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Racism adv Drones are racist Kindynis 12(Theo, writer and researcher considers issues of policing, security and social control, October 14th 2012, Eyes in the sky: the rise of the police drones,https://ceasefiremagazine.co.uk/eye-sky-primer-police-drones/)The notoriously brutal LAPD long seen by many in the black community as an occupying (para)military force was the first police force to use the technology, flying a lightweight SkySeer surveillance drone over the streets of South Central since 2006. Since then, the Department of Homeland Security has awarded hundreds of thousands of dollars in grants for small UAVs to at least 13 police departments, and the Supreme Court has ruled that individuals have no right to privacy from police observation from public airspace. Until now, restrictions imposed by the Federal Aviation Administration (FAA) have kept many drones on the ground. However, Congress recently passed a law requiring the FAA to loosen these restrictions and most police forces are expected to be able to fly small UAVs by next year. In the meantime, the New York Police Department is investigating the possible use of UAVs as a law enforcement tool, whilst the Miami-Dade Police Department already has a fleet of drones ready to fly. Within the UK, arms manufacturer BAE Systems was revealed in 2010 to be working alongside several government agencies to develop an unprecedented national strategy for the use of drones by police in routine surveillance, monitoring and evidence gathering. According to a recent report by Drone Wars UK, the British government has spent 2 billion on military drones since 2007. BAE, which already produces a range of UCAVs for use in warzones such as Afghanistan and Iraq including the deadly Mantis and stealth bomber-style Taranis drones are now reported to be adapting military-style drones for a range of police uses. At least four constabularies are known to have already used or trialed drones, with many more expressing an interest in the technology. However, those aircraft trialled so far have been little more than small remote-controlled helicopters fitted with cameras. Furthermore, British law enforcements forays into UAV surveillance have met with decidedly mixed results. Merseyside police have reportedly trialled a lightweight helicopter-style drone from 2007 until early 2010 when they crashed the 13,000 UAV into the River Mersey. To make matters worse, the force could face prosecution for using the aircraft without a license a criminal offence. The British Transport Police apparently conducted a short trial with a similar model, though eventually deciding not to purchase one. Meanwhile, a drone acquired by Essex police has been left to languish in a warehouse after the force decided it wasnt worth the money. Whilst Staffordshire police have managed to use a drone to spy on revellers at V Festival, they were unable to fly it over the main arena because of fears it might crash and injure someone. Most recently, plans to use larger military-style drones for aerial crowd surveillance during the London 2012 Olympic Games were hampered by Civil Aviation Authority (CAA) regulations. However, the prospects for drone surveillance by British law enforcement agencies look likely to change in the near future. Speaking at the launch of a new National Police Air Service last week, police minister Damian Green endorsed the use of drones by British police for aerial surveillance purposes. Drones are like any other piece of kit claimed Green; Where its appropriate or proportionate to use them then we will look at using them. For his part, Chief Constable Alex Marshall further remarked that whilst drones are not currently used in mainstream policing they may well offer something for the future. According to Chris Cole from Drone Wars UK, current CAA regulations are too severe for police drone use to be practical for most forces, although this may be set to change in the next few years (the CAA has already licensed the testing of drones at ParcAberporth in Wales). Regulations regarding small radio-controlled aircraft however remain dangerously lax, according to Emma Carr from privacy and civil liberties campaign group Big Brother Watch, and this is something it appears those selling drones are keen to exploit. Furthermore, surveillance may only be the start. Military drones quickly moved from reconnaissance to strike recounts Wired magazines David Hambling. If the British police follow suit, their drones could be armed but with non-lethal weapons rather than Hellfire missiles. Noel Sharkey, a professor of Artificial Intelligence and Robotics at Sheffield University expressed similar concerns, asking, How long will it be before someone gets tasered from the air for dropping litter? The answer may be: not that long at all; a $300,000 Vanguard Shadowhawk drone purchased by the Montgomery County Sherriffs Department is already capable of firing rubber bullets, tear gas canisters and taser projectiles. According to Salon, an Ohio police lieutenant interested in the drone was told by Vanguard representatives that it can also carry grenade launchers and 12-gauge shotguns. Particularly worrying here is how drone surveillance tends to abstract people from their contexts, reducing variation and ambiguity that might otherwise impede action such as pepper spraying or shooting a suspect by trigger-happy police. A year ago the UK was shaken by rioting on a scale not seen in decades, a key contributing factor to which was the disastrous breakdown of relations between police and inner-city communities. According to the Guardians Reading The Riots survey, many involved in the disorder cited policing as the single most significant cause of the riots. In light of this, it seems reasonable to suggest that the kind of remote control policing-at-arms-length that drone-based technology inevitably encourages, whereby the local community is viewed from afar in a form of mechanised surveillance that dehumanises both the watched and the watcher, is precisely what is not needed. Withdrawing from the beat to watch over the streets through electronic eyes in the sky will only stand to further alienate an already overwhelmingly and visibly homogeneous (white, male, respectable working-class) police force from the diverse inner city communities it exists to serve. Furthermore, the use of drones by police will be seen by many as a refusal to engage with the public at the most fundamentally human level, and thus further undermine their already dwindling legitimacy. Domestic drones fuel the militarization of police exports violence abroad to minority bodies Thrasher 12(Greg, VOD Washington Bureau, Writer, May 24,2012, Drone Alert ,http://voiceofdetroit.net/2012/05/24/drone-alert/) Our country spends billions of dollars on the purchase of weapons and hi tech security devices under the premise of national defense and the protection and safety of the home land. Retired generals leave our armed forces to peddle their services to defense contractors in the weapons industry. America not only arms itself but our nation is also the number one arms dealer and weapons supplier in the world. We have more weapons of mass destruction than any other nation on the globe. America is indeed a profitable merchant in the market of warfare products.. Last week this escalation in military purchases and devices came to the our homeland, not to protect us from our external foes but to assist and augment the armory of our local police departments. The Federal Aviation Administration loosened the restrictions on local police departments surveillance of us to allow them to use Unmanned Aerial Vehicles, also commonly known as DRONES. Our nations high court, the Supreme Court, has even ruled that warrantless surveillance by manned aircraft is not unconstitutional and does not violate the 4th Amendment of our federal constitution. In far too many powerful public and private circles there are advocates focused on introducing the military into our cities and other venues. We now face the specter of entire cities being profiled by the usage of military-designed DRONES. Local municipalities, already burdened by fiscal deficits and lousy revenues, are actually spending huge outlays of their budgets in the purchase of these hi tech anti- freedom profile driven devices. Where is the outrage from our public officials, activist groups and even police unions over these invasive surveillance and anti -privacy domestic military machines in our nations urban airspace?One of the real dark potentials of these DRONES is not only their ugly invasion and violation of privacy rights, but these DRONES also have the capacity to be lethal and deadly. The applications and operational features of DRONES are truly unimaginable. The growing militarization of our local law enforcement departments is not to be excused by fictional claims of terrorism and excessive urban crimes . We must reject and defeat the myths about crime and anarchy in our cities. We must defuse and deflate the notions that our cities are cesspools of violence and crime. The proliferation of the myth of crime and the profiling of entire bandwidths of people based upon their hue and types of clothing is dangerous. Such a public policy creates a fertile soil for the introduction of military devices like DRONES into our domestic venues. DRONES are part of the arsenal of gadgets and devices which destroy the freedoms of all Americans. We must reject all kinds of devices and gadgets which at the end of the day are WMDs on American soil. Drones be racistCyril 3/30(Malkia, founder and executive director of the Center for Media Justice, March 30, 2015, Black America's State of Surveillance, http://www.progressive.org/news/2015/03/188074/black-americas-state-surveillance)The ACLU's Guliani pointed out, however, that invasive forms of surveillance, especially police surveillance, often impact communities of color disproportionately, pointing to US Customs and Border Protections' ubiquitous use of drone surveillance in vast border regions impacting huge swaths of the populations that live in those areas. "You're not just talking about the physical border, you're talking about an area that encompasses many major cities that have large minority populations, and the idea that these drones can be flown with little or no privacy protections really mean that, people, just by virtue of living in that region are somehow accepting that they have a right to less privacy," she said. African-American communities could well feel the disproportionate impacts of the integrated use of domestic drones and other surveillance in the coming years, as technologies such as StingRay are already being used mostly in the ongoing war on drugs to track those suspected of selling and buying drugs. The drug war has long negatively impacted communities of color, based on racialized drug policies and racial discrimination by law enforcement; two-thirds of all those convicted of drug crimes are people of color, despite similar rates of drug use among whites and people of color. These already-existing racial disparities in intrusive policing tactics and deployment of surveillance technologies are one of the primary reasons civil liberties experts are saying the government often gets it backward when thinking about privacy issues: deploying intrusive technologies first, and coming up with privacy policies governing their use afterward (when they may already be violating many people's civil rights). "What we see with StingRays is the same phenomenon that we're seeing with [UAS], where federal agencies are using them," Guliani