EPA/6Q0/A-9S/119
American Bar Association
Section of Natural Resources, Energy and Environmental Law
THE FOURTH ANNUAL ENVIRONMENTAL SCIENCES;
A PRIMER FOR THE TECHNICALLY CHALLENGED
Aerial Photography and Legal Applications
Terrfnce Slonecker
United States Environmental Protection Agency
Warrenton, Virginia
November 1-2,1995
Philadelphia, Pennsylvania

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AERIAL PHOTOGRAPHY AND LEGAL APPLICATIONS
Terrence Slonecker
United States Environmental ?rotection Agency
Varrenton, Virginia
INTRODUCTION
Aerial photographic interpretation is the process of examining objects on
aerial photographs and determining their significance (Quackenbush 1960,
Avery 1968). It is often defined as both AIT and SCIENCE because the
process, and the quality of the derived information, is often of a
qualitative nature and much depends on the training, ability, dedication
and imagination of the photo interpreter to make specific identifications
and complex inferences.
It is difficult to describe photographic interpretation without also
discussing two other related disciplines, pbotogrammmtrf and reaoCe
sensing. Photogrammetry Is defined as the science of obtaining reliable
information about physical objects and the environment by measuring
photographic images (Thompson and Gruner 1980). Remote sensing is the
broader field of techniques that utilize some type of electromagnetic
energy to record information about a target surface without physical
contact (Sabins 1986). Photo interpretation is one of the original forms
of remote sensing and probably still one of the most practiced forms,
although the use of satellite and aircraft Imaging sensors han increased
dramatically in the past twenty years and will undoubtedly increase in
utilization in the environmental sciences.
Aerial photographs have been used successfully In courtroom proceedings
for many years and prr-'ide distinct advantages for gathering and
presenting information about the earth's surface and its processes.
However, extracting useable information from aerial photographs is often
mora complex than it may seem to those unfamiliar with the technology.
This paper will review the basics of aerial photographic interpretation
and discuss some of the issues related to its utilization in a legal
arena.
HISTORY
The first recorded aerial photograph was taken from a balloon by Frenchman
Caapard Felix Tournachon In 1858. By I860, Americans Samuel King and J.tf.
Black had taken photographs of Boston from a balloon and General George
McClellan used balloon-based aerial photographs extensively to determine
enemy positions during the United Stares Civil Uar (Quackenbush I960).
The widespread use of aerial photography and photo interpretation began
with the first world war, obviously correlated with the expanding use of
aircraft for military purposes. By the 1920's, government agencies, such
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as the U. S, Geological Survey and the Army Map service had realized the
tremendous economic potential of aerial photographs in making maps. Other
agencies, such as the Department of Agriculture and the Forest Service,
began using aerial photographs extensively in resource inventories, crop
assessments and land use planning.
World War II was the impetus for the formalization of photogranmetry and
photo interpretation as accepted sciences. Photo Intel, .gence played a
paramount role in World War II, Highlights Include the air photo
discoveries of the Nazi concentration camps and the VI and V2 missile
capabilities. An interesting account of World War II photo interpretation
can be found in "Air Spy", by Constance Babington Smith (1957).
Aft#** ' orld War II, the utilization of aerial photographs and the
subaiMfuent expansion of science in the field of remote sensing has been
phenomenal. Avery (1960, page 8) lists 58 different routine applications
of aerial photographs ranging from aeronautical engineering (calibrating
aircraft parts) to zoology (populations Inventories).
Photography even found its way into space. Military and intelligence
programs of many countries recognized the strategic value of orbital
photographic platforms. Research on developing and deploying
earth-orbiting photographic sensors began in the 1950's and early
intelligence satellites were successfully operating as early as 1960. A
fascinating account of one such program can be found in the recently
released and declassified CIA document "CORONA: America's First Satellite
Program", (Ruffner 1995).
