[Senate Hearing 113-50]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 113-50

 
     THE FUTURE OF DRONES IN AMERICA: LAW ENFORCEMENT AND PRIVACY 
                             CONSIDERATIONS

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 20, 2013

                               __________

                          Serial No. J-113-10

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
            Bruce A. Cohen, Chief Counsel and Staff Director
              Kolan Davis, Republican Chief Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................    69
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    73

                               WITNESSES

Calo, Ryan, Assistant Professor, University of Washington School 
  of Law, Seattle, Washington....................................    10
Miller, Benjamin, Unmanned Aircraft Program Manager, Mesa County 
  Sheriff's Office, Mesa County, Colorado, and Representative, 
  Airborne Law Enforcement Association...........................     5
Stepanovich, Amie, Director, Domestic Surveillance Project, 
  Electronic Privacy Information Center, Washington, DC..........     7
Toscano, Michael, President and Chief Executive Officer, 
  Association for Unmanned Vehicle Systems International, 
  Arlington, Virginia............................................     8

                         QUESTIONS AND ANSWERS

Responses of Ryan Calo to questions submitted by Senators 
  Grassley and Lee...............................................    33
Responses of Benjamin Miller to questions submitted by Senators 
  Grassley and Lee...............................................    39
Responses of Amie Stepanovich to questions submitted by Senator 
  Grassley.......................................................    42
Responses of Michael Toscano to questions submitted by Senators 
  Grassley and Lee...............................................    48

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union (ACLU), Laura W. Murphy, Director, 
  Washington, DC, statement......................................    58
Calo, Ryan, Assistant Professor, University of Washington School 
  of Law, Seattle, Washington, statement.........................    70
Miller, Benjamin, Unmanned Aircraft Program Manager, Mesa County 
  Sheriff's Office, Mesa County, Colorado, and Representative, 
  Airborne Law Enforcement Association, statement................    75
Stepanovich, Amie, Director, Domestic Surveillance Project, 
  Electronic Privacy Information Center (epic.org), Washington, 
  DC, statement..................................................    84
Toscano, Michael, President and Chief Executive Officer, 
  Association for Unmanned Vehicle Systems International (AUVSI), 
  Arlington, Virginia:
    statement....................................................    92
    (AUVSI), attachments.........................................    97

                 ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government or 
  other criteria determined by the Committee, list:
    The Economic Impact of Unmanned Aircraft Systems Integration 
      in the United States, AUVSI, Report, March 2013


