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ANNA LIZ NICHOLS, Associated Press/Report For America

LANSING, Mich. (AP) Michigan voters will decide in the November election if electronic data and communication should be considered personal property, safe from unreasonable search and seizure.

A bill to put the measure on the ballot passed the state House on Wednesday. The ballot measure would amend the Michigan constitution to include electronic data and electronic communications as items law enforcement would require a search warrant to access. If passed, the amendment would apply the same protections to person, houses, papers and possessions that are in the state constitution and the Fourth Amendment to the U.S. Constitution.

Michigan is not the first state to try to legislate for reasonable cause and a search warrant to obtain electronic data. Minnesota, Missouri, New Hampshire and more have also tried.

Though the Supreme Court maintains law enforcement already needs reasonable cause to obtain a warrant to access electronic data during an arrest, amendment sponsor Sen. Jim Runestad, a White Lake Republican, has said that is not enough.

In a committee meeting in October, he said third-party companies can forward electronic data to law enforcement, avoiding the requirement of a warrant.

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Anna Liz Nichols is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.

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Michigan voters to decide in November on data protections - Huron Daily Tribune

Unlimited law enforcement application of facial recognition software to surveillance footage is an unreasonable search and a violation of Constitutional rights for people in a peaceful crowd. An officer should need to demonstrate probable cause that the investigated face on camera is a criminal in order to receive official permission to identify a face in a crowd with artificial intelligence.

This should not be controversial.

I wrote that we are swimming in a sea of digital surveillance camerasand that police should be required to secure a warrant before running facial recognition software on a public crowd particularly a crowd assembled for political protest. I believe this approach is practical for law enforcement, protective of our First and Fourth Amendment rights, and consistent with the current U.S. Supreme Courts decisions on how to limit police access to information only available due to rapidly improving technology.

And I am not alone in this belief. In November of last year, U.S. Senators Coons and Lee introduced bi-partisan legislation requiring federal law enforcement to obtain a court order before using facial recognition technology. This law provides a logical framework for protecting Americans from a powerful new state-operated technology that has grown unchecked as a tool for intruding on citizens privacy.

Obtaining a warrant is practical for law enforcement. This is the system all of our policing agencies use when they want to go somewhere or do something that might otherwise intrude on the Fourth Amendment right to be secure in our persons, homes and papers. The officer simply needs to show that she has a reasonable suspicion that a person has committed a crime, and then the officer is issued a warrant that allows intrusion on private spaces and information.

This keeps our police force from just searching everyone and everything hoping to find something to arrest someone for. Thats why the protection was written into the Constitution by our nations founders. It is supposed to slow the process down so that someone can think about whether the one group in society with a legal monopoly on violence should be pushing down your front door and rifling through your underwear drawer.

Police already have the right forms to fill out. They know how the process works. Judges are addressing these matters all the time. In other words, the only extra time required will be the extra time that police are supposed to take when they intrude on a persons privacy.

Nothing lost from how law enforcement is supposed to be operating.

And requiring a warrant for police to run facial recognition software would protect our Constitutional rights. Lets say that a crowd was lawfully demonstrating against the police force itself this could be because the police are enforcing restrictive gun laws or because the police have misbehaved in some way. Every color of the political spectrum is affected by this concern. Would demonstrators feel violated if law enforcement used its multiple surveillance cameras to capture their activity? Maybe, but they are likely to expect to be seen by cameras. Would they feel violated if police ran an artificial intelligence program over the camera footage to take down the names of all people who demonstrated against them? You bet.

As a judge for the Seventh Circuit Court of Appeals pointed out in language quoted by the U.S. Supreme Court, Awareness that the Government may be watching chills associational and expressive freedoms. And the Governments unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoringby making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to trackmay alter the relationship between citizen and government in a way that is inimical to democratic society.

Seventh Circuit Judge Flaum was writing in 2011 about tracking a persons body around town everywhere it goes. The same logic also applies to technology that allows police to not only see all the people in a given space at any particular time, but to apply names to all the faces that appear there.

