Search
1. Warrants, parity requirement: Regulation should require that, absent exigent circumstances or other recognized warrant exceptions, police must obtain a warrant or other judicial authorization prior to:
a. Deploying a robot onto private property in any situation in which a warrant or other judicial authorization would be required if entry onto that property were made by a human officer; and
b. Using a robot to conduct surveillance or tracking in any situation in which a warrant or other judicial authorization would be required if such surveillance or tracking were conducted by a human officer.
This provision, which tracks Massachusetts House Bill 4103 (2023), ensures that existing procedures regulating police searches apply when searches are conducted through the use of a robot. Section 10(b) addresses scenarios in which police use a robot to conduct a search without entering onto private property — for example, where police use thermal imaging cameras, see Kyllo v. United States, 533 U.S. 27 (2001).
In some situations, the advent of police robots unsettles assumptions upon which existing legal rules governing searches are based. Therefore, parity with existing law may not be sufficient to protect individual rights. The following sections address four such scenarios.
2. Overflights: Regulation should require that, absent exigent circumstances, police obtain a warrant based upon probable cause that a person or their private property was or is involved in the commission of a criminal offense prior to using a drone to conduct surveillance of that property.
Existing Fourth Amendment requirements may be inadequate to mitigate the privacy impact of aerial flights over private property using drones. The Supreme Court has said that police use of a manned aircraft to surveil a backyard does not constitute a search under the Fourth Amendment, and therefore does not require a warrant based upon probable cause. See California v. Ciraolo, 476 U.S. 207 (1986). Yet drones can fly much lower than manned aircraft. They may also be able do this quietly, as opposed to the sound generated by manned aircraft. And, importantly, the cost of operating a drone is far less than the cost of operating a manned aircraft. Aerial surveillance, once a considerable expense, is now relatively cheap and could become widespread, upsetting societal expectations of privacy.
3. Tracking/Monitoring: Regulation should require that the State Attorney General, or another appropriate actor, (a) promulgate procedural requirements regarding the use of robots to monitor or track individuals over time, and (b) update such requirements at regular intervals.
As a constitutional matter, the use of technology to assist in the tracking or monitoring of a person does not automatically render such acts a search subject to warrant and probable cause requirements. See United States v. Knotts, 460 U.S. 276 (1983). Yet it also is the case that advancements in technology may facilitate tracking and monitoring to an extent that upsets societal expectations of privacy. See United States v. Jones, 565 U.S. 400 (2012) (Alito, J., concurring). In some circumstances, technology-assisted tracking of individuals can reveal the privacies of life and is properly considered a search under the Fourth Amendment. See Carpenter v. United States, 585 U.S. 296 (2018).
How these principles apply to robots is complicated. On the one hand, today, the use of robots for long-term monitoring or tracking is limited by technological constraints. Most ground robots are too conspicuous for stealth surveillance; most drones have relatively short battery life, making long flights untenable. On the other hand, advancements in robotics and battery technology may well make robots useful for such operations in the future, while decreasing costs might enable the long-term monitoring of individuals at a scale previously unthinkable. At the same time, societal expectations of privacy are not static, and may well evolve in parallel with technological evolutions.
This is a fast-moving area with much uncertainty. For this reason, a sound approach may be to delegate the question to an agency with authority to promulgate and update rules to protect individual rights as tools and attitudes evolve.
4. Frisks: Regulation should prohibit police from using robots to make physical contact with an individual’s person for the purpose of detecting weapons or contraband, except when necessary to prevent imminent risk of death or injury.
Existing constitutional law permits officers to conduct protective frisks — brief pat-down searches for weapons — when conducting stops of individuals. See Terry v. Ohio, 392 U.S. 1 (1968). But this rule is justified by the need to protect officer safety. Because robots enable officers to interact with individuals from a safe distance, and consistent with the prohibition on the use of police robots to make unconsented contact with a person, (Section 11), this provision generally prohibits the use of robots to conduct searches of an individual’s person.
5. Execution of search warrants: Agencies should be permitted to use robots in executing search warrants only when there are specific, articulable reasons why use of a robot is justified. Those reasons should be recorded in some inalterable fashion prior to deploying the robot.
Many members of the public will be unfamiliar with police robots, and encounters with these tools could provoke fear or intimidation. This is especially the case for certain tactical robots that take on a militaristic appearance. Tactics involving an unusual show of force can be intrusive and should be undertaken only when proportionate under the circumstances. See American Law Institute, Principles of the Law, Policing, § 2.07 (Heightened Intrusions). For this reason, the use of robots in executing searches should not be the default — rather, agencies should consider whether use of a robot is justified given the situation presented. For example, the use of a robot to conduct a search may be justified when the area to be searched contains a hazard, or when there is a specific reason to believe that the area to be searched contains people who are dangerous. A robot could also be necessary to access an area that would be difficult or unsafe for human officers to reach. The record-keeping for this requirement need not entail a burdensome administrative process — for example, one possible solution might be to capture the reasons for using a robot with a body-worn camera recording.