     THE FUTURE OF DRONES IN AMERICA: LAW ENFORCEMENT AND PRIVACY 
                             CONSIDERATIONS

                              ----------                              


                       WEDNESDAY, MARCH 20, 2013

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:38 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Durbin, Klobuchar, 
Franken, Blumenthal, Hirono, Grassley, Lee, and Cruz.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I appreciate everybody being here, and as 
you know, we are having budget and other matters going on. That 
is why some of us are in and out of this hearing.
    I had breakfast this morning with the Chairman of the Joint 
Chiefs of Staff, General Dempsey. When I mentioned this 
hearing, I pointed out to him that this is on domestic, non-
military use of drones. Recently the debate about the use of 
unmanned aerial vehicles, or ``drones,'' has largely focused on 
the lethal targeting of suspected terrorists, including 
Americans. I continue to have deep concerns about the 
constitutional and legal implications of such targeted 
killings, and both Senator Grassley and I have requested all 
the OLC material on that. I have spoken with Senator Durbin, 
who next month will chair a hearing in the Constitution 
Subcommittee that is going to examine these issues carefully.
    As I noted at the beginning of this Congress, I am 
convinced that the domestic use of drones to conduct 
surveillance and collect other information will have a broad 
and significant impact on the everyday lives of millions of 
Americans. Just in the last decade, technological advancements 
have revolutionized aviation to make this technology cheaper 
and more readily available. As a result, many law enforcement 
agencies, private companies, and individuals have expressed 
interest in operating drones in our national airspace. I should 
mention that we are not talking just about the large Predator 
drones that are being used by the military or along our 
borders, but also about smaller, lightweight unmanned vehicles. 
We are going to hear testimony about that. The one that Mr. 
Sheehan is bringing up here now is from the Mesa County 
Sheriff's Office, and if you could just hold that up there. 
That weighs just 2 or 3 pound--2 pounds. Thank you, Mr. Miller. 
That weighs 2 pounds.
    With the Federal Aviation Administration estimating that as 
many as 30,000 drones like this will be operating in the 
national airspace by the end of this decade, I think we have to 
carefully consider the policy implications of this fast-
emerging technology.
    I know that we are going to hear a lot of things about the 
unique advantages of using unmanned aircraft as opposed to 
manned vehicles. Drones are able to carry out arduous and 
dangerous tasks that would otherwise be expensive or difficult 
for a human to undertake. For example, in addition to law 
enforcement surveillance, drones will potentially be used for 
scientific experiments, agricultural research, geological 
surveying, pipeline maintenance, and search-and-rescue 
operations.
    So there are many valuable uses, but at the same time, the 
use of unmanned aircraft raises serious concerns about the 
impact on the constitutional and privacy rights of all 
Americans. The Department of Homeland Security, through Customs 
and Border Protection, already operates modified, unarmed 
drones to patrol rural parts of our northern and southern 
borders, as well as to support drug interdiction efforts by law 
enforcement. A number of local law enforcement agencies have 
begun to explore using drones to assist with operational 
surveillance. This raises a number of questions regarding the 
adequacy of current privacy laws and the scope of existing 
Fourth Amendment jurisprudence. When is it appropriate for law 
enforcement to use a drone, and for what purposes? Under what 
circumstances should law enforcement be required to first 
obtain a search warrant? And then what should be done with the 
data that is collected and how long should it be kept? And 
although no drones operating in the U.S. are yet weaponized, I 
am advised, should law enforcement be permitted to equip 
unmanned aircraft with non-lethal tools such as tear gas or 
pepper spray?
    My concerns about the domestic use of drones extend beyond 
Government and law enforcement. Before we allow widespread use 
of drones in the domestic airspace, we have to carefully 
consider the impact on the privacy rights of Americans. Just 
last week, we were reminded how one company's push to gather 
data on Americans led vast over-collection and potential 
privacy violations.
    Similarly, a simple scan of amateur videos on the Internet 
demonstrates how prevalent drone technology is becoming among 
private citizens. Small, quiet unmanned aircraft can easily be 
built or purchased online for only a few hundred dollars and 
then equipped with high-definition video cameras while flying 
in areas impossible for manned aircraft to operate without 
being detected. It is not hard to imagine the serious privacy 
problems that this type of technology could cause. In a State 
like mine, in Vermont, where we protect and guard our privacy, 
this is raising some very serious questions from people from 
the far right to the far left.
    So we cannot take a short-sighted view. Technology in this 
area will advance at an incredible rate. So I hope this hearing 
will be just the beginning of a dialogue.
    To help this Committee explore some of these issues, 
Senator Grassley and I have invited witnesses who will testify 
from a variety of perspectives. We will hear from a law 
enforcement official who has a functioning and fully 
operational unmanned aircraft unit; we will hear from the head 
of the leading unmanned vehicle industry group; a 
representative from the Electronic Privacy Information Center; 
and a scholar who has studied the intersection of drone 
technology with privacy and Fourth Amendment law. And I 
appreciate them being here.
    Senator Grassley.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Before I go to my statement, listening to 
you I believe I can summarize by saying I do not believe there 
is any differences between your concern and my concern on this 
issue. So I am glad to have that working relationship on this 
issue.
    As we examine drone technologies, we continue our efforts 
to properly balance innovation, privacy, and public safety. 
There are tremendous benefits to society from drone technology. 
The technology can help first responders quickly identify the 
nature and scope of, example, a forest fire or natural 
disaster. It may help police respond more quickly in cases 
involving hostage rescue, missing children, or a child 
abduction. With drones carrying advanced technology that 
provide facial recognition, license plate recognition, 
biometric recognition, important investigative leads can be 
pursued rapidly.
    An area where drones may be of particular use is in helping 
secure our vast borders. The drone technology is now becoming 
part of a larger border security strategy. Drone technology can 
help increase our security on the borders while reducing the 
costs to our taxpayers.
    The Government has a heightened interest in protecting the 
borders, and the Constitution allows greater use of 
surveillance at points of entry, so I plan to continue 
discussions with Homeland Security about their use of this 
*technology to make sure that we are maximizing it.
    On the surveillance side, many questions about drone 
technology remain. Drones can go almost anywhere and can 
maintain surveillance, sometimes with some equipment for days. 
They carry sophisticated technology, greatly enhancing 
surveillance. The potential benefit to drone technology is 
limited only by the imagination, but we must always remember 
that the power of new technology creates greater responsibility 
to respect the privacy of our citizens.
    While drones can expand the reach of a criminal 
investigation, they can also create an increased risk of 
invading privacy. We need to make sure that we have sufficient 
legal safeguards in place to promote innovation while balancing 
public safety and the privacy of law-abiding citizens. We 
should carefully consider what Government can constitutionally 
do.
    But as a matter of policy, we should go further and we 
should examine what limitations are appropriate to protect our 
privacy. Just because the Government may comply with the 
Constitution does not mean that they should be allowed to 
constantly surveil like Big Brother.
    The thought of Government drones buzzing overhead 
monitoring the activities of law-abiding citizens runs contrary 
to the notion of what it means to live in a free society. The 
Fourth Amendment prohibition on unreasonable searches and 
seizures has a consistent meaning, but the tests for 
determining whether Fourth Amendment rights have been violated 
have changed as technology changes. For more than 40 years, a 
physical trespass was necessary. For more than 40 years after 
that, the inquiry has been whether an individual's reasonable 
expectation of privacy has been violated.
    The recent Supreme Court case of U.S. v. Jones examined 
whether advanced technology is so intrusive that it becomes a 
trespass, in violation of the Fourth Amendment. That case is a 
good starting point for a discussion on drones.
    Example: Innovations in communication technology such as 
mobile devices have exposed formerly private information to 
public scrutiny. Information once closely guarded is now easily 
accessible via the Internet on simply handheld mobile devices. 
These developments and the ability of drones to provide 
unprecedented surveillance may lead to new standards 
establishing Fourth Amendment violations.
    The use of drones for law enforcement also raises a new 
challenge for prosecutors. Both the Chairman and I have at 
times referred to the famous speech Robert Jackson delivered 
when he was Attorney General. In that speech, Jackson pointed 
out that it is possible to find at least a technical violation 
of criminal law on the part of almost anyone. Good prosecutors 
will use these powerful new surveillance tools wisely. However, 
not all prosecutors are as responsible as we expect them to be, 
and our oversight responsibilities will be even more important 
as technology evolves.
    I have already started asking questions. Example: Last 
June, when the Attorney General appeared before the Committee, 
I asked him whether the Department was using or planning to use 
drones for law enforcement purposes. To date, I have not 
received an answer. This, even after another appearance before 
us this month. It is very important that the American people 
know whether and how the Justice Department is going to use 
these machines.
    Failure to provide answers about the use of these 
technologies is very concerning as well. It may well be subject 
for further legislation. That is something that the Chairman 
and I obviously will discuss. That is why today's hearing is so 
important, to answer questions, and not all of these questions 
can I give you because I do not have time. But whether we draw 
the limit regarding the use of drones by Government agencies--
where do we draw that line? Under what circumstances do we 
require a search warrant? Should police use drones only for 
surveillance? Should local governments be allowed to use drones 
to search for traffic violations and building code violations? 
Should the Federal Government use drones to follow around 
disability claimants to see whether they are fraudulent? What 
reasonable limitations are appropriate for where and when to 
use drones?
    Additionally, in examining the use of drones by the 
Government, Congress also needs to examine the reasonable use 
and limits of drones by private citizens in the private sector. 
Where do we draw the line in balancing the media's rights under 
the First Amendment with citizens' rights to be protected from 
invasion of privacy?
    Another area to examine is innovative use of drones, and so 
coming from a rural State, as the Chairman does, we have a lot 
of agriculture. Drones can be used by farmers to provide a 
bird's-eye view of a field and help a farmer survey crops more 
quickly for early signs of pests or disease. Drones may be able 
to spray crops to maintain their vigor, check livestock, 
prevent of crop, livestock, and equipment. These are all time-
saving and cost-saving benefits to agriculture. But no farmer 
would appreciate Government drones constantly flying overhead 
playing the role of Big Brother. And no one wants drone 
technology to end up in the hands of a harassing neighbor, 
child predator, stalker, drug dealer, violent criminal, or 
terrorist.
    These are challenges we face in our effort to properly 
balance innovation, privacy, and public safety, and this is a 
very appropriate hearing for this Committee to have.
    Thank you, Mr. Chairman, for your leadership.
    Chairman Leahy. Thank you very much.
    Our first witness is Ben Miller, who has probably been 
listening to what we are saying here and wondering just where 
this might lead. He is a 13-year veteran of the Mesa County 
Sheriff's Office in Colorado. He is also the Unmanned Aircraft 
Program manager for the Mesa County Sheriff's Office, a 
designation you would not have seen in many sheriff's offices 
just a decade ago. He is a representative of the Airborne Law 
Enforcement Association. He has assisted the Federal Aviation 
Administration with developing regulations regarding the public 
use of unmanned aircraft systems.
    What I am going to do is put all statements in the record 
as though read in full, but if you would like to summarize, 
please, Mr. Miller, we would appreciate it. Is your 
microphone--there you go.
    Mr. Miller. There we go. Is that on?
    Chairman Leahy. Yes.

