How Would Drones Piloted by A.I. Affect Our Fourth Amendment Rights?

By: Joseph Coyle

In January 2025, drone manufacturer Red Cat announced a partnership with Palladyne AI to integrate Palladyne Pilot AI software into Red Cat’s Black Widow drones.[1] These drones are designed to be able to identify, prioritize, and track targets with little to no human direction.[2] Red Cat first unveiled the Black Widow drone in 2024.[3] These drones are already in use in the United States Military.[4] The Black Widow drone is fitted with a GPS system, camera, electro-optical sensors, infrared sensors, and has a flight time of over forty-five minutes.[5]

Without any hardware modifications, the Palladyne Pilot AI software is integrated into the drones to allow for pilot-less flight missions.[6] These flight missions can involve multiple drones that autonomously collaborate.[7] Using the AI software, several drones are able to communicate data between each other using a variety of sensors.[8] With predictive models, the drones can maneuver into positions to keep monitoring the target, even if they lose track of the target.[9] The drones can combine the data from multiple angles, and then send the fused image to the human operator, who does not need to steer individual drones or view multiple feeds.[10]

With this next stage of drone technology, the military or law enforcement can surveil their targets with greater efficiency and specificity. In 2023, at least 1,400 police departments were using drones in some capacity, with the extent of that use only rising.[11]

Whenever there is a discussion of surveillance, the Fourth Amendment must be addressed. The Fourth Amendment of the United States Constitution protects citizens from “unreasonable searches and seizures” and requires “probable cause” before granting a warrant.[12]

A quick crash course in the legal application of the Fourth Amendment could best be accomplished by reviewing the U.S. Supreme Court case Katz v. United States (1967). In Katz, Charles Katz was convicted of “transmitting wagering information by telephone.”[13] FBI agents attached an electronic listening and recording device without a warrant to the outside of a telephone booth that Katz used to place bets in.[14] While the Government argued that they did not physically enter the phone booth, the court held that they still violated Katz’s rights by breaching the privacy “upon which he justifiably relied while using the telephone booth.”[15] This constituted an unlawful search and seizure under the Fourth Amendment.[16]

The doctrine that came from this case is the “expectation of privacy” and the Katz test. In Justice Harlan’s concurrence, he stated that a person has an expectation of privacy in a given “place” when (1) “[that] person [has] exhibited an actual (subjective) expectation of privacy” and (2) “that the expectation be one that society is prepared to recognize as ‘reasonable.’”[17] Generally, what is visible to the public in each circumstance is not protected.

Using the reasonable expectation of privacy as the foundation, courts have addressed several issues involving the scope of police surveillance as technology advanced. In the United States Supreme Court cases California v. Ciraolo (1986) and Florida v. Riley (1989), the Court held that it was not a violation of a defendant’s Fourth Amendment rights to surveil their home from the public airspace overhead in a helicopter without a warrant.[18] So long as the aircraft were in airspace they were legally allowed to be in, there was no violation because whatever was visible from the yard was visible to the “public.”[19]

However, what is “visible” to the public is also contingent on the means of viewing the target. In the United States Supreme Court case Kyllo v. United States (2001), the police used a thermal-imaging device from the street to measure the amount of heat radiating from the defendant’s house to show indoor high-intensity lamps used to grow marijuana in order to obtain a warrant.[20] The Court held that this was a violation of the defendant’s Fourth Amendment rights because the police were intruding upon the house beyond what the naked eye could see, and they did this by using technology that is not in the “general public use.”[21] Because of this use of technology, the images obtained were considered a search and violated the defendant’s rights without a warrant.[22]

One method of surveillance is that the police may set up a surveillance camera on the telephone pole outside of the target’s residence in order to view who comes and goes. The argument in support of this form of surveillance is that the camera, though it may be pointed directly at the house, is in the public space, and only can view what the ordinary public would be able to view. However, the counterargument against this is that the constant surveillance of the house, usually for months, goes beyond what is reasonable in the aggregate. In situations where the police set up a surveillance camera outside the target’s residence, the courts are split. In some, such as the First Circuit, the use of a surveillance camera in the aggregate violates the defendant’s Fourth Amendment rights.[23] In other circuits, such as the Fifth and Seventh Circuits, the use of the camera is in the public space and therefore does not violate the defendant’s rights.[24]

How AI-piloted drones will be treated in the world of advanced surveillance may depend on how the courts will view it. Will it be viewed like a helicopter overhead? Or will it be considered technology not in the general public use? How does the ability of the drones to use infrared cameras and other forms of visibility impact its “general public use”? Likewise, is the drone’s ability to constantly surveille without rest or input from a human pilot make it analogous to the telephone pole surveillance cameras? What about the drone’s ability to move and follow a target, and not be fixed to a single location and vantage point?

