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Sotomayor Discusses Drones; Could SCOTUS Reshape Privacy This Term?

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By William Peacock, Esq. on September 15, 2014 4:01 PM

"There are drones flying over the air randomly that are recording everything that's happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom."

Justice Sonia Sotomayor, in a discussion with faculty and students at Oklahoma City University's law school, sounded the alarm on privacy intrusion, by both public and private actors, reports The Wall Street Journal's Bits Blog. This alarm, of course, is one that many Americans have been hearing ever since Edwards Snowden blew the whistle on the National Security Agency's mass surveillance here and abroad.

And while Justice Sotomayor's comments were general in nature, and addressed unmanned drones controlled by both the government and private citizens, her comments and recent Supreme Court decisions indicate that the Court may just be ready to start addressing some of the more pressing privacy issues.

Recent Triumphs

When it comes to the Court and privacy cases, a few recent decisions come to mind.

The Court has twice, in recent years, adjusted the ever-moving line of technological advancement versus the Fourth Amendment and the warrant requirement, both time issuing pro-privacy rulings.

In 2012, the Court held that the government needed a warrant for extended GPS surveillance, though the fuzzy opinion has left lower courts struggling over how far that opinion's logic stretches -- does it, for example, apply to other location-based tracking, like one's cell phone?

And earlier this year, the Court held that police officers must obtain a warrant before searching a cell phone during an arrest.

Missed Opportunities

The big miss, viewed in hindsight, was 2012's Clapper v. Amnesty International. The Court held that it was merely speculative that the NSA was spying on Americans and tossed the plaintiffs' case. Congress would later take the Solicitor General's office to task for misinforming the Court about the true extent of NSA surveillance, but at that point, Clapper was final.

Earlier this year, the Court passed on Klayman, one of a pair of cases that has challenged NSA phone metadata collection since Clapper. Two district court judges came to conflicting decisions and Larry Klayman, the prevailing plaintiff in one of the cases, sought to "short cert.-cuit" his way to SCOTUS.

The denial of his extraordinary request to skip past the circuit court of appeals was no surprise, and oral arguments in the D.C. Circuit Court of Appeals are set for later this year.

Meanwhile, in the other case, the Second Circuit heard oral arguments earlier this month and things didn't look good for the NSA. That case could reach the Court as soon as this term, though it might wait for the other case to catch up and work its way through the D.C. Circuit first.

Future Cases

There are those two NSA phone metadata cases which could reach the cert. pool as early as this term.

But what about the drones which Justice Sotomayor spoke of? Here's a hint: Justices rarely speak about things that are likely to appear on their docket in the near-term.

As far as we know, there aren't any pending appeals cases dealing with drones, and there may not be any coming any time soon -- many states have already passed laws requiring warrants before the government can use drones in criminal investigations. And the Federal Aviation Administration is weighing restrictions on private drones as noted data collectors like Google press for more aerial access.

Drones, at least for now, seem like an issue best handled through legislation and administrative regulation, though don't be shocked, in a few years, to see litigation over public and private drones, especially in states where legislatures fail to act first.

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