On Monday, news started coming out of Washington that the Obama administration would let the Defense Department handle drone operations in Yemen, where the U.S. is engaged in counterterrorism activities with local forces.

The news agency Reuters said it was unclear how drone operations would be handled in Pakistan, where the existence of the program isn’t officially acknowledged.

The moves are seen by some as a way to push the debate about drones, lethal force, and their use on foreign and American citizens into a public forum that can be better managed by the White House.

President Obama will be discussing the rationale for the drone operations in a nationally broadcast speech this Thursday, in his first detailed explanation of the use of drones for counterterrorism efforts. Earlier this year, Attorney General Eric Holder said the president would offer more transparency about drone policy.

On Tuesday, the International Crisis Group published a report that criticized the U.S. and Pakistan for its drone policies.

The nonpartisan group asked the U.S. to “develop a rigorous legal framework for the use of drones that defines clear roles for the executive, legislative and judicial branches and introduces a meaningful level of regular judicial and congressional oversight.”

Those aren’t novel ideas in Washington, where the secret policy decisions involving drones have been a hot-button issue for several years.

The death of al-Qaida leader Anwar al-Awlaki in September 2011, reportedly in a CIA drone strike in Yemen, was the first time a drone attack deliberately targeted and killed an American citizen. It set off a fierce debate about the constitutionality of such an action.

Those issues include whether drone attacks overseas on American citizens violate Fourth Amendment guarantees against unreasonable search and seizure, and the Fifth Amendment’s due process clause.

Attorney General Holder said in March 2012 the administration’s justification for killing U.S. citizens abroad rested on a determination that the person poses an “imminent threat of violent attack.”

Related Link: Read Holder’s entire speech

“The evaluation of whether an individual presents an ‘imminent threat’ incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States,” Holder said.

A Justice Department memo obtained by NBC in February 2013 shed more light on the government’s policy.

A kill order can be issued against an American citizen overseas if they are believed to be “senior operational leaders” of al-Qaida or “an associated force.” There doesn’t need to be “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo says.

An “informed, high-level” U.S. government official can determine if a targeted American citizen has been “recently” involved in planning a violent attack and “there is  no evidence suggesting that he has renounced or abandoned such activities.”

The New York Times and the American Civil Liberties Union have tried to obtain the Justice Department orders justifying the killing of American citizens with drones, but a judge was unable to compel the Obama administration to release the information.

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U.S. District Court Judge Colleen McMahon said in January, “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

In the U.S., one public opinion poll shows widespread support for using drones to kill suspected terrorists overseas, with much less support if the suspect happens to be an American citizen.

A March 2013 Gallup survey showed that while 65 percent of Americans approved the use of drones overseas to kill foreign suspected terrorists, only 41 percent approved of fatal attacks on Americans overseas who are terror suspects. Only 13 percent approved the use of drones against American citizens who are terror suspects living within the U.S.

A Fox News poll in March showed different results, with 60 percent of those polled approving of attacks on U.S. citizens abroad that are suspected terrorists.

In 2012, Pew Research conducted a global survey on how other countries view the U.S. drone policy in Pakistan, Somalia, and Yemen.

Out of 20 major nations, 19 countries disapproved of the American policy. Only in India did more people approve of the U.S. drone attacks than disapprove. And in 17 nations, a majority of people polled disapproved of the U.S. drone program.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

The SGR-1 by Samsung, a security guard robot.

The U.N. Human Rights Commission plans to address part of the issue later this month in Geneva. Christof Heyns, a South African professor of human rights law, released an extensive U.N. report on the topic in April that has ominous overtones.

Specifically, Heyns warned about “lethal autonomous robotics” and posed a very serious question.

“Their deployment may be unacceptable because no adequate system of legal accountability can be devised, and because robots should not have the power of life and death over human beings,” Heyns said.

Thankfully, he said, there’s no immediate threat from a Terminator or RoboCop gone rogue.

