Individual Rights Section

Picture this – you wake up one morning, go downstairs and start that first pot of coffee. You look out your kitchen window and see what looks like a remote control plane zipping by. As you calmly take your cup of coffee out into the beautiful morning sunshine, you watch as this device hovers over your roof and then slowly stops at each of your upstairs windows, before leaving the air space above your house and landing in your neighbor’s yard.

What you have just seen is a drone. Something that can be purchased at Amazon.com or at Brookstone for $300 – and there is no law against buying one and taking it home.

At the NJSBA Annual Meeting and Convention, the seminar “Unmanned Drones Over Occupy Wall Street: The Occupy Movement and the First Amendment,” brought attention to this new phenomenon. The program was moderated by Individual Rights Section Chair Grayson Barber, Esq., and featured first Amendment and privacy experts including ACLU-NJ Legal Director Edward Barocas, Esq., ACLU-NJ attorney Frank Corrado with Barry Corrado & Grassi PC, and Bruce Rosen of McCusker Anselmi Rosen & Carvelli, PC.

Grayson Barber started the session by flying a drone she purchased at Amazon.com for $300 over the seminar room and close to a nearby window. The playback not only showed the attendees in the room, but also the people seen through the window, down at The Water Club pool, and in great detail.

“They can be as small as hummingbirds or as large as flying lawn mowers,” said Ms. Barber. “What will happen when they fall from the sky and crash on people and property?”

“If you can buy a drone on amazon.com, any terrorist can buy a drone,” she added.

Police departments have drones and they can be used to monitor traffic, follow drug dealers, locate missing persons, follow fugitives, and monitor protests.

The speakers at the session asked: Is it OK for police to monitor political rallies? Is it OK for police to monitor Facebook?

Ms. Barber continued, “we should be asking police departments if they have drones and how many, how much did they cost, how do they intend to use it, what security measures, if any, do they have in place to keep them from falling from the sky, and how long will they keep the videos?”

“Attorneys should get a restraining order against a drone and we should admonish the FAA to force them to make privacy safeguards,” she said.

Bruce Rosen talked about how the tremendous benefits of technology come at a tremendous cost.

“It will change the paradigm of privacy and it will change the course of privacy,” he said.

“Drones have infrared cameras, motion detectors, night vision, facial recognition, and they will be able to go into your home,” said Mr. Rosen.

According to Mr. Rosen, it’s all a very slippery slope and difficult to go back.

Insurance carriers monitor social media in PI cases. The IACP, International Association of Police Chiefs uses every advantage of social media.

He reported that Homeland Security has been monitoring social media for several years. General Dynamics has the contract. 9 in 10 law organizations monitor social media.

“They are especially monitoring for ‘plans for dissent’ and they are monitoring individuals reacting to government policy. This is the greatest danger,” he said.

Search terms that are used to find people who are reacting to government policies include exercise, cops, response, recovery, cloud, ice, watch.

There are pictures of you here, pictures of you there, and your reading habits are all monitored on the Internet.

Mr. Rosen explained, “the uses and the pressure to push for more makes us wonder what comes next. Already in the works are drones with legal weapons -- grenade launchers, tear gas, shotguns, rubber buck shot.”

“Invasion of privacy is a less and less viable cause of action. This is coming. The world is changing very quickly. It will be in place in months to one year,” he said.

ACLU-NJ Legal Director Edward Barocas was in the unique position of defending the Occupy Newark and Occupy Trenton movements and found that today’s protestors have different ideas about what matters to their cause.

The big questions that arise with The Occupy Movement and the new social media include what is public? What is private? What do protestors want? Who is a journalist?

“Each political activist is their own drone,” said Mr. Barocas. He calls it the Kim Kardashian - Paris Hilton syndrome. “Hey everybody, see what we’re doing.”

The whole point is to have everything out into the public. Mr. Barocas saw this firsthand when on a phone call with one of the Occupy clients, he realized that the conversation was streaming live.

“This was a phone call that was streaming live violating the attorney client privilege,” he said.

And Mr. Barocas said the protestors didn’t care about their signs.

“They cared about the generator that powered their computers. That was their free speech. In the past, it was the signs.”

In an interesting twist, Occupy Trenton had to move their generators out of a public park, but they were able to leave them on the sidewalk.

“The state didn’t own the sidewalks and the argument that the generators were too close to the State House failed because of all the motor vehicles, with even more combustible materials, were parked even closer to the State House,” said Barocas.

The city owned the sidewalks and said it was OK. The protestors kept their generators and computers so they could broadcast and spread their message themselves.

Frank Corrado, who also works with ACLU-NJ, talked about how the law on the use of public property does not fit with what is happening now.

Corrado said a 1940s case, US v Cosby, held that the air space above property does not belong to a property owner.

“There is no private right of privacy in air space above your home,” he said. “This is a disparity with drones flying over a neighbor’s property.”

“Free speech is a logistical nightmare for government. They have to assign police, have to monitor traffic, have to keep public safety and prevent a riot,” he continued.

“We now have protests that are actively continuing for 24 hours a day – they stream live for 24 hours a day and the protestors feel this is a substantial component of their message.”

In another example, Mr. Corrado discussed a protest against homelessness.

“Being able to sleep in the park was an integral part of the message,” he said. “Homeless people have nowhere to sleep.”

At the end of the question and answer period, Grayson Barber asked the question that perhaps was on everyone’s mind.

“Now there are cameras on every corner, and everyone seems to be comfortable and accepting of that,” said Ms. Barber.

“Let me ask,” she said, “how many of you are comfortable with flying drones?”

Not one person raised their hand.