said. "State and local agencies are using them. There's federal dollars that are going to buy them, and we're kind of having the privacy debate after the fact with very little information."The government already uses surveillance to control Muslim populations in the US. Drone expansion would only expand government Islamophobia. Knefel 13(John, journalist, March 11, 2013, Police Spying on American Muslims Is a Pointless National Shame, http://www.rollingstone.com/politics/news/police-spying-on-american-muslims-is-a-pointless-national-shame-20130311)Civil liberties groups led by the Muslim American Civil Liberties Coalition released a new report today detailing the detrimental effects of the NYPDs spying on Muslim communities in recent years. The report, called Mapping Muslims: NYPD Spying and its Impact on American Muslims, alleges that more than a decade of surveillance of Muslims throughout the Northeast has chilled constitutionally protected rights curtailing religious practice, censoring speech and stunting political organizing. They describe their communities as being under a pervasive climate of fear and suspicion that affects every aspect of individual and community life. The report combines publicly available documentation about the NYPDs snooping regime including the Associated Press groundbreaking investigations into the departments Demographics Unit with original interviews of 57 Muslims in New York City. But the significance of this report reaches far beyond New Yorks Muslim community and even beyond the American Muslim community at large. The authors have provided a needed rebuttal to the common argument that surveillance isnt a problem if you have nothing to hide, and that spying itself is essentially value-neutral so long as you dont become a target of an investigation. The Muslims interviewed in the report describe a terrifying reality where trust and privacy are virtually impossible, and where lives are severely harmed by spying alone. The pervasive spying regime has effectively intimidated many would-be critics. Many of the Shia organizations who were approached by activists to speak up or speak out were hesitant to do so, says community organizer Ali Naquvi in the report. A lot of it seems to be fear. They dont want to be targeted for additional surveillance. Discouraging this legitimate, constitutionally protected behavior isnt simply an unfortunate by-product of total surveillance, but rather a primary and predictable outcome. As anyone who has ever suspected themselves of being under surveillance will tell you, that fear changes the way you think and act. Instilling such fears is an extremely effective form of social control. And whether limiting civil rights and liberties in this way was the stated aim of the Intelligence Division doesnt really matter. That has been the effect one that was entirely foreseeable. So what has all this surveillance, this so-called intelligence gathering, gotten us? A terrorized local Muslim population, a police department that grossly exaggerates the terror plots it has disrupted and a crown jewel investigation of a troubled man named Ahmed Ferhani that was so problematic even the FBI recently dubbed the terror factory by one author because of its role in manufacturing plots that its own agents then disrupt wanted nothing to do with it. And as the report reminds us, Thomas Galati, the commanding officer of the NYPDs Intelligence Division, admitted during sworn testimony that in the six years of his tenure, the unit tasked with monitoring American Muslim life had not yielded a single criminal lead. While Muslims in the Northeast are the people most directly affected by this surveillance, it is a national problem both in the sense that all of our rights are infringed if anyones are, but also in a more concrete way. The states capacity for surveillance is already enormous, and will only expand as technologies, including domestic drones, continue to increase in sophistication. When total surveillance of one population becomes normalized, we are all at a greater risk of being illegally spied on. This report is an important document that illustrates just how damaging that can be.

Warrant requirement is key Sengupta 13(SOMINI, United Nations bureau chief at The New York Times, 24 February 2015 10:18, Proposed Rules Regulating Domestic Drone Use Lack Police Warrant Requirement, http://www.truth-out.org/news/item/29250-proposed-rules-regulating-domestic-drone-use-lack-police-warrant-requirement)The use of StingRay technology as it currently stands is already incredibly secretive, with police departments and manufacturers such as Harris Corporation concealing their use of the phone-tracking equipment from the courts through the use of non-disclosure agreements. The Department of Homeland Security's US Customs and Border Protection and the FBI already use planes and drones in areas that are more than 100 miles of the Mexican border to conduct aerial surveillance, and government agencies have been revealed to have been using Cessna planes outfitted with StingRay technology to track suspects. The FBI has been resistant to answer even lawmakers' questions about how many drones it operates and how often they are used. "It is both technologically possible and by no means a leap to imagine that once the FAA approves broader use of drones within the US by law enforcement, [law enforcement officials] may put StingRays on them," said Nathan Freed Wessler, a staff attorney with the ACLU's Speech, Privacy and Technology Project, and an expert on StingRay technology. UAS have also been outfitted with thermal sensing technologies to produce heat maps of people inside buildings. Other advocates worry if domestic drones are deployed as a platform for providing temporary internet service to consumers, it could potentially give corporate drone operators access to the internet data of those consumers and threaten net neutrality. "If internet companies were to deliver internet service in hard-to-reach places, which would be a good thing, would they then be collecting information in large quantities and would that information then be something that their contacts would then have access to?" asked Drew Mitnick who is junior policy counsel at Access, an organization dedicated to issues of internet freedom. It's questions like this that the National Telecommunications and Information Administration has been ordered by the White House to answer in a collaborative process, alongside civil society and industry groups, to develop guidelines for commercial drone use. The ACLU's Guliani pointed out, however, that invasive forms of surveillance, especially police surveillance, often impact communities of color disproportionately, pointing to US Customs and Border Protections' ubiquitous use of drone surveillance in vast border regions impacting huge swaths of the populations that live in those areas. "You're not just talking about the physical border, you're talking about an area that encompasses many major cities that have large minority populations, and the idea that these drones can be flown with little or no privacy protections really mean that, people, just by virtue of living in that region are somehow accepting that they have a right to less privacy," she said. African-American communities could well feel the disproportionate impacts of the integrated use of domestic drones and other surveillance in the coming years, as technologies such as StingRay are already being used mostly in the ongoing war on drugs to track those suspected of selling and buying drugs. The drug war has long negatively impacted communities of color, based on racialized drug policies and racial discrimination by law enforcement; two-thirds of all those convicted of drug crimes are people of color, despite similar rates of drug use among whites and people of color. These already-existing racial disparities in intrusive policing tactics and deployment of surveillance technologies are one of the primary reasons civil liberties experts are saying the government often gets it backward when thinking about privacy issues: deploying intrusive technologies first, and coming up with privacy policies governing their use afterward (when they may already be violating many people's civil rights). "What we see with StingRays is the same phenomenon that we're seeing with [UAS], where federal agencies are using them," Guliani said. "State and local agencies are using them. There's federal dollars that are going to buy them, and we're kind of having the privacy debate after the fact with very little information." Current UAVs are used to police and militarize the borderWALL AND MONAHAN 2011(Tyler Wall, Eastern Kentucky University and Torin Monahan, Vanderbilt University, 2011 Surveillance and Violence from afar: The politics of drones and liminal security-scapes http://www.antoniocasella.eu/nume/Wall_Monahan_drones_politics_2011.pdf)By meshing aerial reconnaissance with aerial bombardment, drones function primarily as technologies of war. Yet UAVs are also being used as technologies of state surveillance and policing and are deployed in security-scapes other than military combat zones. For instance, in the USA drones are increasingly being used to police foreign migrants in relationship to its territorial borderzones, particularly by locating people who are attempting to enter the country illegally. In addition, as we will detail below, some police departments are now conceiving of drones as surveillance devices that might prove useful in the routine policing and monitoring of domestic territories. Soon after President Obama announced in May 2010 that 1200 National Guard soldiers (Werner and Billeaud, 2010) would be deployed to the already heavily militarized 244 Theoretical Criminology 15(3) and surveilled USMexico border (Dunn, 1996; Pallitto and Heyman, 2008), conservative Arizona Governor Jan Brewer wrote a letter to Obama urging him to send also what she referred to as aviation assets, specifically military UAVs and helicopters (Lach, 2010). Brewer asserted that drones have proven effective in US military campaigns overseas and that they would therefore assist in securing the US border: I would also ask you, as overseas operations in Iraq and Afghanistan permit, to consider wider deployment of UAVs [unmanned aerial vehicles] along our nations southern border. I am aware of how effective these assets have become in Operations Iraqi and Enduring Freedom, and it seems UAVs operations would be ideal for border security and counter-drug missions. (Quoted in Lach, 2010) This appeal for drones at the border obscures the fact that UAVs have already been providing aerial surveillance over US border regions (Shachtman, 2005; Gilson, 2010). Since 2006, the USA has spent approximately $100 million for UAVs on both the southern and northern US borders as part of its efforts to create a so-called virtual fence (Canwest News Service, 2007). As of 2010 the US Customs and Border Protection (CBP) was operating six unarmed Predator drones for overhead surveillance missions along the USMexico border, five of which were based in Brewers state of Arizona (Gilson, 2010). Since late 2007 or early 2008, the CBP has been testing drones in US/ Canada border regions (Canwest News Service, 2007). CBP officials credit their drones with helping bust 15,000 lbs of pot and 4,000 illegal immigrants (Gilson, 2010). In the words of a defense executive: It is quite easy to envision a future in which (UAVs), unaffected by pilot fatigue, provide 247 border and port surveillance to protect against terrorist intrusion Other examples [of possible uses] are limited only by our imagination (McCullagh, 2006).

