The (F)utility of Privacy Laws: The Case of Drones?

Abstract

Recent surveillance practices have cast doubt on whether the existing legal tools are capable of safeguarding individual’s privacy and private life. Specifically, the use of drones combines two aspects that seem difficult to tackle. First, drones are a form of aerial surveillance. They operate out in the open, from publicly accessible airspace. And second, drones employ several sophisticated surveillance technologies.

In this chapter, these two characteristics of drone surveillance are used to test the established legal mechanisms of privacy protection. The first legal mechanism is the test of reasonable expectation of privacy. Although the test was developed in the case law of the United States Supreme Court, it has been widely used in the jurisprudence of European courts, including the European Court of Human Rights (ECtHR). The US case law shows that the reasonable expectation of privacy test cannot be used in so-called open fields. Individuals can have no expectation of privacy in matters they willingly expose to others, that is, beyond the limits of their home. More importantly, the test cannot successfully challenge the use of advanced, sense-enhancing technology. Even though the exclusive use of such technologies by law enforcement bodies may lead to violations of privacy, the scope of such protections is limited and ceases to apply when the use of technologies becomes ubiquitous. Recent attempts in the US jurisprudence (the mosaic theory) show that the courts are well aware of such limitations. However, it appears that a more significant shift in the understanding of privacy is required.

The European approach seems more suitable when dealing with such advanced technologies. Both the ECtHR and the European Court of Justice (ECJ) have focused on the impact of collecting, storing and analysing the data gained by using advanced technologies. In this aspect, they do not rely on the reasonable expectation of privacy to the extent their US counterparts do. They recognise that the processing of such data may lead to new insights into the personal life of an individual, regardless of whether such data are collected by surveillance in public or in private spaces.