State of Alaska v. McKelveyWe recently reported that the Michigan Supreme Court punted on the Fourth Amendment implications in a case involving local government’s warrantless surveillance of a couple’s property with drone cameras. This was a disappointing outcome, one in which we had filed an amicus brief on behalf of the couple.
But other states are taking a harder look at privacy and aerial surveillance. In another recent case, the Alaska Supreme Court in State v. McKelvey upheld an appeals court ruling that the police needed to obtain a warrant before using an aircraft with officers armed with telephoto lenses to see if a man was cultivating marijuana in his backyard at his home near Fairbanks. In a well-reasoned opinion, Alaska’s top court found that this practice was “corrosive to Alaskans’ sense of security.” The state government had argued that the observations did not violate any reasonable expectation of privacy because they were made with commercially available, commonly used equipment. “This point is not persuasive,” the Alaska justices responded. “The commercial availability of a piece of technology is not an appropriate measure of whether the technology’s use by the government to surveil violates a reasonable expectation of privacy.” The court’s reasoning is profound and of national significance: “If it is not a search when the police make observations using technology that is commercially available, then the constitutional protection against unreasonable searches will shrink as technology advances … As the Seventh Circuit recently observed, that approach creates a ‘precarious circularity.’ Adoption of new technologies means ‘society’s expectations of privacy will change as citizens increasingly rely on and expect these new technologies.’” That is as succinct a description of the current state of privacy as any we’ve heard. The court found that “few of us anticipated, when we began shopping for things online, that we would receive advertisements for car seats and burp cloths before telling anyone there was a baby on the way.” We would add that virtually no one in the early era of social media anticipated that federal agencies would use it to purchase our most intimate and sensitive information from data brokers without warrants. The Alaska Supreme Court sees the danger of technology expansion with drones, which it held is corrosive to Alaskans’ sense of privacy. As we warned, drones are becoming ever cheaper, sold with combined sensor packages that can be not only deeply intrusive across a property, but actually able to penetrate into the interior of a home. The Alaska opinion is an eloquent warning that when it comes to the loss of privacy, we’ve become the proverbial frog, allowing ourselves to become comfortable with being boiled by degrees. This opinion deserves to be nationally recognized as a bold declaration against the trend of ever-more expanding technology and ever-more shrinking zones of privacy. Comments are closed.
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