“Robots with full lethal autonomy have not yet been deployed,” Heyns said. But he qualified that statement with a list of automated systems that have lethal power.

On the list is the Samsung Techwin SGR-1 robot (SGR stands for “security guard robot”), which has the ability to make many nonlethal decisions on its own about targets.

The SGR-1 can follow targets visually from two miles away in daytime and from one mile away at night using thermal imaging. A human working with the SGR-1 can talk to a target using a microphone and speaker. The robot also has a machine gun and grenade launcher on board (those features are optional), but the human makes the decision about using lethal force. The robot is stationary and can be mounted on top of poles or buildings. The basic model costs about $200,000.

The SGR-1 is part of system that Samsung will offer to airports, border crossings, prisons, nuclear plants, and even military bases, according to its patent information.

The SGR-1 has already been deployed by South Korea to monitor its demilitarized zone with North Korea. The U.S. military uses the Talon, a mobile robot that handles explosives and can be used for surveillance. Domestic versions, which have night-vision abilities like the SGR-1, are used for surveillance and bomb disposal.

Like many military technologies, these robots are also making their way into the civilian world. FEMA’s website lists government-approved robots including the SNEAKY, a small surveillance robot that literally sneaks around gathering evidence. SNEAKY can do border inspections, gather audio and video evidence, sniff bags, and issue voice instructions.

These new robots are essentially ground-based versions of drones—and much like with drones, robot owners will likely face privacy tests in court as they’re adopted for civilian use.

For example, the Supreme Court recently ruled that police who used a trained dog to sniff marijuana inside a home had violated a person’s Fourth Amendment rights. Another Supreme Court decision said the use of a pot-sniffing dog was acceptable during a police traffic stop.

Back in 2001, the court ruled in Kryllo v. United States that the use of thermal imaging technology by police to detect a marijuana-growing operation inside a home without obtaining a warrant was unconstitutional.

The technology exists for robots to electronically sniff out marijuana using an “electronic nose” and examine objects using thermal imaging. Robots could also be equipped with listening devices, which would raise some interesting wiretapping issues, depending on the presence of warrants.

And what happens if a commercial version of a military robot uses lethal force on its own?

That seems unlikely, but the U.S. Department of Defense stressed in a planning document from 2011 “the need to transition to a more autonomous modern system of warfare.”

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The Cyber Intelligence Sharing and Protection Act (CISPA) was passed by House vote on April 18. The final vote in the House was 248-168, as 42 Democrats voted for the bill, while 28 Republicans voted against it.

The Huffington Post, among others, said on Monday that a committee staffer for Senator Jay Rockefeller, the Commerce Committee chair, told it that the Senate will not consider the bill for a vote.

Similar reports had surfaced late last week that the House version of CISPA wouldn’t see life on the Senate floor. U.S. News and World Report indicated that Rockefeller thought the bill lacked adequate privacy protections.

President Barack Obama had indicated he would veto CISPA if it came to his desk.

The Senate will reportedly work on its own cybersecurity bill, or bills, in the coming months. An attorney for the American Civil Liberties Union said last week that a Senate bill would force companies to block sensitive user data from government access in real time.

The Bloomberg News Service said as many as three Senate bills might be introduced. But they would need to be approved by the House after passage.

At the heart of CISPA is a Fourth Amendment issue.

The amendment reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

CISPA was designed to let the federal government work with private companies to fight hackers and cybercriminals in and outside of the United States. As part of the effort to detect cyber threats, private companies could voluntarily share with the government data in real time about Internet users. The personal data of users wouldn’t be screened from the data feed.

Another proposed part of CISPA would have designated the National Security Agency as the recipient of the data feed. But the House changed the bill at the last moment to allow the civilian-run Department of Homeland Security and Justice Department as gatekeepers of cybersecurity data.

Another CISPA criticism was that a warrant wasn’t needed for the government to obtain that information. And companies that share your information won’t be held legally liable for sharing it, a practice that seemingly conflicts with privacy policies on existing websites.

