[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EYES IN THE SKY: THE DOMESTIC USE OF UNMANNED AERIAL SYSTEMS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MAY 17, 2013
__________
Serial No. 113-40
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
SPENCER BACHUS, Alabama Virginia
J. RANDY FORBES, Virginia PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona JUDY CHU, California
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina KAREN BASS, California
RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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MAY 17, 2013
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations................................................. 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations................................................. 2
WITNESSES
John Villasenor, Nonresident Senior Fellow, The Brookings
Institution
Oral Testimony................................................. 4
Prepared Statement............................................. 6
Gregory S. McNeal, Associate Professor of Law, Pepperdine
University School of Law
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Tracey Maclin, Professor of Law, Boston University School of Law
Oral Testimony................................................. 32
Prepared Statement............................................. 34
Christopher R. Calabrese, Legislative Counsel, American Civil
Liberties Union (ACLU)
Oral Testimony................................................. 38
Prepared Statement............................................. 40
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable F. James Sensenbrenner, Jr.,
a Representative in Congress from the State of Wisconsin, and
Chairman, Subcommittee on Crime, Terrorism, Homeland Security,
and Investigations............................................. 1
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, Homeland
Security, and Investigations................................... 3
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 52
EYES IN THE SKY: THE DOMESTIC USE OF UNMANNED AERIAL SYSTEMS
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FRIDAY, MAY 17, 2013
House of Representatives
Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 9 a.m., in room
2141, Rayburn House Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Gohmert,
Coble, Franks, Chaffetz, Gowdy, Poe, Conyers, Scott, Chu, Bass,
Richmond, and Jackson Lee.
Staff Present: (Majority) Sam Ramer, Counsel; Allison
Halataei, Parliamentarian & General Counsel; Alicia Church,
Clerk; and (Minority) Joe Graupenspurger, Counsel.
Mr. Sensenbrenner. The Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations will come to order. Today
we are having a hearing called, ``Eyes in the Sky: The Domestic
Use of Unmanned Aerial Systems,'' and this is dealing with the
use of these systems within the United States. There are a lot
of privacy and civil liberties concerns that are raised in
there.
We are supposed to have votes about 10:00, and to try to
get the hearing over with prior to the time we have votes
because I do not think many Members will come back, I am going
to ask, first, unanimous consent that the Chair be authorized
to declare recesses when there are votes on the floor and,
secondly, ask unanimous consent that all Members' opening
statements be placed in the record, including mine and the
Ranking Member's, and at this time, I will yield to the Ranking
Member, Mr. Scott, to say whatever he wants to say.
[The prepared statement of Mr. Sensenbrenner follows:]
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
Welcome to the Subcommittee on Crime, Terrorism, Homeland Security
and Investigations' hearing, ``Eyes in the Sky: the Domestic Use of
Unmanned Aerial Systems.'' Today we will explore the use of unmanned
aircraft within the United States. We will discuss the possible uses
and capabilities of such unmanned aircraft, and we will learn about the
effect such use may have on the privacy of Americans. We will also
discuss the constitutional issues that may arise when the government
uses unmanned aircraft for law enforcement and public safety purposes.
The United States remains at the forefront of technological
progress. Every day we hear of some advancement in communications or
computer technology that promises vast improvements in our daily lives.
We have become a much more interconnected and informed population than
we were just 10 years ago.
Within the last few years, high powered computers and data networks
have been combined with aircraft, allowing them to be piloted remotely.
Now, we are witnessing a boom in unmanned aerial systems, or UAS.
Small, maneuverable UAS promise benefits in many fields that used to
rely on manned aircraft. Law enforcement and public safety are
increasingly becoming the most prevalent uses for UAS.
Unmanned aircraft can now be flown for longer times and for longer
distances than ever before. Improved technology enables ground
operators to both control UAS and to receive images and data from the
aircraft. UAS are safer and less expensive to operate. It is now
possible to purchase a UAS helicopter from a hobby store for a few
hundred dollars and pilot it remotely from your smart phone or computer
tablet.
The ability to fly a small, unmanned aircraft with cameras and
sensors can also profoundly affect privacy and civil liberties in this
country. No longer restricted to the high cost and short flight time of
manned flight, UAS can hover outside a home or office. Using face
recognition software and fast computer chips, a UAS may soon be able to
recognize someone and follow them down the street. These new
surveillance capabilities, in the hands of the police, may be intrusive
to our concepts of individual liberty.
That is why I have cosponsored the ``Preserving American Privacy
Act of 2013,'' a bill sponsored by Representative Ted Poe of Texas and
Representative Zoe Lofgren of California.
As UAS becomes more prevalent in our lives, we need to look at the
4th amendment and privacy implications of technology that enables
prolonged remote flight. It has been well-settled in Supreme Court
cases that the ``reasonable expectation of privacy'' applies to the
home and surrounding cartilage. In contrast, generally speaking, a
person that walks down the street no longer enjoys that expectation of
privacy. This is commonly referred to as the open fields doctrine.
The distinction between one's home and curtilage versus the open
fields is an important legal concept for understanding how the 4th
amendment is applied to our daily lives.
UAS capabilities may affect how we decide the extent of the
curtilage, along with the position of fences and walls. This is a
subject that has great relevance today. This past March, in the case of
Florida v. Jardines, the Supreme Court ruled that a police dog sniffing
for marijuana at the front door of a house qualifies as a search under
the 4th amendment. Justice Scalia, in that opinion, wrote about the
importance of the curtilage, saying that the curtilage is ``part of the
home itself for 4th amendment purposes.''
UAS may affect the debate where curtilage ends and the 'open
fields' start. Any technology carried by a UAS that will magnify or
enhance human senses could affect privacy concerns under the 4th
amendment.
Every advancement in crime fighting technology, from wiretaps to
DNA, has resulted in courts carving out the constitutional limits
within which the police operate. With us today are several experts in
UAS and constitutional law, and we will discuss the implications for
this new technology and the constitution. We will discuss the
directions in which constitutional legal theory is likely to go, and
what the implications are for this promising, and potent new
technology.
I look forward to hearing more about this issue and thank all of
our witnesses for participating in today's hearing.
__________
Mr. Scott. Thank you, Mr. Chairman.
I am pleased that we are examining these important topics
and look forward to working with my colleagues on the Committee
to update our laws to conform our expectation of privacy to
emerging technology and ask that the rest of my statement be
placed in the record.
Mr. Sensenbrenner. Without objection.
[The prepared statement of Mr. Scott follows:]
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and Ranking
Member, Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations
Good morning. Today the Subcommittee continues its focus on issues
relating to evolving technology and privacy by discussing the use of
drones by domestic law enforcement agencies.
As with the prior issues we've discussed with concerning email
privacy and cell phone location privacy, advances in technology are
outpacing our privacy laws.
I am pleased that we are examining these important topics and look
forward to working with my colleagues on the Committee to update our
laws where necessary.
The subject of drones is one of these areas that requires our
attention. With expected action by the FAA to allow for the increased
use of drones in U.S. airspace, drones will assist our society in many
ways. Remote observation through the use of such drones has a wide
variety of potential applications in the United States, such as helping
to find lost children, identifying hot spots in forest fires,
monitoring the health of crops, recording atmospheric data, and
identifying traffic congestion.
Equipped with sophisticated cameras and sensing devices, drones
will also greatly assist law enforcement with surveillance. Used
appropriately, drones can help make us safer--but we must set clear
rules establishing how the government may use drones for collecting
information for law enforcement purposes.
We do not know how the courts would rule on the constitutionality
of the warrantless use of drones by law enforcement, but the Supreme
Court has allowed the warrantless use of aerial surveillance in some
circumstances by aircraft with onboard pilots.
In those cases, the warrantless surveillance that was allowed
involved the use of aircraft over fixed locations to detect and observe
violations of the law. However, those cases did not involve the wide
range of situations in which drones could be used by law enforcement,
such as tracking individuals for long periods of time.
We should take note that Supreme Court justices are beginning to
express concern about the degree and extent that new and emerging
technologies impact privacy. The decision last year in U.S. v. Jones
demonstrates that we are at a crossroad with respect to privacy and
these new technologies.
While the Jones case generated a narrow ruling by Justice Scalia
concerning a GPS tracking device, the concurring opinions of Justice
Sotomayor and Justice Alito are relevant to the issue we are discussing
today. Both of those justices expressed concern about the use of
rapidly developing technology to track our movements.
Justice Alito cited the ability of the government, using new
technology, to engage in long-term monitoring of an individual without
the usual, practical constraints on law enforcement, such as resources
and need for multiple personnel. He stated that, ``In circumstances
involving dramatic technological change, the best solution to privacy
concerns may be legislative.''
I note that my home state of Virginia recently adopted legislation
providing for a 2-year moratorium on drone use by law enforcement, with
some exceptions.
As we discuss the use of drones by law enforcement today, I believe
we should take heed of Justice Alito's concerns and begin examining
ways for Congress to legislatively address privacy concerns presented
by the use of drones for law enforcement purposes.
Thank you.
__________
Mr. Sensenbrenner. We have a very distinguished panel
today. I will begin by swearing in our witnesses before
introducing them. If you would, please all rise.
[Witnesses sworn.]
Mr. Sensenbrenner. I will be very brief in the opening
introductions.
Our first witness is Mr. John Villasenor, who is a
nonresident scholar, senior fellow in the governance studies
for the Center of Technology and Center For Technology
Innovation at Brookings. He is a professor of electrical
engineering and public policy at UCLA and a member of the World
Economic Forum's Global Agenda Council on the Intellectual
Property System.