THE PRINCIPLES OF AIR PHOTO INTERPRETATION
The art and science or air photo interpretation is often minimized and
misconstrued with the simple process of everyday vision. Indeed, aerial
photographs that are taken from oblique angles and represent 'normal'
viewing perspectives, are often easier to interpret and understand.
However, most aerial photographs are taken for metric mapping purposes and
are therefore taken from a vertical perspective which allows ouch greater
mathematical fidelity but presents a perspective unfamiliar to uncrained
observers. In terms of courtroom applications, critical mistakes can be
made by professionals using aerial photographs but without experience,
training or credentials in the process of formal aerial photo
interpretation. The following Is a summary of some of the fundamental
elements of the photo Interpretation process.
chTfcmMttc* fl Afrtfl filgffRTtpfti
The are several Important characteristics of the aerial photograph that
are important to the process of extracting meaningful and accurate
information from them. It should be remembered that nearly all photo
interpretation Is performed with the aid of optical instruments that
magnify and enhance the Interpretation process.
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VISIBLE LIGHT: It is Important to note that aerial photographs capture
visible Light onto photographic emulsions or digital sensors. This should
be differentiated from other remotely sensed images, that nay also capture
reflected electro-magnetic (EH) energy in other non-visible parts of the
EM spectrum. This difference is important in that other parts of the
electronsgnetic spectrum react very differently with objects on the
earth's surface and a full underspending of these interactions is
necessary for accurate interpretation. An in-depth discussion of visible
light and the electro-nagnetlc spectrum can be found in ffabins (1986;.
SCALE: Scale refers to the simple ratio of the distance between two
points on an image or map, and the corresponding distance on the ground
(Sabins 1986). A coaeon scale on U.S. Geological Survey mapping products
(and aerial photographs) is 1:24,000, indicating that 1 inch on the map
equals 24,000 inches on the ground. Aerial photographic scales vary
widely, from satellite images that have scales of 1 to several million to
engineering applications that have scales of 1:100. Scale is critical to
the ability to distinguish small objects of fine detail. Scale is
determined by several factors including the altitude of the aircraft, the
focal length of the camera and the magnification factor of photographic
reproduction.
RESOLUTION: Photographic resolution refers to the ability to distinguish
between closely spaced objects on an intake (Sibins 1*86). It Is
determined by a number of factors including scale and the optical
properties of the camera system.
C0MTKAST: Contrast or the contrast ratio refers to the mathematical
relationship between the darkest parts of an image and the brightest parts
of an image. Higher contrast ratios usually improve the image's
interpretabillty.
Object Recognition
From Avery (1968) and Colwell (1960), there are seven principles of object
recognition that are utilized, consciously or unconsciously, by the
experienced photo analyst in extracting indorsation from aerial
photographs. These are:
SHAPE - Many objects have unique shape as c primary factor in their
identification.
SIZE - Both the absolute sice, a* mathematically computed and relative
sice of objects with respect to surrounding objects are important clues to
the identification of features on aerial photographs.
T0BE/CQL0& - Objects have different qualities of light reflectance and
this Is often a major clue in their Identification. Color, as recorded on
eerial photographs, has obvious identification characteristics and levels
of gray, on black-and-white photographs, tell the photo interpreter
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important: characteristics of an objects interaction with light
PATTZ1A - The spatial arrangement of features, especially in the natural
sciences, is a fundamental key to the photo interpreter. Trees planted in
rows in regular intervals display a pattern indicating an orchard as
opposed to a natural fc -st.
SHADOW - Shadows are a undamental element of the photo interpretation
process. Analysis of tne shadow of an object often reveals critical
structural characteristics that nay not be readily apparent from the
object itself due to the vertical viewing angle.
TOFOG1AFHT - Many objects and processes on the earth's surface are
fundamentally related to the topographic setting or 'lay of the land' in
which they are located. Especially important for the identificacion of
plants and trees, the relative elevation, drainage features and geologic
and soil conditions are important eleocnts for understanding natural
objects and processes.