We cant just bury our heads and pretend that the new technologies arent affecting the relationship between police and citizens. Even self-claimed originalist Justice Scalia has written, Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. Because, in an Originalist greatest hit that may help in my argument, Scalia wrote, We must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. In other words, if the technology allows law enforcement to intrude deeply into our lives in new ways that would have been unconsidered two hundred and fifty years ago, it must be checked by the Fourth Amendment requiring police to obtain a warrant before using the intrusive tech.

When we operate in this manner, if you are caught on camera throwing a Molotov cocktail through the plate glass window of a local business, the police can clearly and easily use a facial recognition program to find you and bring you to justice. But, under my rule as supported by Senators Coon and Lee and Justice Scalia, if you are simply walking in a peaceful political demonstration the police would not be allowed to run facial recognition software to place you in the crowd at that time. They can run the program now under no limitations.

Finally, requiring a warrant to use this powerful tech is not an outlandish request and it may even be required soon by this U.S. Supreme Court as currently constituted. The Court has already begun to move toward this conclusion, and has started to insist on Fourth Amendment protections for transformative technologies, requiring for example that police need a warrant to place a thirty-day tracking beacon on your personal vehicle and that police need a warrant to open and review the contents of your smart phone. SCOTUS even changed their previous rule that information held by a third party was not protectable in this manner when they recently held that police need a warrant to request the past months worth of cell phone tracking records to pinpoint your location at different times in the past.

Seventy years ago the Supreme Court held that keeping your name from being associated with your political causes was a part of your right to free speech and free association. You may have reason to fear the government taking note of your association, which is why that particular Supreme Court decided that the State of Alabama in the 1950s was not allowed to require a list of all local NAACP members. The unfettered technology to see who is entering gay bars, gun clubs, and political protests, and then to identify each individual, allows the government to invade and chill peoples speech and assembly rights.

This concern for privacy even in public places is echoed by our current Chief Justice, writing, A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. In the past, attempts to reconstruct a persons movements were limited by a dearth of records and the frailties of recollection. . . [With current technology] police need not even know in advance whether they want to follow a particular individual, or when.

So the court has recognized that attending politically sensitive meetings anonymously is an important right covered by the First Amendment, and that limited technological intrusions on privacy is an important value of the Fourth Amendment. So it seems well within the courts present mindset to limit the governments use of overly intrusive technology, like running facial recognition systems on people in the public sphere without specific law enforcement reason to do so.

Chief Justice Roberts notes recently, harkening back to one of the first important privacy opinions written in 1928, As Justice Brandeis explained in his famous dissent, the Court is obligatedas [s]ubtler and more far-reaching means of invading privacy have become available to the Governmentto ensure that the progress of science does not erode Fourth Amendment protections. Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers, after consulting the lessons of history, drafted the Fourth Amendment to prevent. [citations omitted]

And when will the technology rise to level that a warrant is required? The court, in the recent Kylo decision, held that aFourth Amendmentsearch occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. If peaceful political protesters subjectively fear being named to police during political gathering, their concern certainly seems reasonable to me.

I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositivethe fact that the Government might obtain the fruits of [new technology] through lawful conventional surveillance techniques. Writes Justice Sotomayor. She continues, I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of theFourth Amendments goal to curb arbitrary exercises of police power to and prevent a too permeating police surveillance.

I know that the best choice in this circumstance is for Congress or multiple state legislatures to place limits on policing power by requiring warrants to run biometric ID software. Several Justices agree, as they joined Justice Alito in his sentiment, In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. . . In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.

So forward this to your legislators or relevant portions of it, as many people dont like to read long discussions. Make the argument that we would all be better off by limiting the police from using powerful identification technology without a reasonable suspicion that the person on camera has committed a crime. Dont wait for the off chance that a suitable case rises to the Supreme Court within the next five years. We need the protection now.