Mr. McNeal is a professor at Pepperdine University School
of Law, and he previously served as the assistant director of
the Institute for Global Security and co-directed a
transitional counterterrorism program for the Justice
Department.
Mr. Tracey Maclin is a professor at Boston University
School of Law. He has served as counsel of record for the ACLU
in issues addressing Fourth Amendment issues.
Mr. Calabrese is the legislative counsel for privacy-
related issues in the ACLU's Washington legislative office.
Prior to that he served as the project counsel on the ACLU
Technology and Liberty Project.
And with that, I will say that, without objection, all of
the witnesses' full statements will be placed into the record.
Each of you will have 5 minutes to summarize your full
statement. We have a timer in front of you. I think you are all
familiar with the green, yellow, and red lights.
And Mr. Villasenor, you are first.
TESTIMONY OF JOHN VILLASENOR, NONRESIDENT SENIOR FELLOW, THE
BROOKINGS INSTITUTION
Mr. Villasenor. Good morning, Chairman Sensenbrenner,
Ranking Member Scott, and Members of the Subcommittee. Thank
you very much for the opportunity to testify today on the
important topic of privacy and unmanned aircraft systems or
UAS. I am a nonresident senior fellow in governance studies in
the Center for Technology and Innovation at the Brookings
Institution. I am also a professor at UCLA, where I hold
appointments in both the electrical engineering department and
the department of public policy.
The views I am expressing here are my own and do not
necessarily represent those of the Brookings Institution or the
University of California.
When discussing unmanned aircraft privacy, it is helpful to
keep in mind the incredible variety of platforms made possible
by this rapidly developing technology. Some unmanned aircraft,
such as the Global Hawk, used by the U.S. military, are as
large and nearly as fast as business jets. Some can stay aloft
for very long periods of time. In the summer of 2010, a solar-
powered airplane with a wingspan of about 74 feet but weighing
only slightly over 110 pounds stayed aloft for over 2
continuous weeks over Arizona. Boeing is under contract with
DARPA to develop the SolarEagle, which will be able to stay
aloft in the stratosphere for 5 continuous years.
Some unmanned aircraft are amazingly small. The Nano
Hummingbird, developed by California-based AeroVironment,
weighs only two-thirds of an ounce, including an onboard video
camera. A few weeks ago a team of Harvard researchers reported
the successful flight of the RoboBee, a robotic insect powered
by electricity delivered through a thin wire attached to an
external power source. The RoboBee weighs less than one three-
hundredth of an ounce.
Unmanned aircraft can be employed in an endless variety of
civilian applications, the overwhelming majority of them
beneficial. They can help rescuers identify people in need of
assistance following a natural disaster. They can provide vital
overhead imagery to police officers attempting to defuse a
hostage standoff. In agriculture, they can be used for crop
spraying. Scientific applications include air quality
assessment, wildlife tracking, and measuring the internal
dynamics of violent storms.
Unmanned aircraft will provide a significant important new
tool for news gathering as well. And they will generate
significant economic benefits, both by creating jobs in
unmanned aircraft design and production and by spurring
advances in robotics that will apply well beyond aviation in
fields ranging from manufacturing to surgery.
However, like any technology, unmanned aircraft can also be
misused. In particular, there are legitimate and important
privacy concerns. For unmanned aircraft operated by
nongovernment entities, privacy involves contention between
First Amendment freedoms and common law and statutory privacy
protections. The First Amendment privilege to gather
information is extensive, but it is not unbounded, and it ends
when it crosses into an invasion of privacy.
With respect to government-operated unmanned aircraft
systems, the Fourth Amendment is of course central to the
privacy question. While the Supreme Court has never explicitly
considered warrantless observations using unmanned aircraft, a
careful examination of Supreme Court jurisprudence suggests
that the Fourth Amendment will provide a stronger measure of
protection against government unmanned aircraft privacy abuses
than is widely appreciated.
The Fourth Amendment has served us well since its
ratification in 1791, and there is no reason to suspect it will
be unable to do so in a world where unmanned aircraft are
widely used.
This does not mean that there is no need for additional
statutory unmanned aircraft privacy protections. In fact, it
makes eminent sense to consider appropriately balanced
legislation. However, when considering new laws for unmanned
aircraft privacy, it is important to recognize the inherent
difficulty of predicting the future of any rapidly changing
technology. Legislative initiatives in the mid-1990's to
heavily regulate the Internet in the name of privacy would
likely have impeded its growth while also failing to address
the more complex privacy issues that arose in the subsequent
decade with the advent of social networking and location-based
wireless services.
When considering new laws for unmanned aircraft privacy, it
is also important to recognize the power of existing legal
frameworks. Those frameworks can play a vital role in
preserving privacy in the face of a lengthening list of
technologies that might be misused to violate it. Some of the
best privacy protection may, in fact, lie not in statutory text
drafted with a keen eye on the latest innovations in unmanned
aircraft technology but instead in constitutional text drafted
over 200 years ago.
Thank you again for the opportunity to testify on this
important topic.
[The prepared statement of Mr. Villasenor follows:]
__________
Mr. Sensenbrenner. Thanks very much.
Mr. McNeal.
TESTIMONY OF GREGORY S. McNEAL, ASSOCIATE PROFESSOR OF LAW,
PEPPERDINE UNIVERSITY SCHOOL OF LAW
Mr. McNeal. Good morning, Mr. Chairman, Ranking Member
Scott, Members of the Subcommittee. I am pleased to be here to
testify on this important issue. I want to commend the
Subcommittee for the approach that you are taking, too. This is
a very difficult issue to legislate on, and the approach that
the Committee is taking I think is really a wise one, beginning
first, of course, with our Fourth Amendment precedents and then
working our way down through various privacy considerations.
The looming prospect of expanded use of unmanned aerial
vehicles, colloquially known as drones, has raised
understandable concerns regarding privacy. Those concerns have
led some to call for legislation mandating that nearly all uses
of drones be prohibited unless the government has first
obtained a warrant. Such an approach would exceed the
requirements of the Fourth Amendment and lead in some cases to
perverse results that in some instances would prohibit the use
of information when gathered by a drone but would allow the
same information to be admitted if gathered by nearly any other
means.
Such a technology-centered approach to privacy I think
misses the mark. If privacy is the public policy concern, then
legislation should address the gathering and use of information
in a technology-neutral fashion. This testimony outlines six
key issues that Congress should remain cognizant of when
drafting legislation.
First, Congress should reject calls for a blanket
requirement that all drone use be accompanied by a warrant.
Proposals that prohibit the use of drones for the collection of
such evidence or information unless authorized by warrant are
overbroad and in my view ill-advised. Such legislation treats
the information from a drone differently than information
gathered from a manned aircraft, differently than that gathered
by a police officer in a patrol car or even an officer on foot
patrol. Under current Fourth Amendment jurisprudence police are
not required to shield their eyes from wrongdoing until they
have a warrant. Why impose such a requirement on the collection
of information by drones?
Second, Congress should reject broadly worded use
restrictions that prohibit the use of any evidence gathered by
drones in nearly any proceeding. Such restrictions exceed the
parameters of the Fourth Amendment and, in some circumstances,
may only serve to protect criminals while not deterring
government wrongdoing.
Third, if Congress chooses to impose a warrant requirement,
it should carefully consider codifying some exceptions to the
warrant requirement. For example, it should codify--as the
Supreme Court has noted, suppressing evidence has serious
consequences for the truth seeking and law enforcement
objectives of our criminal justice system and, as such, should
present a high obstacle for those urging for its application.
It should be our last resort, not our first impulse. As such,
the measures for when we should apply the exclusionary rule
should not be whether a drone was used but, rather, should be
when the benefits of deterrence outweigh the costs.
Fourth, Congress should spend a substantial amount of time
carefully defining terminology and specifying what places are
entitled to privacy protection. What a layperson sees when they
read the word ``search,'' what a legislator means, and what a
court may think the legislature meant are all different things.
As such, when using terms like ``search,'' ``surveillance,''
``reasonable expectations,'' ``curtilage,'' ``private
property,'' ``public place'' and other terms of art that we as
lawyers are familiar with, Congress should specify what the
terms mean. This definitional task will be the most important
part of the legislative drafting process as the terminology
will drive what actions are allowable and what places are
entitled to privacy protection.
Congress should consider adopting an entirely new set of
definitions where necessary and be prepared to reject the
existing terminology which may be confusing or overprotective
or underprotective.
Fifth, Congress may want to consider crafting simple
surveillance legislation rather than very detailed drone-based
legislation. Some of the ways that Congress might want to look
at this would be to craft a sliding scale for surveillance that
looks at the duration for which surveillance might be conducted
rather than looking at the platform from which the surveillance
is launched, from which the surveillance takes place.
Sixth, Congress should consider adopting transparency and
accountability measures, perhaps in lieu of a warrant
requirement or suppression rules. Transparency and accountably
measures may be more effective than suppression rules or
warrants for controlling and deterring wrongful government
surveillance. To hold law enforcement accountable, Congress
should mandate that the use of all drones or unmanned systems
be published on a regular basis, perhaps quarterly, on the Web
site of the agency operating the system. These usage logs
should detail who operated the system, when it was operated,
where it was operated, perhaps even including GPS coordinates,
and what the law enforcement purpose for the operation was.