TEXTU&2 - The degree of coarseness or *muothnesi* of an area on photo
images can be a critical element for identification purposes.
Other Factors
There are two other factors in the interpretation process that should be
mentioned as they are critical to air photo interpreters.
STEREOSCOPIC VIEVIHG - One of the most important tools in aerial
photographic interpretation is the ability to view objects in three
dimensions via stereoscopic parallrr. Nearly all standard aerial
photographs are imaged in such a way that approximately 60% of each frame
of imagery overlays the previous frame. As a result, any particular ibject
is imaged twice, on successive photographs, and at slightly different
angles. By optically combining both images with some type of viewing
device, a three dimensional scene is observed, greatly enhancing the
ability to discriminate and interpret various objects and situations.
COmtOEBCE OF EVIDENCE - One final point that should be made about aerial
photographic interpretation is what Rabben (i960) termed ''Convergence of
Evidence". This term refers to a more complex process of deduction to
determine the Identification of an object or situation. After identifying
the simpler landscape components on an image, the interpreter, through
logical deduction is able to make judgements of probability. The
background and experience of the Interpreter plays an important role here.
An excellent example of this concept can be found in Colwell (1960, page
109-111) where the analysis goes through a atep by step process to
determine than a large landscape feature on an aerial photograph Is, in
fact, a military cemetery.
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LEGAL FRAMEWORK
Aerial photographs and Che information derived from then ire of course
highly valuable to the courtroom and to legal proceedings. this is
especially true for those involving natural resources or the environment,
although any applications of aerial photographic analysis could
conceivably be Important to litigation. Photographs represent reality at
a given point in time and present a powerful demonstrative tool in
evidentiary applications. Ciccone (1986) demonstrated that the
'information retention' of an average person is increased dramatically
when visual aid* are used In addition to simple verbal Information alone.
In this regard, photographs present an extremely powerful tool in the
courtroom. Photographs can powerfully depict altered landscapes, changes
in natural condi *ion, vehicular activity and many other conditions that
can have direct bearing on legal issues.
Latin, et al (1976) and Uhlir (1990) categorized three remote sensing
applications in the legal arena: (1) applications primarily aimed at the
development of public formal policy, (2) investigatory applications, and.
(3) applications expected to produce admissible evidence. Admissibility
and the formal rules of evidence would apply to all data to varying
degrees of scrutiny depending on whether the application was criminal,
civil oir administrative. Although there has been significant utilization
of aerial photography and other remote sensing systems in the first two
above categories, the actual use as evidence has been somewhat limited,
mostly due to a general lack of knowledge and uncertainty over privacy and
search and seizure Issues, which are not yet fully addressed through
Judicial decision. Also, another possibility is that the effectiveness of
the photographic medium is so strong in the pretrial and discovery stages
that many cases are settled before the actual trial phase (Uhlir 1990).
Aerial photographic and other remote sensing products offer several
distinct advantages for environmental monitoring (Kroeck and Shelton
1982).
1.	Imagery creates a permanent record of morphological
characteristics and activities at a single point in
time that is generally admissible as demonstrative
evidence in U.S. Courts.
2.	Imagery archives dating back ,o the 1920's end
•onetimes earlier, can be used t« create a historical
profile of environmentally significant activity.
3.	Imaging techniques are often cost-effective
alternatives to labor-intensive, ground-based
techniques. Also, they are an excellent
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alternative when ground-fi&jed Methods are impossible
or iinpractic.il.
4,	In general terms, legally-admissible remote sensing
can be accomplished without a search warrant.