    STATEMENT OF BENJAMIN MILLER, UNMANNED AIRCRAFT PROGRAM 
 MANAGER, MESA COUNTY SHERIFF'S OFFICE, MESA COUNTY, COLORADO, 
    AND REPRESENTATIVE, AIRBORNE LAW ENFORCEMENT ASSOCIATION

    Mr. Miller. Well, good morning, Chairman Leahy and members 
of the Committee. My name is Benjamin Miller. I am the Unmanned 
Aircraft Program manager with the Mesa County Sheriff's Office 
and, as said, a representative of the Airborne Law Enforcement 
Association.
    Thank you for inviting me to speak to you about the use of 
unmanned aircraft in the small Colorado community where I live. 
The Mesa County Sheriff's Office is a middle-sized agency of 
200 people with a patrol team of just over 65 deputies. These 
deputies serve approximately 175,000 citizens who live inside a 
3,300-square-mile county. We see a wide range of criminal 
activity, from petty offenses to major crimes, including drug 
trafficking and homicide.
    In 4 years, we have flown more operational hours than 
anyone else in the country, with 185 hours in just over 40 
missions, with two small, battery-operated unmanned aircraft 
systems. That is a lot considering the Draganflyer X6, which is 
this one on the table here, is a backpack-sized helicopter that 
can fly for only 15 minutes and weighs 2 pounds. Our small 
airplane, called Falcon UAV, can fly for an hour and can fit in 
the trunk of a car and weighs just 8 pounds. Both systems are 
used to carry cameras, which are commercially available. In 
fact, you can buy the very same camera that we put on the 
Draganflyer X6 at Walmart.
    I would like to share with you today some brief examples of 
how we have used this equipment.
    My first example occurred last May when an historic church 
caught fire. We flew the Draganflyer X6, carrying a thermal 
camera, which allowed us to show the hot spots that still 
needed to be properly extinguished. Firemen were then able to 
assess the situation and address it accordingly, as these areas 
were not viewable to the naked eye. We flew about 60 feet in 
the air and took photos that the arson investigators were able 
to use to determine which direction the fire had traveled 
through the building.
    My next example occurred just a few weeks ago when a 62-
year-old woman went missing. We launched our Falcon UAV in an 
effort to find this woman. We were able to clear large areas in 
a short time that would normally take much longer and involve 
more resources and cost a lot more money. The woman's body was 
recovered by ground personnel the following day. The use of 
Falcon allowed us to more directly apply our resources in this 
recovery effort.
    My final example occurred just days ago. It really does not 
have a whole lot to do with law enforcement, but it does offer 
a glimpse into the real benefit of unmanned aerial systems and, 
that is, affordability. Each year, Mesa County spends nearly 
$10,000 on a manned aerial survey of our landfill to determine 
the increase in waste over the previous year. My team and I 
completed that very same survey for a mere $200. By flying back 
and forth over the landfill, we were able to combine the photos 
that we took with geographic reference data and provide a 
volume to the landfill to an accuracy of 10 cubic centimeters.
    While military unmanned aircraft fly for hours and 
sometimes days at enormous altitudes, we fly just minutes to 
photograph a crime scene and cannot exceed an hour of flight 
time. The FAA has strict protocols that only allow us to fly 
during the day, and we cannot fly more than 400 feet off the 
ground.
    While military unmanned aircraft are both large in size and 
cost, our equipment is small and relatively inexpensive. Our 
equipment does not possess the capability to carry sensors that 
can read license plates from space or look through your home or 
carry weapons.
    Just recently, I was on the Airborne Law Enforcement 
Association's website and found a 1934 photo of an airborne 
police officer in a gyrocopter with a telegraph machine 
strapped to his leg. Aviation and public safety have a 
longstanding relationship. While unmanned aircraft cannot 
recover a stranded motorist in a swollen river, they can 
provide an aerial view for a fraction of the cost of manned 
aviation. I estimate unmanned aircraft can complete 30 percent 
of the missions of manned aviation for 2 percent of the cost. 
The Mesa County Sheriff's Office projects direct cost of 
unmanned flight at just $25 an hour as compared to the cost of 
manned aviation that can range from $250 to thousands of 
dollars an hour. It actually costs just one cent to charge the 
flight battery that we use inside our system.
    My agency's use of unmanned aircraft is primarily for 
search and rescue and crime scene reconstruction, but it must 
be said that any tool can be abused. This sad reality is not 
unique to law enforcement, nor did it begin with unmanned 
aircraft. While the use of unmanned aircraft requires specific 
policies and procedures, the handling of sensitive photographs 
and video has been around law enforcement for years. And I can 
speak to a strong code of conduct policy inside my own agency 
that addresses more than just the use of unmanned aircraft. 
Leadership organizations like the International Association of 
Chiefs of Police have recently released unmanned aircraft 
policy guidelines that encourage agencies to adopt non-
retention policies, whereby the information that we collect 
that is not determined evidence is deleted. These guidelines 
have also been endorsed by the Airborne Law Enforcement 
Association, and it is with their guidance that agencies like 
mine are developing robust policies, quality training tools, 
and professional unmanned aircraft programs.
    In closing, I hope that my testimony has offered a 
realistic perspective of the many benefits of unmanned 
aircraft. Thank you for the opportunity.
    [The prepared statement of Mr. Miller appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Our next witness, Amie Stepanovich, is the Director of the 
Electronic Privacy Information Center's Domestic Surveillance 
Program. Her work has specifically focused on the Fourth 
Amendment and drone surveillance. She received her J.D. from 
New York Law School and her Bachelor's of Science degree from 
Florida State University.
    Please go ahead.