Congress may even mandate that manufacturers of unmanned
systems make their systems equipped with software that allows
for the easy export of flight logs that contain this
information. Such logs will allow privacy advocates and
concerned citizens to closely monitor how drones are being used
and enables the political process as a mechanism to check
government action rather than relying on the courts.
The emergence of unmanned aerial vehicles in domestic skies
raises understandable privacy concerns that require careful and
sometimes creative legislation. Rather than pursuing a drone-
specific approach or a warrant-based approach, Congress should
consider surveillance legislation aimed at making the use of
these systems more transparent and empowering the people to
hold government accountable. Thank you.
[The prepared statement of Mr. McNeal follows:]
__________
Mr. Sensenbrenner. Thank you very much.
Mr. Maclin.
TESTIMONY OF TRACEY MACLIN, PROFESSOR OF LAW,
BOSTON UNIVERSITY SCHOOL OF LAW
Mr. Maclin. Thank you, Mr. Chairman, Ranking Member Scott,
and Members of the Committee for inviting me to testify about
the Fourth Amendment issues surrounding the domestic issue--
domestic use of drones by law enforcement officials. The
constitutionality of drones for domestic law enforcement
purposes raises several important questions that are not easily
answered by the Supreme Court's current Fourth Amendment
jurisprudence.
As you know, drones can be equipped with sophisticated
cameras, thermal imaging devices, license plates readers, and
laser radar systems. According to a recent paper by the
Congressional Research Service, drones will soon be able to
operate with facial recognition or soft biometric recognition
equipment that can recognize and track individuals based on
attributes, such as height, age, gender, skin color. Because of
the advanced technology now available, comparing a drone to a
traditional airplane or helicopter is like comparing a frisk
from a police officer to a modern x-ray machine that can see
beneath one's clothes and graphically depict one's physical
features.
The Supreme Court's 1980 Supreme Court rulings that
airplanes and helicopter surveillance do not implicate the
Fourth Amendment were premised on naked eye observations and
surveillance equipment that was readily available to the
public. For example, in California v. Ciraolo, Chief Justice
Burger's majority opinion distinguished concerns about future
electronic developments from what he called, quote, simple
visual observations from a public place that were challenged in
Ciraolo. Moreover, in each of these cases the court signaled
that more intrusive and sophisticated police surveillance would
raise different and very, and more difficult Fourth Amendment
issues.
Thus, I agree with our previous speaker, John Villasenor
that the Court's 1980 rulings do not control the use of drones
that are capable of capturing much more detail unavailable to
the human eye. Furthermore, it is important to recognize, even
among the Justices of the current Court, that the definition of
what constitutes a search and thus what triggers the Fourth
Amendment is subject to change, and I would say is in a state
of flux.
In the recent GPS case, United States v. Jones, five
justices indicated a willingness to reassess traditional
notions of privacy under the Court's Katz analysis. For
example, Justice Sotomayor encouraged her colleagues to
reconsider the Court's traditional analysis for even short-term
monitoring of a person's public activities. And Justice Alito,
although not going as far as Justice Sotomayor, indicated his
willingness to consider the Court's current privacy
jurisprudence. And I state from Justice Alito's concurrence and
dissent, he said, quote, The use of longer-term GPS monitoring
investigations of most criminal offenses impinges expectations
of privacy. Now, what I read from that are five of the justices
are saying that you have an expectation of privacy vis-a-vis
long-term electronic monitoring when you are in the public.
Well, if you have got that expectation of privacy, at least in
the eyes of five of the Justices when you are in the public,
when you are on the public streets, you certainly ought to have
that same level of expectation of privacy when you are on your
own property, notwithstanding the fact that a drone may or may
not be in navigable air space.
A final point I think the Committee should consider is the
following: When considering whether drone surveillance
constitutes a search under the Fourth Amendment, I would urge
the Committee to avoid resolving this question with litmus
tests or, as Mr. McNeal pointed out, legal terms of art. The
expectation of privacy tests out of Katz is a vague subjective
test. Most of the Justices have acknowledged that, even Justice
Harlan, who of course is responsible for the expectation of
privacy tests, disavowed that test in the United States v.
White decision, which was a 1971 decision. Often judges when
deciding Fourth Amendment cases will simply say all the Fourth
Amendment requires is reasonableness, and they will judge the
case accordingly. In these cases, the courts typically apply
what amounts to a rational basis test, simply deciding whether
or not the government activity was rationally related to a
legitimate governmental interest.
This degree of deference to police intrusions, I suggest,
is at odds with the central meaning of the Fourth Amendment.
The Fourth Amendment was not asserted in the Bill of Rights so
that judges could defer to governmental intrusions on privacy.
Rather, we know, the amendment was put in the Bill of Rights so
that the government could control.
Sorry, Mr. Chairman.
[The prepared statement of Mr. Maclin follows:]
__________
Mr. Sensenbrenner. Thank you very much, Mr. Maclin.
Mr. Calabrese.
TESTIMONY OF CHRISTOPHER R. CALABRESE, LEGISLATIVE COUNSEL,
AMERICAN CIVIL LIBERTIES UNION (ACLU)
Mr. Calabrese. Thank you, Chairman Sensenbrenner, Ranking
Member Scott, Members of the Committee, thank you for inviting
me to testify today. The ACLU believes that the widespread
domestic use of unmanned aerial systems, also known as drones,
raises significant new privacy issues which cannot be
adequately addressed by existing law.
Drones share some characteristics with manned aerial
surveillance, such as planes and helicopters, but the privacy
invasion they represent is substantially greater in both scope
and volume.
Manned aircraft are expensive to purchase, operate, and
maintain. This expense has always imposed a natural limit on
the government's aerial surveillance capability.
Drones' low cost and flexibility erode that natural limit.
Small, hovering platforms can explore hidden spaces or peer in
windows, and large static blimps enable continuous, long-term
monitoring, all for much less than the cost of a plane or
helicopter.
Ongoing improvements in computing technology exacerbate
these privacy issues. High-powered night vision cameras and
see-through imaging provide more and better detail. Imagine
technology similar to the naked body scanners at the airports
attached to a drone. Through technologies like face
recognition, improved analytics, and wireless Internet, it is
possible to track specific individuals with multiple drones.
Uses could extend all the way from high-tech, long-term
surveillance to traffic enforcement.
While drones certainly have beneficial uses for search-and-
rescue missions, firefighting, dangerous police tactical
operations, these technological realities point to significant
possible harms if left unchecked. With the use of video
cameras, we have seen ongoing problems with voyeurism and
racial profiling by operators. If there is a persistent danger
of monitoring, it creates the real danger that people will
change how they act in public, whether at a protest rally or
just sunning themselves in their backyard.
Drones must be integrated into the Federal air space by
2015. While the use of this technology is poised to explode,
current law has not yet caught up to this new technology. As
Professor Maclin has noted, the Supreme Court has authorized
aerial surveillance and photography of private property. The
Court may eventually extend Fourth Amendment protections to
ongoing and unlimited automated tracking, but no cases have yet
been decided around drone use.
Federal privacy protections are spotty and State statutory
protections are in their infancy.
As the entity that regulates the skies, the Federal
Government is in the best position to create rules for the use
of drones by law enforcement. The ACLU recommends that these
rules be based on four key principles: First, no mass
surveillance. No one should be spied upon by the government
unless the government believes that person has committed a
crime. Drone use over private property should only happen with
a search warrant based on probable cause, the same standard
used to search someone's house or business. It may be
permissible to monitor individuals in public at a lower
standard, perhaps reasonable suspicion, but the key is to
prevent mass suspicion-less searches of the general population,
including for intelligence gathering. In order to prevent this
pretextual use of drones, exceptions to this rule should be
limited to emergencies connected to life and safety or narrowly
drawn administrative exceptions.
Second, information collected from drones for one purpose,
to combat a fire or perform a search and rescue, should not be
used for another purpose, such as general law enforcement.
Information collected by drones should also be kept securely
and destroyed promptly once it is no longer needed.
Third, drones should not carry weapons. Weapons developed
on the battlefield in Iraq and Afghanistan have no place in the
United States. There is a consensus forming on this issue. In
fact, the Heritage Foundation and the International Association
of Chiefs of Police both support sharp limits on weaponized
drones.
Finally, oversight is crucial. Communities, not just law
enforcement, must play a central role in whether to purchase a
drone. Like any new technology, drone use must be monitored to
make sure it's a wise investment that works. Drones should only
be used if subject to a powerful framework that regulates their
use in order to avoid abuse and invasions of privacy. The ACLU
believes that some Members of the Committee have already taken
great strides to find this balance, with H.R. 637, the
Preserving Americans Privacy Act. We support this bipartisan
legislation from Mr. Poe and urge the Committee to make marking
it up a priority. Thank you.
[The prepared statement of Mr. Calabrese follows:]
__________
Mr. Sensenbrenner. Thank you very much, Mr. Calabrese.
The Chair will recognize Members to ask questions under the
5-minute rule, and the first up will be the Chairman of the
full Committee, the gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
I appreciate your holding this hearing and for your
forbearance, I would ask that my opening statement be made a
part of the record.
Mr. Sensenbrenner. Without objection.
[The prepared statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary
Thank you, Chairman Sensenbrenner.
Technology in the United States continues to advance at a rapid
pace, with profound implications for law enforcement and the privacy of
U.S. citizens. From DNA technology to cyber attacks, we here at the
Judiciary Committee are fully engaged in examining the effects of new
technology on Americans, and on our legal system. Today we are
discussing the increased use of unmanned aerial systems--or UAS--for
domestic use.