Surveillence in the US most directly affects and targets marginalized people. Drones only serve to exacerbate this. Cyril 15(Malika Amala, reporter, April 2015, Black Americas State of Surveillance, http://www.progressive.org/news/2015/03/188074/black-americas-state-surveillance)As local law enforcement agencies increasingly adopt surveillance technologies, they use them in three primary ways: to listen in on specific conversations on and offline; to observe daily movements of individuals and groups; and to observe data trends. Police departments like Brattons aim to use sophisticated technologies to do all three. They will use technologies like license plate readers, which the Electronic Frontier Foundation found to be disproportionately used in communities of color and communities in the process of being gentrified. They will use facial recognition, biometric scanning software, which the FBI has now rolled out as a national system, to be adopted by local police departments for any criminal justice purpose. They intend to use body and dashboard cameras, which have been touted as an effective step toward accountability based on the results of one study, yet storage and archiving procedures, among many other issues, remain unclear. They will use Stingray cellphone interceptors. According to the ACLU, Stingray technology is an invasive cellphone surveillance device that mimics cellphone towers and sends out signals to trick cellphones in the area into transmitting their locations and identifying information. When used to track a suspects cellphone, they also gather information about the phones of countless bystanders who happen to be nearby. The same is true of domestic drones, which are in increasing use by U.S. law enforcement to conduct routine aerial surveillance. While drones are currently unarmed, drone manufacturers are considering arming these remote-controlled aircraft with weapons like rubber bullets, tasers, and tear gas. They will use fusion centers. Originally designed to increase interagency collaboration for the purposes of counterterrorism, these have instead become the local arm of the intelligence community. According to Electronic Frontier Foundation, there are currently seventy-eight on record. They are the clearinghouse for increasingly used suspicious activity reportsdescribed as official documentation of observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity. These reports and other collected data are often stored in massive databases like e-Verify and Prism. As anybody whos ever dealt with gang databases knows, its almost impossible to get off a federal or state database, even when the data collected is incorrect or no longer true. Predictive policing doesnt just lead to racial and religious profilingit relies on it. Just as stop and frisk legitimized an initial, unwarranted contact between police and people of color, almost 90 percent of whom turn out to be innocent of any crime, suspicious activities reporting and the dragnet approach of fusion centers target communities of color. One review of such reports collected in Los Angeles shows approximately 75 percent were of people of color. This is the future of policing in America, and it should terrify you as much as it terrifies me. Unfortunately, it probably doesnt, because my life is at far greater risk than the lives of white Americans, especially those reporting on the issue in the media or advocating in the halls of power. One of the most terrifying aspects of high-tech surveillance is the invisibility of those it disproportionately impacts. The NSA and FBI have engaged local law enforcement agencies and electronic surveillance technologies to spy on Muslims living in the United States. According to FBI training materials uncovered by Wired in 2011, the bureau taught agents to treat mainstream Muslims as supporters of terrorism, to view charitable donations by Muslims as a funding mechanism for combat, and to view Islam itself as a Death Star that must be destroyed if terrorism is to be contained. From New York City to Chicago and beyond, local law enforcement agencies have expanded unlawful and covert racial and religious profiling against Muslims not suspected of any crime. There is no national security reason to profile all Muslims. At the same time, almost 450,000 migrants are in detention facilities throughout the United States, including survivors of torture, asylum seekers, families with small children, and the elderly. Undocumented migrant communities enjoy few legal protections, and are therefore subject to brutal policing practices, including illegal surveillance practices. According to the Sentencing Project, of the more than 2 million people incarcerated in the United States, more than 60 percent are racial and ethnic minorities. But by far, the widest net is cast over black communities. Black people alone represent 40 percent of those incarcerated. More black men are incarcerated than were held in slavery in 1850, on the eve of the Civil War. Lest some misinterpret that statistic as evidence of greater criminality, a 2012 study confirms that black defendants are at least 30 percent more likely to be imprisoned than whites for the same crime. This is not a broken system, it is a system working perfectly as intended, to the detriment of all. The NSA could not have spied on millions of cellphones if it were not already spying on black people, Muslims, and migrants. As surveillance technologies are increasingly adopted and integrated by law enforcement agencies today, racial disparities are being made invisible by a media environment that has failed to tell the story of surveillance in the context of structural racism.