STATEMENT OF AMIE STEPANOVICH, DIRECTOR, DOMESTIC SURVEILLANCE 
 PROJECT, ELECTRONIC PRIVACY INFORMATION CENTER, WASHINGTON, DC

    Ms. Stepanovich. Thank you, Chairman Leahy, Ranking Member 
Grassley, and members of the Committee, for your leadership in 
this area. In our statement today, EPIC recognizes that drones 
have tremendous positive uses in the United States. However, 
when drones are used to obtain evidence, intrude upon a 
reasonable expectation of privacy, or gather personal 
information about identifiable individuals, rules are necessary 
to ensure that fundamental standards for fairness, privacy, and 
accountability are preserved.
    Recent records received by EPIC under the Freedom of 
Information Act demonstrate that the Bureau of Customs and 
Border Protection has outfitted drones with technology for 
electronic signals interception and human identification.
    Law enforcement offices across the country have expressed 
interest in the purchase and use of drone technology. Records 
released show that law enforcement in Texas, Kansas, 
Washington, and other States are using drones. The Florida 
Police Chiefs Association has expressed interest in using 
drones for general crowd surveillance, and law enforcement in 
the State of Texas have expressed interest in using non-lethal 
weapons on drones.
    As the Chairman has indicated, the privacy and security 
concerns arising from drones need to be addressed. State and 
local governments have considered a wide array of laws and 
regulations to prevent abuses associated with drone technology. 
But Congress can do more. EPIC offers the following 
recommendations on the best methods to provide the proper level 
of protection.
    All drone operate should be required to submit detailed 
public reports on the drones' intended use. Issuance of a 
license should be contingent on the completion of these 
reports. And private right of action and other penalties should 
ensure compliance with what has been reported.
    Warrant requirements should be mandated for law enforcement 
use of drones with narrow exceptions for exigent circumstances. 
And to further bolster the warrant requirement, broad and 
untargeted drone surveillance by law enforcement should be 
prohibited.
    Drone operators should be prohibited from conducting 
surveillance of individuals that infringes on property rights. 
A Federal Peeping Tom statute, recognizing the enhanced 
capabilities of drones, would provide baseline privacy 
protection for individuals within the home. And all drone 
operators should be subject to third-party audits and 
oversight.
    Thank you for the opportunity to testify here today, and I 
will be pleased to answer your questions.
    [The prepared statement of Ms. Stepanovich appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Our next witness is Michael Toscano, who is president and 
CEO of the Association for Unmanned Vehicle Systems 
International, a nonprofit devoted exclusively to promoting 
unmanned systems. Previously he worked in the Office of the 
Deputy Assistant to the Secretary of Defense for Nuclear 
Matters. He has a Bachelor's of Science degree in both civil 
and environmental engineering from the University of Rhode 
Island.
    And I should also note that once the vote starts, we are 
going to keep the hearing going, and we will be taking turns 
leaving. I think Senator Hirono is probably going to be the 
first to go vote, but we will keep it going so this can 
continue.
    Go ahead, Mr. Toscano.