As with much technological innovation, UAS bring both new
opportunities and new challenges. These unarmed, unmanned platforms can
be flown with cameras and other sensors and transmit information
instantaneously to ground crews. In an era of record deficits, UAS
could make law enforcement more efficient and cost effective. UAS can
also enhance safety for law enforcement officers.
Law enforcement already uses manned helicopters and airplanes
equipped with sophisticated technology and sensors. We saw an example
of this during the manhunt for the suspects in the Boston Marathon
bombing last month. After the surviving suspect was located in a boat
in someone's back yard, the police surrounded the area. They did not
know the condition of the suspect, who was armed and dangerous. So,
they flew a manned helicopter, equipped with a thermal imager, over the
boat.
The thermal imager was able to reveal the location and the
movements of the suspect. Footage from the camera is now on the
Internet, and anyone can see how the sensors clearly revealed the
inside of the boat, and the suspect within. One advantage of UAS is
that they could employ similar technology to achieve the same results
more inexpensively and with less risk to law enforcement officers.
UAS could also be used for a multitude of other applications. For
example, the Royal Canadian Mounted Police announced last week that
they successfully used a small UAS, equipped with a thermal imager, to
locate and treat an injured man whose car had flipped over in a remote,
wooded area in near-freezing temperatures.
The Department of Homeland Security (DHS) uses UAS to police the
nation's borders to deter unlawful border crossings by unauthorized
aliens, criminals, and terrorists, and to detect and interdict the
smuggling of weapons, drugs, and other contraband into the country.
Furthermore, DHS, in conjunction with local law enforcement
agencies, has been testing UAS capabilities in other situations
including detecting radiation, monitoring hostage situations,
firefighting, and finding missing persons.
While there are many useful applications for UAS, there are also
many reasons to be concerned about the privacy implications of UAS.
Unchecked law enforcement use of UAS could lead to violations of
U.S. citizens' Constitutional rights. Overly aggressive bureaucrats
behind the controls of UAS could lead to an expansion of the federal
government's footprint, harassment and serious violations of privacy.
In fact, to protect against these types of abuses, the Virginia
legislature recently passed a 2 year moratorium on the use of UAS by
law enforcement, except in certain emergency situations, making
Virginia the first state legislature in the country to pass such
legislation.
In addition to government use of UAS, there is now a great movement
to develop commercial use of UAS, which brings additional opportunities
and challenges.
For example, companies are promoting use of UAS for sports
photography, to film amateur climbers and surfers as they compete. And
that is just one example--the potential for commercial use of UAS
technology is virtually limitless.
However, this commercial development also brings forth new privacy
questions. Can a private individual use a UAS to check whether a
neighbor is building his fence in the right spot? Should a home owner's
association be able to use a UAS to patrol a group of homes? Last
month, the animal rights group, PETA, announced plans to acquire a UAS
in order ``to spy on hunters and catch them in the act as they
terrorize animals and break game laws.'' Clearly, there are a host of
privacy implications that we should consider as unmanned air activity
becomes more prevalent.
Computer systems, combined with aviation, will make it possible for
people, businesses and governments to use aviation on a scale never
seen before. Many people believe that our legal system will adapt to
this new technology the way it has in the past. Others believe that
special measures should be taken in advance of UAS development to
ensure that Americans' rights are protected.
The Judiciary Committee's challenge is to make sure our nation's
legal structures continue to protect Americans' privacy, while allowing
technology to flourish and improve our safety, security, and economic
progress.
I thank Subcommittee Chairman Sensenbrenner for holding this
hearing and I look forward to hearing the witnesses' testimony on this
important subject.
__________
Mr. Goodlatte. Thank you. Is it Villasenor? I am close?
Mr. Villasenor. Close enough.
Mr. Goodlatte. Which do you believe are in the best
position to regulate UAS on privacy grounds, courts, Congress,
or the States?
Mr. Villasenor. Well, in terms of actually regulating--is
the question specific to privacy or more----
Mr. Goodlatte. Primarily.
Mr. Villasenor. For privacy, I think with respect to law
enforcement use, I am on record stating and I do believe that
the Fourth Amendment is going to provide quite a bit more
protection than is generally recognized, and in that case, of
course, it would be through the courts.
With respect to private party use, which has not been the
focus of as much attention as public use, it is of course at
the State level that you have statutes against invasion of
privacy, stalking, harassment, and the like, and so I think
that there is a role at the State level to ensure that those
statutes properly anticipate privacy abuses that could occur
with unmanned aircraft.
Mr. Goodlatte. Thank you.
Mr. McNeal, should Congress regulate the future commercial
use of unmanned aircraft or should, as Mr. Villasenor
suggested, that could be left to the States?
Mr. McNeal. I am not sure. So with regard to the privacy
issues, I am not sure that you can get around privacy without
Congress doing it. So let me sort of rephrase that. For
commercial uses, if we are concerned about privacy, it seems
that Congress is the most appropriate body to legislate in a
way that we would have equal laws across the board, but I am in
sort of the same camp as Mr. Villasenor that if we think that
the Fourth Amendment protections that currently exist are
sufficient, we could copy those over for commercial purposes
and adopt those as our statutes for privacy protections.
The problem with commercial uses is that we have got a big
body of law on privacy with regard to what law enforcement does
but far fewer rules with regard to what private parties and our
commercial parties might do, and so this is one of the things
that I think people get really concerned about, commercial uses
being just my neighbor flying around doing video for
photography or for his YouTube page or for real estate purposes
that can then start to look a lot like snooping or Peeping Tom
types of things. Some of that is covered by State laws, but
when you look at the line of cases where people have been able
to successfully sue when they feel like their privacy rights
are being violated, you do not see a lot of success. It is a
high bar for people to overcome, and so there might be some
room there for Congress to regulate.
But I do not think that is the--when you look at the big
time commercial uses, we are thinking about flight of unmanned
systems for like FedEx and what not, privacy isn't really the
big issue that is driving our concerns there; it is more safety
concerns.
Mr. Goodlatte. Thank you.
Mr. Calabrese, I take it from your warrant-based approach
to use of UAS by governmental entities, you do have an
exception for an emergency situation. So, for example, if the
Tsarnaev brothers in Boston had been somehow detected by a
drone, that would still be evidence admissible in court, under
your circumstances, if they were following them down the street
and they were either impeded from placing their explosives or
were not impeded but that evidence was available to show that
they were the perpetrators of that crime?
Mr. Calabrese. Yes, that is correct. As Mr. Poe's
legislation indicates, there is a strong emergency exception
that allows in the cases of danger to life or limb the use of
drones in order to provide--you know, you have to play out the
scenario a little more in terms of, you know, where they are in
the investigation, but, yes, there is clearly a very strong
emergency exception as well as an ability to act before a
warrant is issued.
Mr. Goodlatte. And Mr. Maclin, can you explain how UAS may
affect police discretion and whether police discretion is
something that should be limited by statute?
Mr. Maclin. I think it should certainly be limited by
statute. When I talk about police discretion, I am talking
about the ability of law enforcement to simply fly a drone
over, examine, surveil without any probable cause or reasonable
suspicion, and certainly if you do not have either one of those
two things, you can not get a warrant.
I would take slight objection with the notion that if we
are going to require warrants, we should allow, possibly allow
warrants based on reasonable suspicion. I mean, the Court, I
think, albeit other than the administrative search context, has
said when you need a warrant, it has to be based on probable
cause.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Calabrese, can you say a word about how the technology
has complicated this issue in terms of the difference between
one photograph all the way to tracking someone even in public
for long periods of time, what the expectation is?
Mr. Calabrese. Certainly, Mr. Scott, thank you. It is a
great question.
To be clear, it is actually not just drones, right? I mean,
if you think about the technologies at issue here, you can
imagine tracking with the drone, coupled with tracking using a
cell phone, which I know is something this Committee has
considered recently, plus tracking with a license plate
scanner, and all of these things could be used to couple to
really provide mass surveillance all the time. But in terms
specifically of drones, they have become smaller. They have
become cheaper. The surveillance technologies on them can
penetrate more deeply at night, you know, with smaller and
greater cameras.
A Nova special recently indicated one camera, called the
ARGUS, could cover multiple square miles and do detailed
surveillance literally of an entire city. Imagine that
technology coupled with surveillance. You know, it changes the
way people think of as public and what a public space is. It
really merits further regulation by Congress.
Mr. Scott. You mentioned the problem with weapons. Are
weapons ever appropriate with drones?
Mr. Calabrese. I think we need to explore the question of
weaponization carefully. I mean, by and large, the answer is
no; weapons should not be used because a drone is not in the
same kind of danger as a police officer is. Clearly, a police
officer has got to be able to defend himself. We all understand
that or take appropriate action to apprehend someone. A drone
is not going to need to defend itself. It is not going to need
to apprehend anyone. And a drone operator may not have the same
judgment or expertise peering through a little camera as a
police officer does on the ground. All of that argues against
weaponization. There may be some limited exceptions for
training or other purposes, but by and large, weapons do not
belong on drones.
Mr. Scott. You mentioned the possibility of discrimination.
Can you say a word about how you choose which areas are under
surveillance?
Mr. Calabrese. Well, I think that is an outstanding
question. I mean, it goes to a couple of important issues. One
is having the community be involved. You should know if there
is surveillance. The community should be able to decide if they
think getting a drone is an appropriate tool and how it should
be used.
