How To Regulate Drones

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18 Responses

  1. Brett Bellmore says:

    In regards to the use of drones for drug law enforcement, the real problem is the drug laws. Any time you have a victimless crime, normal law enforcement, (With it’s starting point of a victim letting the police know a crime has happened, if only by their disappearance in some cases.) is going to be at a loss for effective enforcement within constitutional constraints. The use of drones to conduct warrentless searches is just one example of the generalized problem created by such laws, and the only real cure is to get rid of those laws.

  2. Shag from Brookline says:

    I imagine Brett has a “LIBERTARIANS UNITE!” bumper sticker on his car. Of course, once they unite, they cease being libertarians. Perhaps Brett could list what he thinks are “victimless crimes” to understand what makes him tick as a libertarian.

  3. Joe says:

    Drug laws include unregulated drug sales including sales to minors. Putting aside complex questions on what ‘victimless’ means (the limitations of humanity leads society to rightly regulate things that the people involved might not deem a problem), this remains true.

    The “drug war” is a big problem, that gets broad agreement, but there is still going to be areas of regulation here. Likewise, until the libertarian nirvana comes, there are shades of wrong.

  4. Brett Bellmore says:

    “(the limitations of humanity leads society to rightly regulate things that the people involved might not deem a problem)”

    Until the day we find a different species to govern us, the limitations of humanity are the limitations of the people drafting the regulations, too. Making the presumption the regulators know better than the regulated somewhat dubious.

  5. Joe says:

    Human government is imperfect. Gotcha.

    Meanwhile, the rule is followed in numerous cases, including in at least one constitutional amendment (the 13A blocks something that used to be a fairly normal practice, servitude contracts). Until nirvana comes, the limitations of humanity will result in such things, set in place by our modified form of republican government.

    We can realize this and work within the limits of reality or toss around libertarian bona fides.

  6. Orin Kerr says:

    I think a privacy statute to regulate drones is quite sensible. Statutes can easily draw the line between reasonable and excessive; they just write it into the law in some arbitrary way. On the other hand, I think it is a challenge to get to that result under the Fourth Amendment law. Ryan, I read you as endorsing some sort of mosaic approach to get there, to which you add, “There will be line drawing problems, of course. But that is what courts do.” But I think it would be more accurate to say that courts usually strenuously avoid enacting doctrines that create such difficult line-drawing problems. For the reasons I have written about in my article on the mosaic theory, I think the line-drawing problems raised by the switch to a mosaic theory of searches are on a level of difficulty and complexity that explains why even the proponents of the theory won’t say how it applies. Courts don’t routinely enact that kind of doctrine.

  7. Orin Kerr says:

    Another question: Can you say how Dan’s article on the Fourth Amendment develops standards for surveillance of public spaces? Maybe I am just looking at the wrong part of the article, but I believe that the only conclusion Dan reaches on public surveillance is that is that it “deserves at least some degree of oversight and regulation.”

  8. Joe says:

    In some cases, courts might provide basic limits (e.g., some sort of process for enemy combatants) while legislatures can provide the details.

  9. Ian says:

    In the late 1990’s The chosen option was fixed cameras which enabled quantitive surveillance, but which in the search for the exception breached the privacy of everybody. (Many factors affected this choice with the main one appearing to be external pressures creating internal threats – mainly terrorism.) Mobile cameras (generally in/on a vehicle of some sort) which limited privacy intrusions to particular ‘targets’ (giving a degree of quality to the surveillance—not so much public noise from the innocent) were more difficult to ‘police’ and assure they were used correctly to limit privacy intrusions for the innocent.
    Whilst the simpler more generally privacy intrusive option was chosen, the more focused option has not gone away and the challenges that focused option presents have not changed.

    Given the difficulties with surveillance emanate from its use, and the use is driven by the purpose it is used for it seems logical to consider the social character of those proposing the purpose in order to determine the likely methods that will be used both to manage any surveillance and the surveilled.
    If the purpose is coercive, coercion must inevitably form part of the outcome if both those supporting and those using exist within a coercive world view.
    So, what is achieved by layering controlled targeted surveillance measures over a system of wider static surveillance appears as the same question as; What is achieved by installing static surveillance where targeted mobile surveillance could be effectively used.

    Moving on to an allied but more seemingly more important question. If most peoples privacy is continually breached, and a majority react in a reasonably low level way to such privacy threats by presenting a more rigid and brittle exterior in most public situations, would the society they live in (transparently to them) begin to reflect that same external coating? Even accepting a documented baseline exists in the USA such changes in nature would seem feasible as changing pressures in the external environment are successfully used to internally justify more coercive mechanisms. Over the years has the US constitution been refined to provide more social constraints, or kept freedoms at a broadly consistent level within that society? Looked at from a privacy perspective the answer to that appears to be the former, so expressed liberal views and resistance to surveillance from world views where coercive methods are not seen as the norm may be seen as understandable but given over to themselves eventually appear to degenerate as they use the same mechanisms of more refined constraints and coercion as a means of achieving a progression of their own views.
    Do you consider achieving the acceptance of progression and change sufficient reason to coercively narrow (or tighten) broader social controls and if so how are beneficial value transfers from other societies safeguarded?

