Three Laws Blog: Law and Artificial Intelligence

McNeal, Goodwin, and Jones on Warrantless Operations of Public Use Drones @PeppLaw @PepPublicPolicy

Gregory S. McNeal, Pepperdine School of Law;Pepperdine School of Public Policy, William Goodwin, AirMap, and Sezen Jones, AirMap, have published Warrantless Operations of Public Use Drones: Considerations for Government Agencies at 44 Fordham Urban Law Journal 703 (2017). Here is the abstract.

The benefits of drones continue to transform our lives and nowhere is this more apparent than with the use of drones by local governments. While these benefits are tremendous, residents often express privacy concerns and fear of persistent surveillance associated with law enforcement’s deployment of drones. In response, critics have made knee jerk reactions to attempt to apply warrant requirements prior to police use of drones. Outside of the law enforcement context, civic uses of drones face similar challenges to deployment, so long as government actors must operate under a traditional administrative warrant analysis. This Article advocates that well established aerial surveillance law is applicable to both law enforcement use of drones as well as other public uses of drones. According to well established case law starting with California v. Ciraolo, observations made by law enforcement are allowable sans warrant if they occur in public navigable airspace or from a place where the officer had a right to be. Such an analysis should be applicable to civic uses of drones when determining whether an administrative warrant is required prior to deploying public use drones for code enforcement and other municipal inspections. This Article also explores how government agencies can change negative perceptions of drones in their communities through adoption of proper policies and procedures.

Download the article from SSRN at the link.

Donohue on Federal and State Use and Regulation of Unmanned Aircraft Systems @georgetownlaw

Laura Donohue, Georgetown University Law Center, is publishing A Tale of Two Sovereigns: Federal and State Use and Regulation of Unmanned Aircraft Systems in Handbook of Unmanned Aerial Vehicles (Kimon P. Valavanis and George J. Vachtsevanos, eds., 2017) (forthcoming). Here is the abstract.

Despite claims to the contrary, the Federal government is severely limited in what it can do to regulate unmanned aircraft systems (UAS). States, on the other hand, as governments of general jurisdiction, have expansive powers that they are already using to grapple with the questions posed by UAS related to privacy, crime, and public safety. This chapter outlines the evolution of federal measures, noting their limitations, before delving into three categories of state law, related to law enforcement, criminal measures, and regulatory regimes. The chapter then turns to the history of state sovereignty, looking at states’ jurisdiction over persons and land within their bounds, before turning to the limits of federal inter-state commerce authorities. With river navigation and aviation serving as the forerunners of federal power, the chapter distinguishes the types of questions that accompany UAS, arguing that it is in relation to adjacent airspace and non-economic activities where the federal government is at its weakest in any effort to regulate the states. Up to 500 feet above the ground, states have sovereignty, with authority over roads, land, and waterways. Within this domain, Federal Commerce Clause powers only occupy a narrow area, leaving state police powers the dominant framework for UAS. The chapter concludes by highlighting the advantages of having states take the lead for UAS, focusing on the risk to rights of allowing the federal government to move into this realm and underscoring the importance in the role of the states as incubators of innovation.

Download the essay from SSRN at the link.

Scharf on Game of Drones: Rolling the Dice With Unmanned Aerial Vehicles and Privacy @UNLVLaw

Rebecca L. Scharf, University of Nevada, Las Vegas, School of Law, has published Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy. Here is the abstract.

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones? The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such as the use of photography, audio recording, heat sensors, or GPS violated an individual’s Fourth Amendment right to privacy. But now, one of the most complex and innovative technological advances in recent years, the unmanned aerial vehicle, or drone, has created an especially difficult issue for courts. Because a single drone can be fitted with multiple technologies, courts need to employ a multidimensional analysis to determine whether an individual’s Fourth Amendment rights have been violated. Thus, with technology advancing quicker than the Court can address, lower courts are left without direction on how to handle this important constitutional quandary, leaving individual right to privacy vulnerable. This Article builds on other scholars’ work promoting a “technology-based” definition of what constitutes a search, by creating a three-factor test for courts to utilize when faced with a drone privacy issue. Specifically arguing that courts should apply a presumption that a warrant is necessary absent exigent circumstances when law enforcement uses drones to survey an individual’s home or curtilage by considering: 1) What type of technology is the drone employing in the search, 2) What is the extent of the surveillance?; and 3) What is the extent of the privacy interference? No longer are the days of addressing the use of a singular technology, as courts will soon, if not already, be inundated with cases involving the intersection of multiple technologies through the use of drones and privacy. Although other scholarship explores drones and privacy concerns, this Article is novel in that it offers a practical approach for courts and law enforcement to utilize, while offering the historical framework for each factor. Guiding courts and law enforcement to handle privacy concerns with the use of drones will provide a structured and approachable analysis that can apply regardless of the drone-in-question’s capabilities and the amount of technologies used.

Download the article from SSRN at the link.

Terzian on Armed Drones and the Second Amendment

Dan Terzian, Duane Morris LLP, has published The Right to Bear (Robotic) Arms at 117 Penn State Law Review 755 (2013). Here is the abstract.

Can robotic weapons be “Arms” under the Second Amendment? This Article argues that they can. In particular, it challenges the claim that the Second Amendment protects only weapons that can be carried in one’s hands, which has roots in both Supreme Court Second Amendment doctrine (District of Columbia v. Heller) and scholarship. Scrutinizing these roots shows that Heller did not intend to create such a requirement and that little, if any, constitutional basis for it exists. This Article also contextualizes robotic weapons within the established Second Amendment framework for arms. Robotic weapons are not yet arms, but there is no legal impediment — nor should there be — to them becoming arms. Finally this Article presents an alternative theory of Second Amendment protection for robotic weapons based on auxiliary rights, in light of the Seventh Circuit case United States v. Ezell. It posits that Second Amendment auxiliary rights include the right to employ a bodyguard, whether human or robot.

Download the article from SSRN at the link.

Keep Watching the Skies: FAA Will Probably OK Recommendations On Drones By Year's End

From the New York Times: the F.A.A. is likely to approve recommendations on the use of recreational drones before the end of the year.  Probably included: a requirement that owners register their drones with the government. More about drones here (also from the NYT).

Here, from the FAA website, some info on the difficulty (or ease) of registering one's drone.