Warrantless Satellite Surveillance: Will our 4th Amendment Privacy Rights be Lost in Space?


Krysten C. Kelly


VOL. XIII • Summer 1995 • NO. 4 (table of contents)

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13 John Marshall J. of Comp. & Info. Law 729


Satellite imagery is technology that allows for the recovery of graphical data, or images, of the earth. These images have such high resolution that pictures taken from space can reveal an object one meter in size. Because of its high cost, the majority of this technology has until now been limited to use by the military and large corporations.

However, in light of increasing competition and ever lowering costs, satellite imagery is becoming more affordable. Therefore, the use of satellite imagery is destined to increase in both the military and private sectors. Along with affordability, the quality and resolution of the images are becoming increasingly better, which results in technology that can be used effectively to survey and spy on individuals. For example, law enforcement agencies will soon be able to use this technology to perform surveillance and search areas that are otherwise inaccessible or guarded. The issue then becomes, under what circumstances will such agencies be required to obtain a warrant before doing such a search or surveillance, or will the courts further regress and continue to narrow the ambit of our Fourth Amendment rights?

The Fourth Amendment affords individuals protection from unreasonable search and seizure. Whether a given search or seizure is unreasonable is a question for an impartial third-party judge to decide. If probable cause is found, a warrant is granted and the search is deemed reasonable. In traditional search and seizure scenarios, this decision is predicated on whether or not a trespass occurred. However, due to technological advancements, trespass is no longer necessary for an unreasonable search or seizure. Therefore, modern courts have based their decision on whether the individual had a subjective expectation of privacy and whether that expectation is considered "reasonable" by society's standards.

Modern cases involving aerial surveillance using airplanes and helicopters give the best insight into how the courts have in the past and will in the future deal with this issue. One case, for example, involved the EPA taking surveillance photos of a chemical company's property without a warrant. Even though the chemical company had refused entrance in an attempt to protect trade secrets, the court found that the surveillance was reasonable because it was an industrial setting and because the chemical company had made no attempts to protect itself from aerial intrusions. A similar decision resulted when police officers, while hovering in a helicopter, took photos of marijuana plants growing in the back yard of an individual's home. The individual had built a 10-foot fence to prevent intrusions, but the court reasoned that the officers were in navigable airspace and that there was no physical intrusion. Therefore, the surveillance was reasonable and hence no violation of the Fourth Amendment. The courts continue to construe the Fourth Amendment in favor of law enforcement, ensuring the demise of personal privacy and ignoring the arrival of future high-end technology.

Other factors affecting whether a property is within the reasonable expectation of privacy by society's standards, includes the location of the property and the circumstances surrounding the means of surveillance. A home expects the greatest degree of privacy. It is generally thought of as an intimate setting, and any unwarranted search would be deemed unreasonable. Industrial property and open areas, however, do not share the same benefits of privacy and protection offered by the Fourth Amendment as homes, because unlike homes, they can generally be observed with the naked eye and are more accessible to the public. The altitude and frequency of the local air traffic is also a factor in the reasonableness equation. The more frequent and the lower the air traffic is in the area, the greater the possibility of someone observing the property below. Consequently, because the likelihood of observing the property increases, the individuals on that property should have a lower expectation of privacy. This presumes that people who leave objects outside impliedly assume the risk that it will be observed and therefore consent to this observation. This belief is clearly erroneous.

The courts must protect the individual's inherent right to privacy in the era of advancing technology. The Fourth Amendment is being discarded for benefits that do not and cannot outweigh the right to privacy. The simple solution to air and satellite surveillance is to require a warrant before engaging in such activity. Obtaining a warrant is a simple and efficient means of protecting our right to privacy and benefiting from modern technology. The courts must remember the importance of those rights and strive to protect and preserve them for all to enjoy.

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