Business 8th Edition by Marianne Jennings

Exercise 18

Low-Flying Federal Agents: Photographic Searches
Facts
Dow Chemical (petitioner) operates a two-thousand-acre chemical plant at Midland, Michigan. The facility, with numerous buildings, conduits, and pipes, is visible from the air. Dow has maintained ground security at the facility and has investigated flyovers by other, unauthorized aircraft. However, none of the buildings or manufacturing equipment is concealed.
In 1978, the Environmental Protection Agency (EPA) conducted an inspection of Dow. EPA requested a second inspection, but Dow denied the request. The EPA then employed a commercial aerial photographer to take photos of the plant from 12,000,3,000, and 1,200 feet. The EPA had no warrant, but the plane was always within navigable air space when the photos were taken.
When Dow became aware of the EPA photographer, it brought suit in federal district court and challenged the action as a violation of its Fourth Amendment rights. The district court found that the EPA had violated Dow's rights and issued an injunction prohibiting the further use of the aircraft. The court of appeals reversed, and Dow appealed.
Judicial Opinion
BURGER, Chief Justice
The photographs at issue in this case are essentially like those used in map-making. Any person with an airplane and an aerial camera could readily duplicate them. In common with much else, the technology of photography has changed in this century These developments have enhanced industrial processes, and indeed all areas of life; they have also enhanced enforcement techniques. Whether they may be employed by competitors to penetrate trade secrets is not a question presented in this case. Governments do not generally seek to appropriate trade secrets of the private sector, and the right to be free of appropriation of trade secrets is protected by law.
That such photography might be barred by state law with regard to competitors, however, is irrelevant to the questions presented here. State tort law governing unfair competition does not define the limits of the Fourth Amendment. The Government is seeking these photographs in order to regulate, not compete with, Dow.
Dow claims first the EPA has no authority to use aerial photography to implement its statutory authority of "site inspection" under the Clean Air Act.
Congress has vested in EPA certain investigatory and enforcement authority, without spelling out precisely how this authority was to be exercised in all the myriad circumstances that might arise in monitoring matters relating to clean air and water standards.
Regulatory or enforcement authority generally carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted. Environmental standards cannot be enforced only in libraries and laboratories, helpful as those institutions may be.
The EPA, as a regulatory and enforcement agency, needs no explicit statutory provisions to employ methods of observation commonly available to the public at large; we hold that the use of aerial photography is within the EPA's statutory authority.
Dissenting Opinion
POWELL, MARSHALL, BRENNAN, and BLACKMUN, Justices
The Fourth Amendment protects private citizens from arbitrary surveillance by their Government. Today, in the context of administrative aerial photography of commercial premises, the Court retreats from that standard. It holds that the photography was not a Fourth Amendment "search" because it was not accompanied by a physical trespass and because the equipment used was not the most highly sophisticated form of technology available to the Government. Under this holding the existence of an asserted privacy interest apparently will be decided solely by reference to the manner of surveillance used to intrude on that interest. Such an inquiry will not protect Fourth Amendment rights, but rather will permit their gradual decay as technology advances.
j EPA's aerial photography penetrated into a private commercial enclave, an area in which society has recognized that privacy interests may legitimately be claimed. The photographs captured highly confidential information that Dow had taken reasonable and objective steps to preserve as private.
Did the EPA need a warrant for taking its aerial photographs?