Also, just in the question of discrimination generally, we
have seen in monitoring video cameras that video surveillance
is frequently a very boring task for an operator. It is dull,
you know, minds tend to wander. They tend to follow around--
honestly, the research shows they tend to follow around pretty
girls, and then they tend to follow their biases and look for
particular, you know, racial minorities that they may think are
more likely to commit crimes. We think it is very probable that
that could happen with a drone as well.
Mr. Scott. You mean in terms of selecting the areas to be
under surveillance?
Mr. Calabrese. I think not just the areas under
surveillance but the individuals who they might choose to
follow. If you had mass surveillance over a particular area,
they may be picking out particular individuals and deciding to
follow them around and see if they are going to commit crimes.
Mr. Scott. If you have a legal exception for surveillance
in a recording, what happens when you see something that you
did not have probable cause to suspect but you noticed because
it was under surveillance?
Mr. Calabrese. Well, I think that that is going to be
relatively uncommon. We do have an exception for----
Mr. Scott. If you have got an entire traffic area that is
doing a mile, and you are doing traffic surveillance, and you
say that is okay, and you see some drug deal over on the side,
does that, do you get to use that?
Mr. Calabrese. Well, I think what we would say, first of
all, is we would hope we would not have mass surveillance like
that, that we would not have cameras up in the sky all the
time. So, you know, we would assume that surveillance would
largely be--by drone--would largely be directed and targeted,
and so if individual, you know, if individual acts were already
being monitored by law enforcement, we would expect that they
would likely come under an existing reasonable suspicion
standard if the investigation was done, for example, in public
because we would already have a court order that would say that
it is okay to do drone use in public at these particular times
under a reasonable suspicion.
Mr. Scott. But if you have got all this stuff recorded,
could there be a limitation on what you can do with it after
you have got it?
Mr. Calabrese. I think that there has to be, yes. I think
that we do not want people to be recorded all the time. We do
not want to feel like those drones are constantly monitoring
them. And we want people to know that they are safe, but not
just in private but also in public to live their lives without
worrying that what they do is going to end up on YouTube.
Mr. Sensenbrenner. The gentleman's time has expired.
Under the procedures that have been announced by the
Chairman of the Committee, full Committee Members who are not
Members of a Subcommittee are entitled to sit on the dais but
are not entitled to ask questions, unless a Member yields them
time to do so.
And under that procedure, the Chair yields his time, his 5
minutes to the gentleman from Texas, Mr. Poe.
Mr. Poe. Thank you, Mr. Chairman.
I appreciate you yielding, and all four of you being here.
I guess the crowning decision, concept is the Supreme Court's
dicta, for lack of a better phrase, of expectation of privacy
down the road is going to be not expanded but made smaller. I
think that is what the Court, members of the Court to me are
saying, which concerns me. So it seems to me that Congress in
the area of drones needs to set a standard rather than let the
courts down the road set a standard.
I am from Houston, and our local sheriff of the county,
Sheriff Adrian Garcia, third largest county in the country, he
will not use any kind of drones because he does not know what
the law is going to be. And he does not want to wait for the
Supreme Court to rule 10 years from now on a search, throw out
a case that he has arrested some bad guy and put him in jail,
so he is not using drones, so he is waiting for somebody to
give him and other law enforcement agencies some direction on
the use of drones.
It seems to be two issues--law enforcement use and private
use--and what is the expectation of privacy in those areas, and
should we do anything about it or just wait?
Mr. Calabrese, let me ask you, there has been comments made
that the Court should make these decisions about the Fourth
Amendment, which courts have been doing, applying what is
lawful under the Fourth Amendment, what is not lawful under the
Fourth Amendment. Should the courts be the answer for solving
this issue of drones and the Fourth Amendment?
Mr. Calabrese. Well, I think that your legislation does a
very good job of creating a careful balance, something that
Congress is particularly good at and the courts are not always
particularly good at. When we think about how we would want to
use a drone, it is clear that most of the uses--finding a
missing person, fighting a forest fire--are not uses that
particularly implicate the Fourth Amendment. And your
legislation is very careful to carve those out, and I think by
creating clarity, you allow the use of drones for all of these
good purposes, including commercial purposes, where people do
not have to worry that that drone in the sky is spying on them,
while--so you allow for the growth of the industry while still
protecting people's privacy in a reasonable way.
So, yes, I think Congress absolutely has a role, and I
think it is a very strong role and one that you are well suited
to perform.
Mr. Poe. What about the FAA? Right now, the FAA decides who
gets a permit for a drone. They make that decision. The
President has weighed in on that, told the FAA to be sensitive
to privacy concerns when giving new permits. What about the FAA
making that decision?
Mr. Calabrese. I think the FAA does have a role, clearly,
in some of the things, like deciding what is going to happen
with information once it is collected, providing notice of what
particular drones are being flown and how, but I think Congress
has the central role in regulating itself, regulating the
government.
So, you know, you have got to be, Congress has got to be
the one to decide how the police, how the Fourth Amendment
should be interpreted, because, of course, Congress has a role
in interpreting the Constitution as well. You are
constitutional officers. So the FAA can certainly perform an
expert function. I think that Congress' role has got to remain
central.
Mr. Poe. Since the issue of drones has come up, there are a
lot in the industry, the drone industry and other industries
saying, well, if we are going to talk about the Fourth
Amendment, let's expand it and revisit the whole concept of the
Fourth Amendment and not just with drones but with all new
technologies. What do you think about that?
Mr. Calabrese. Well, I certainly believe in expanding the
Fourth Amendment, there is no question about that. I know you
do as well. I think the Committee is doing that right now. I
mean, you are not just considering drones. You are also
considering surveillance of cell phones. The Committee has had
another hearing on electronic communications privacy. So you
really are revisiting the entire issue, and I think you are
doing it in a very intelligent and very deliberative manner,
so, you know this is a piece of that.
Mr. Poe. So, once again, on the other technologies and some
yet to be invented, should Congress set the standard perimeters
on law enforcement civilian use, or should we just, again, wait
for the Supreme Court to make those ultimate decisions?
Mr. Calabrese. Well, I think that in the 21st century, as
we have gotten new technologies, we have got to make sure that
our values come with us--right--that we do not lose those
constitutional values as we move to new technologies. You, of
course, are perfectly suited to do that.
Mr. Poe. Thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you very much.
Could I ask, Mr. Villasenor, Professor McNeal, and
Professor Maclin, have you heard about the Poe legislation 637,
Preserving American Privacy Act, and are you able to comment on
it at all? Please do.
Mr. Villasenor. Yes. I am certainly, first of all, very
appreciative of any attention that Congress is giving to this
very important issue.
One of the concerns I have with overly broad warrant
requirements is that the problems that could arise. I certainly
agree that we should not countenance government fishing
expeditions using unmanned aircraft or any other technology,
but, for example, suppose that a law enforcement unmanned
aircraft is monitoring a traffic intersection after an
accident, and on the sidewalk next to the intersection, a
terrible assault takes place, and suppose that the video
evidence from the unmanned aircraft is the only evidence that
clearly identifies the perpetrator of that assault. I think it
would defy reason for us all to say to the victim, well, we
know who the perpetrator is, but we are going to let the
perpetrator go because we did not have a warrant, and there was
some legislation that said we can not use it. So I think we
need to be cognizant of the potentially bad, unintended
consequences of what sounds at first blush like something which
is only going to be good.
Mr. Conyers. Uh-huh.
Mr. McNeal?
Mr. McNeal. So Mr. Villasenor highlighted one of the points
that I make in my written testimony where I provide a few
examples where the legislation, the current Preserving American
Privacy Act and the one of 2012 as well, where they both create
a circumstance where we might be suppressing inadvertently
discovered information, so we are out doing a search-and-rescue
mission, for example, in public parks or something, and along
the way while looking for that lost hiker you come across
evidence of a crime, and now that evidence can not be used.
Some privacy advocates want a ban on the use of this
secondary evidence in all circumstances, and I understand the
impulse. The idea is that if you say that you are using it for
search and rescue purposes and then you use the evidence for
crime collection purposes, it presents this circumstance where
we might have the general surveillance that we are all somewhat
concerned with. But I think there has to be some way in the
legislation that we craft an exception for that.
Mr. Conyers. Uh-huh.
Thank you.
Professor Maclin?
Mr. Maclin. Mr. Conyers, I am not in a position to comment
on it because I have not studied it, so I would not want to
express an opinion.
Mr. Conyers. Of course.
Let me turn now to the very disturbing consideration of
this general subject. You know, this is a prime example of
technology overtaking established law, and I think we are going
to have to go beyond the Fourth Amendment. There are going to
have to be a body of statutes that go into some of this detail.
It is not all about privacy, but privacy is, of course, always
a continuing exception.
Do any of you want to recommend to this Subcommittee, which
might be the ones that take on this responsibility, any courses
of action that we might take to examine all of this? As has
been remarked, this goes beyond drones, because there could be
new technology coming out to further complicate it.
Mr. McNeal. Congressman, I think you hit the nail on the
head when you said this goes beyond drones, and I will just
give you an example. In New York City, NYPD has a helicopter;
they call it 23, I think, for the 23 NYPD officers killed on 9/
11. It has a camera that can observe activity 2 miles away. It
is more--it can see the detail on people's faces, read their
name tag if they have a name tag on their shirt or something
from up to 2 miles away. So this isn't a drone-specific thing.
It is really an advancement of technology thing.