Modeling privacy rights advDomestic drones risks authoritarianism Compliance 13 (Complaince Campaign, Campaigning for a United States in compliance with its international obligations, October 24, 2013, Police brutality, drone wars and international norms https://compliancecampaign.wordpress.com/2013/10/24/drones-police-violence-and-international-norms/__) The ACLU, however, notes that U.S. law enforcement is greatly expanding its use of domestic drones for surveillance and says that rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a surveillance society in which our every move is monitored, tracked, recorded, and scrutinized by the government. Drone manufacturers are also offering police the option of arming these flying robots with weapons like rubber bullets, Tasers, and tear gas, notes the ACLU. The group warns that drones should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act. Further, domestic drones should not be equipped with lethal or non-lethal weapons, says the ACLU. Considering the growing proclivity of U.S. police forces to engage in lethal force against civilians at home, and the U.S. militarys troubling track record abroad, it could be said that the ACLUs mild admonitions could be considered understated at best. The violence and impunity with which security forces operate are a clear danger to society both within the United States and overseas. Adding domestic drones to the arsenal of local police weapons is only inviting further tragedy. Indeed, unless the American people and the world community begin to demand that the U.S. abides by the international norms that it demands of rogue states such as Syria or Iran, the United States will likely continue its slide into an authoritarian country in which human rights are cast aside as an irrelevant nuisance.The plan revitalizes right to privacy and privacy law Calo 11 (M. Ryan, Director of Privacy and Robotics, Center for Internet and Society, December 12, 2011, The Drone as Privacy Catalyst64 Stan. L. Rev. Online 29 http://www.stanfordlawreview.org/online/drone-privacy-catalyst) Associated today with the theatre of war, the widespread domestic use of drones for surveillance seems inevitable. Existing privacy law will not stand in its way. It may be tempting to conclude on this basis that drones will further erode our individual and collective privacy. Yet the opposite may happen. Drones may help restore our mental model of a privacy violation. They could be just the visceral jolt society needs to drag privacy law into the twenty-first century. Samuel Warren and Louis Brandeis knew what a privacy violation looked like: yellow journalists armed with newly developed instantaneous photographs splashing pictures of a respectable wedding on the pages of every newspaper.[1] Their influential 1890 article The Right To Privacy crystallized an image of technology-fueled excess, which the authors leveraged to jump-start privacy law in the United States. But what do privacy violations look like today? They tend to be hard to visualize. Maybe somewhere, in some distant server farm, the government correlates two pieces of disparate information. Maybe one online advertiser you have never heard of merges with another to share email lists. Perhaps a shoppers purchase of an organic product increases the likelihood she is a Democrat just enough to cause her identity to be sold to a campaign. At most one can picture the occasional harmful outcome; its mechanism remains obscure. It is hard to know exactly what role the inscrutability of privacy has played in the development of contemporary privacy law. But the law has clearly stalled. Tort recovery founders on the question of damages. Privacy statutes tend to respond to specific incidences or abuses: for instance, no provider of videos (broadly defined) may release customer rental history because journalists once managed to procure a list of the videos enjoyed by a Supreme Court nominee. And it must be possible for officers practically to glimpse the proverbial lady in her sauna before the Fourth Amendment places serious limits on the deployment of surveillance technology.[2] The development of American privacy law has been slow and uneven; the advancement of information technology has not. The result is a widening chasm between our collective and individual capacity to observe one another and the protections available to consumers and citizens under the law. We are only now, in 2011, revisiting The Electronic Communications Privacy Act, which controls the circumstances under which the government can intercept or access electronic communications such as emails. The Act was passed in 1986. At the time, lawmakers kids were trading in their Walkman for a Discman. Al Gore had only just invented the Internet.[3] Recent shifts in technology and attendant changes to business practices have not led to similar shifts in privacy law, at least not on the order of 1890. Computers, the Internet, RFID, GPS, biometrics, facial recognitionnone of these developments has created the same sea change in privacy thinking. One might reasonably wonder whether we will ever have another Warren and Brandeis moment, whether any technology will dramatize the need to rethink the very nature of privacy law. One good candidate is the drone. In routine use by todays military, these unmanned aircraft systems threaten to perfect the art of surveillance. Drones are capable of finding or following a specific person. They can fly patterns in search of suspicious activities or hover over a location in wait. Some are as small as birds or insects, others as big as blimps. In addition to high-resolution cameras and microphones, drones can be equipped with thermal imaging and the capacity to intercept wireless communications. That drones will see widespread domestic use seems inevitable. They represent an efficient and cost-effective alternative to helicopters and airplanes. Police, firefighters, and geologists willand douse drones for surveillance and research. But drones will not be limited to government or scientific uses. The private sector has incentives to use drones as well. The media, in particular, could make widespread use of drones to cover unfolding police activity or traffic stories. Imagine what drones would do for the lucrative paparazzi industry, especially coupled with commercially available facial recognition technology. You might think drones would already be ubiquitous. There are, however, Federal Aviation Administration restrictions on the use of unmanned aircraft systems, restrictions that date back several years. Some public agencies have petitioned for waiver. Customs and Border Protection uses drones to police our borders. Recently the state of Oklahoma asked the FAA for a blanket waiver of eighty miles of airspace. Going forward, waiver may not be necessary. The FAA faces increasing pressure to relax its restrictions and is considering rulemaking to reexamine drone use in domestic airspace.[4] Agency rules impede the use of drones for now; United States privacy law does not. There is very little in our privacy law that would prohibit the use of drones within our borders. Citizens do not generally enjoy a reasonable expectation of privacy in public, nor even in the portions of their property visible from a public vantage. In 1986, the Supreme Court found no search where local police flew over the defendants backyard with a private plane.[5] A few years later, the Court admitted evidence spotted by an officer in a helicopter looking through two missing roof panels in a greenhouse.[6] Neither the Constitution nor common law appears to prohibit police or the media from routinely operating surveillance drones in urban and other environments.[7] If anything, observations by drones may occasion less scrutiny than manned aerial vehicles. Several prominent cases, and a significant body of scholarship, reflect the view that no privacy violation has occurred unless and until a human observes a person, object, or attribute.[8] Just as a dog might sniff packages and alert an officer only in the presence of contraband, so might a drone scan for various chemicals or heat signatures and alert an officer only upon spotting the telltale signs of drug production.[9] In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public. I have in mind the effect on citizens of drones flying around United States cities. These machines are disquieting. Virtually any robot can engender a certain amount of discomfort, let alone one associated in the mind of the average American with spy operations or targeted killing. If you will pardon the inevitable reference to 1984, George Orwell specifically describes small flying devices that roam neighborhoods and peer into windows. Yet one need not travel to Orwells Oceaniaor the offices of our own Defense Advanced Research Projects Agencyto encounter one of these machines. You could travel to one of several counties where American police officers are presently putting this technology through its paces. The parallels to The Right to Privacy are also acute. Once journalists needed to convince high society to pose for a photograph. New technologies made it possible for a journalist automatically to snap a picture, which in turn led to salacious news coverage. Americans in 1890 could just picture that tweedy journalist in the bushes of a posh wedding, hear the slap of the newspaper the next day, and see the mortified look of the bridal party in the cover art. Todays police have to follow hunches, cultivate informants, subpoena ATM camera footage; journalists must ghost about the restaurant or party of the moment. Tomorrows police and journalists might sit in an office or vehicle as their metal agents methodically search for interesting behavior to record and relay. Americans can visualize and experience this activity as a physical violation of their privacy. There are ways that drones might be introduced without this effect. Previous military technology has found its way into domestic use through an acclimation process: it is used in large events requiring heightened security, for instance, and then simply left in place.[10] We could delay public awareness of drones by limiting use to those that are capable of observing the ground without detection. But these efforts would take a knowing, coordinated effort by the government. The more likely scenario, as suggested by Oklahomas plan, is one in which FAA restrictions relax and private and public drones quickly fill the sky. Daniel Solove has argued that the proper metaphor for contemporary privacy violations is not the Big Brother of Orwells 1984, but the inscrutable courts of Franz Kafkas The Trial.[11] I agree, and believe that the lack of a coherent mental model of privacy harm helps account for the lag between the advancement of technology and privacy law. There is no story, no vivid and specific instance of a paradigmatic privacy violation in a digital universe, upon which citizens and lawmakers can premise their concern. Drones and other robots have the potential to restore that mental model. They represent the cold, technological embodiment of observation. Unlike, say, NSA network surveillance or commercial data brokerage, government or industry surveillance of the populace with drones would be visible and highly salient. People would feel observed, regardless of how or whether the information was actually used. The resulting backlash could force us to reexamine not merely the use of drones to observe, but the doctrines that today permit this use.Widespread Drone use destroys 4th amendment rightsLeahy 13, (Patrick, US Senator of Iowa, March 20th 2013, THE FUTURE OF DRONES IN AMERICA: LAW ENFORCEMENT AND PRIVACY CONSIDERATIONS, http://www.judiciary.senate.gov/imo/media/doc/CHRG-113shrg81775.pdf )With the Federal Aviation Administration estimating that as many as 30,000 drones like this will be operating in the national airspace by the end of this decade, I think we have to carefully consider the policy implications of this fast-emerging technology. I know that we are going to hear a lot of things about the unique advantages of using unmanned aircraft as opposed to manned vehicles. Drones are able to carry out arduous and dangerous tasks that would otherwise be expensive or difficult for a human to undertake. For example, in addition to law enforcement surveillance, drones will potentially be used for scientific experiments, agricultural research, geological surveying, pipeline maintenance, and search-and-rescue operations. So there are many valuable uses, but at the same time, the use of unmanned aircraft raises serious concerns about the impact on the constitutional and privacy rights of all Americans. The Department of Homeland Security, through Customs and Border Protection, already operates modified, unarmed drones to patrol rural parts of our northern and southern borders, as well as to support drug interdiction efforts by law enforcement. A number of local law enforcement agencies have begun to explore using drones to assist with operational surveillance. This raises a number of questions regarding the adequacy of current privacy laws and the scope of existing Fourth Amendment jurisprudence. When is it appropriate for law enforcement