  STATEMENT OF MICHAEL TOSCANO, PRESIDENT AND CHIEF EXECUTIVE 
       OFFICER, ASSOCIATION FOR UNMANNED VEHICLE SYSTEMS 
               INTERNATIONAL, ARLINGTON, VIRGINIA

    Mr. Toscano. Good morning, Chairman Leahy and Ranking 
Member Grassley. I want to thank you and the rest of the 
members of the Judiciary Committee for inviting me to testify 
here today.
    My organization, the Association for Unmanned Vehicle 
Systems International, or AUVSI, is the world's largest 
nonprofit organization devoted exclusively to advancing the 
unmanned systems and robotics community. We have more than 
7,500 members, including more than 6,300 members in the United 
States. The industry is at the forefront of a technology that 
will not only benefit society, but also the U.S. economy. 
Earlier this month, my organization released a study, which 
found that the unmanned aircraft industry is poised to create 
70,000 new jobs and $13.6 billion in economic impact within the 
first 3 years following the integration of unmanned aircraft 
into the national airspace.
    However, the industry understands that this technology is 
new to most Americans, and their opinions are being formed by 
what they see in the news. Today's hearing is an excellent 
opportunity to address some misconceptions about the technology 
and discuss how it will actually be used domestically.
    You have probably noticed that I do not use the term 
``drone.'' The industry refers to the technology as ``unmanned 
aircraft systems,'' or UASes, because this is more than just a 
pilotless vehicle. A UAS also includes the technology on the 
ground, with a human at the controls. As I like to say, there 
is nothing unmanned about unmanned systems.
    The term ``drone'' also carries with it a hostile 
connotation and does not reflect how UASes are actually being 
used domestically, as you heard from Mr. Miller. UASes are used 
to perform dangerous and difficult tasks more safely and more 
efficiently. They were used to assess flooding of the Red River 
in the upper Midwest. They were used to help battle wildfires 
in California. And they are being used to study everything from 
hurricanes in the Gulf of Mexico, tornadoes in the Great 
Plains, and volcanoes in Hawaii.
    Unlike military UASes, the systems most likely to be used 
by public safety agencies are small systems that weigh less 
than 5 pounds, with limited flight duration. And you saw two 
examples here on the table. As for weaponization, it is a non-
starter. The FAA prohibits deploying weapons on any civil 
aircraft. And for the record, AUVSI does not support the 
weaponization of civil UASes.
    I also want to correct the misperception that there is no 
regulation of domestic UASes. The FAA strictly regulates who, 
where, when, and why unmanned aircraft will be flown. If a 
public entity wants to fly a UAS, they must obtain a 
Certificate of Authorization, or a COA, from the FAA. UASes are 
generally flown in line of sight of the operator, lower than 
400 feet, and during daylight hours. It is currently a 
violation of FAA regulations to fly a UAS for commercial 
purposes.
    As we focus on UASes for law enforcement, it is important 
to recognize the robust legal framework already in place, 
rooted in the Fourth Amendment of our Constitution and decades 
of case law----
    Chairman Leahy. And, Mr. Toscano, I do not mean to 
interrupt because you whole statement will be made part of the 
record, but we will have discussion of the Fourth Amendment and 
how it is involved. I appreciate you telling us what we should 
call them, but I think you leave that decision to us. We will 
decide what we will call them. You call them whatever you would 
like to call them.
    Mr. Toscano. All right, sir.
    Chairman Leahy. We appreciate that very much.
    [The prepared statement of Mr. Toscano appears as a 
submission for the record.]
    Chairman Leahy. Professor Ryan Calo is a professor at the 
University of Washington School of Law. He researches the 
intersection of law and emerging technology, co-chairs the 
Robotics and Artificial Intelligence Committee of the American 
Bar Association, is affiliate scholar at the Stanford Law 
School Center for Internet and Society, previously served as 
director.
    Mr. Calo, please go ahead.