Mike Rogers, a Republican representative from Michigan and the House Intelligence Committee chairman, has been leading the CISPA effort, along with Dutch Ruppersberger, a Democrat from Maryland.

Rogers believes the measure is long needed. “People were stealing their identities, their accounts, their intellectual property, and subsequent to that, their jobs,” he recently said. “[Web users] began to question the value of getting on Internet and using [it] for commercial purposes. Their trust in the free and open Internet … was at risk.”

He has also stressed that participation in CISPA is voluntary for companies.

Unlike SOPA, the failed legislative attempt last year to halt online piracy, large tech companies were supporting the efforts to get CISPA passed.

At one time, Facebook and Microsoft had signed on to support CISPA, but now they are reportedly backing away. Google appears to be on the fence about the issue.

Major communications and utilities companies support CISPA, according to a list released by the House.

Last year, the House passed a similar CISPA bill, only to see it die in the Senate. Last August, a successful filibuster blocked CISPA from getting to the floor for a vote. Both libertarians and liberals had issues with the bill, and there were disagreements about which government agencies would be involved with CISPA.

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1. Miranda warnings

At the forefront is the debate about the living suspect, Dzhokhar Tsarnaev, and his Fifth Amendment right to receive a Miranda warning before questioning from federal investigators.

Constitution Daily contributor Lyle Denniston put the debate in context with his analysis for us today.

“From all that officials involved in the investigation in Boston have said, it may well be that they have such overwhelming evidence to support prosecution that they have little need to get Tsarnaev to confess and can focus, instead, on finding out what he may know–if anything–about other threats or accomplices,” Denniston says.

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The investigators are using something known as the public safety exemption to avoid, at least at the moment, reading Tsarnaev his constitutional rights in the form of a Miranda warning.

Tsarnaev was reportedly conversing with investigators in writing, since his injuries allegedly prevent him from speaking.

The Miranda debate was heated over the weekend, given that Tsarnaev is a naturalized citizen.

2. The death penalty

Another issue that came up almost immediately after Tsarnaev’s capture was if he would be eligible for the death penalty if federal prosecutors decide to seek it in the case.

Massachusetts doesn’t have the death penalty, but Tsarnaev will be tried in a federal court.

In a statement, the Justice Department said Tsarnaev will be charged with use of a weapon of mass destruction and malicious destruction of property resulting in death. The department said the death penalty is one option on the table.

In reality, the Tsarnaev case could be years away from a trial, so the death penalty debate will probably take a back seat as more facts are revealed about the case.

3. Unregistered guns

There were also reports on Monday that Tsarnaev and his brother, Tamerlan, were using unregistered guns in their fatal assault on an MIT police officer and other law enforcement members.

The brothers reportedly had a stockpile of ammunition and exchanged hundreds of rounds of fire with police officers.

Massachusetts already has one of the strictest sets of gun laws in the country—in fact, the Brady Campaign ranks the state as the fourth-strictest when it comes to gun laws in America.

4. Immigration

The Tsarnaev brothers’ immigration status is crossing over into the debate about immigration currently in Congress.

Iowa Senator Chuck Grassley is arguing the Boston Marathon case will bolster the argument for immigration reform, while Senator Marco Rubio says the incident has no bearing on the immigration debate.

Dzhokhar Tsaraev became a U.S. citizen last year. But Tamerlan Tsaraev’s citizenship, as reported in The New York Times, was delayed when Homeland Security investigators found out he had been interviewed by the FBI in 2011 at the request of the Russian government.

5. Privacy

The issue of privacy has come up in several facets of the investigation. The suspects were identified through federal and local investigators examining extensive video and still-image footage obtained from private security cameras.

Law enforcement also used thermal-imaging technology from a helicopter to see Dzhokhar Tsarnaev inside a boat parked in a driveway.

The issue of using thermal imaging devices has been before the Supreme Court in relation to drug cases, and the court has found that it is a Fourth Amendment violation to look inside a home without a warrant using a thermal-imaging device.