And so I think that the approach if Congress wanted to
legislate on this would be to look at the issue of
surveillance, define what surveillance is, and I put some
definitions in my written testimony, and then create some lines
based on the duration of surveillance that would--maybe we
allow officers at their own discretion to observe individuals
from any platform for a period of time, let's say 2 hours in a
7-day period, but then once we get to the end of that 7-day
period, maybe they need reasonable suspicion to continue the
surveillance for a 48-hour period of time, and then anything
longer than that might require a warrant.
And the times that I have thrown out are just my sort of
best guess at what might be good privacy protection. Some might
put it lower, at 20 minutes; some might put it much higher. But
by doing that, we are treating all technology the same, so a
camera trained on someone's home persistently day after day
will be treated the same as if it is a camera on a drone or
someone, you know, standing on a rooftop using the camera. We
are treating that technology and the invasion, the persistent
surveillance the same.
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Conyers. Thank you.
Mr. Sensenbrenner. The gentleman from Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, I have the privilege of being on the Armed
Services Committee, where we quite often have to struggle with
issues of unmanned aerial vehicles because more and more, the
technology is allowing us almost to pilot from the ground in
many different circumstances, and this is also true of missile
technology. It is guided missiles and piloted-on-the-ground
aerial vehicles. This technology is beginning to emerge, and it
does present some pretty significant challenges. You know, we
like to say never send a man to do a missile's job. But the
reality is that the technology is becoming more and more
difficult, and it raises constitutional issues, as I think the
previous gentleman very astutely articulated.
So I guess my first question is how to apply the time-
honored constitutional principles essentially according to
original intent in a way that is reasonable and appropriate. So
let me give this example, and I will ask Mr. Maclin if he would
respond to it.
Just recently, the City of Boston endured, obviously, a
terrible terrorist attack, and the street cameras recording the
scene from every angle were key to law enforcement in the hunt
for the terrorists. Then the police used thermal images from
helicopters to locate the armed suspect as he hid from the
police. Now, any of these images could have been derived from
unmanned aircraft. So, constitutionally, Mr. Maclin, and this
is not a trick question. I thought Mr. Conyers' point was very
spot on. Does it matter to you constitutionally whether those
street images in that particular case came from a street camera
or from an unmanned aerial surveillance?
Mr. Maclin. Constitutionally speaking, no, I do not think
it matters. What matters is who is responsible for those
cameras.
Now, I may be mistaken, but I believe one of the cameras
was from Lord & Taylor, the Lord & Taylor store, but let's
assume that they were put up by the City of Boston. No,
constitutionally speaking, it does not matter. It does not
matter.
Mr. Franks. Well, then let me direct a question to Mr.
Calabrese, am I saying that properly, sir?
Mr. Calabrese. Calabrese.
Mr. Franks. Okay. You stated in your testimony that the UAS
would be acceptable to you for, quote, reasonable nonlaw
enforcement purposes by nonlaw enforcement agencies, where
privacy will not be substantially affected, where the
surveillance will not be used for secondary law enforcement
purposes, and to the previous gentleman's, Mr. Maclin's
comment, so it is your position, if I am--that the Fourth
Amendment applies only to law enforcement agencies for law
enforcement purposes?
Mr. Calabrese. To the government generally. I am sorry. As
opposed to--the Fourth Amendment applies to government
generally.
Mr. Franks. But, I mean, for reasonable nonlaw enforcement
purposes, then that would no longer apply?
Mr. Calabrese. That is correct--well, I would not say that
the Fourth Amendment does not apply. I would say that I think
the biggest--because the Fourth Amendment is always going to
apply, no matter what I say.
Mr. Franks. But I am reading what you said.
Mr. Calabrese. Right, yeah, I understand. I am sorry. What
we believe the biggest danger is, is that the law enforcement
will use drones in an invasive manner, so--but we still want to
create the ability of government to use drones in a non-
invasive manner. So, for example, a firefighter is obviously a
government agent. They should still be able to use a drone to
investigate a fire, and we do not want to keep that from
happening. Whether or not the Fourth Amendment applies there,
we certainly--which it does, but of course it's not a search
for law enforcement purposes.
Mr. Franks. It seems to be a pretty challenging parse there
if one tries to apply the Fourth Amendment to nonlaw
enforcement agencies different than law enforcement agencies
when the effect is the same, and I know that is one of the
issues we will grapple with a very long time.
Would anyone else on the panel like to address either of
those questions?
Mr. McNeal. Congressman, I just want to direct you to page
6 of my testimony, where I try and thread this needle which is
by--I think the Fourth Amendment issue, I think what we need to
focus on is the legislation that will address this policy
concern that you have brought up, and that requires some
definitions of what a ``search'' is, that might go beyond the
Fourth Amendment. And I think the big thing that we have been
bandying about here is the distinction between a general
search, parking a blimp over a town, versus a targeted search
against a particular individual. And I think that we will want
to address those two different types of searches in different
ways, because New York City, for example, you are subject to a
general search at all points in time because of the cameras,
and that is different than the targeted search.
Mr. Franks. Thank you.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentlewoman from California, Ms. Bass.
Ms. Bass. Thank you very much, Mr. Chair.
I just wanted to ask some questions of the panel in general
about what you believe laws and restrictions should be placed
on drone use by private citizens to conduct aerial
surveillance. It is my understanding that if a private citizen
wants to use a drone they have to get FAA approval, but beyond
that, I wanted to know if you had suggestions.
Mr. Villasenor. Well, maybe I can at least partially try to
respond to that question. So, first of all, currently
commercial use in the United States of unmanned aircraft is not
yet permitted. The FAA is in the process under the FAA
Modernization and Reauthorization Act of 2012, under the
process of drafting those regulations. So--but the question is
still----
Ms. Bass. That is to come, right?
Mr. Villasenor. That is to come, and by--and according to
the schedule laid out in that legislation by late 2015 those
regulations would be complete. So the question is an eminently
reasonable one. There is a very significant body of common law
as well as in most States statutes, both civil and criminal,
related to invasion of privacy. And those statutes are usually
tied to this concept of reasonable expectation of privacy. So
if a private party used an unmanned aircraft in a manner that
does invade privacy, it is actionable under usually multiple
grounds, and so I am confident that there are existing
protections, although there is also a good reason to sort of
look at those statutes to make sure things like harassment and
stalking statutes also cover potential misuses by unmanned
aircraft.
Ms. Bass. And in my area, there is a concern over the
paparazzi, which has gone to some extreme lengths to invade
people's privacy.
Mr. Villasenor. I am certainly not going to defend the
privacy invasions that the paparazzi commit. I think we all
know that they happen, and that is not a technology problem;
that is a paparazzi problem.
Ms. Bass. Any other comments from anyone?
Mr. Calabrese. I would just say that the private use does
raise serious First Amendment concerns. We think there is a lot
of existing law around invasions of privacy, at both the State
level but also to some extent at the Federal level. It is both
intentional invasions of privacy under tort law; it is Peeping
Tom laws.
Ms. Bass. Right.
Mr. Calabrese. It is trespass laws, and of course, there is
California-specific paparazzi law as well. So I think that,
unlike the Fourth Amendment government context, where we spent
a lot of time talking, where it is largely unregulated and I
think the Committee needs to focus, I think here there is a
fair amount of existing law, and it may be appropriate to see
how that plays out before we do a lot of legislating in the
private use area.
Ms. Bass. Anyone else?
You know, when I learn about some of the drones being so
small, like the size of a bird or whatever, how do you see in
the future that being regulated? I mean, what is to stop an
individual from just getting that without FAA approval?
Mr. Villasenor. Well, I think there is already a hobbyist
exception for unmanned aircraft, model aircraft as defined in
the legislation, and I think, frankly, it as very important to
provide exceptions for hobbyists and so that, you know, a
parent who goes and flies a model aircraft at a flying field
with his or her child does not need to get FAA approval before
doing so. So, at the very small end, there is certainly going
to be some flexibility in terms of acquiring these platforms.
But, again, it is the use where we draw the line, and to the
extent that these platforms might be used in an invasive or
unlawful, otherwise unlawful manner, that is where we would
then address that behavior.
Ms. Bass. Okay, thank you.
Yield back my time.
Mr. Sensenbrenner. The gentleman from Utah, Mr. Chaffetz.
Mr. Chaffetz. Thank you, Mr. Chairman.
I thank the panel for being here. I think this is an
important topic because obviously the rapid expansion of
technology--technology is great as long, as it is used in the
right and proper way.
I want to talk a little bit about the Jones case if we
could. My apologies, I walked in a little bit late. I was
interested by Justice Sotomayor's opinion on this. Obviously a
9-0 ruling is fairly conclusive, but it does beg the question
of what other areas should this be applicable to. From your
perspective and experience, our current Justice Department and
the implementation by the FBI and others, have they taken this
Jones case and implemented it the way you see it should be
implemented, or are they missing something here? What should
the Justice Department and the Federal Government be doing with
that Jones case? I will start with Mr. Calabrese if we could.
Mr. Calabrese. Well, obviously, the Jones case deals with
location tracking. And in the ACLU's view, the government has
been deficient in applying Jones. We believe that a majority of
the court, no matter how you read it, said that systematic
tracking of individuals over time is an invasion, it implicates
the Fourth Amendment, and is a search. Given that rationale, we
believe that all manner of tracking currently undertaken by the
government, whether that is cell phone tracking, whether that
is tracking with a GPS device by a car, implicates the Fourth
Amendment and should be done with a warrant.
I think it is a very interesting question as to whether
that same rationale should be expanded to drones. Clearly,
drones could be used to track an individual for long durations
in a very detailed manner. Perhaps U.S. v. Jones will also come
to regulate how drones are used as well.