to use a drone, and for what purposes? Under what circumstances should law enforcement be required to first obtain a search warrant? And then what should be done with the data that is collected and how long should it be kept? And although no drones operating in the U.S. are yet weaponized, I am advised, should law enforcement be permitted to equip unmanned aircraft with non-lethal tools such as tear gas or pepper spray? My concerns about the domestic use of drones extend beyond Government and law enforcement. Before we allow widespread use of drones in the domestic airspace, we have to carefully consider the impact on the privacy rights of Americans. Just last week, we were reminded how one companys push to gather data on Americans led vast over-collection and potential privacy violations. Similarly, a simple scan of amateur videos on the Internet demonstrates how prevalent drone technology is becoming among private citizens. Small, quiet unmanned aircraft can easily be built or purchased online for only a few hundred dollars and then equipped with high-definition video cameras while flying in areas impossible for manned aircraft to operate without being detected. It is not hard to imagine the serious privacy problems that this type of technology could cause. In a State like mine, in Vermont, where we protect and guard our privacy, this is raising some very serious questions from people from the far right to the far left. Privacy is a Human RightSiddique 13( Haroon, news reporter on the Guardian, December 26th 2013, Internet privacy as important as human rights, says UN's Navi Pillay, http://www.theguardian.com/world/2013/dec/26/un-navi-pillay-internet-privacy )The UN human rights chief, Navi Pillay, has compared the uproar in the international community caused by revelations of mass surveillance with the collective response that helped bring down the apartheid regime in South Africa. Pillay, the first non-white woman to serve as a high-court judge in South Africa, made the comments in an interview with Sir Tim Berners-Lee on a special edition of BBC Radio 4's Today programme, which the inventor of the world wide web was guest editing. Pillay has been asked by the UN to prepare a report on protection of the right to privacy, in the wake of the former National Security Agency analyst Edward Snowden leaking classified documents about UK and US spying and the collection of personal data. The former international criminal court judge said her encounters with serious human rights abuses, which included serving on the Rwanda tribunal, did not make her take online privacy less seriously. "I don't grade human rights," she said. "I feel I have to look after and promote the rights of all persons. I'm not put off by the lifetime experience of violations I have seen." She said apartheid ended in South Africa principally because the international community co-operated to denounce it, adding: "Combined and collective action by everybody can end serious violations of human rights That experience inspires me to go on and address the issue of internet [privacy], which right now is extremely troubling because the revelations of surveillance have implications for human rights People are really afraid that all their personal details are being used in violation of traditional national protections." The UN general assembly unanimously voted last week to adopt a resolution, introduced by Germany and Brazil, stating that "the same rights that people have offline must also be protected online, including the right to privacy". Brazil's president, Dilma Rousseff, and the German chancellor, Angela Merkel, were among those spied on, according to the documents leaked by Snowden. The resolution called on the 193 UN member states "to review their procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, with a view to upholding the right to privacy of all their obligations under international human rights law". It also directed Pillay to publish a report on the protection and promotion of privacy "in the context of domestic and extraterritorial surveillance ... including on a mass scale". She told Berners-Lee it was "very important that governments now want to discuss the matters of mass surveillance and right to privacy in a serious way". Berners-Lee has warned that online surveillance undermines confidence in the internet, and last week published an open letter, with more than 100 free speech groups and leading activists, to protest against the routine interception of data by governments around the world.

The United Statess constitution is modelled globallyGinsburg et al. 12 (Tom Ginsburg, Zachary Elkins, and James Melton, Tom Ginsburg is Professor at the University of Chicago Law School. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. His books include Rule By Law: The Politics of Courts in Authoritarian Regimes (2008) and Judicial Review in New Democracies (2003), which won the American Political Science Associations C. Herman Pritchett Award for best book on law and courts. He currently co-directs the Comparative Constitutions Project at Illinois, and is working on a book on constitutional endurance, Comments on Law and Versteegs The Declining Influence of the United States Constitution http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486776)This introduces some special analytic problems. One aspect of this problem is that the contexts in which any two constitutions are written may be radically different, and, as a result, assessments of similarity between an eighteenth-century document and a twentieth-century document are complicated, to say the least. Comparing older and modern documents against a set of modern rights essentially measures whether the old document adopted or anticipated modern fashions. Such a comparison is not a good measure of the older document's influence. How might we assess the influence of older documents and, for that matter, the similarity of constitutions across contexts? One way is to examine constitutional development along only those features that would be theoretically "possible" to adopt in a given era. It would be unfair to expect an eighteenth-century constitution to have provisions for consumer or environmental rights; and conversely, we should not evaluate modern constitutions on whether they allow slavery. Operationally, then, one way to refine a measure of similarity might be to limit the set of rights under consideration to those features that had been adopted by some percentage (say, twenty-five percent) of constitutions in each era. Call this set of rights "common rights"-that is, rights that are common to each temporal context. The question is whether the set of rights selected by the U.S. Constitution's framers remains more influential than do the other sets of rights in circulation during the same time that the framers did not select. After all, even for those drafting constitutions in the nineteenth century, the rights enshrined in the U.S. Constitution offered just one set of a larger universe of rights. New Latin American countries and democratizing states in Europe had several different "menus" to choose from, such as those in the series of French charters starting in 1791 or that in the widely disseminated Spanish Constitution of 1812, known as the Cidiz Constitution.19 These menus, or models, were decidedly different with respect to their content. Of the twenty-three common rights in general circulation, only eleven in both the U.S. Constitution and French Constitution of 1791 "match," meaning that both constitutions either exclude or include the right. The other twelve rights are included in one constitution but not the other. The number of matching common rights for the U.S. and Cidiz constitutions is similar. This scattered distribution of rights is helpful analytically: One can assess the influence of one "menu" of rights against real alternatives. One way to do this is by following the methodology we describe above-that is, comparing measures of similarity composed of items common across all eras (or, in our operationalization, rights prevalent in at least twenty-five percent of constitutions in each half century). We can then see how well the U.S. menu of rights tracks across time, compared to its alternatives. Figure 3 presents an analysis of the similarity of the U.S. Constitution to others with respect to common rights. As in Figure 2, we analyze two samples: one of Latin American constitutions and one drawn from all constitutions. These graphs can be contrasted against those in Figure 2, which replicate and extend Law and Versteeg's analysis by plotting the similarity of each set of constitutions to the U.S. Constitution across all rights. We see that, as expected, in Figure 2, constitutions appear increasingly dissimilar to the U.S. Constitution, suggesting that, on average, constitutions have evolved and absorbed modern rights. Figure 3, however, plots the similarity of constitutions to the U.S. Constitution across those rights that were popular (that is, found in at least twenty-five percent of constitutions) before 1850. As we suggest above, this metric better captures the influence of the U.S. Constitution. We see that across this set of rights, the U.S. Constitution is actually increasingly similar to other constitutions over time. U.S.s Constitution modelled globally small laws proveGinsburg et al. 12 (Tom Ginsburg, Zachary Elkins, and James Melton, Tom Ginsburg is Professor at the University of Chicago Law School. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. His books include Rule By Law: The Politics of Courts in Authoritarian Regimes (2008) and Judicial Review in New Democracies (2003), which won the American Political Science Associations C. Herman Pritchett Award for best book on law and courts. He currently co-directs the Comparative Constitutions Project at Illinois, and is working on a book on constitutional endurance, Comments on Law and Versteegs The Declining Influence of the United States Constitution http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486776)V SOME SIGNATURE, IF LESS CENTRAL, ELEMENTS OF U.S. INFLUENCE We close with a regrettably short discussion of some arcane elements of the U.S. Constitution, which may seem inconsequential. But it is in part because of their triviality-or at least their arbitrary selection by the founders-that these elements tell us something about influence. To understand why, consider another function of constitutional text: simple coordination. David Strauss has noted that "it is more important that some things be settled than that they be settled right." 20 Many types of constitutional rules have little distributive consequence. Nevertheless, some rule must be adopted. In such cases, the rule from one constitution simply may be more likely to be emulated by constitutional drafters, further increasing similarity between constitutions.21 For example, many constitutions have a minimum age requirement to hold certain offices, an innovation of the U.S. Constitution. Article II requires one to be at least thirty-five years old to become president. 22 This number has been remarkably sticky, having been borrowed by a plurality of constitutions in our sample (thirty percent of the 534 constitutions that specify an age limit for the head of state). 2 3 Similarly, the U.S. age limit (twenty-five) for serving in the lower house of the legislature remains the most popular number globally (thirty-seven percent of the 565 constitutions that specify an age limit for members of the lower house). 24 Despite a significant increase in life expectancies since the eighteenth century, the U.S. "solution" has remained in place. This is an example of constitutional drafters failing to modernize and suggests evidence of textual influence. Consider another example: term limits. Most presidential constitutions have had term limits. As we show in our study of term limits, the most popular form historically was a version in which the officer could serve for multiple nonconsecutive terms but no consecutive terms. 25 However, the U.S. version, which was not codified until the Twenty-Second Amendment was ratified in 1951, has become the single most popular option.26 This is another example of increasing U.S. influence over time, in which modernization has moved in the direction of the U.S. model. As a final example, we note that most constitutions followed the American approach of using preambles. In an early working paper, we find that the expression "We the People" is the single most popular phrase found in national preambles since 1789 and that its use is increasing in popularity over time. 27 We do not have space for a complete analysis of what aspects of constitutions are most likely to exhibit declining or increasing similarity over time. Our only point is that rights may not be completely representative of constitutional influence or similarity. To their credit, Law and Versteeg push their analysis beyond rights, but their analysis still leaves many areas of constitutions untouched. After all, constitutional drafters are expansive, and increasingly so, in what they try to regulate. Other features of the U.S. Constitution may well be different, or they may show more enduring influence.