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Cyber Intelligence Sharing and Protection Act (or CISPA) is making its way through Congress, and it’s passed a House vote on Thursday.

The final vote in the House was 248-168, as 42 Democrats voted for the bill, while 28 Republicans voted against it.

And like gun control, it’s far from a done deal after the House passes CISPA. It would need Senate approval, and President Barack Obama has indicated he’ll possibly veto CISPA if it comes to his desk.

Both sides of Congress would need to muster a two-thirds majority vote to override the president’s veto, which would seem unlikely in the current political atmosphere of Washington.

At the heart of CISPA is a Fourth Amendment issue.

The amendment reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

CISPA is designed to let the federal government work with private companies to fight hackers and cybercriminals in and outside of the United States. As part of the effort to detect cyber threats, private companies could voluntarily share with the government data about Internet users.

The sharing could be done in “real time” as the cybercops try to defeat and track down the evildoers. Companies could also share data among themselves as part of the effort.

There are major drawbacks about the legislation, say CISPA’s critics. The privacy provisions for consumers, they claim, are vague or nonexistent. The government and companies can’t look at your personal data, such as medical records and tax returns, if they are part of the “data dump” that is shared in real time. But the law doesn’t require that companies excise, or edit out, that information in the transfer process.

Another criticism is that a warrant isn’t needed for the government to obtain that information. And companies that share your information won’t be held legally liable for sharing that information, a practice that seemingly conflicts with privacy policies on existing websites.

CISPA’s biggest critic in Congress is a representative from Colorado, Jared Polis. The Democrat told the House on Wednesday, “This is the biggest government takeover of personal information that I’ve seen during my time here in Congress.”

Mike Rogers, a Republican representative from Michigan and the House Intelligence Committee chairman, is leading the CISPA effort, along with Dutch Ruppersberger, a Democrat from Maryland.

Rogers believes the measure is long needed. “People were stealing their identities, their accounts, their intellectual property, and subsequent to that, their jobs,” he recently said. “[Web users] began to question the value of getting on Internet and using [it] for commercial purposes. Their trust in the free and open Internet … was at risk.”

He has also stressed that participation in CISPA is voluntary for companies.

The Intelligence Committee also released a five-page document to counter what it calls “myths” about CISPA, including how much personal data would be shared with the government—which it says would be a rare occurrence.

The American Civil Liberties Union, however, calls CISPA “fatally flawed.”

“The core problem is that CISPA allows too much sensitive information to be shared with too many people in the first place, including the National Security Agency,” it says.

Unlike SOPA, the failed legislative attempt last year to halt online piracy, large tech companies are supporting the efforts to get CISPA passed.

At one time, Facebook and Microsoft had signed on to support CISPA, but now they are reportedly backing away. Google appears to be on the fence about the issue.

Major communications and utilities companies support CISPA, according to a list released by the House.

Last year, the House passed a similar CISPA bill, only to see it die in the Senate. Last August, a successful filibuster blocked CISPA from getting to the floor for a vote. Both libertarians and liberals had issues with the bill, and there were disagreements about which government agencies would be involved with CISPA.

The tea party-aligned group FreedomWorks is on record, again, as opposing CISPA on Fourth Amendment grounds.

“There are grave Fourth Amendment concerns with CISPA. The bill would override existing privacy laws to allow companies to share ‘cyber threat information’ with the federal government without making any reasonable effort to strip out any personal information from the file,” the group said in a statement.

The Electronic Frontier Foundation also has Fourth Amendment concerns.

“As it stands, CISPA is dangerously vague, and should not allow for any expansion of government powers through a series of poorly worded definitions.  If the drafters intend to give new powers to the government’s already extensive capacity to examine your private information, they should propose clear and specific language so we can have a real debate,” the EFF said on its website.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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The remote-controlled aircraft have created a buzz among privacy advocates for several years, and Rand Paul’s recent Senate filibuster made drones a trendy discussion topic.

But can local police, if they have access to their own drones, really photograph you in public, or in your backyard if someone can see your house from a public spot?