5.	Remote Sensing products can be easily converted into
highly- accurate measurements, maps,	Geographic
Information Systems (GIS) data or other
cartographic products.
is—aits
Remote sensing and aerial photography have been successfully used in a
number of environmental monitoring applications. Some examples include:
1.	Sludge deposited for years in Lake Champlain by a pulp and paper
company eventually moves across the center line of the lake which
is also the boundary between Vermont and New York (and also between
EPA Region 1 and 2). Vermont claims that its waters have been
degraded and wants the company to pay for clean up. A Special
(faster, assigned by the Supreme Court, studies the issue and rules
in favor of Vermont. The key piece of evidence is a multispectral
scanner image from the LANDSAT satellite (Felsher 1993) .
2.	A steel plant on the shores of * tke Michigan is charged with
polluting the waters from which Chicago draws its drinking water
supplies. EPA scientists use a thermal infrared image and a
SKYLAB photograph to prove that the heated discharge water does in
fact migrate to the City of Chicago's water supply Intake
(Felsher 1993).
3.	In the first defense of the Comprehensive Response Compensation
and Liability Act (CERCLA), better known as "Superfund", aerial
photographs play a critical role in establishing liability for
a drum re-eyeling facility and the operation of a caustic disposal
lagoon, suspected of polluting the local groundwater (Tejada
1986).
4.	In 1982, EPA requests a second inspection of air-pollutlon control
equipment at the Dow Chemical Facility In Midland, Michigan. When
denied the second visit, CPA secures the services of a commercial
aerial photographer to overfly and photograph the facility. Upon
discovering the aerial overflight, Dow sues, claiming violation of
trade secrets and invasion of privacy. The case eventually ends up
in the Supreme Court of the United States, where on May 19, 1986,
the case is decided in favor of the government - a landmark legal
decision (Dow Chemical v. United States 1986, Koplow 1992).
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*irUl Photography and the Constitution
The use of aerial photography by government for purposes of closestlc
lav enforcement ha* naturally raised a number of legitiaate concerns
relating to individual privacy and the bounds of legal authority. The
legal issues surrounding the use of overhead remote sensing techniques for
monitoring and enforcement revolve largely around the history and
interpretations of the Fourth Amendment guarantee* against unreasonable
search and seizure. The constitutional guarantee against unreasonable
searches is a complex concept in the American model of civil liberties.
Since 1914, in Weeks v. United States, the Supreme Court rul#«.' thai-
evidence obtained through an Illegal search (without a war*	an
probable cause) could not be used in a federal crimir
Subsequent Supreme Court decisions have further extended a	»
unwarranted searches to include remote monitoring artivati»	>t
involve physical trespas , such a* wiretapping and	tic
eavesdropping (Volkomer 1972) . In the 1967 Kmtz v. Unltmd ji	the
seminal case in search and seizure Issues, the Supreme Court set . »c two
lines of inquiry to define searches that may be permissible without a
warrant. First. has there been exhibited an actual, subjective
expectation of privacy and, second, is this expectation one tnat society
Is prepared to accept as reasonable?
To date the landmark legal decision concerning remote sensing and law
enforcement is Dov Chmaical Company v. The United irate* (Koplow 1992). In
an attempt to enforce Clean Air Act regulations. EPA sought access to the
DOU Chemical plant in Midland Michigan. When access was refused, CPA
contracted for at: aerial photographic overflight, using a standard manplng
camera. Upon discovering EPA actions, Dew brought suit claiming that CPA
violated trade-secrets law, acted outside of its authority and conducted
an illegal search under the Fourth Amendment. eventually, the Supreme
Court ruled, in a close 5-4 decision, that EPA had acted legally in the
acquisition of the aerial photographs. Although there were two othet key
elements in the Dow decision, trade secrets law and the statutory
authority of the EPA. the main issue focussed on whether an aerial
photographic overflight was an unreasonable search under the Fourth
Amendment.