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the worlds constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the worlds most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the worlds constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.Privacy is key to defending the Fourth Amendment and vice versa; warrantless search devices impede privacyOhm 12 (Paul Ohm, Paul Ohm is an Associate Professor and Associate Dean for Academic Affairs at the University of Colorado Law School. He specializes in information privacy, computer crime law, intellectual property, and criminal procedure, The Fourth Amendment in a World Without Privacy http://mississippilawjournal.org/wp-content/uploads/2012/07/16-Ohm_FINAL.pdf)No more Expectations of Privacy In Katz, the Supreme Court embraced a new doctrine of the Fourth Amendment built on privacy. This took the form of the majoritys pronouncement that the Fourth Amendment protects people, not places,56 and Justice Harlans reasonable expectation of privacy test in a concurring opinion, which was later embraced by the Court as the test for the meaning of search within the amendment. Although the rest of this Part will examine indepth what happens to a privacy-centric Fourth Amendment in a world without privacy, the punch line is both easy to state and preordained almost to the point of being tautologicalin a world without privacy, a Fourth Amendment built around reasonable expectations of privacy will no longer apply. Specifically, the courts have given the reasonable expectation of privacy test three additional elaborations, and each suggests that when courts face fact patterns arising from the rise of the surveillance society, they might hold that the Fourth Amendment does not apply. 1. Assumption of Risk According to the Supreme Court, an individual takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . [E]ven if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.59 This reasoning has been applied in at least two important and broad contexts, which are both implicated by the surveillance society: the false friends rule and the third-party doctrine. Under the false friends rule, exemplified by cases like Hoffa v. United States,60 we share secrets with other people at our own risk, and if the people we think are trusted confidants turn out instead to be government agents wearing a wire, we have only ourselves to blame, and the Constitution provides no relief.61 The reasoning has extended not only to friends but also to the companies we use for essential services. The Supreme Court has declared that the Fourth Amendment does not apply to our banks records of our financial transactions,62 or to our phone companys lists of numbers we have dialed.63 Notice how this rule automatically expands police power to some of the new forms of private surveillance. Consider for example the location records people now share regularly with Loopt64 and Foursquare.65 2. Knowing Exposure Because we share our location consensually with companies like these, courts are likely to treat this information as constitutionally unprotected under the reasoning of the assumption of risk cases. Under the knowing exposure rule, [w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.66 The Supreme Court has used this reasoning to rule that the police can track a car with an electronic beeper as it moves around city streets, because the car remains on public thoroughfares.67 It has also used the concept of knowing exposure to deem outside the Fourth Amendment the use by the police of airplanes and helicopters to look at the open fields and even the curtilage next to a persons home.68 Knowing exposure means that some of the information shared online through private services may be accessed by the police, because new online services obscure the already blurry line between what we treat as private and public. Consider for example what you say on your Facebook account. Is a Facebook account a public or private space? Does it depend on the number of friends you have or the configuration of your privacy settings? Complicating this considerably is Facebooks ongoing war with its users about those privacy settings and, in particular, what the default settings should be. A court could reasonably hold that some of the content posted to Facebook has been knowingly exposed to the public and, following conventional Fourth Amendment law, rule that it may be obtained by the police without a warrant. 3. General Public Use Finally, the general public use rule comes from two cases, Dow Chemical69 and Kyllo.70 According to this rule, the police may deploy powerful surveillance devices to track suspects without a warrant so long as the tool is generally accessible to the public. In Dow Chemical, the court held that a $22,000 camera qualified under this rule.71 Although the Court backtracked a bit in Kyllo, finding a $1000 thermal heat-imaging machine did not qualify as one in general public use, it refused to overrule Dow Chemical.72 As the power of private surveillance increases, the devices and systems they create may be available to the police without process because of this rule. Consider for example powerful reidentification techniques. Some day, private companies may develop a tool to convert the supposedly anonymous comments on a public message board into the commenters true identity by cross-referencing the attributes of the communication with rich outside databases using powerful reidentification techniques. Whether the police could use technology like this without a warrant may turn on the general public use test, which means a warrant may not be needed once reidentification tools become cheap and widespread in ways that they would not have been; records of their behavior would be created and retained when once they would have been never created or destroyed; and traditional forms of surveillance would occur much more thoroughly and efficiently than they have before.

Fourth amendment declining now, allowing for a private sector-led police stateOhm 12 (Paul Ohm, Paul Ohm is an Associate Professor and Associate Dean for Academic Affairs at the University of Colorado Law School. He specializes in information privacy, computer crime law, intellectual property, and criminal procedure, The Fourth Amendment in a World Without Privacy http://mississippilawjournal.org/wp-content/uploads/2012/07/16-Ohm_FINAL.pdf)The diminished Fourth Amendment While some legal scholars have argued that we abandon the reasonable expectation of privacy test, and still others have anchored the Fourth Amendment in principles other than privacy, none of these scholars has considered the central question of this Article: what if we are headed for a world without privacy? This shift in focus gives a different, more urgent impetus to some of the prescriptions that others have offered, but it also gives rise to the need for new prescriptions. In a world without privacy, a Fourth Amendment focused on privacy becomes nearly a dead letter. Todays Fourth Amendment has been built around the reasonable expectation of privacy test, but no expectation of privacy will be deemed reasonable in a world without privacy. Even worse, the great bulwark of the Fourth Amendment, probable cause and a warrant, will become much less important as pervasive monitoring and record collection will give the police probable cause most of the time. The diminishment of the Fourth Amendment will change police behavior. Police agencies will begin to abdicate their traditional role as conductor of surveillance, because it will be eclipsed by the powerful new systems of private surveillance. The FBI and other law enforcement agencies will shift from being active producers of surveillance to passive consumers, essentially outsourcing all of their surveillance activities to private third parties, ones who are not only ungoverned by the state action requirements of the Fourth Amendment, but also who have honed the ability to convince private citizens to agree to be watched. It is likely, however, that courts will resist this change, refusing to accept a nugatory Fourth Amendment. To save the Fourth Amendment, they will transform it, abandoning the reasonable expectation of privacy test. To replace it, courts may turn to legal scholarship, which to date has failed to fully elaborate what should come next.

