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Comment by protomyth | Hacker News Reader

Why, yes, they used one to find a cattle rustler in ND http://www.forbes.com/sites/michaelpeck/2014/01/27/predator-...

I still believe this should have illegal as they had no warrant and it violates the Posse Comitatus Act.

It's pretty bright line that no warrant is required under current law.

Like it or not, since the 1980s it has been the law that from "public airspace" police can use any visual technology to look at the outside of your property. Right or wrong, it's pretty settled law that if the public can fly somewhere then law enforcement can also fly there without a warrant. https://en.wikipedia.org/wiki/Florida_v._Riley

Ciraolo is another case where police, without a warrant, intentionally flew over a backyard that was enclosed by a fence. In that case, the police found marijuana plants growing. The court upheld the conviction. https://en.wikipedia.org/wiki/California_v._Ciraolo

The interesting question is what about infrared and other "through the wall" technologies that give an indication as to what's inside a structure. In Kyllo, the Supreme Court decided 5-4 (with Scalia writing the majority opinion) that using a thermal imaging camera to investigate heat emitted from the wall of a house was a "search" that required a warrant. https://en.wikipedia.org/wiki/Kyllo_v._United_States

Looking at several stories on this, it seems that the drone was used to aid in executing a lawful arrest, not to gather evidence.

The exact timeline is unclear, but many of the stories indicate that the drone was brought in after the arrest turned into an armed standoff, with the drone being used to figure out where the armed people were so that the arrests could be made safely.

Under those circumstances, I don't see how using the drone would require a warrant.

The account I saw at the time it happened (I am in ND) said the drone was used to find the cows which would be an illegal search without a warrant. The reporting is very, very poor on the chain, but that's what I remember from the initial reports.

Do visual inspections of outdoors require search warrants?

Doing a visual inspection of someone's land does.

How about from a hot air baloon? I'd like to visually inspect the Playboy Mansion pool.

If your law enforcement, in addition to being a peeping tom, you still need a warrant. Check out the use of infra-red from the street to check houses.

No. From "public airspace" police can use any visual technology to look at the outside of your property. Right or wrong, it's pretty settled law that if the public can fly somewhere then law enforcement can also fly there without a warrant.

https://en.wikipedia.org/wiki/Florida_v._Riley

https://en.wikipedia.org/wiki/Kyllo_v._United_States

Edit: I forgot about Ciraolo, which is another case where police, without a warrant, intentionally flew over a backyard that was enclosed by a fence. In that case, the police found marijuana plants growing. The court upheld the conviction of the homeowner despite the lack of a warrant. Again, right or wrong, it's pretty settled that the police can use visual observation without a warrant, even if you fence in your yard.

https://en.wikipedia.org/wiki/California_v._Ciraolo

"However, the Court stopped short of allowing all aerial inspections of private property, noting that it was "of obvious importance" that a private citizen could have legally flown in the same airspace:"

"Any member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet and could have observed Riley's greenhouse. The police officer did no more."

They targeted a specific farmer and used a high power camera in a drone to check the cows. So, they did quite a lot more than the general public could have done. This was closer to Kyllo than Riley. Beyond that, the legality of using a drone over other people's property is going through the courts now.

Right or wrong, the problem that the court had in Kyllo was that the infrared scope gave an indication as to what was going on inside the home. The Supreme Court reasoned that the inside of the home was entitled to more privacy protection than a yard. The fear was that future infrared scopes would give the ability to see individual people moving around, or otherwise invade the privacy of the inside of the house.

This case is more like https://en.wikipedia.org/wiki/California_v._Ciraolo , where the police intentionally targeted a suspected marijuana farmer with a flyover (without a warrant). The farmer lost. I can't imagine the court would think that a ranch with cattle is entitled to more privacy protection than a fenced-in backyard growing pot.

To my knowledge, no Supreme Court case has ever said that advanced visual optics can't be used outside the home.

and would noticing that snow/frost melts quicker on a house used for pot growing would also fall under this?

Probably, it's just noticing something visible through a normal camera from outside the house and doesn't use any thing like thermal cameras that have been ruled to cross the line. It's a really thin thing to hang a warrant on but it doesn't get immediately through out through a prior ruling.