  10. Ryan Calo says:

    I’m on the road but wanted to thank everyone for their great comments.

    I should be clear that I think statutory fixes are a fine idea, but that they should not be limited to technology capable of flight. I’m also a little skeptical of the distinction between the kind of line drawing courts do all the time, and the kind Orin is saying they run away from. Note that even the question of what constitutes a regular and a “difficult” line-drawing problem requires line drawing…

  11. Ryan Calo says:

    To be clear, I don’t necessarily embrace the mosaic theory as such. Rather, I reject a stark public-private distinction. And while I don’t want to speak for Dan, I read him to be suggesting that we should emphasize the reasonableness of virtually all acts of government surveillance, rather than cut off the inquiry by channeling conduct or technology into buckets like search or not search—a re-imagining that applies to dogs and drones alike. I also recall Dan laid out some criteria to help courts conduct that reasonableness inquiry. Again, I’m a terribly proxy for the professor himself.

  12. Orin Kerr says:


    Thanks for the response. If you think the line-drawing can be done, though, can you provide some idea of how you think courts should do it? As I wrote in my Mosaic Theory article, although I appreciate the confidence in the judiciary that judges can find the answers, I find it noteworthy that proponents of new approaches generally decline to say what the new approaches are.

    As for Dan’s proposal, I realize it is not your proposal, but FWIW, in my view it mostly moves doctrinal boxes around. Current doctrine has two basic questions: 1) which steps are sufficiently low-level as to not be regulated, and 2) among the ones that are not so low-level, how much regulation should the law impose? Dan’s reconstruction of the Fourth Amendment replaces the two questions with one question that has two parts. That is, he says that everything should be regulated in some sense, but some things should be regulated by having no restrictions at all placed on their use. So Dan would have all the doctrine rest on step (2), how much should government conduct be regulated, with the catch that he would say that the answer can include ‘”not at all.” It seems to me that this just existing law relabeled: It effectively replaces a two-part inquiry with an inquiry that has two steps.

  13. Ryan Calo says:


    How does a court know when a change in technology is important or significant enough to require an adjustment of Fourth Amendment equilibrium? What is the test?

    I ask because you’ve claimed, essentially, that courts “routinely enact that kind of doctrine.” Courts do—and should—look for changes in equilibrium and, at some point not specified, use those changes in both selecting and applying Fourth Amendment law.

    Help me square the circle here. What am I missing? I’ll confess, meanwhile, that I do not have a good test for when an expectation of privacy in public becomes reasonable at this time…


  14. Orin Kerr says:


    I think you are missing the distinction between whether to depart from precedent and how to depart from precedent. There are two different issues: (a) whether judges decide that they should depart from precedent in light of technological change, and (b) having decided to depart from precedent, how the judges go about deciding what doctrinal test should replace the old precedent. The theory of equilibrium adjustment is just an explanation for what judges are doing when they do (a); it has nothing to to with (b). So even if we assume that drones bring us to a point where judges will enact some kind of a new rule under (a), we then have to confront the separate issue of (b) — what kind of rule to enact to replace the old doctrine. And at that point Justices tend to be very sensitive to the administrability of new rules.

  15. Ryan Call says:

    I appreciate the distinction, Orin, but not the difference. If judges have to answer a threshold question with a line-drawing problem before they know what doctrine to apply, it seems to me we have the same issue, only on the front end.

    In other words, regardless of whether equilibrium adjustment is just a description of what judges are doing—or, as I read your article, something of a doctrinal roadmap for judges to follow (with concrete advantages)—then it would seem we are doomed to suffer some form of line-drawing problem. At a minimum, that would seem to take the sting out of your critiques of the mosaic theory or reasonableness inquiries.

  16. Orin Kerr says:


    We’re going to have to agree to disagree on this, it seems. On your last point, though, note that my mosaic theory article presumes that courts will engage in equilibrium-adjustment but explains why the mosaic theory is a deeply misguided way to engage in equilibrium adjustment. If judges think that they need to engage in EA to deal with public surveillance, I argue, the answer is to just overturn Knotts rather than to try to create a vague undefined middle ground through the mosaic theory. In other words, do what the Supreme Court did in Katz: Engage in equilibrium adjustment by saying certain conduct is *always* a search rather than try to say that it is *sometimes* a search, with with the circumstances in which it is a search so mysterious that even its proponents decline to say when that is. It’s a bolder approach than the attempted middle ground of the mosaic method, but at least people know what the cops can and can’t do.

  17. Ryan Calo says:

    Thanks, Orin, for this and your other comments. I have yet to read your mosaic theory paper (just your previous thoughts) and will do so with great interest.


  18. Wells says:

    Ryan: great and well-balanced thoughts here; thanks for them.