Decreases in the privacy of society is leading to an increased reliance on the private-sectorOhm 12 (Paul Ohm, Paul Ohm is an Associate Professor and Associate Dean for Academic Affairs at the University of Colorado Law School. He specializes in information privacy, computer crime law, intellectual property, and criminal procedure, The Fourth Amendment in a World Without Privacy http://mississippilawjournal.org/wp-content/uploads/2012/07/16-Ohm_FINAL.pdf)Before examining what the rise of the surveillance society means for the Fourth Amendment, consider what it means for the practicalities of policing. We should expect a major shift in the center of activity of crime fighting from the police to private industry. The surveillance society will greatly diminish the importance of self-help policing. In constitutional criminal procedure, the difference between self-help policing and assisted policing has received little attention, because almost all court attention has focused on the former. In the near century since Olmstead,32 almost all of the cases discussing what new technology means for the Fourth Amendment have involved police self-help and home-grown tools. The police inserted the wires into the telephone lines in Olmstead,33 mounted the recording device in Katz,34 deployed its own microphones in Goldman35 and Silverman,36 chartered aircraft for their own use in Ciraolo37 and Dow Chemical,38 and installed their own tracking beepers in Karo39 and Knotts.40 Future students of the amendment are likely to marvel at these historical relics, trying to imagine a time when the FBI was forced to build its own tools and collect its own data. It will likely seem a far cry from the FBI they know: agents sitting in offices, acting as a central clearing house for the observations of private industry, mining their way through mountains of data collected by other people and for other purposes. It is as if todays FBI has developed a sophisticated surveillance research-and-development arm with field offices named Apple, Google, Facebook, Comcast, and AT&T.41 On the surface, these private labs seem similar to FBI labs with big buildings and smart engineers. But peel back a layer and it is obvious these labs can do something important that no FBI lab could ever hope to doconvince the surveillance targets of the world to consensually adopt their surveillance technologies, acting as a neat end-around circumventing the Fourth Amendment.42 Although few scholars have noted what the end of self-help policing means for the Fourth Amendment, some have noted the descriptive shift in the amount the police and intelligence community rely on the fruits of private surveillance. Jon Michaels has carefully tracked the increasing reliance on technological advances and private surveillance by the intelligence community.43 Others have noted how much the CIA, FBI, and Defense Department rely on the services of data aggregators like ChoicePoint.44 As proof of the shift away from a self-help police force, consider the annual Wiretap Report. By statute, the Administrative Office of the United States Courts is charged with issuing a report each year that tallies the number of applications for court-ordered wiretaps in state and federal court and requires a small number of summary statistics about each jurisdiction.45 One table of the report breaks down wiretap orders by the type of surveillance used, oral (voice), wire (telephone), electronic (computer network).46 Some have expressed surprise, even suspicion, at the low number of electronic orders granted every year. For example, in calendar year 2010, out of 2,311 wiretaps ordered nationwide, only sixteen involved electronic surveillance (defined as Digital Pager, Fax, and Computer), or approximately 0.7%.47 This is not an outlier, as indicated by Figure 1, which plots both the total number and percentage of all wiretaps that involved electronic surveillance for the past fifteen years. Figure 1 provides a compelling visual image of the decline of self-help policing. Clearly, the number of court ordered wiretaps involving electronic evidence dropped precipitously at the turn of the century. Chris Soghoian, a close watcher of these statistics, speculates that this is proof of the declining importance of fax transmissions in criminal surveillance, which are included in this reporting category.49 But the drop since 2000 is nearly as pronounced, with a near linear decline from 2000 (eighty-nine intercepts, nearly eight percent of all)50 to 2006 (thirteen intercepts, 0.76%).51 Since 2006, the nations courts have authorized fewer than twenty wiretaps of digital networks a year, never topping one percent of all orders in that time span.52 The dramatic decrease is almost certainly not an indication that criminals use computer networks less or that the police rely less on network surveillance. Instead, it likely represents a shift in police tactics away from self-help. Today, it makes little sense for the police to engage in court-ordered wiretapping. Not only is it easier to secure private cooperation than judicial sanction, but also the fruits of private surveillance are simply betterfed as they are by our sensor-laden world and empowered by consensualsharing. Figure 1 is a bellwether not an outlier. With each passing year, the police will learn to borrow and beg rather than build. Our mental image of the FBI agent conducting surveillance, wearing headphones in a white van parked on the curb, clipping alligator clips to telephone wires, and working with a white-coated FBI scientist will soon be replaced by an agent sitting in his office, hitting the refresh button on his web browser, and reading the latest log file dump sent from private industry. Consider one final example. In the late 1990s, the FBI faced a firestorm surrounding its Carnivore systema piece of software developed in-house and designed to perform electronic wiretapping on digital networksin technical terms, a filtering packet sniffer.53 The public story is well known: the press dug deep, the public complained, and Congress raged, ultimately passing laws requiring better reporting about the FBIs use of the system.54 The less-well-known denouement is also telling: a few years after the controversy, the FBI abandoned Carnivores successor, realizing that the private computer security industry had designed better filtering packet sniffers than the FBI could do on its own. This shift is a herald of the shift in role and responsibility for surveillance from FBI labs to private companies, which we will see repeated constantly in the years to come.

Domestic drones = panopticonCavoukian 12(Ann, Ph.D., Information & Privacy Commissioner, August 2012, Privacy and Drones: Unmanned Aerial Vehicles, http://www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn29822-eng.pdf)The Panopticon prison design was the creation of English philosopher and social theorist Jeremy Bentham. The design consisted of a circular structure with an inspection house at its centre. From this vantage point, managers or guards of the institution were easily able to watch (and control) the behaviour of the inmates stationed around the perimeter. Bentham intended the basic plan to have widespread application. Benthams initial concept was later invoked by Michel Foucault (in Discipline and Punish: The Birth of the Prison) as a metaphor for modern disciplinary societies and their pervasive inclination to observe and normalize. Foucault proposed that not only prisons, but all hierarchical structures (i.e., armies, schools, hospitals, and factories) have evolved through history to resemble Benthams Panopticon. Our societies are becoming increasingly acclimatized to panoptic surveillance by closed-circuit television (CCTV) cameras in both public and private spaces, accepting that law enforcement agencies have a legitimate and compelling need to engage in authorized surveillance. However, there is also the potential for serious violations of privacy to arise from the misuse of this technology. Thus we set out video surveillance guidelines to control potential excesses of such technology.1 Echoing Bentham and Foucault, the increased use of drones or unmanned aerial vehicles has the potential to result in the widespread deployment of panoptic structures that may persist invisibly throughout society. These developments oblige us to revisit fundamental issues regarding our expectations of privacy. We are called upon to once again fortify our defence of privacy, including respect for activities that occur in public spaces, in order to ensure that this central tenet of freedom remains protected in a manner that is consistent with our shared values.

UAVs destroy privacy OLIVITO 2013 (Jonathan Olivito, JD canidate Ohio State Univ. Moritz College of Law, December 8, 2013 Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/8-Olivito.pdf)In conjunction with the recent proliferation of drones operating domestically, commentators have begun to recognize the serious potential for privacy invasions posed by widespread drone use.41 To illuminate why drones pose such a grave danger to privacy in the United States, the following sections explore the physical capabilities, current uses, and potential uses of drones. A. Physical Capabilities of Drones Government Agencies and businesses of all varieties envision using drones for a multitude of purposes. Drones can serve in such a broad range of functions precisely because of the diversity of drone sizes and designs.42 Complementing the diversity of drone designs are the myriad sensors, cameras, and other surveillance equipment that operators can install on drones. Drones vary in size from the miniature to the gargantuan. Measuring 6.5 inches and weighing in at nineteen grams, AeroVironments Nano Hummingbird might be the most diminutive drone at present.43 More typically, however, small drones have wingspans of ten feet or less and weigh between four and twenty pounds.44 Operating at speeds of less than 100 knots and at altitudes below 500 feet, small drones often run on batteries and can stay airborne for as long as two hours.45 Large drones have wingspans of up to 150 feet and can weigh over 30,000 pounds.46 These systems can operate at altitudes of up to 65,000 feet, cruise at speeds of up to 320 knots, and remain airborne without refueling for anywhere from thirty-five hours to four days.47 Small drones enjoy stealth and maneuverability, making them ideal for urban surveillance operations.48 Because many small drones operate on electricity, they produce very little noise.49 Additionally, the relatively slow cruising speeds of small drones permit them to loiter over a surveillance target for extended periods of time.50 Some drones do not ever need to loiter, as certain drone designs permit the aircraft to both hover and fly normally.51 In order to extend flight time, other drones engage in perch-and-stare surveillance.52 Most pertinent to privacy concerns, drones can be equipped with a wide variety of surveillance equipment.53 Civilian operators can easily install cameras and recorders with high-powered zoom lenses on drones. Certain cameras have been developed specifically for civilian UAS use. The gimbal camera, for example, automatically remains focused on a single object even as the drone continues on its flight path.54 More worrisome to privacy advocates, drones can be equipped with infrared and ultraviolet imaging devices,55 seethrough imaging (radar technology),56 and distributed video systems.57 Drones engaged in perch-and-stare surveillance might also utilize acoustical eavesdropping devices, such as conventional microphones or laser optical microphones.58 In terms of software, drones operating in the near future will likely utilize video processing systems, including face and body recognition technology.59 Finally, civilian drones, like their military counterparts, can carry weaponry. Although lethal weapons are almost certainly out of the question, law enforcement drones might soon pack rubber bullets and tear gas.60 Taking full advantage of drone capabilities, domestic users have already put drones to work in a variety of capacities. Although domestic drones have numerous beneficial applications, they also carry the potential for abuse. Exacerbating this concern, government agencies and private operators intend to employ drones for so many purposes that drones will someday form a ubiquitous part of life. Even in the immediate future, however, targeted and inadvertent UAS surveillance poses a threat to privacy.AT Squo solves privacy Not enough protection against government drone surveillanceOLIVITO 2013 (Jonathan Olivito, JD canidate Ohio State Univ. Moritz College of Law, December 8, 2013 Beyond the Fourth Amendment: Limiting Drone Surveillance Through the Constitutional Right to Informational Privacy http://moritzlaw.osu.edu/students/groups/oslj/files/2013/12/8-Olivito.pdf)As 2015 and widespread domestic drone use draw closer, Americans currently have at their disposal only a handful of legal protections to guard against invasive government drone surveillance. Confronted with drone surveillance perpetrated by private businesses or other nongovernmental actors, individuals might rely on tort law claims73 including nuisance,74 trespass,75 intrusion upon seclusion,76 and public exposure of private facts.77 However, torts typically will not constitute an effective recourse to drone privacy invasions committed by government entities, due to sovereign-immunity principles. As such, the potential safeguards against government drone surveillance include statutory and regulatory protections and the Fourth Amendment. Currently, both of these options fail to provide satisfactory privacy protections, especially in the context of information gathered by drones in public places.

