[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

                              ----------                              

                              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

                              ----------                              


                          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.]

                                 
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