by Patrick Carroll
Americans have long been concerned about government surveillance, and rightly so. Being watched by the government is incredibly disconcerting, especially when government agents are probing into your private life.
The rise of drone technology has not helped on this front. Whereas before a government would need a plane or helicopter to get aerial views of you or your property, now they just need a small remote-controlled device.
The issue of governments spying on Americans using drones has come up in some recent court cases and legislative disputes. One recent case involves Todd and Heather Maxon who live on a rural five-acre property in Long Lake Township, Michigan. Todd likes to fix up cars, and he keeps a number of vehicles on his property.
For years the Township has been going after the couple for zoning violations, accusing them of illegally storing “junk” on their property. But here’s the kicker. The cars can’t even be seen from outside the property…that is, unless you fly a drone overhead. And that’s exactly what the Township did.
Without even attempting to get a warrant, the Township hired a contractor to fly a drone as low as 150 feet over the Maxons’ property multiple times over two years. The Township is now trying to use the pictures taken by the drone as evidence that the Maxons are violating a local zoning ordinance.
“If the government wants to conduct intrusive surveillance like this, the Fourth Amendment requires that it get a warrant,” said Institute for Justice Attorney Mike Greenberg regarding the case. “The zoning authority’s failure to even try to get one shows their indifference to Michiganders’ constitutional rights.”
New York City has also come in the crosshairs in recent years for its decisions on this front. In 2019, the New York Police Department acquired 14 drones for “monitoring giant crowds, investigating hazardous waste spills, handling hostage situations and reaching remote areas in crime scenes, among other tasks.” Though the NYPD insists the drones won’t be used for warrantless surveillance, many are worried that putting this technology in the hands of police is just asking for trouble.
Citing these fears, privacy advocates pushed for legislation known as the Public Oversight of Surveillance Technology Act (“POST Act”), which requires the NYPD to release information about how surveillance tools are being used and creates an annual oversight system to audit compliance with department policies. The Act was passed in June 2020 after gaining momentum following the death of George Floyd.
The Legal Issue
The legal issue with warrantless government surveillance revolves around the Fourth Amendment to the US Constitution, which states the following:
“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.”
In plain language, governments aren’t allowed to conduct searches and seizures as they please. They need to get a warrant.
In the more than two centuries that have passed since this amendment was adopted in 1791, mountains of case law have built up establishing precedents for what exactly constitutes “unreasonable” and what qualifies as a “search” or “seizure.” Other related questions have also been extensively litigated, such as whether evidence collected in an unconstitutional search (such as pictures from a warrantless drone flight) can be used in court. On that issue, there is a long-standing precedent. “For more than a century, the remedy for a Fourth Amendment violation has been suppression of unlawfully obtained evidence,” the Institute for Justice notes.
Whether the Maxons win their case remains to be seen.
The Philosophical Issue
For many topics addressed in the Bill of Rights libertarians are firmly in favor of the right being recognized (for example, freedom of speech and gun rights). With the Fourth Amendment, however, there are some philosophical problems.
The economist and political philosopher Walter Block addresses the “right” to privacy in the Peeping Tom chapter of his book Defending the Undefendable 2. “According to the libertarian legal code,” Block writes, “we may do anything at all to each other, whether they like it or not, provided, only, that in so doing we not violate—not their privacy ‘rights’ which do not exist, but rather—their property rights in their own persons and justly owned physical possessions.”
As Block correctly points out, spying on people isn’t technically a rights violation from a libertarian perspective. Indeed, a “right” to privacy, consistently recognized, would lead to all sorts of absurd laws, such as banning detectives or prohibiting most journalism and gossip.
Should we let governments spy on us at will, then, and never push back through legal channels? Of course not. There is a sound philosophical case to be made against government surveillance—it just doesn’t rest on a supposed “right” to privacy.
The most fundamental point to be made in this regard from a libertarian framework is that government surveillance is funded by taxpayer dollars, which are taken coercively. This alone makes the practice immoral in the libertarian view.
It’s also worth pointing out that the purpose of government surveillance isn’t necessarily protecting people. Sometimes the government uses drones because it intends to force its laws on people (such as in the case of the Maxons and Long Lake Township’s zoning laws) in which case the government is using surveillance as a means to a liberty-violating end.
In such cases, libertarians will often make a tactical move. While we may disagree with the Fourth Amendment philosophically, holding the State to its stated laws on privacy is often a more effective way of defending people’s liberties (property rights) than appealing to philosophical ideals. Just saying “it’s their property, they have a right to use it as they please” may be a more philosophically sound rebuttal to zoning laws, but it’s not particularly effective in court.
If appealing to the Fourth Amendment is what will convince the powers that be to respect property rights, there’s nothing wrong with that. We just need to recognize that, for libertarians, such an appeal is merely a practical tactic—the philosophical argument against the government’s actions is rather different from the legal argument.
Privacy in Libertopia
So that’s the argument against government drones, but what about private drones? Would libertopia have private drones flying everywhere, snooping on people constantly, seeing as libertarians don’t recognize a right to privacy? Of course not. Privacy is in high demand, so drones would almost certainly be regulated with voluntary contracts.
Responding to the Fourth Amendment at the end of his Peeping Tom chapter, Block summarizes the libertarian position on privacy as follows: “We have no such right. It is merely a privilege, one that, fortunately, the free market system can bestow upon us.”
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Patrick Carroll has a degree in Chemical Engineering from the University of Waterloo and is an Editorial Fellow at the Foundation for Economic Education.