4th amendment weaker after War on Terror Vagle 2015(Jeffrey L. Vagle, University of Penn. Law School, Winter 2015 Furtive encryption: Power, Trusts, and the COnstitituional Cost of Collective Surveillance V. 90 Iss. 1 Indiana Law Journal http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11134&context=ilj)The War on Terror that followed the catastrophic events of September 11, 2001, increased the frequency of suspicionless searches by law enforcement, including contexts such as searches at entrances to subways, on ferries, near political conventions, near sports arenas, at protest rallies, and around water reservoirs.148 In particular, the genuine problem of global terrorism and the governments duty to provide for national security have added even more momentum to the courts consistent trend toward analyzing Fourth Amendment problems from the governments point of view.149 This is not to say that courts routinely adopt the governments arguments in Fourth Amendment cases, but rather that over the past three decades, the Supreme Court has been formulating Fourth Amendment doctrine from the perspective of the government or police agency engaged in searches or seizures.150 This is contrary to the Courts orientation toward the individual in Katz and turns Fourth Amendment doctrine on its head; the Fourth Amendment was designed to protect citizens from unjustified and arbitrary government intrusions, not to facilitate the governments needs.151 This core constitutional tenet is especially important when addressing government collective-surveillance programs in the face of government claims of national security necessity. Current Fourth Amendment jurisprudence has been steadily moving toward analysis that begins from the governments perspective, a trend made plain in post-Katz cases that complain of the burden placed on government by Fourth Amendment requirements.152 This doctrinal trend has been even more prevalent in cases argued after September 11, 2001, where the government argues that the needs of national security require an even freer hand unencumbered by nave Fourth Amendment analysis made quaint by the global war on terrorism. Privacy is easily infiltrated by governmentVagle 2015(Jeffrey L. Vagle, University of Penn. Law School, Winter 2015 Furtive encryption: Power, Trusts, and the Constitutional Cost of Collective Surveillance V. 90 Iss. 1 Indiana Law Journal http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11134&context=ilj)Government use of advances in information technologies to collect and analyze ever larger and more detailed citizen databases should come as no surprise. Questions of efficacy aside for the moment, the States increased use of data collection and analysis is a predictable result of the continued realization of Moores Law.182 Furthermore, this growth is not a new phenomenon. Governments used data collection and analysis long before the post-2001 counterterrorism efforts to accomplish such well-established goals as crime prevention, delivery of welfare benefits, and protection of citizens rights.183 The government, therefore, has many compelling reasons to collect and store information about its citizens, and the increasing ease with which we communicate over the Internet has made it a natural tool for information gathering.184 With the ability to collect and store virtually all information communicated over the Internet, the government could apply analytical tools to reveal a very detailed portrait of who we are based on what we buy, what organizations we belong to, what we read, and what we watch.185 The base analytical tools made available under existing Fourth Amendment doctrine are sound but have been gradually (and artificially) limited to a characterization of the underlying constitutional issues that have little basis in the Framers intent. This characterization, focusing on an ill-defined concept of privacy and taken from the perspective of the government agent engaged in search and seizure, has been redefined from a prohibition against impermissible government intrusions based firmly on the Fourth Amendments Warrant Clause186 to a balancing test which weighs an individuals right to privacy against the government interest in effective law enforcement. This balancing test departs from the language of the Warrant Clause and relies instead on the Reasonableness Clause, based on the special needs of government.Drolif Advantage Weaponized drones are coming and have dangerous applicationsGreenwald 11(Glenn, Journalist and lawyer, December 6 2011, NPRs Domestic Drone Commercial, http://www.salon.com/2011/12/06/nprs_domestic_drone_commercial/)Excitement over Americas use of drones in multiple Muslim countries is, predictably, causing those weapons to be imported onto U.S. soil. Federal law enforcement agencies and local police forces are buying more and more of them and putting them to increasingly diverse domestic uses, as well as patrolling the border, and even private corporations are now considering how to use them. One U.S. drone manufacturer advertises its product as ideal for urban monitoring. Orlandos police department originally requested two drones to use for security at next years GOP convention, only to change their minds for budgetary reasons. One new type of drone already in use by the U.S. military in Afghanistan the Gorgon Stare, named after the mythical Greek creature whose unblinking eyes turned to stone those who beheld them is able to scan an area the size of a small town and the most sophisticated robotics use artificial intelligence that [can] seek out and record certain kinds of suspicious activity; boasted one U.S. General: Gorgon Stare will be looking at a whole city, so there will be no way for the adversary to know what were looking at, and we can see everything. As of the 2010 year-end report from the Federal Aviation Administration (FAA), there were already more than 270 active authorizations for the use of dozens of kinds of drones (35% held by the Pentagon, 5% by Homeland Security and others by the FBI). Employing them for domestic police actions is following the model quickly being implemented in surveillance-happy Britain, where drones are used for the routine monitoring of antisocial motorists, protesters, agricultural thieves and fly-tippers, in a significant expansion of covert state surveillance. Even leaving aside the issue of weaponization (police officials now openly talk about equipping drones with nonlethal weapons such as Tasers or a bean-bag gun), the use of drones for domestic surveillance raises all sorts of extremely serious privacy concerns and other issues of potential abuse. Their ability to hover in the air undetected for long periods of time along with their comparatively cheap cost enables a type of broad, sustained societal surveillance that is now impractical, while equipping them with infra-red or heat-seeking detectors and high-powered cameras can provide extremely invasive imagery. The holes eaten into the Fourth Amendments search and seizure protections by the Drug War and the War on Terror means there are few Constitutional limits on how this technology can be used, and there are no real statutory or regulatory restrictions limiting their use. In sum, the potential for abuse is vast, the escalation in surveillance they ensure is substantial, and the effect they have on the culture of personal privacy having the state employ hovering, high-tech, stealth video cameras that invade homes and other private spaces is simply creepy. But listeners of NPR would know about virtually none of that. On its All Things Considered program yesterday, NPR broadcast a five-minute report (audio below) from Brian Naylor that purported to be a news story on the domestic use of drones but was, in fact, much more akin to a commercial for the drone industry. Naylor began by describing a video on the website of a drone manufacturer, AeroVironment, which names its drone the Qube; the video, gushed Naylor, shows police officers chasing a criminal who hides, only for the police to pull a drone out of their trunk, launch it airborne, receive images of where the criminal is hiding on their iPad, and then find and arrest the suspect, who was armed and dangerous. NPR listeners then heard from that corporations Vice President touting how much the Qube will help public safety professionals like law enforcement, search and rescue, and first responders. Naylor then told NPR listeners that drones have been a success with the military th