EDITORIAL: Protecting Alaskans from eyes in the sky

What looked like a niche decision from the Alaska Supreme Court earlier this month could prove a forward-looking precedent that safeguards Alaskans’ expectation of privacy in an age when technology would otherwise enable a creeping surveillance state. Our state’s highest court has a firm track record of protecting the explicit right to privacy guaranteed in the Alaska Constitution, and in an otherwise unremarkable drug case from more than a decade ago, the justices once again upheld that standard.

The case involved an illegal marijuana grow operation in Fairbanks in 2012, two years before Alaskans voted to legalize the drug and the personal cultivation of a limited quantity of pot plants. After an informant told law enforcement that John William McKelvey III was growing marijuana in his greenhouse, Alaska State Troopers flew over the property in a small plane and used a zoom lens to take pictures of the plants. They used that evidence to obtain a warrant and raid the property, and McElvey was subsequently convicted of drug misconduct and weapons misconduct.

But McKelvey argued the troopers shouldn’t have been allowed to conduct their aerial surveillance without a warrant, and — after a winding, decade-long appeals process — the Alaska Supreme Court agreed. Citing our state constitution’s explicit guarantee of the individual right to privacy, the justices found that such speculative flights over homes (and the cleared land nearby) with vision-enhancing technology violated Alaska’s protections against illegal searches.

So why is that a big deal? As the justices noted, the likelihood that law enforcement officers would spend the time and money necessary to engage in frequent flights with high-powered cameras to fish for suspected criminals is relatively low. But, they wrote, when it comes to aerial surveillance, the ground is shifting under our feet: “The rise of drones has the potential to change that equation ... And it would not be wise for us to ignore, when assessing the risk that warrantless aerial surveillance poses to Alaskans’ sense of security and freedom, the likelihood that advances in technology will make aerial surveillance cheaper and more feasible in the coming years and decades.”

The justices are right, and their decision is prescient. A consumer-model drone that can capture the kind of footage troopers took in the McKelvey case now retails for a few hundred dollars. The cost for such flights is minuscule, and we’re only 12 years after the events of that case. Twelve years from now, consider the kind of aerial surveillance that will be possible by well-resourced government entities, and how trivial the expense will be. Allowing warrantless surveillance of that kind would make a mockery of Alaskans’ privacy rights. And given how simple it would be, the potential for abuse by authorities would be massive: How long would it be before we saw drones used to surveil officers’ former relationship partners — or, more troubling, political enemies of incumbent administrations?

We Alaskans jealously guard our privacy, and for good reason: In an era where cameras are cheap and prolific, and our right to be secure in our person and our homes has never been more fragile. Across most of the civilized world, people have blindly given away their right to privacy, and in many cities, their movements — even at or near their homes — are recorded in the name of public safety. In Alaska, we recognize law enforcement’s need to do its job, but the tools and methods that have already been established as legal are sufficient to obtain evidence and warrants via appropriate means — we can’t afford to expand them at the expense of our privacy rights.