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The Constitution Protects Faces in the Crowd | Womble Bond Dickinson - JD Supra

On June 10, the International Association of Chiefs of Police (IACP) issued a statement fervently oppos[ing] efforts to eliminate qualified immunity, the judicial doctrine that shields officers from liabilityeven if they have violated someones constitutional rightsunless a court has previously held that almost identical actions under almost identical circumstances were unconstitutional. The crux of the IACPs positionand the position of others who defend qualified immunity, including President Trump and Senator Tim Scott (R-SC)is that eliminating qualified immunity will have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.

They are wrong. Eliminating qualified immunity should not affect police decision-making in this manner, and insisting that it will does a disservice to police professionalism.

The chilling argument overstates the impact that civil liability currently has on officer behavior, and would have were qualified immunity eliminated. Officers almost never contribute anything to settlements and judgments entered against theminstead, cities and counties pick up the tab as a matter of state law or local policy. There is no reason to believe these indemnification agreements would change were qualified immunity abolished.

More importantly, though, this misleading defense of qualified immunity relies on false claims about the types of conduct that qualified immunity protects. The IACP contends that qualified immunity is an essential part of policing because it allows police officers to respond to incidents without pause and make split-second decisions. And they claim that, without qualified immunity, officers would not be shielded from liability when taking good faith actions that turn out to be unconstitutional.

But the U.S. Supreme Courts decisions that define the constitutionality of stops, searches, arrests, and force already recognize that officers have to make split-second decisions, and already shield officers for reasonable actions, regardless of the officers subjective motivations. The constitutional standards developed by the Supreme Court that apply most directly to the policethe Fourth Amendment rules that govern stops, frisks, searches, arrests, and forcehave been very intentionally designed to avoid impair[ing] or hamper[ing] or imped[ing] effective law enforcement. Those rules are built around the notion that officers comply with the Constitution so long as they act reasonably.And the Court has adopted a deferential approach to determining whether officers acted reasonably, reminding lower courts to keep in mind that the operational environment in which officers act can be uncertain, stressful, dangerous[,] and difficult.

Contrary to the assertion that the protections of qualified immunity are all that allow officers to act decisively in quickly evolving scenarios, the Supreme Court has made clear that the reasonableness of officers actions must be judged in the context of the high-stress, high-speed circumstances in which they do their jobs. In fact, the Supreme Courts decision setting out the constitutional standards for uses of force explicitly instructs courts that the reasonableness of a particular use of force . . . must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

The Supreme Courts constitutional standards make ample allowance for officers to make reasonable mistakes. When assessing the constitutionality of a stop, the Supreme Court has said that officers must act reasonably, but, [t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the communitys protection.For that reason, officers can constitutionally stop or frisk someone when they have reasonable suspicion, and that that low bar is met so long as there is a moderate chance that the officers suspicion is correct. An officer can get a warrant or arrest someone when they have probable cause, which requires only a fair probability that they are right.

In short, officers have plenty of leeway to make mistakes without violating the Constitution. For example, courts have held that officers act constitutionally when:

Qualified immunity does not protect officers who make reasonable mistakes because reasonable mistakes do not violate the Fourth Amendment in the first place. Instead, qualified immunity shields government officials from liability when they have acted unreasonably (taking into account the deference that the Supreme Court has built into that term)so long as there isnt another court decision holding virtually identical facts to be unconstitutional.

Insisting that officers are so afraid of the consequences for their unreasonable actions that they will refuse to do their job demeans officers instead of treating them as the professionals that the IACP insists they are. Worse, it protects folks who shouldnt be officers in the first place.

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The Unnecessary Protection of Qualified Immunity - Justia Verdict

In the past weeks, probable cause has lost all meaning.

The Fourth Amendment of the Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

While the Constitution does protect against arbitrary arrest, it does not specifically define what is meant by "probable cause."

That definition comes from the Supreme Court ruling Brinegar v. United States which states, "Where the facts and circumstances within the officers' knowledge, and which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed."

Further, Black's Law Dictionary defines probable cause as "as the facts and evidence that lead many to believe that the accused committed a crime." It only provides grounds to allege the commission of a crime and thus the accused can be arrested.