In some case, these law-enforcement drones may be able to do more than just take your picture, as the rules evolve about a technology that’s moving faster than the legal system.

To be clear, there are really three types of drone use that have raised questions: the federal government’s use of drones in national security situations, private citizens and companies using drones for domestic purposes, and state and local law enforcement using drones for official investigations.

When it comes to local law enforcement, more police departments are investigating drones as a cost-saving way to gather information and do their jobs in a safer manner. Law enforcement could use drones to follow suspects and safely handle situations under the proper circumstances. For example, FBI drones were used in a nationally televised hostage standoff in Alabama this year, to help rescue a kidnapped six-year-old boy. Also, in theory, fire departments are expected to use drones to assess dangerous conditions that would threaten fire fighters.

It’s the definition of “proper” that is up in the air when it comes to drones and local law enforcement.

One specific issue is the matter of the police obtaining a search warrant before they look into a house.

The Fourth Amendment affirms “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There doesn’t seem to be a clear-cut answer, despite the Fourth Amendment’s message, partly because of the technology wrapped up inside a potential police drones. Some drones can not only see clearly into your backyard, but can als0 theoretically listen (in some circumstances) and take thermal-sensitive pictures. More sophisticated drones can intercept electronic communications, track GPS information, and use facial recognition technology.

Groups like the American Civil Liberties Union and the Electronic Privacy Information Center are pushing hard for privacy-law reforms that would require law enforcement to strictly follow the Fourth Amendment when it comes to drone surveillance.

And in recent months, local politicians have started pushing for state laws that will force police to get warrants and in some cases, delay their drone usage until privacy issues can be settled.

The ACLU says 34 states have been examining some type of legislation related to drones and privacy and 29 states are still in the process of considering measures.

Virginia is close to a two-year moratorium on drone usage by local law enforcement. Two bills have passed in legislature and a debate is set for next week on an amended bill. Montana’s Senate has also passed two bills involving drones and privacy issues.

In most cases, the proposed state laws would require investigators to get a probable cause warrant before a drone is used for surveillance purposes.

Another high-profile drone case was in Seattle, where its police force grounded a drone program in February after a public backlash at an open forum.

Mayor Mike McGinn said the program was stopped to allow the city to “focus its resources on public safety and the community building work that is the [police] department’s priority.” Seattle sent two dozen drones back to their manufacturer after the move.

In North Carolina, a bipartisan bill called the Preserving Privacy Act of 2013 was filed in March to place restrictions on drone use.

Florida is also considering a Freedom from Unwarranted Surveillance Act that bars law enforcement from using drones to track suspects without a warrant.

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Amie Stepanovich, director of EPIC’s Domestic Surveillance Project, told senators recently that her group recognized there were many positive uses for drones related to public safety measures, but rules were needed about the reasonable expectation of privacy and gathering personal data about “identifiable individuals.”

“The increased use of drones to conduct surveillance in the United States must be accompanied by increased privacy protections. The current state of the law is insufficient to address the drone surveillance threat,” she told a Senate subcommittee on March 20.

On a federal level, Representative Ed Markey has introduced House legislation that would require search warrants for drone surveillance and the tracking of data collection efforts.

But it was a more old-fashioned snooping tool that could have a broader impact on privacy and drones that was involved in a Supreme Court decision this week.

In a 5-4 decision, the court decided that a homeowner was protected by the Fourth Amendment after a police dog sniffed marijuana outside of the man’s house and alerted an officer, who then arrested the suspect, Joelis Jardinas, after obtaining a post-sniff warrant.

“It’s very important for privacy issues because we’re dealing with people in the place where they live and that’s where they have the highest degree of privacy interests,” said Howard Blumberg, Jardinas’ attorney, in an interview with NPR.

Justice Antonin Scalia said it was the presence of a trained police dog on the porch that made the difference.