Expectation Of Privacy; Curtilage and Open Fields
expectation of privacy is a kay element of the Fourth Amendment
Interpretations, especially as applied to the individual in society. Dow
Chemical relied heavily on this principle, based primarily on trade
secrets laws and the right to be protected from industrial espionage. The
question to be posed simply becomes 'Do Industrial facilities have the
same right to a reasonable expectation of privacy that we grant to the
individual in society?' Two key legal concepts arc relevant to this
question, curtilage and ooen flelda. Curtilage is simply defined as the
yard or courtyard surrounding a dualling, usually within a fence or some
other type of perimeter security device. The curtilage of the individual
home, under traditional common law, has enjoyed almost the same Fourth
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Amendment protect ion that is afforded inside the home. An individual
within the cartilage of his/her home has a reasonable expectation "f
privacy that cannot be intruded upon, except by warrant !,4). Dow tried unsuccessfully to claim that the open areas of a
large industrial complex were analogous to a concept of industrial
curtilage,
Although the court held that a company has a reasonable and legitiaate
expectation of privacy within their covered buildings, this expectation of
privacy does HOT translate to the outdoor areas of a manufacturing plant
(Dow 1986, page 10).
Societal Acceptance
The second key Inquiry from Katz is the test of whether the expectation of
privacy is one that society is willing to accept. Traditionally, in cases
of the rights of individuals, this ruling has been very broad. However,
it is clear that the court was not willing to extend this same standard to
commercial enterprises. Justice Burger wrote that the homeowners interest
in his dwelling is very different from the interest of the owner of
commercial property with respect to being free from inspections (Dow 1986,
Page 10) .
However, the legal debate surrounding aerial photographs, satellite remote
sensing and related Issues is likely to continue. The Dow decision, in
many ways, raised as many questions as it answered. Several commentators
such as Koplow (1992), Cootee (1990) and others have assertfd that the
Supreme Court simply erred on key points of the technology and its
limitations. Further, the rapidly advancing technology of remote sensing
science is likely to create legal considerations beyond the limitations of
visible light and human vision which were fundamental to the Dow decision
and simple aerial photography.
PRACTICAL CONSIDERATIONS
The are several practical considerations that should be kept in mind when
considering the use of aerial photography in a legal framework.
OBTAINING AERIAL PHOTOGRAPHS - Obtaining historical and current aerial
photographs is a non-trivial process that routinely involves months of
research and effort. Historical aerial photographs are generally
available through a number of government and private sources and obtaining
current aerial photographic overflights requires planning and contracting.
The Earth Science Information Center of the U.S. Geological Survey is an
excellent starting point.
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IKTEtfftCTAtlOK EXPERTISE - Althrugn aerial photographs are routinely use#
by oany professionals In a wi4e variety of fields, the occasional
Interpretation of photos does SOT necessarily equate to being an expert In
all aspects of photo interpretation. This is especially true it the
application of interest starts to deviate, «v*n slightly, from the narrow
focus of an analyst's routine use &f photographs. Photographic experts
are available froa & variety of private and public institutions ami the
Aaerican Society for PhotograisMtry and Remote Sensing (ASPRS) operates a
certification prograa for practitioners In remote sensing, aerial
photography and related disciplines.
RULES OF EVIDE8CE . Depending on the legal application, getting aerial
photos introduced as evidence requires time and special handling. Simply
obtaining an aerial photograph that say haw special significance to a
case, is often just the first step. In aany situations, a CERTIFICATION
OF ORIGINAL COPY is required and ChAlS-OF-CtSTODf rules and handling of
photographic aaterials are required. These often take significant aaounts
or l»e and effort and requires aonths of ir-or planning.
101 ADDITIONAL IMFORXATIOK • additional information on aerial photography,
photograaaatry and remote sensing is available in several excellent
documents produced by the 'JSCS Earth Scienc Information Center (703-648-
6045) and the Ax&erican Society for Photograame4-" and Remote Sensing (301-
493-C290).
SOTICE
Although the research described in this docuoent has been funded wholly or
in part by the U.S. Environmental Protection Agency. it does not
necessarily reflect the views of the Agency and no official endorsement
should be inferred.
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REFERENCES
Avery, T.E. 1968. Interpretation of Aerial Photographs. Burgess
Publishing Comprny, Minneapolis, Minnesota.