In sum, probable cause to make an arrest exists when an officer has knowledge of such facts as would lead a person to believe that a person has committed, is committing, or about to commit a crime. Any person, regardless of socio-economic status, profession, political affiliation, race, gender, religion or other characteristic, can be arrested when law enforcement has reason to believe the person was involved in the commission of a crime.

A crime is any act or omission that violates a public law and can result in punishment. Depending on the act or omission, a person can be committing a federal, state or local crime.

Nowhere in the Constitution or any other document laying out the proceedings for arrest in the event of probable cause does it specify that law enforcement officers themselves are exempt from these proceedings.

Law enforcement in some states are beginning to understand this reality and are acting upon it. The officers involved in the killing of George Floyd in Minneapolis in May were all finally arrested earlier this month. The officer who shot and killed Rayshard Brooks has been charged with murder.

Officer Derek Chauvin had already restrained Floyd, and was therefore not acting within the constraints of the City of Minneapolis Police Department Manual section 5-311, which permits neck restraints only when the officer is trying to get control of an individual who is "actively resisting" or "exhibiting active aggression" towards the officer.

As such, kneeling on the neck of a person who is already restrained, in excess of eight minutes, is without debate a crime. Moreover, it was not only an unlawful act, but it was a particularly brutal act that saw Floyd begging and pleading for assistance until his final breath.

Officer Garret Rolfe, who has surrendered to face charges in Brooks' death, appears to have violated Atlanta Police Department policy regarding the use of deadly force.

His actions also fail to comport with the Supreme Court's findings in Tennessee v. Garner as to when an officer may appropriately use deadly force against a fleeing suspect.

A reasonable person reviewing these facts is left to believe that shooting a fleeing suspect in the back that presents no lethal threat to the officer or the public is not only an unreasonable use of force but, more importantly, a crime.

But it took days and weeks for charges to be brought and arrests to be made in the killings of both Floyd and Brooks. Police officers are treated differently by prosecutors as a result of their occupation.

Everyday citizens, on the other hand, are arrested and charged for crimes based on probable cause. Some of those arrested and charged are found innocent, charges are dropped and others are convicted. Some are killed before they can stand trial.

There should be no difference in the application of probable cause as a result of a persons' socio-economic status, profession, political affiliation, race, gender, religion or other characteristic. Equality and fairness in the criminal justice system cannot be achieved if laws are not applied equally to those charged with enforcing them.

Terrence Alladin is an assistant professor of criminal justice at Lebanon Valley College in Annville, Pa.

This story was originally published by the Pennsylvania Capital-Star. For more stories from the Pennsylvania Capital-Star, visit PennCapital-Star.com.

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Equal Protection Under The Law Means Treating Bad Cops Like Any Other Criminal | Opinion - Patch.com

On May 28, protestors in Minneapolis demonstrated late into the night against the killing of George Floyd and police brutality. The next day, on Twitter, Jason Paladino of the Project on Government Oversight noticed a Customs and Border Protection (CBP) drone was flying over the city. According to open-source data, as reported by Gizmodo, the drone took off from an Air Force base in Grand Forks, North Dakota, at around 10:10 a.m. At 11:47 a.m., the drone reached Minneapolis, where it entered a hexagon-shaped holding pattern at 20,000 feet over the city. About an hour and a half later, around 1:15 p.m., it began its return to Grand Forks.

It is not entirely clear what the dronesuspected to be a Predator Bwas doing over the city. After Motherboard initially broke the story, CBP said in a statement that the drone was preparing to provide live video to aid in situational awareness at the request of our federal law enforcement partners in Minneapolis. Once the drone arrived in Minneapolis, an agency that CPB declined to name determined that the aircraft was no longer needed for operational awareness and departed back to Grand Forks. According to subsequent reporting from the Minneapolis Star Tribune, both the FBI and the Minnesota National Guard denied requesting the drone.

