Alex Vlisides, Symposium Editor
Law professors love to tweak hypotheticals until students become uncomfortable with the result. It is the classic law school trap. As soon as you agree a premeditated, unprovoked killing is never justified, you are swept away to a desperate life raft in which the only way for the innocents to survive is for one of them to be thrown overboard. This is how we test which of the competing values will break first. And how law professors entertain themselves.
The developments in drone and camera technology are bringing Fourth Amendment privacy rules, particularly the public observation doctrine, to their breaking point. Public observation is the idea that generally what one exposes to the public may be observed or even recorded without violating privacy. But fundamental changes in what can be observed alters this balance. The development of technologies that sound made up for law school hypotheticals will challenge constitutional doctrine. Surveillance technology capable of tracking the movements of every individual in a several square mile are. Drones which can stay stationed in the air for years at a time. Cameras capable of surveilling private land and spaces from so high above they are effectively invisible. These technologies exist and each challenge the notion that observation in and from public spaces does not violate privacy.
These technologies are not exactly new: both aerial crafts and surveillance technologies have improved steadily for decades. What is new is that the rapid development of the last decade has brought the doctrine near to the breaking point, the point that law professors love. The point at which the designed rule, the sturdy absolute, cracks under changing facts. The point at which we have to decide which principle gives: the general autonomy to observe and record in public spaces and right to privacy. The public observation doctrine was developed to navigate this balance. The challenge for courts, and perhaps law students, is that the breaking point approaching Fourth Amendment law is no longer hypothetical.