Ryan Calo, a professor from the University of Washington School of Law who studies drone privacy issues, pointed out to NPR that the technology already exists for chemical sensors to perform a long-range sniff test without the equipment being present on a subject’s property.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

On Monday, Norquist, who is best known for the budget and tax efforts, joined the Center for Democracy and Technology and the American Civil Liberties Union to raise awareness about privacy issues related to personal email.

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In an article on Politico cowritten with Laura Murphy of the ACLU, Norquist explains that the rights we expect under the Fourth Amendment don’t apply to some email and other communications stored at Internet Service Providers or on the shared-computing system known as the cloud.

Norquist and Murphy say the Electronic Communications Privacy Act, passed in 1986, gives law enforcement the power to look at all your emails that are 180 days or older, without a subpoena signed by a judge—assuming they are stored on a server somewhere.

“The government can contend ECPA gives it the authority to ignore your privacy to an extent that would have shocked the framers of the Constitution,” they say. “And all we are saying is that the warrant standard established by the Constitution for privacy in the physical world should also protect privacy in the digital world.”

The ECPA doesn’t allow law enforcement to look at emails that are stored on your own computer or are less than 180 days old, without demonstrating probable cause to a judge.

Congress is considering an update to the ECPA; hearings are set for Tuesday. The House Judiciary Committee will hear testimony from Google, law enforcement officials, and academic experts on the subject.

Senate Judiciary Committee Chair Patrick Leahy has also pushed for an overhaul of the ECPA. A revised law made it out of the Leahy’s committee in December, but it didn’t get passed by Congress.

House Judiciary Committee Chair Bob Goodlatte also supports reform measures, which also include how police can access data about where you have used your cellphone.

And on March 8, when the U.S. Court of Appeals for the Ninth Circuit ruled that border agents need to demonstrate “reasonable suspicion” before they can search or impound your laptop or tablet computer at a border stop or airport.

The legal standard of reasonable suspicion is not as strict as probable cause when it comes to a law enforcement official searching your computer records.

Reasonable suspicion occurs when a “reasonable” person suspects that a crime has been committed, based upon specific facts, allowing a brief detention or examination to take place. Probable cause requires a preponderance of evidence presented to a judge for a warrant.

The idea of probable cause is part of the Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The appeals court ruling is important because it says that border officials can’t conduct extensive suspicionless searches of laptops.

In its majority opinion, the court said that the ruling was a “watershed” case and that “reasonableness remains the touchstone for a warrantless search.”

“This type of material implicates the Fourth Amendment’s specific guarantee of the people’s right to be secure in their ‘papers’,” said the majority opinion.

The border search issue has been contentious for years, since critics say the government’s unlimited power to search laptops at the border can compromise files containing trade secrets and confidential lawyer-client communications, as well as personal data.

The Supreme Court has recognized several exceptions to the due process requirement of the Fourth Amendment, one of which is the border search exception.

Hanni Fakhoury from the Electronic Frontier Foundation told Politico that he expected the Justice Department and the defendant to bring the case to the Supreme Court.

The Supreme Court has yet to consider a case involving the degree of suspicion needed to search laptops at the border without a warrant or reasonable suspicion.

In another case from 2008, United States v. Arnold, the Ninth Circuit found that reasonable suspicion was not required to support the warrantless laptop border searches.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Much has been written about the constitutional concerns over weaponized drones, the unmanned combat-ready flying robots, including on Constitution Daily. But even drones without weapons or the potential to injure or kill—so-called “surveillance drones” that collect information about citizens—are raising real concern among privacy advocates and constitutional scholars.

In contrast with bulky and costly police helicopters, the surveillance drones have advanced to the point that so-called microdrones, about the size of birds or even bugs, can fly silently and inconspicuously, and cost as little as a few hundred dollars. It is estimated that although there are currently relatively few drones today, according to the Congressional Research Service, the Federal Aviation Administration estimates that there will be 30,000 drones flying in U.S. airspace in the next twenty years.