The deployment of the drone raises a host of important legal and policy questions. In a letter to the Department of Homeland Security, Democratic members of the House of Representatives expressed grave concern over the drones use and demanded information regarding recent Homeland Security surveillance operations. And in another letter to leaders of CBP, the Drug Enforcement Agency, the FBI and the National Guard Bureau, Democratic lawmakers noted that there had been reports of Predator drone use in Detroit and San Antonio during recent protests, among other types of surveillance technologies. But a potentially important legal question remains unexamined: If the CBP commenced a surveillance operation, would that have violated the Fourth Amendment?

The answer to that question depends on a number of details about the purpose, duration and technological capabilities of the operation. The longer and more precise the surveillance, the more constitutionally suspect it would be. Nonetheless, assuming that the government were to deploy the drone over a multiple-day periodtwo weeks since George Floyd was killed, protests continue across the countryit is possible to draw some preliminary conclusions with respect to the Fourth Amendment.

Leaders of a Beautiful Struggle v. Baltimore Police Department

The most logical starting point for a Fourth Amendment analysis is the recent federal district court decision in Leaders of a Beautiful Struggle v. Baltimore Police Department. In that case, the court denied plaintiffs request for a preliminary injunction to prevent the Baltimore Police Department from implementing an aerial surveillance operation called the Aerial Investigation Research (AIR) pilot program. The American Civil Liberties Union (ACLU), which represents the plaintiffs, has appealed that decision to the U.S. Court of Appeals for the Fourth Circuitand the court has agreed to expedite the proceedings.

According to the district courts opinion, the AIR program consists of flying three aircraftoperated by a private contractorover Baltimore for a period of six months. Each plane flies approximately 12 hours a day, collectively covering about 90 percent of the [c]ity and capturing about 32 square miles of the city per image every second. The planes cannot provide real-time surveillance and they are incapable of operating at night or in bad weather. What they do provide are images in which 1 pixel represents a single person, meaning that an individuals characteristics are not observable in the images. Those images are then stored for up to 45 days and can be accessed only as part of a criminal investigation for certain crimes, according to an agreement between the police department and the private contractor that maintains the database.

The district court analyzed the Fourth Amendment claim in three parts and determined that the AIR program was not a Fourth Amendment search. First, the court looked to three older precedentsDow Chemical Co. v. United States (1986), California v. Ciraolo (1986) and Florida v. Riley (1989)in which the Supreme Court rejected Fourth Amendment challenges to aerial surveillance that the district court found to be far more intrusive than the AIR program. Second, the district court surveyed a number of appellate court decisions that upheld the warrantless use of to observe activities within a given radius and concluded that those cameras captured more private activities than the AIR program. (The court did not engage, however, with the reasoning in a recent district court decisionthat is currently before the First Circuitthat found that extended use of such cameras requires a warrant.)

Third, the district court applied the Supreme Courts recent decision in Carpenter v. United States (2018), which extended Fourth Amendment protection to seven days worth of cellphone location data. (The courts discussion of Carpenter is the most important part of its analysis since all the cases cited in the first two parts of the opinion were decided pre-Carpenter.) Plaintiffs core argument was that, like the cellphone location data in Carpenter, the images collected by the AIR program also allowed law enforcement to track a specific persons movements over multiple days.

But the court distinguished the AIR program from Carpenter. The district court determined that cellphone location information offers a far more intrusive, efficient, and reliable method of tracking a persons whereabouts than the AIR pilot program. In particular, the court noted that while a cellphone generally relays its location data several times a minute, the AIR programs inability to fly at night and in bad weather creates gaps in the data [that] will prohibit the tracking of individuals over the course of multiple days. The court also relied on the fact that the Carpenter court noted that it is remarkably easy for law enforcement to track a persons location with access to their cellphone data. By contrast, it was significant in the courts view that tracking using the AIR images requires time-intensive analysesabout 1 hour of labor to track two hours of a vehicles movements. And, because the AIR program cannot track people once they are inside their homes, the court found thatunlike cellphone datathe AIR program cannot expose the privacies of life.

