Persistent Aerial Surveillance and the Fourth Amendment

The police can fly a plane over your house and look down to see whether you are growing marijuana in your backyard. California v. Ciraolo, 476 U.S. 207 (1986). But can the police fly a plane over everyone’s house, all the time, and record everything visible from the sky? This isn’t a law school hypothetical. It’s the question central to the business model of a company called Persistent Surveillance Systems. It provides “wide area surveillance” to police departments. In simple terms, it operates planes that circle high above cities, recording everything with a high resolution camera. And now, according to its website, it has a night vision system, so darkness isn’t a problem. The company has received some attention recently, including two excellent Radiolab podcasts, here and here. It did a months-long pilot in Baltimore and has provided services in other cities as well. At least based on the podcasts, it sounds like the technology works and has been used to solve some serious crimes. Does this violate the Fourth Amendment’s prohibition against unreasonable searches and seizures? It may not be a search at all under Ciraolo, where the Court wrote: The observations by [the officers] in this case took place within public navigable airspace . . . in a physically nonintrusive manner; from this point, they were able to observe plants readily discernible to the naked eye as marijuana. . . . Any member of the public flying in this airspace who glanced down could have seen everything that these [...]