There can be no doubt about the value of the treasure trove of information potentially provided by drones, including aid to emergency search and rescue operations and critical law enforcement operations for public safety. But when they can be deployed, and what information they can gather about you or about a suspect in an investigation, is still unsettled. The Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Now, surveillance drones eliminate the need to enter a home to find evidence of criminal behavior, but can, instead, view such activity by hovering near a home’s window. So the question arises: Does law enforcement have to get a search warrant to deploy a drone to gather information? If so, when?

In Katz v. United States in 1967, the Supreme Court found that the need for the government to get a search warrant depends on whether the person had a reasonable expectation of privacy in the area to be searched. So it seems that if the police want to fly a drone to hover outside a suspect’s bedroom window in order to conduct surveillance, it would likely need a warrant.  And areas outside a person’s home but still within close proximity, like the driveway, are what the court has called “curtilage” and are still afforded some Fourth Amendment protection (United States v. Hester, 1924).

That said, surveillance drones have a far broader ability to track and monitor the actions of citizens who may or may not be suspected of a crime. Through February 2013, 31 states have considered legislation to ensure privacy from surveillance drones. To date, none has become law, although both houses of the legislature of Virginia have passed a two-year moratorium on the use of drones by state and local law enforcement that awaits the governor’s signature; the city of Charlottesville, Virginia, last month passed a municipal drone resolution banning the sale or use by the municipality of surveillance drones.

Without a doubt, this issue is a thriller, as Michael Jackson would say. You can expect to see much more debate on this issue in the next year. What do you think? How do you balance a citizen’s right to be free of surveillance against the government’s need to protect citizens? Let us know!

Amy E. Feldman is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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Under limited circumstances, the FAA has approved the use, starting in 2015, of drones owned and operated by citizens. Some will be used for commercial purposes; others will used for recreational purposes.

The FAA Modernization and Reform Act of 2012 was approved by Congress and the president. It tasks the Federal Aviation Administration with setting policies for the commercial drone business by September 2015.

The act is mostly focused on air safety issues, but the implications of drones, with photo and infrared cameras, flying over personal air spaces is fraught with privacy issues.

Then there are the implications for commercial drones, news gathering and the First Amendment. Television stations spend millions of dollars on helicopters, which can show live video from a distance. Drones are the fraction of a helicopter’s cost, but they can’t fly as high as a helicopter under normal circumstances.

So what happens if a drone is hovering over your house as journalists gather news? Or what if it is drone owned by a police department? Or a news entertainment show like TMZ?

The Congressional Research Service prepared a detailed analysis of these conflicting issues in January 2013, and its conclusions were that until the civilian drones are tested and in service, the legal problems probably won’t be resolved.

“The legal issues discussed in this report will likely remain unresolved until the civilian use of drones becomes more widespread,” the Congressional Research Service said. “Once these regulations are tested and promulgated, the unique legal challenges that could arise based on the operational differences between drones and already ubiquitous fixed-wing aircraft and helicopters may come into sharper focus.”

In the end, the FAA will be the first government agency to set commercial drones use policies, under its powers to regulate national airspace. Congress will also get involved, at some point.

One immediate issue is the definition of a commercial drone, compared with a “model aircraft.” The operator of a commercial drone needs a special test certificate from the FAA to operate its flying vehicle. Larger models can’t fly near airports and over schools and churches.

Private, noncommercial drones are considered as recreational models.

The Congressional Research Service says smaller drones are exempt from FAA rules that apply to larger recreational drones.

“This prohibition [from FAA rules] applies if the model aircraft is less than 55 pounds, does not interfere with any manned aircraft, and is flown in accordance with a community-based set of safety guidelines,” says the report.

The novelty of commercial and recreation drones poses other legal issues. One Supreme Court case that set standards for ownership rights for the airspace over your house dates back in 1946.

In United States v. Causby, the Supreme Court dealt with a case where low-flying military planes flew over a chicken farm, causing chaos among the birds that resulted in damage to the property owner (i.e., lots of dead chickens).

Modern drones are silent (their noise won’t kill chickens), but they will most likely fly at lower altitudes, potentially putting them airspace that the courts may consider to be the controlled by the owner of the property below it.