That's an important distinction IMO because we've already got police helicopters and such in many cities and they're clearly useful when you quickly need to get an aerial view of an accident or someone running after committing a crime. There is still potential from abuse but whether the craft is manned or not would likely not change that.

At the same time, I guess on a personal, gut reaction level, it seems a bit more threatening or overreaching to think about any aircraft, manned or not, constantly flying around just recording everything for reference under the argument that it could help identify other crimes or locate individuals.

It may be illogical to be OK with a police chopper but not other surveillance craft but I think the potential for abuse and overreach skyrockets when you have the ability to find and track individuals at any time or create a record of their actions and travels for later analysis. I guess my emotional reaction stems from law enforcement responding to reports of crime versus just recording everything in case there's a crime. In the latter case, it wouldn't be hard to find something to nail someone on if you had a long enough record of their lives and activities and that's what unsettles me.

What are your crimes, citizen?

Wanting to be free from persecution and have privacy. He must be a terrorist.

Seriously though, I started thinking about this a lot after hearing this episode of RadioLab last year: http://www.radiolab.org/story/eye-sky/

From a tech angle it's impressive and, sure, it seems great that they're able to use this sort of tech to track down seriously dangerous people responsible for brutal crimes.

At the same time, I can't help but be a bit uneasy with the potential for abuse. When you've got a complete aerial recording of a (city/town/etc) for days or weeks in a row, all you've got to do if there's someone you're after is "rewind" far enough before you catch them doing something you can nail them on.

Taken to extreme, imagine you're an a public official or law enforcement agent with an authoritarian bent. There's a pesky blogger or activist or reporter that's been making your life difficult and you'd like them out of the picture. How far back do you need to rewind before you catch them speeding or running red lights? What will the public think when you've got video of them visiting their secret lover or they learn how this person goes to the bar or liquor store every night to get drunk? Or how about the easy unmasking of their confidential info sources you're able to track backwards from their meetings?

I'm not necessarily one to kneejerk against any application of tech because of the potential for abuse because it misses the potential for very positive outcomes. At the same time, genies don't go back in their bottles willingly and I think it's important to identify these abuse potentials so they can be addressed early and decisively rather than after the abuses have become par for the course.

Not illogical at all. Cost makes a huge difference.

Police helicopters aren't easily configured to launch Hellfire anti-tank missiles.

So, the problem isn't the use of drones, it's how readily the drones can be equipped with weapons?

You think people would be cool with the military operating Apache gunships for police enforcement as long as the missiles and rockets were removed?

Personally, I think its one of things that sounds scarier than it is. I mean, sure, I would be nervous if there was evidence that armed helicopters/drones are flying over the US in the situations we are talking about here. But as long as they are unarmed, I'm not too worried.

Even if the government used a specific fleet of non-combat related drones, that wouldn't stop them from switching over to combat-ready drones tomorrow if they so wished it.

Like this?

https://www.youtube.com/watch?v=P8DQlqemkcQ

Only because the police don't have the funds to purchase them regularly. A lot of police helicopters are surplus Hueys, Blackhawks, or Kiowas. They may not have the targeting packages in them any more, but it doesn't take a ton of ingenuity to up-arm them, as was done in the early stages of Vietnam, before the specialized gunship helicopters were developed.

Not illegal in this case, because the Customs and Border Patrol (CBP) is a department of the Department of Homeland Security, is not covered by the Posse Comitatus Act. Although the CBP is an armed service, it has a federal regulatory agency mission.

The Act only specifically applies to the United States Army and, as amended in 1956, the United States Air Force.

CBP in name, but its serviced and housed at the Air Force base. Its still outside their mission (CBP does not have a charter to deal with cattle rustlers). Also, the fact Customs and Border Patrol is doing anything away from the border (that 100 mile thing is pure BS) is still troubling.

it is Customs and Border Protection, their responsibilities are a lot more than you think.

https://en.wikipedia.org/wiki/U.S._Customs_and_Border_Protec...

http://www.cbp.gov/about

Every one of their powers and directives is worded against foreign threats, not people inside the border. The mission creep is similar to how anti-terrorist laws are used for drug enforcement.

> The mission creep is similar to how anti-terrorist laws are used for drug enforcement.

So, totally legal, then.

"While its primary mission is preventing terrorists and terrorist weapons from entering the United States, CBP is also responsible for... protecting American businesses from intellectual property theft."

That's news to me!

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