Since it is an unmanned aircraft that uses sophisticated cameras, there are strong arguments that it is not analogous to the Ciraolo and Riley cases. However, the drones may still be technologically capable of surveillance from the public airspace. Drones that are generally fixed by location would very likely be treated as telephone pole cameras, however, there is more room for argument that a camera following the target goes beyond what the public eye may reasonably see. Additionally, it would depend on what circuit the surveillance occurs in, and if there are any future United States Supreme Court cases that settle the circuit split on this issue.

Regardless of this split, it is likely that, at least for now, the courts will view this emerging technology as something outside of the general public use. Especially for drones that implement cameras that go beyond regular imaging cameras, this technology is very similar to the thermal-imaging technology in Kyllo.[25] But, if a drone was limited to only a standard camera, it may get around this and be considered “general public use.” How do we as a society wish to see these drones implemented, and what level of protection and rights to privacy do we want?

This technology is still emerging, and it will take time for both law enforcement to adopt it on a large scale and for cases addressing these issues to make their way up the court system. We could allow the legal process to address these issues as they come, and allow the law to develop on its own, or we can be preemptive, and petition federal and state legislation to safeguard citizens’ right to privacy in the face of this unprecedented technological leap.

 

Link to image source:

https://www.freepik.com/free-photo/quadcopter-flying-park_13622280.htm#fromView=search&page=1&position=7&uuid=0f4b6075-e0e5-45fc-9831-551466b17d9f&query=drone+surveillance

 

[1] Press Release, Palladyne AI, Red Cat and Palladyne AI Partner to Embed Artificial Intelligence into Teal Drones to Enable Autonomous Operation (Oct. 1, 2024), https://www.palladyneai.com/press-releases/red-cat-and-palladyne-ai-partner-to-embed-artificial-intelligence-into-teal-drones-to-enable-autonomous-operation/.

[2] Press Release, Palladyne AI, Palladyne AI and Red Cat Announce First Successful Multi-Drone Collaborative Autonomous Flight (Jan. 15, 2025), https://www.palladyneai.com/press-releases/palladyne-ai-and-red-cat-announce-first-successful-multi-drone-collaborative-autonomous-flight/.

[3] Wilder Alejandro Sanchez, AUSA 2024: Red Cat unveils Black Widow as development continues on Arachnid UAS family, Shepard Media (Oct. 15, 2024), https://www.shephardmedia.com/news/landwarfareintl/ausa-2024-red-cat-unveils-black-widow-as-development-continues-on-arachnid-uas-family/.

[4] David Hambling, U.S. Drones Team Up To Find And Track Targets, Forbes (Mar. 3, 2025), https://www.forbes.com/sites/davidhambling/2025/03/03/us-drones-team-up-to-find-and-track-targets/.

[5] Red Cat, https://redcat.red/black-widow/ (last visited Oct. 8, 2025).

[6] Palladyne AI, supra note 2.

[7] Id.

[8] Hambling, supra note 4.

[9] Id.

[10] Id.

[11] Salvador Hernandez, Police drones could soon crisscross the skies. Cities need to be ready, ACLU warns, L.A. Times (July 27, 2023), https://www.latimes.com/california/story/2023-07-27/proliferation-police-drones-lacks-regulation-transparency-aclu-warns.

[12] U.S. Const. amend. IV.

[13] Katz v. United States, 389 U.S. 347, 348 (1967).

[14] Id.

[15] Id. at 349, 353.

[16] Id. at 353.

[17] Id. at 361 (Harlan, J., concurring).

[18] See generally California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989).

[19] Id.

[20] Kyllo v. United States, 533 U.S. 27, 29-30 (2001).

[21] Id. at 34.

[22] Id.

[23] See United States v. Moore-Bush, 36 F.4th 320, 321 (1st Cir. 2022).

[24] See United States v. Dennis, 41 F.4th 732, 742 (5th Cir. 2022); United States v. Tuggle, 4 F.4th 505, 529 (7th Cir. 2021). See generally Tuggle at 520-523 (analyzing the treatment of the issue at hand by other circuits).

[25] Kyllo at 29-30.