UPDATED September 17, 2014
Reasoning by analogy breaks down when the world changes faster than the analogizers’ frozen life experience. Lawyers and judges are particularly prone to this spark plug failure of imagination.
Take drone surveillance, the latest police investigative toy.
In 1989, the U.S. Supreme Court said the police did not need a warrant for aerial surveillance with a helicopter because – well, planes fly over our houses all the time. Isn’t this the same thing, they asked? Fast-forward twenty years: drones are cheap, maneuverable and designed to make detailed observations of private property. Was that what the U.S. Supreme Court had in mind? It’s unlikely. DARPA’s “Nano Hummingbird” drone is more like an unwelcome neighbor with a camera than a traffic helicopter.
Nosy law enforcement is not the only problem. Under existing law, drones are completely unregulated and easy for anyone to use and buy. The Hobby Toys department at Future Shop has a special right now. Just last month, the police were unable to help a woman in Victoria B.C. who claimed a man was using his “personal drone” to spy on her private property.
Lawmakers and privacy watchdogs are mostly snoozing on this issue. Although the California State Assembly recently voted to require police to obtain warrants to use drones for surveillance, Mrs. Kravitz is running amok everywhere else. If only everyone was as concerned as U.S.S.C. Justice Sotomayor.