Privacy concerns are even more problematic. As any journalist can tell you, the press has a right to photograph or videotape what can be seen from a public location, with some exceptions.

But what point in its flight is a drone above the airspace controlled by a homeowner? And can a drone operator use a thermal imaging camera to video record your house?

The Congressional Research Service rattles off other privacy scenarios: Can homeowners harm a drone if they deem it to be a trespassing threat? What about stalkers, Peeping Toms and wire tappers? Some drones can record sounds from 100 yards away from a source.

Part of the solution to these problems could come from Congress, which can pass laws to better define drone etiquette.

A lot depends on testing and recommendations that needs to come from the FAA in the next three years.

So far, the FAA is selecting six unmanned aircraft systems (UAS) test sites as mandated by Congress. The sites will function as test drone airports, with the purpose of figuring out how to safely manage flights.

But smaller, commercial drones are already being used for various purposes. A recent story from NBC News outlined how operators are widely using drones to capture video and images, by literally flying under the FAA’s radar.

One photographer interviewed by NBC said he has shot 60 hours of high-quality video using a 48-inch-sized drone, with no FAA issues.

Balancing the safety and privacy concerns over commercial and private drones is the useful news of drones for many purposes. They can help farmers manage their lands, realtors sell property, and they can be used to fight fires.

One estimate puts the global value of the commercial and private drone industry at $90 billion in the next 10 years, which will also create jobs.

The FAA also estimates that 10,000 commercial drones could be in use after September 2015, if the various problems are worked out with air traffic controls, licensing and logistics.

The legal matters could take much longer to resolve when it comes to privacy and other Constitutional issues. So you may need to encounter a drone flying over your backyard to claim damages and prove a legal point.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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While he was being booked for his arrest for assault, under a Maryland statute that allowed the police to take DNA from all people arrested for violent crimes, King’s cheek was swabbed to take a DNA sample even though the police had enough evidence to charge him with the assault.

When the DNA sample was entered in Maryland’s DNA database, it matched the DNA taken from an unsolved rape that happened back in 2003.

King was convicted of second-degree assault for the case for which he was originally arrested; he was also convicted of the 2003 rape based on the DNA evidence and was sentenced to life in prison without the possibility of parole.

King appealed the rape conviction because he says that taking the DNA sample was a search and seizure for which the state should have obtained a warrant. The Fourth Amendment to the U.S. Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Because the state didn’t get the warrant, King argues, it violated his Fourth Amendment right against unreasonable searches and seizures.

The Maryland law that requires the taking of a DNA sample at arrest is, according to King, unconstitutional, and so his rape conviction should be thrown out.

The Maryland Court of Appeals, which heard the case, balanced King’s expectation of privacy from warrantless, suspicionless searches against the state’s right to collect evidence of violent crimes.

But since, according to the court, the authorities investigating the case for which King was arrested—the assault—had enough photographic and fingerprint evidence of the crime, they sided with King, stating: “Although we have recognized (and no one can reasonably deny) that solving cold cases is a legitimate government interest, a warrantless, suspicionless search can not be upheld by a ‘generalized interest’ in solving crimes.” As a result, the court threw out King’s conviction.

The State of Maryland appealed the decision of the Court of Appeals, and on February 26, the U.S. Supreme Court will hear arguments on the question of whether a state may, in fact, take a suspect’s DNA without first getting a warrant to do so.

If you were on the Supreme Court, what would you say? Is taking a DNA sample at the time of arrest different than taking a fingerprint? If so, how? If it is different, should the police be required to get a warrant to take DNA? Should it matter if the DNA sample the police take is a skin sample of cells that can be sloughed off, the swabbing of a cheek, or the taking of hair or blood? How do you balance a suspect’s right not to have his DNA taken against the state’s interest in solving crimes?

The Supreme Court will tell us its opinion by the end of the current term. We’d love to hear your thoughts as well.

Amy E. Feldman is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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