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Remote Sensing and “Special Needs” Searches

by Sara Hyde

This post is part of the student blogger project from the summer session of Space Security Law.

Sara Hyde is a 2L at the University of Mississippi School of Law. She hopes to pursue a career in transactional law.

Remote sensing satellites have been in use for several decades, but the rules, regulations, and other legislation surrounding their use for surveillance is still not clear. The courts have made decisions on other types of surveillance that are similar in nature and use, but there are not yet definitive rules on satellites. While this area is still murky, the courts’ decisions on other methods can be applied to satellites. One such instance is the courts’ ruling the Fourth Amendment requirement for reasonableness when searching must be fulfilled.

Traditionally, law enforcement had to take certain steps before implanting different types of surveillance. The Fourth Amendment protects American citizens from “unreasonable searches”, including those by surveillance. http://caselaw.lp.findlaw.com/data/constitution/amendment04/. In order to determine whether a search was allowed, the search would have to be deemed reasonable. This requirement generally meant that the law enforcement officer or official would have to obtain a warrant, a document proving that the request for the search had gone through the proper channels and was verified as being a reasonable search. Remote sensing satellites may also require this measure, if the surveillance conducted is deemed to be a search. Yet, there are exceptions that do not require a warrant to fulfill the reasonableness standard to conduct one. One exception is “special needs”, which allows “[…]searches not based on individualized suspicion […]” (http://www.fas.org/sgp/crs/intel/RL34421.pdf). An example would be a search of persons or things that is conducted at the United States border. According to a report, “Satellite Surveillance: Domestic Issues” by the Congressional Research Service, not only does the issue of satellite surveillance fall under this exception, but the definition of what is reasonable may be more relaxed under this exception since “[…]fewer liberty interests are arguably at stake.”

This is a disturbing idea in that the reasonableness requirement may be less stringent in regards to this type of surveillance. Although, like the United States border, officials are interested in general safety, such surveillance used domestically seems different. While a border search is set up at a particular point to regulate entry and exit from the country, a satellite is in orbit over the earth and able to see any number of places, indiscriminately. Since there is not necessarily individualized suspicion required under this exception, a satellite used domestically would be surveying thousands of miles of the United States without a warrant to do so. While there is an interest in making sure that things traveling in and out of the country are legal, continual surveillance of a nation from space is far more intrusive.

As courts continue to examine issues concerning types of surveillance, satellites seem to be a huge question that needs to be addressed. While every branch of the government is acknowledging and working towards definitive answers, there is yet to be a consensus. Until such time that there is, remote sensing satellites will be lumped in with other means of surveillance. While these legal models on surveillance give guidance and are important to the legal future of satellites, they do not clear up all of the concerns voiced by government officials and citizens alike.