Drones and the “Plain View” Doctrine

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Some of you may be familiar with the “Plain View” doctrine that came out of the 1987 US Supreme Court Case Arizona v. Hicks.  Basically, it says that a law enforcement officer does not need a warrant to seize an item they immediately recognize as evidence or contraband while they are lawfully present in an area protected by the 4th Amendment.

Think of it this way – if an officer is walking by your house and sees bomb making material in your yard, in “plain view” from the sidewalk or street, he can seize it.  However, if the material is inside your house, out of “plain view,” then he cannot enter your residence without your permission without a warrant, which requires probable cause.

Now lets think about drones.  Are items a drone might be able to see in “plain view?”  I would argue no.  I think US citizens should still have a reasonable expectation of privacy from drones.  Drones should be employed by law enforcement as another search tool once a warrant is issued.  Otherwise, we can imagine many scenarios where the technology could be abused.  For example, lets say in a sparsely populated county in Montana there’s a particular rancher no one really likes, including the Sheriff.  If the Sheriff is allowed to fly his drone whenever/wherever he wants, he could certainly fly it over this rancher’s property just looking for something to hem the guy up.  Basically, he’s being targeted, with no probable cause, just because the people around town don’t like him.

However, I certainly believe drones have a place in law enforcement.   Lets say the Sheriff has probable cause that the aforementioned rancher has some contraband cached on his property, so he obtains a warrant to search the property.  Instead of soaking up a lot of resources and man hours searching all over the property, it makes perfect sense that he should be able to employ his drone to help.

Lets also consider emergency situations.  Imagine a high speed chase, or a shootout.  Drones certainly seem appropriate to use to follow suspects driving recklessly in the interest of public safety.  And, if armed suspects are barricaded behind some sort of bunker or around a corner, it makes sense to be able to use a drone to go conduct reconnaissance and help police determine their course of action.

In the end, I think drones can be a valuable asset for law enforcement personnel to employ in emergency situations or when a legal warrant is granted, but should not be used simply for patrolling, out looking for someone to mess up.

Privacy Policies

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Have you ever actually read a Privacy Policy? Probably not.  Most likely, when you install a new application, or receive and update to the “Terms and Conditions,” you simply click “OK” or “Accept” and move forward – even slightly perturbed the little popup interrupted your flow.

I think we do this for two reasons: 1) the policy is long and cumbersome and we probably wouldn’t understand it anyway; and 2) what happens if I click “No” or do not agree with the terms?

After a cursory review of several privacy policies (including Facebook and Google), I can tell you the first reason is valid.  Not only is it partially coded in legalese, as a lay consumer, I have no idea the implications of what it’s saying.  So my data may be sold or given for “research purposes.”  What does that mean?  And how will that entity store my data?  Safely, I hope.  The policy says they take securing my data very seriously, but is that true?  Have they sufficiently invested in securing it?

The second reason is an even bigger issue.  If consumers do not agree to the terms, they don’t get access to the service.  On the surface, this may seem simple – if you don’t like it, don’t use it.  But is that realistic?  Some of these huge corporations essentially run, or control access to, the internet.  So, if we deny the terms we’re essentially saying “no thank you” to the internet.  Can we really operate in the 21st century as productive members of society without it?  Seems like our hands are pretty much forced on the issue – we simply must accept the terms so we can participate in modern society.

So what’s the solution?  Well, I don’t know – nor does anyone at this point as its the topic of much debate from large tech companies to domestic and international regulators.  However, I think a good starting point is to give users more options.  Rather than simply accept or reject the terms, users should be able to customize the level of privacy they want.  Facebook is making some decent strides in this direction – you can tailor your profile settings to let anyone or a select group of people see your information.  You can even tailor each post.  However, the problem is you have to go find how to do it.  You don’t get prompted with questions to make you customize your settings.  The default is wide open – it’s up to you to close, or slow, the spigot.  So, either change to default to SUPER PRIVATE, or prompt users to go through the privacy settings before allowing access to the programs so that they have to choose…and explain it to them in a way that’s understandable.

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