  STATEMENT OF RYAN CALO, ASSISTANT PROFESSOR, UNIVERSITY OF 
         WASHINGTON SCHOOL OF LAW, SEATTLE, WASHINGTON

    Mr. Calo. Thank you, Chairman Leahy, Ranking Member 
Grassley, and members of the Committee, for this opportunity to 
testify today.
    As you mentioned, I am a law professor. I am mostly here to 
answer your questions, and so I will not read my testimony that 
you have before you in the record. I just want to make a couple 
quick points by way of summary.
    The first is that folks are very worried about the privacy 
ramifications of drones and that those concerns are well 
founded. Especially because drones drive down the cost of 
surveillance considerably, we worry that the incidence of 
surveillance will go up.
    Americans' concerns are legitimate for another reason, 
which is that there is very little in American privacy law that 
would limit the domestic use of drones for surveillance, right? 
And so just a couple of examples of that.
    There is no reasonable expectation of privacy in public or 
from a public vantage. Also, there is no reasonable expectation 
of privacy in contraband, and so the idea is that you can 
imagine drones flying around with chemical sensors--not the 
ones here on the table, but the ones that exist today and that 
the Department of Homeland Security and so on are looking into. 
They could fly around with chemical sensors looking for trace 
amounts of drugs and so forth.
    The limits on private individuals--I realize this is 
obviously about law enforcement, but the limits on private 
individuals' use of drones are, if anything, probably fewer. 
And then you also have, as Senator Grassley mentioned, the 
issue of the First Amendment, which may in some way push back 
against limits on drones by the press.
    So I think the best way to address this issue would be to 
finally drag our inadequate privacy doctrines into the 21st 
century, but I think that short of that, one stop-gap measure 
we should consider is that the FAA would actually kick the 
tires on privacy as part of its licensing process.
    I do think we should be very careful about passing a 
national law restricting drones in particular because, 
actually, frankly, this inadequacy of privacy law is a problem 
that far outstripes just drones.
    And with that, I would be very happy to take questions, and 
thanks again.
    [The prepared statement of Mr. Calo appears as a submission 
for the record.]
    Chairman Leahy. Well, thank you, and I thank you for 
summarizing.
    Mr. Miller, one, I appreciate you being here, especially as 
you are the manager of one of the only law enforcement programs 
in the country to operate a domestic drone. But I appreciate 
what you said about understanding constitutional safety and 
privacy concerns and so on.
    Do you think it would ever be appropriate for a law 
enforcement agency to arm a drone with lethal weapons?
    Mr. Miller. Absolutely not. I think in the 4 years of 
research into our program, we have not seen a single thing that 
would present that as any tool that would be usable in our 
mission.
    Chairman Leahy. Do you get that same impression from your 
colleagues?
    Mr. Miller. Absolutely.
    Chairman Leahy. What about non-lethal weapons--tear gas, 
pepper spray, flash-bang grenades?
    Mr. Miller. You know, that has been brought up before. I 
can tell you that, in our experience, considering the risks of 
unmanned aircraft and then also the risks of use of less-than-
lethal munitions, you know, such that they are, a bean bag 
round out of a shotgun, combining those two risks together is 
probably not the most responsible thing to do.
    Chairman Leahy. Now, I understand the drone you showed me 
there has a fairly short duration that it can be aloft. But do 
you think there would be drones law enforcement could use in 
the future, things like persistent surveillance or tracking, 
hours of surveillance or hours of tracking?
    Mr. Miller. What I can tell you now is that that is not 
affordable. Again, like I had commented before, why we use them 
is because they are affordable. They are cheap to operate.
    As far as persistent surveillance, I can tell you that 
right now that capability is not new in unmanned aircraft. We 
can do a persistent surveillance mission with manned aircraft. 
But I can tell you the need for that is relatively low.
    In fact, I can tell you in my 13 years I do not know of a 
persistent surveillance operation I have ever been a part of.
    Chairman Leahy. Technically, it would be feasible with a 
larger drone. Is that correct?
    Mr. Miller. Yes, that is what they are built for for the 
military.
    Chairman Leahy. Thank you.
    And, Ms. Stepanovich, as drone technology and cameras and 
sensors become more advanced, I worry about not just the 
Government use of drones--and Mr. Miller has spoken very 
frankly on that--but the ability of private companies and 
individuals to intrude on the privacy of Americans. What do you 
see as the most significant--if you had to list one or two of 
the most significant privacy threats from the domestic use of 
drones, what would it be?
    Ms. Stepanovich. The most significant trends in domestic 
use?
    Chairman Leahy. What are the most significant private 
threats from domestic use?
    Ms. Stepanovich. One of them is going to be, I believe, 
what you had just mentioned, the persistent surveillance. 
Although Mr. Miller talked that there has never been a need for 
that, I think we saw in United States v. Jones, as the Ranking 
Member brought up in his opening remarks, that law enforcement 
has conducted persistent surveillance using other technologies, 
and that that is going to be a significant consideration as 
drone surveillance moves forward.
    I also think, since the FAA is strictly prohibited from 
regulating model aircraft or individual use of drones, that 
there is going to be an issue with stalking, harassment, and 
other crimes using drones by individuals, and perhaps by 
corporations as well.
    Chairman Leahy. Does Congress have a role to play in this 
area?
    Ms. Stepanovich. Yes, I do believe they have a significant 
role to play. As I mentioned in my opening statement, the 
States have looked extensively at drone surveillance laws, and 
at my last check over 30 States have introduced legislation on 
this issue. However, Congress can provide nationwide baseline 
privacy standards in order to ensure that individual rights and 
civil liberties are protected against drone surveillance.
    Chairman Leahy. Thank you. And, Professor Calo--and I also 
have a question for Mr. Toscano, but I notice my time is almost 
out, and I will submit that for the record. I would appreciate 
it if you would respond.
    Professor Calo, you talked about Supreme Court cases 
regarding the constitutionality of aerial surveillance, which 
we have read. But do you believe that body of Supreme Court 
cases is adequate to guide the courts and law enforcement in 
the area of unmanned surveillance?
    Mr. Calo. I am not sure that I even think they are 
adequate, you know, for purposes of manned surveillance. But 
with unmanned surveillance, there is an additional danger, that 
as the costs go down, you see more of it. And so, no, I am not 
sure that they are adequate. I think they need to be updated.
    Chairman Leahy. Thank you very much.
    Senator Grassley.
    Senator Grassley. Professor Calo, the Supreme Court has 
held observation made while flying a manned aircraft in 