Mr. Chaffetz. Does anybody else care to comment?
Yes.
Mr. Maclin. Well, I would just say this about Jones. I
think the story on Jones and the scope of Jones is unwritten.
Certainly, Justice Sotomayor and Justice Alito's opinion talk
about electronic monitoring. Justice Scalia's opinion is
careful not to rely on the Katz test and not to rely on any
concerns about electronic monitoring. His opinion was solely
about the physical intrusion and the purpose for the
governmental conduct.
And I think if you read the most recent ruling from the
court in this area, Florida v. Jardines, with, again, Justice
Scalia writing the majority opinion, you will again see the
focus of Scalia's concern on the physical intrusion in that
case.
So I think with respect to Jones, I am not----
Mr. Chaffetz. What is your opinion about it? It seems to be
shortsighted to think that just the physical intrusion----
Mr. Maclin. I agree with that. My own personal opinion is
that the concerns with the monitoring are more important
because we are already at a time where government does not need
a physical intrusion.
Mr. Chaffetz. No. You can triangulate things electronically
without actually physically attaching something. And that is my
concern, Mr. Chairman.
I have a geolocation bill that we have done with Senator
Wyden in a bipartisan way. You have been very supportive of
this. I do not think it is just merely the physical intrusion
of attaching a GPS device and technology over the course of
time.
And let me get the other two gentlemen's opinion of this. I
think one of the things we need to look at, Mr. Chairman, is
air space. If you have private property, and you may have
something very small, you may have something large, say a 5-
acre parcel of land, I do think there is a reasonable
expectation of privacy that isn't just limited by walking down
the street and okay, you put up a fence. But I think the air
space is something in general that we should look at. But maybe
if you could talk to that and the Jones. I want to leave time
for our last--the other person as well.
Mr. McNeal. Congressman, what you have articulated as the
reasonable expectation of privacy that I think you expect and
that your constituents expect is something that is broader than
the Supreme Court has articulated. So going back to the Oliver
case and the other aerial surveillance cases, going to Katz,
what we knowingly expose to the public isn't a matter of Fourth
Amendment concern.
And so, if you want to protect the air space over someone's
yard and whatnot, it will require legislation because the court
does not seem prepared to identify that yet.
Mr. Chaffetz. My time is almost up.
Mr. Villasenor. I actually read Jones more optimistically
than perhaps many with respect to prohibiting long-term
extended surveillance. Majority of the Justices--Justice Alito
was joined by three Justices in concurrence--that makes four.
And then Justice Sotomayor agreed with Justice Alito's
statement that long-term tracking itself, even without the
actual trespass associated with the attachment of the device,
violated a reasonable expectation of privacy. And even Justice
Scalia in his majority opinion said it may be unconstitutional.
So I am actually quite encouraged that the Supreme Court would
find that unconstitutional.
Mr. Chaffetz. I think that is the right direction.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Louisiana, Mr. Richmond.
Mr. Richmond. Thank you, Mr. Chairman.
Mr. Maclin, let me start with you. Because a lot of
conversation and a lot of what goes on depends on reasonable
expectation of privacy, as we discussed another bill.
Do you think it is ever going to get to a point where we
have to say what a reasonable expectation of privacy is,
period? Because the more and more that things evolve, the more
and more I think that I have any expectation of privacy. And at
some point, will someone say your expectation of privacy is
just unreasonable?
Mr. Maclin. Of course. I agree with you. I think this
Committee, and Congress in general, can use their powers under
section 5 of the 14th Amendment to enforce the Fourth Amendment
and say, yes, a reasonable expectation of privacy includes the
following.
Mr. Richmond. Mr. Calabrese, you talked earlier about the
fact that we have tort laws and other things for
nongovernmental actors. As I watched the news this morning,
there is an incident in New York where a guy took pictures of
people in the adjacent building; did not capture their face but
caught very intimate moments. Those pictures are now in a
gallery selling for $8,000. The subjects of them were very
upset. And the lawyers that talked about it said there is no
recourse for them. I guess it is that sort of thing that
concerns me in terms of if we get to drones, how do we
reconcile that?
Mr. Calabrese. They are very difficult questions. But they
are very difficult questions both because they are potential
real invasions but also because of the powerful need to protect
the First Amendment. I think that Peeping Tom laws would deal
with a drone right up on someone's window. Across the building
but with a powerful camera, it is a harder question.
The First Amendment protects our right to gather
information for really important reasons: regulating how
government operates, giving people the ability to talk about
what is going on in their lives, share information, the obvious
need to protect the press. We have seen that this week.
So we are going to have to balance those. We do think that
there is a lot of law in this area. So I think we are going to
have to tread carefully in regard to the First Amendment. And I
do think there are more existing protocols and controls around
First Amendment-related activity for private use than there are
for the Fourth Amendment space in government use.
Mr. Richmond. We talked a little bit about the drones and
the fact that they will have the capability of license plate
readers. But my police chief is excited about the fact that he
is putting license plate readers on every stoplight. At what
point do you think we get to--or do you think police now would
need some authorization to record and store the data from
license plate readers, for example, if you have a spree of
burglaries, that they can go back and see if there is any car
that went through the red lights close to any of those homes.
Can they just store that information?
Mr. Calabrese. I believe that there is a reason that we
have license plate readers. I believe, for example, looking for
stolen cars is a perfectly appropriate reason to have a license
plate reader. I believe that information should be destroyed at
the end of the shift, once the purpose that you gathered it for
is no longer operative. And I do believe that that is because
if we do not do that, we are going to live in a society where
we have mass surveillance. We live in a world of records now.
Everything we do generates a record. So if we are going to
start saying, Let's keep it just in case, our entire lives are
going to be out there to be investigated anytime someone wants
to poke through those records.
Mr. Richmond. And that is what I was worried about, the
``just in case.''
Did anyone else want to comment on that?
Mr. Villasenor. I guess I will just add that while I fully
am sympathetic to these concerns, there is a gray area here. It
is very difficult. If, as Mr. Calabrese suggested, all of these
records were destroyed at the end of a shift, suppose there was
a kidnapping or missing persons report that was not reported
for 48 hours after it happened. Again, I do not think anyone
would deem it a positive thing if we had intentionally
destroyed information that might have led us to solve that more
quickly. So I do not claim to have any perfect answer, but
those are hard questions.
Mr. Richmond. Thank you, Mr. Chairman, and I yield back. I
see my time has expired.
Mr. Sensenbrenner. The gentleman from South Carolina, Mr.
Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Gentlemen, I think Justice Alito said this, new technology
made provide increased convenience or security at the expense
of privacy, and many people may find the tradeoff worthwhile.
How will we know whether people find the tradeoff
worthwhile and who gets to make that decision?
Mr. Maclin. Can I comment on that, Congressman?
Mr. Gowdy. Sure.
Mr. Maclin. That is a catchy statement. The problem is with
an individual----
Mr. Gowdy. Well, it is not my statement.
Mr. Maclin. I know it is not yours. I understand that. My
concern with that statement is that because society or members
of society would be willing to make that tradeoff, the
individual will be the one who suffers the harm. And I think,
again, that is the job--I assume that is one of the reasons why
this Committee is holding these hearings, is get a view. And I
agree with Congressman Richmond that this body should make a
determination of that because if it is just a matter of what
society would prefer for what tradeoffs society would be
willing to make, individuals are going to be the ones who
suffer.
Mr. Gowdy. So if I remember common law correctly, the Bill
of Rights kind of sets the minimum. And if States or this
entity, perhaps, wanted to have a more arduous view of one of
the amendments, like the Fourth Amendment, we could do so,
right?
Mr. Maclin. Well, I would just caution, because the
jurisprudence under City of Boerne v. Flores, as I am sure
Members of this Committee understand, does not lend itself to
Congress going beyond what the Supreme Court has done. That
said, however----
Mr. Gowdy. I thought the Constitution allowed Congress to
in some instances set the jurisdiction of the courts.
Mr. Maclin. Allowed to set the jurisdiction of the court.
But under section 5, the court has been somewhat restrictive.
The City of Boerne is the main case, and there have been recent
precedence since then, and it is go be interesting to see what
they do with the Shelby County case, but the court has
invalidated several congressional statutes where Congress has
imposed on States restrictions that the court has found
constitutional.
Mr. Gowdy. How does the expenditure of manpower or
womanpower impact a Fourth Amendment analysis? I can see an
analysis where if you had to invest detectives or line officers
in surveillance, that is one analysis. And it would be a
different analysis than just having a computer doing it. Am I
dreaming up that the investiture of resources would be part
of--I mean Jason, my friend, love him to death, he has got a
bill dealing with GPS tracking. And part of the analysis, I
think, is that at least when you are having a person doing it,
you are investing time, you are investing resources. That is a
different analysis than just having some device do it. So how
does that play into it?
Mr. Maclin. Well, I know of no Supreme Court case in which
the court has said how much resources or the degree of
resources invested makes any difference in the Fourth Amendment
question.
Mr. Gowdy. I think there is, but you guys are the experts.
The gentleman beside you is shaking his head, probably to
agree with you and not with me, but you can go right ahead.
Mr. McNeal. I think I agree with you, Congressman. I think
the appropriate place for us to calibrate these expectations is
in the legislature, rather than letting judges write things up.
This body here is in the best position to know what your
constituents expect with regard to privacy. And if we want to
control the types of surveillance, be it GPS or geolocation
data or whatnot, then Congress can pass legislation to require
a warrant before getting that, rather than allowing it to be
obtained through a subpoena. I think that is completely
appropriate.
