patio. You may have seen the video from military drones with some pretty amazing technology allowing them to identify and eliminate the enemy. Those drones fly quite high and are generally not noticed by people on the ground.
The increasing militarization of American police forces makes it a near certainty that departments will be looking to acquire this technology.
The modern world is filled with cameras. Security cameras are everywhere, on every doorbell, in every shop, and on the windshields of many cars. Privacy in this world is harder and harder to come by. Some people see this as a benefit with the idea that it protects them from crime and that may be true. But others mourn the loss of privacy. Young people growing up today are unable to make mistakes in their lives without it being captured on camera and potentially broadcast to the world.
It used to be that you could go about your daily life shopping, doing errands, without having every step of your day recorded in some way. I find it intrusive and disturbing to know that everything I do is now saved on a hard drive somewhere.
This doesn’t even take into account the growing practice of people videoing daily life and posting it on Tiktok or other social media. Now, when you slip on that banana peel, you aren’t just a little embarrassed in front of a few people, your misfortune can be the next viral videos seen by millions.
This is one of those areas where technology and society outpace the law. A serious debate is needed about personal privacy and surveillance of public spaces.