navigable airspace over a person's property does not violate 
the Fourth Amendment. In several cases, police were allowed to 
conduct surveillance over private property at heights ranging 
from 400 feet to 1,000 feet.
    Question: How low must a drone fly over private property 
before it triggers a reasonable expectation of privacy or 
trespass under the Fourth Amendment? And what about if a drone 
would hover?
    Mr. Calo. Sure. That is an excellent question, to which I 
am not sure I know the exact answer. It is true that if a drone 
were to trespass upon property, that would trigger the Fourth 
Amendment. And it used to be that you owned all the air rights, 
you know, all the way up into the heavens and all the way down. 
But, of course, after Causby and after commercial--the reality 
of commercial air flight, you can only own the property up to 
the air you could reasonably enjoy. So, certainly, if a drone 
were flying very close to your house, you could argue a 
trespass, but even if, you know, a few hundred feet above, 
probably would not.
    As to hovering, I am not sure that there would be 
necessarily a distinction drawn between the capability of 
hovering or not. Obviously, Florida v. Riley is a helicopter 
case, and helicopters are capable of hovering in place, and so 
I am not sure that that would be seen as a distinction of 
constitutional moment.
    Senator Grassley. I want to ask Ms. Stepanovich about the 
same issue. How low do you think a drone can fly before 
impacting the Fourth Amendment?
    Ms. Stepanovich. I agree with Mr. Calo's statement. The 
400-foot mark was indicated by the Supreme Court because in 
that specific case that was the height that the helicopter in 
question was flying at. However, it is an open question on if 
lower aerial surveillance vehicles would be included in the 
reasonable expectation of privacy or the personal trespass.
    Senator Grassley. Then to the two of you again I will ask 
this question: Does the addition of technology such as facial 
recognition, biometric recognition, and thermal imaging 
equipment affect whether there is a reasonable expectation of 
privacy under the Fourth Amendment? First you and then you.
    Mr. Calo. It does, and so we have a case involving thermal 
imaging where you needed a warrant or--at least it was a search 
for officers to look into your house and see intimate details. 
You know, one concern I have--and I think it is an open 
question--is if drones were to fly around and not actually feed 
images to law enforcement, but just detect chemicals or scan 
for unusual patterns, under the dog-sniffing cases, given that 
they are only looking for evidence of illegal activity, would 
that even trigger a search under the Constitution? And I think 
that is an open question and one that is teed up very well by 
drones.
    Senator Grassley. Ms. Stepanovich.
    Ms. Stepanovich. The invasive technology that you listed 
that drones are designed to carry in many cases definitely will 
impact an individual's reasonable expectation of privacy.
    In regard to the chemical sniffers that Mr. Calo discussed, 
there is technology now being developed by the Defense 
Department, DHS, and in use by the New York Police Department 
called ``Terahertz Technology,'' and that can scan for chemical 
traces down to incredibly small traces that you may have come 
into contact with accidentally. And people can be triggered as 
potential targets based on those trace substances.
    Senator Grassley. Professor Calo, another question to you. 
If private individuals and commercial companies are allowed to 
use drones, for example, if utilities started using them to 
check meters or they obtained video on private property, are 
there limitations on whether law enforcement can obtain those 
videos absent a warrant?
    Mr. Calo. Unless the officers instructed the private 
individuals to do the surveillance, then, no, they would not 
likely need a warrant for that. Obviously, the Fourth Amendment 
only applies to state actors.
    There are some limitations that will apply to private 
parties and not to the Government, and so, for instance, there 
was an aerial surveillance case involving trade secrets that 
was thought to violate trade secret law even though it did not 
violate the Fourth Amendment.
    Senator Grassley. For Professor Calo, in regard to the 
First Amendment, I have several questions, but I will have to 
stop with this one. With regard to commercial applications, we 
have heard concerns about the increased use of private data 
collected by companies for advertising or other business 
purposes. What restrictions or limitations on private data 
collection by corporations exist?
    Mr. Calo. Well, technically speaking, the First Amendment 
should not apply any differently to the press or corporations 
in terms of gathering information. Mostly it is about what 
people are allowed to say and so forth.
    But there have been cases suggesting that you have a right, 
for instance, to photograph police in public, and so I think it 
is a mixed picture.
    Senator Grassley. OK. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Feinstein.
    Senator Feinstein. Well, thank you very much, and I am one 
that has a real concern about drones being used commercially 
inside America. I know what drones can do, and, Mr. Toscano, 
you started out with a very seductive thing, and that is that 
it can produce large amounts of new jobs, which we would all 
like to have happen. However, I have seen drones do all kinds 
of things, and I think those all kinds of things bring on great 
caution.
    I think we have to look to what purposes can drones be 
legitimately used. How do you monitor their use? How do you 
certify the equipment? Because all kinds of things can be 
added. It may well not be legal to carry any munitions on a 
drone, but what can be done illegally and how can the 
Government prevent that from happening?
    I think the ability to--at what altitude can they fly? What 
kind of recognition, facial recognition, are they capable of at 
various activities? Can they take pictures of an individual 
through a window inside their home, a business through a window 
of their business, on the property on which they live? And 
drones are hard to spot for the untrained eye. So your ability 
to protect yourself is not great.
    Mr. Miller, let me ask you this question: You have really 
outlined, I think, a very legitimate use for drones, which is a 
careful litany of law enforcement functions. I assume there are 
some forest fire issues for which you could use a drone as 
well. But you have been through the process to operate an 
unmanned aircraft. Can you describe the process? How rigorous 
is it? How long did it take your office to gain approval for 
its COA? And what conditions do you think should be placed on 
the granting of law enforcement use of drones?
    Mr. Miller. Absolutely. That is a wonderful question, and I 
think a key point of the conversation. The process was 
rigorous, it was long. It took us approximately 8 months to get 
the certificate that allows us to fly. That certificate allows 
us to fly daytime, only up to 400 feet off the ground, and we 
must remain within land sight.
    Senator Feinstein. Let me ask you, are your UAVs certified 
and are their remote pilots certified?
    Mr. Miller. That is a wonderful question, and the answer is 
no. And I think you are referring to an airworthiness 