Babington-Smith. C, 1957. Air Spy. American Society For Photogrammetry
and Remote Sensing, Bethesda, Maryland
Ciccone, ".D. 1986. Seeing Is Believing. IS; Photographs and Haps To Go
To Court, Larry Gillen, Editor. Anerican Society For Photogramaetry
And Remote Sensing, Bethesda, Maryland.
Colwell, Robert N. , Editor. 1960. Manual of Photographic Interpretation.
American Society For Photogrananetry and Remote Sensing, iethesda,
Maryland.
Dow Chemical Company v. United States. 536 F.Supp. 1355, 1367
(E.D.Mich.1982), rev'd 749F.2d 307 (6th Cir. 1984), aff'd 476 U.S. 227
(1986).
Felsher, M. 1993. Environmental Remote Sensing: Old Applications, Missed
Opportunities, And New Infrastructures. In Proceedings: Annual
Meeting Of The Geological Scientists Of America. Boston,
Massachusetts,
Gootee, J.M. 1990. Aerial Searches: A Defendant's Perspective - Dow
Chemical v. United States. IN: Earth Observation Systems, Legal
Considerations For The 90s. American Society For Photogramaetry And
Remote Sensing, Bethesda, Maryland, and, American Bar Association,
Chicago, Illinois.
Katz v. United States. 389 U.S. 347 (1967).
Koplow, D.A. 1992. Overflying The Country Without Overlooking The
Constitution: Legal Implications Of Aerial Overflights. IN: Open
Skies, Arm Control and Cooperative Security, M. Krepon and A.E.
Saithson, Editors. Saint Martins Press, New York
Kroeck, R.M. and G.A. She1ton. 1982. Overhead Remote Sensing For
Assessment Of Hazardous Waste Sites. EPA Report 60Q/X-82-019.
Environmental Monitoring Systems Laboratory, Las Vegas, Nevada.
Latin, H.A., G.W. Tannehill and R.E. White. 1976. Remote Sensing and
Environmental Law. California Lav Review. Volume 64 Number 6.
Oliver v. United States. 466 U.S. 170 (1984)
Quackenbush, R.S. 1960. The Development of Photo Interpretation. IN:
Manual of Photographic Interpretation. R.N. Colwell Editor. American
Society For Photogramm.try and Remote* Sensing, Bethesda, Maryland.
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Rabben, E.L. 1960, Fundamentals of Photo Interpretation. It): Hamuli of
Photographic Interpretation. R.N. Colvell Editor. American Society
For Photogrammetry and Remote Sensing, Bethesda, Maryland.
Ruffner, K.C., Editor. 1995. CORONA: America's First Satellite Program.
Central Intelligence Agency, Washington D.C.
Sabirxs, F.F. 1986. Remote Sensing Principles And Interpretation. W.H.
Freeman and Company, New York.
Tejada, S. 1986. On Camera For EPA. EPA JOURNAL. Volume 12 Number 2.
United States Environmental Protection Agency, Office of Public
Affairs, Washington, D.C.
Thompson, M.M. and H. Grnner. 1980. Foundations of Photosramaatrv. IN:
Manual Of Photograimetry. C.C. Slaaa. Editor. American Society For
Photogrammetry and Remote Sensing, Bethesda, Maryland.
Uhllr, P.F. 1990. Applications of Remote Sensing Information in Law: An
Overview. IN: Earth Observation Systems, legal Considerations For The
90s. American Society For Photogramatery And Remote Sensing, Bethesda,
Maryland, and, American Bar Association, Chicago, Illinois.
Volkomer, W.E. 1972. American Government. Appleton-Century-Crofts. New
York.
Weeks v. United States. 232 U.S. 383 (1914).
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id AMTMACT 	 - 	- -
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infomiafion is Men a Qualitative nature and much depends on the traMno abilitv dedication and imaaination of ttie
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