Imagine you’ve spent millions of dollars building a massive high-tech fortress. You’ve got eight-foot-high fences, armed guards, and closed-circuit cameras everywhere. You’ve basically built a castle to keep your trade secrets safe from prying eyes. Then, one day, the government flies a plane over your castle and snaps high-resolution photos of everything you’re doing in the backyard.
No warrant. No "please." Just a flyover and a shutter click.
That’s exactly what happened in Dow Chemical Co. v. United States, a landmark 1986 Supreme Court case that still dictates how much privacy you actually have when the government starts looking down from the sky. Honestly, it's one of those cases that feels more relevant now than ever, especially since we live in an age where drones are basically everywhere.
The EPA’s Secret Flight over Midland
The whole mess started back in 1978 in Midland, Michigan. Dow Chemical had this massive 2,000-acre manufacturing plant. It wasn’t just a building; it was a sprawling city of pipes, conduits, and specialized equipment. Because Dow was terrified of corporate espionage, they didn’t just rely on walls. They meticulously arranged their buildings to block any view of the inner workings of the plant from the ground.
The Environmental Protection Agency (EPA) wanted to check if Dow was following the Clean Air Act. They did one on-site inspection, but when they asked for a second one, Dow basically said, "No thanks."
Instead of getting an administrative warrant, the EPA got creative. They hired a commercial aerial photographer to fly a plane over the plant. They weren't using some top-secret spy satellite; they used a standard, high-precision aerial mapping camera. They took about 75 photos from altitudes of 1,200, 3,000, and 12,000 feet.
When Dow found out, they were livid. They sued, claiming the EPA had violated the Fourth Amendment, which protects against "unreasonable searches and seizures." They argued that their plant was like a home, and the open areas between the buildings were like a "curtilage"—that private space around a house where you have a reasonable expectation of privacy.
Why the Supreme Court Sided With the Government
When the case finally hit the Supreme Court, the justices had to decide: Is a 2,000-acre industrial complex the same as a person’s backyard?
The short answer: No.
In a 5-4 decision, the Court ruled against Dow. Chief Justice Warren Burger wrote the majority opinion, and his reasoning basically changed the game for industrial privacy. The Court ruled that the "open areas" of an industrial plant aren't the same as the "curtilage" of a home.
You see, the Fourth Amendment is super protective of your home. It’s your sanctuary. But a massive chemical plant? The Court saw that as more of an "open field." They basically said that while Dow could keep people out with fences, they couldn't stop the government from looking down from public navigable airspace.
One of the big sticking points was the camera itself. The Court noted that the EPA used a "conventional, albeit precise" camera. It wasn't some futuristic X-ray machine or a device that could see through walls. Since any member of the public could have hired a plane and taken similar photos, the Court figured Dow didn't have a "reasonable" expectation of privacy from the air.
The Dissent: Why Justice Powell Was Worried
Not everyone agreed. Justice Lewis Powell wrote a pretty stinging dissent. He argued that the Court was basically giving the government a free pass to ignore the Fourth Amendment just because they used technology.
Powell pointed out that Dow had done everything humanly possible to keep people from seeing their plant. They spent a fortune on security. To him, the fact that the EPA had to fly a plane and use a high-powered camera proved that Dow did have a reasonable expectation of privacy.
He was worried that as technology got better, the government would be able to "search" more and more without ever needing a warrant. Looking back from 2026, he kinda had a point, right?
Why This Case Matters in the Age of Drones
If you think this is just some dusty old case from the 80s, think again. Dow Chemical Co. v. United States is the foundation for almost every legal battle involving drones and surveillance today.
Because of this ruling, law enforcement and regulatory agencies often feel they don't need a warrant to fly a drone over a business or even a farm to look for violations. If the drone is in "navigable airspace" and using equipment that is "generally available to the public," the precedent set in the Dow case suggests it might not even be a "search" in the eyes of the law.
📖 Related: Pictures of the White House Today: Why the Scaffolding Matters
However, the courts are starting to push back. In recent years, some state courts have started to say that drone surveillance is different because drones can fly much lower and stay in one spot longer than a Cessna. They’re more intrusive.
What You Should Know If You’re a Business Owner
If you run a business with outdoor operations, you can't just assume your fences are enough. The law is still very much on the side of "if we can see it from the air, it's fair game."
Here’s the reality of how things stand now:
- Navigable Airspace is Public: If an aircraft is where it’s legally allowed to be, anything it sees is generally not considered a private "search."
- Technology Matters: Using a standard camera is usually okay for the government. If they start using thermal imaging or technology that "sees through" structures, they typically need a warrant (this was later clarified in Kyllo v. United States).
- Industrial vs. Residential: The "open fields" doctrine is much more likely to apply to your business than your home. Your backyard is still a lot safer from prying eyes than your warehouse yard.
Actionable Steps for Protecting Your Privacy
While you can't legally block the sky, there are things you can do to strengthen your legal position if you're worried about surveillance:
- Document Your Security Efforts: If you’re trying to keep something secret, make it obvious. Use covers, roofs, or strategic landscaping. The more you "manifest an expectation of privacy," the better your argument in court.
- Understand Local Drone Laws: Many states have passed privacy laws specifically targeting drone use. Know what the rules are in your specific area, as they might be stricter than the federal standard.
- Consult with Legal Counsel: If you’re in a highly regulated industry (like chemicals, energy, or agriculture), talk to a lawyer about your Fourth Amendment rights. Pre-planning is always better than reacting to a surprise EPA photo op.
Basically, the world has changed since 1986, but the shadow of Dow Chemical Co. v. United States is still looming over us. It reminds us that privacy isn't just about what you can hide behind a fence—it's about what the law says the government is allowed to see.
To further protect your business interests, consider conducting a "privacy audit" of your outdoor facilities from an aerial perspective to identify what might be visible to a casual observer or a regulatory drone.