Still, the district courts opinion will not be the last word on the issueCarpenters doctrinal implications are far from settled. On appeal, among other things, the ACLU argues that the district court incorrectly applied Carpenter. In its view, the bad weather and gaps do not defeat the Fourth Amendment claim. The ACLU notes that the Carpenter court upheld a Fourth Amendment claim even though there are gaps in cellphone location data such as when people turn off their cell phones, leave them at home, or travel out of their service providers coverage area. And the ACLU emphasized that [f]or most Baltimoreans, who return home at night and leave in the morning from the same place, any of the AIR programs gaps will hardly provide meaningful protection against day-after-day tracking. Accordingly, the ACLU contends that rather than analyzing the AIR program in discrete 12-hour intervals, the Fourth Amendment claim should be construed as the daily collection of Plaintiffs movements, down to the yard, for 180 days, retained for 45 days at a time. Lastly, the ACLU sharply contests the relevance of the district courts reliance on the fact that additional work is required to track a specific person or vehicles location.

Drone Surveillance and the Fourth Amendment

At the outset, whether the drone provides law enforcement with retrospective surveillance capabilitiesin addition to the real-time feed that the CBPs statement referencedwould be crucial to the Fourth Amendment analysis. This is important because the Carpenter court placed repeated emphasis on the retrospective quality of the data since it gives law enforcement access to a category of information otherwise unknowable. While it remains an open question to what extent courts will extend Carpenter to real-time surveillanceMassachusettss supreme court already has done so, albeit in a context with some meaningful distinctions from aerial surveillanceit is clear that there would be a stronger Fourth Amendment claim if the footage was retrospectively available to law enforcement than if it was provided only in real time. Still, to the extent that real-time surveillance allowed for the tracking of specific people over an extended period of time, it could trigger Carpenters protections for the record of [a persons] physical movements.

If the drone did possess retrospective capabilities, even under the approach taken by the Leaders of a Beautiful Struggle district court, the surveillance would likely constitute a Fourth Amendment search. There are at least two constitutionally significant differences between the flight of the Predator B above Minneapolis and the AIR program that point toward that conclusion.

First, while there is limited public information about the zoom capacity of the Predator Bs camera, it seems likely that it is more precise than the AIR programs 1 pixel per person. A video on the General Atomics website shows the drones capabilitiesand it is possible that at a lower altitude, the drone could produce an even clearer picture. (It is also known that CBP is seeking facial recognition-equipped drones.) And as the Project on Government Oversight has noted, manufacturers marketing drones far less sophisticated than the Predator B highlight their [drones] ability to pick individuals out of a public gathering. Second, it is well established that the Predator B has night-vision and infrared capabilities. According to a 2009 Popular Mechanics story, even in the dark, [t]he video image is so sharp that even from an altitude of more than 3 miles, [the operator] can make out that ... men are carrying large, heavy backpacks. This means thatcompared to the AIR programthere would be even fewer gaps in surveillance, thereby producing a comprehensive portrait of a persons whereabouts.

The next step in assessing the lawfulness of the search would be to determine whether or not it meets the Fourth Amendments reasonableness requirement. (A reasonable Fourth Amendment search would be lawful.) A courts reasonableness inquiry would be highly fact-specific and is difficult to predict. In Carpenter, the Supreme Court affirmed that warrantless searches are typically unreasonable where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing. And the ACLUs Fourth Circuit brief contends that warrantless, nonparticularized aerial surveillance resembles the form of search in a general warrant, which is forbidden under the Fourth Amendment. But the Carpenter court also left open the possibility that even warrantless surveillance might be permissible if law enforcement is confronted with an urgent situation.

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The current protests were not the firstand certainly will not be the lastinstance in which the government employs a military-grade drone for domestic law enforcement purposes. According to Freedom of Information Act documents obtained by the Electronic Frontier Foundation, Predator drones were used in dozens of state and federal law enforcement operations between 2010 and 2012. And while advocates have long argued that drone surveillance violates the Fourth Amendment, they now have a new weapon of their own: the Supreme Courts decision in Carpenter. How far Carpenter will extend, though, remains to be seen.

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Did a Government Drone Flight Over a Protest Violate the Fourth Amendment? - Lawfare