Mr. Gowdy. Do all of you agree that technology can impact
whether or not a search is considered reasonable?
Mr. Villasenor. I think I can at least partially answer
that. The Supreme Court has ruled that if the government uses a
large team of agents to literally follow somebody around, that
that is not a violation of the Fourth Amendment. Whereas, the
Supreme Court, in the Jones majority, is on record leaving open
the question of performing that same tracking with technology
may be a violation of the Fourth Amendment.
Of course, as I mentioned a moment ago, Justice Alito and
four other Justices think that it is a violation of the Fourth
Amendment.
Mr. Gowdy. Do you agree--and I know I am almost out of
time--that technology impacts our reasonable expectation of
privacy and that it is a scale that changes from culture or
generation to generation?
Mr. Villasenor. I think to some extent we are all far more
comfortable with the concept of photography than people were in
the late 1800's when it first became possible to capture an
irrefutably accurate image of somebody at will. So technology
does impact our views of privacy, but it does not mean that we
do not have privacy.
Mr. Maclin. I would agree with that, Congressman.
Technology does affect our Fourth Amendment.
Mr. Gowdy. Well, I am out of time.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentlewoman from California, Ms. Chu.
Ms. Chu. Thank you, Mr. Chair. I would like to ask Mr.
Calabrese about the issue of the storage of data and its
implications for privacy. We know that local police departments
are applying to obtain permits from the FAA to use drones for
law enforcement purposes. And I understand that there is some
potential that a large amount of data could be collected by
drones and stored for a very long period of time. I am
concerned that limitless data collection can pose a threat to
Americans' privacy. Can you tell us what types of data these
drones can collect and if those law enforcement agencies who
acquire drones have data minimization policies in place?
Mr. Calabrese. Those are all incredibly good questions,
Congresswoman, that do not necessarily have clear answers at
this point. Let me try to sketch a view of the parameters out
for you. I think that absolutely the widespread collection of
detailed information, say HD camera level video, can create
huge privacy implications. It really changes way we consider
public space. We do not consider ourselves to be recorded when
we are in public. We may be in public but not preserved over
time. We can also apply powerful new technologies like face
recognition to that detailed video. We can use it to zoom in,
for example, or examine particular things that we might not
have noticed at the time.
In terms of data retention policies, we think those are
best practices. We think every police department should limit
the amount of collection for particular purposes and discard it
after it no longer needs it for those purposes. Whether that is
happening now, I think it is tough to say on a local level the
particular data collection practices. We certainly hope it will
be something the FAA requires and that all local law
enforcement does.
Ms. Chu. Do you think we should require that agencies who
use drones have some sort of data minimization policy in place,
and what kind of policy would be best in terms of considering
civilian drone usage?
Mr. Calabrese. Yes, I do believe the data minimization
policy is vital. I would say that it is bounded by the other
reasons for collection. You put a drone up for a particular
reason. Once that reason is expired, you have examined the
person, searched the person, or followed the person that you
are looking into, the case is over, you no longer need it,
discard the data. If you do not do any mass surveillance, then
you will not have to worry about keeping data for long periods
of time.
Ms. Chu. We have to update many of our other Federal laws
that deal with electronic communications, but what can we learn
from our experiences in dealing with other technologies when it
comes to protecting individual privacy?
Mr. Calabrese. Well, I think that we have powerful
frameworks in place now. Certainly, the Privacy Act in itself
has all the principles that we believe would apply here. They
have some Privacy Act exceptions, but it also is a powerful
framework. Clearly, we do not want to discard things like the
very strong protections of the Wiretap Act, for example,
against listening to peoples' communication. Those all have to
remain in place. I think what we can learn is to articulate, I
hope, some of the things that we believe should be in any bill,
which is use limitations, collection only for a particular
purpose, not converting it to other purposes, discarding it
when it is done, notifying people about when their information
is being collected, and why, and giving them input into that.
Ms. Chu. Okay. Mr. Villasenor, I would like to focus on the
positive benefit of drones. As a representative from southern
California, we face many dangerous and costly
wildfires each year, and we certainly can benefit from
additional tools to fight these fires. For example, the station
fire in the Angeles National Forest in my district killed two
firefighters and burned 160,000 acres, and it was the largest
wildfire in the modern history of LA County.
Is the FAA Modernization Act helping to accelerate the
production of firefighting prevention drones so that local
firefighters can have these tools in the near future? Are there
any barriers that warrant any congressional review?
Mr. Villasenor. I think the FAA is very well aware of the
importance of applications like firefighting. The FAA, of
course, is not involved in the production of the aircraft but
is working diligently and hard on the regulations that are
enabling uses, such as firefighting, that nobody in this room I
am sure finds objectionable in the least. And so I think that
is moving at a pace quite well.
Ms. Chu. Thank you.
And I yield the balance of my time to Congress Member
Sheila Jackson Lee.
Mr. Sensenbrenner. The gentlewoman is recognized for 15
seconds.
Ms. Jackson Lee. Thank you.
Mr. Calabrese, I just have a simple question. What is the
opportunity for racial profiling and how dangerous is that with
the utilization of drones?
Mr. Calabrese. We have certainly seen racial profiling in
the use of video cameras. It seems logical to believe it might
be applied here.
Mr. Sensenbrenner. The gentlewoman's time is expired.
The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
I do appreciate your being here. I would like to follow up
on Ms. Chu. I am curious, the line of questioning she had. I
will give an example. There is a doctor friend in Tyler, my
hometown, who set his incredible new camera with incredible new
lens skyward and took pictures of a shuttle going over and then
later saw on the news that it had broken up and got that to the
paper. Didn't sell it, just put it out. And it was the most--it
was a photograph that has been on more front pages of
publications than any other.
On the other hand, if he took that same camera and pointed
it in someone's window from a long distance, then you would get
an issue. So, obviously, technology makes a difference. And it
seems that we do get into some intent issues.
But I am curious, Mr. Calabrese, you say that there is a
lot of law in this area--and I was not sure which area you were
talking about--but I am curious, if Congress went about setting
what we believed--and I think there is a lot of room for
agreement on both sides. I appreciated Ms. Bass, Ms. Chu's
questions, Mr. Richmond's questions. I think we agree on a
great deal in this area. So if we came to an agreement on what
we in Congress believed was an appropriate, reasonable
expectation of privacy, are you guys aware of a law that would
create a problem for us setting such an reasonable expectation
of privacy?
Mr. Calabrese. No, I do not believe so. I believe you have
got a very powerful piece of legislation in front of you right
now, H.R. 637, and I think that is a very good beginning on
setting the parameters for how drones should be used. I think
that is a great place to start.
Just to answer your question in terms of the area where
there is existing law, I was largely talking about private use.
So keeping time logs, stuff like that.
Mr. Gohmert. Is anybody aware of laws that would be adverse
to us trying to set a reasonable expectation of privacy?
Mr. McNeal. I am not aware of that, but I would just urge
some caution here, Congressman, in that the courts have had
decades to try and define reasonable expectation of privacy.
Mr. Gohmert. I understand. It is a difficult area.
Mr. McNeal. I think you might be better served by focusing
on the government conduct that you want to control, defining
terms like ``search'' and ``public place'' and whatnot and
controlling, focusing your legislation there rather than trying
to define privacy. What is a reasonable expectation of privacy
in New York City is very different than what it might be
somewhere else.
Mr. Gohmert. Sure. And Ms. Bass was pointing out she has a
lot of paparazzi. In east Texas, we do not have that. But her
concern is still my concern. It is not just public government
entities, but if you have a nosy neighbor that has that
telescope and points it to your backyard or inside your house,
instead of skyward, there ought to be some point that you can
expect privacy, right?
Mr. McNeal. Right. Focusing, again, on the conduct that we
would want to control, it would be either the collection of
that information by a private party or the subsequent use of
that information. And so sometimes you walk down the street at
night in Georgetown and people leave their blinds open, you can
see the fancy houses and whatnot. They might feel their privacy
is violated, but it is not something that we would want to
legislate. If you start snapping photos and using them, then
maybe the use of that information internal in the home is the
thing that we would want to control.
Mr. Maclin. Congressman, I would just say this. There is
one example of this. In the mid-1970's in United States v.
Miller, the Supreme Court said we do not have a reasonable
expectation of privacy with respect to our banking records.
Congress passed legislation which effectively reversed that
ruling and gave individuals more privacy.
Mr. Gohmert. That is a good point. Let me ask this real
quick because my time is running out. Is anybody aware of any
laws that would prohibit you shooting down a drone in an area
in which you were allowed to shoot? I had this question come up
with somebody. If it is over your air space, your home, and it
is a private, not a government, drone.
Mr. Villasenor. I think it would be a very bad idea.
Mr. Gohmert. No, I am just asking if there are any laws. I
had a guy from Georgia say, Hey, we need at least 50 rounds
because that is about how many it takes to bring down a drone.
Mr. Villasenor. If they did it and ended up hurting some
else, they could be charged with reckless discharge.
Mr. Gohmert. I understand that. But specifically, can you
shoot down a drone over your property?
Mr. Sensenbrenner. Fortunately, the gentleman's time has
expired.
Mr. Gohmert. I appreciate that, Mr. Chairman, since you
normally allow people to answer questions that were already
asked.
Mr. Sensenbrenner. All Members of the Subcommittee either
having used or yielded their time, those who have been present,
without objection, the Subcommittee stands adjourned.
[Whereupon, at 10:18 a.m., the Subcommittee was adjourned.]