certificate in public aviation. The airframe itself has been 
through a rigorous process to make sure that all the components 
that make up that aircraft are produced responsibly, out of 
good materials, et cetera, and they pass the test.
    In this system here, that is not the case. None of the 
equipment on board here has passed the certification process to 
make sure that it is not going to fall out of the sky.
    The approach that is taken is not one of certification of 
the aircraft but one of certification or risk mitigation of the 
operation. This system--and I say worst-case scenario, is it 
falling out of the sky, suddenly shutting off, which it never 
has--falling to the ground is relative low risk, for two 
reasons: one, it is 2 pounds and really cannot cause a lot of 
damage; but, two, we operate over defined incident perimeters, 
and we have that ability as law enforcement--and what I mean 
by--the best way to describe that is, you know, the ``Police 
Line, Do Not Cross'' kind of thing. If we are on a crime scene, 
you know, absolutely the public is not going to be walking 
through our crime scene that we are photo'ing. So we are over 
top of what we call only participatory people--that means our 
staff, they have safety equipment that they are using to make 
sure that it is a safe operation, and that is really the 
direction that the FAA has taken in allowing us to fly this 
equipment, because it is relatively low risk.
    In the past, anytime we flew there was at least one life at 
risk, that being the pilot, if not more, and that is really not 
the case anymore.
    Senator Feinstein. Is there any regulation that indicates 
the distance you must keep from any airplane, whether it is 
commercial or private, small or large?
    Mr. Miller. Yes. Part 91 of the Federal Aviation 
Regulations have distances in place to stay away. Really, I 
think the issue here or the key here is that we cannot fly 
above 400 feet off the ground, and that is really kind of the 
lower limit for everybody else. In fact, in Class G airspace 
you cannot go below 500 feet off the ground, so there is a 100-
foot buffer.
    Senator Feinstein. OK. My time is up.
    Chairman Leahy. Do you have something else you wanted to 
ask?
    Senator Feinstein. Well, I was going to ask Mr. Toscano, 
has anyone in the industry figured out how to create an 
unmanned aircraft that can safely detect, sense, and avoid 
other aircraft?
    Mr. Toscano. The FAA right now has been mandated by 
September 2015 to assure integration of unmanned air systems 
into the national airspace. That is a safety requirement as we 
look at it. So sense and avoid or see and avoid for manned 
aircraft is an essential part. Technology is being developed 
today that will be certified at some point in time to assure 
that they are safe. And so because, as you have heard, there is 
a wide range of----
    Senator Feinstein. I am not talking about that. Perhaps you 
know. I am talking about the situation where a pilot landing in 
New York of a commercial jet said, ``I see a drone.'' Do you 
know what that drone was, where it was from, and what it was 
doing there?
    Mr. Toscano. The answer to that is no. I am not sure they 
have actually classified it of what it was. To my knowledge, 
they have not prudently or finally determined what it was that 
that pilot saw. I am not trying to be flippant here, but, you 
know, we talk about the sightings that are made all the time, 
and they are inaccurate. And until we find out the details, 
then in this particular case it could have been a model plane, 
it could have been other things that we do not know about at 
this point in time.
    Senator Feinstein. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Lee.
    Senator Lee. Thank you very much, Mr. Chairman.
    Mr. Toscano, under of the FAA Modernization Reform Act of 
2012, the FAA is required to establish unmanned aircraft system 
test ranges within the United States. I understand the FAA has 
requested proposals to create these test sites, and I also 
understand that Utah Valley University, which is the largest 
public University in my home State, is headlining an alliance 
that is one of the candidates for these sites.
    Are you familiar with this aspect of the 2012 Act? And how 
do you see these sites and the testing that will be conducted 
there as contributing to the necessary regulations that we 
might need in the United States, including regulations related 
to privacy?
    Mr. Toscano. That is an excellent question. This goes back 
to the responsibility of the FAA is to assure that anything 
that flies in the national airspace is safe. The only way that 
you can assure that safety is to test them. So these test sites 
that are being stated--there is one that already exists. It is 
in New Mexico State--and the six new ones that will be coming 
forward will have the capability to test to make sure that any 
unmanned air system will have the ability to operate safely 
into the national airspace. That is the design of those test 
sites, in which case they will certify the platform, the 
operator, in many cases the operational environment.
    Senator Lee. You sound fairly confident that that will lead 
to some improvements, lead to any standards that need to be 
created, making sure that they are----
    Mr. Toscano. Most definitely. If you look right now, they 
had 50 different entries that have been petitioned from 37 
different States that are involved. The six that are identified 
right now in the FAA reauthorization bill that you quoted, 
those are being funded by the States themselves with 
certification from the FAA.
    In the future, you may see that every State could have 
their own test site in order to be able to assure that the 
technology that is being deployed in the national airspace is, 
in fact, safe.
    Senator Lee. OK. And then, Ms. Stepanovich, some proponents 
of drones, drone technology, have argued that current 
safeguards provide a significant protection of privacy, and 
they note that we have on the books related to the use of 
technology, you know, laws that we already have on the books 
related to use of other technologies that can overlap and 
include this type of technology certain remedies that provide 
civil remedies for violations of those laws.
    Some have suggested that these legal protections should 
apply equally to drones, and that they may be sufficient to 
alleviate any constitutional problems or any privacy concerns.
    In your view, is this approach correct? And what are the 
main differences between manned and unmanned aircraft as it 
relates to the protection of Americans for their privacy 
concerns and their rights under the Fourth Amendment?
    Ms. Stepanovich. Thank you for the question. We do not 
believe that there are actually any Federal statutes that would 
provide limits on drone surveillance in the United States. The 
privacy laws that do exist are very targeted. It is the 
approach that the United States has taken to privacy, and they 
do not encompass the type of surveillance that drones are able 
to conduct. And because of this is why we are actually 
advocating for additional legislation on drone surveillance.
    The primary difference between manned and unmanned vehicles 
is going to be--and I think this has been brought up--that 
drones are going to be able to conduct much more surveillance. 
They are cheaper to fly, cheaper to buy, cheaper to maintain, 
and, therefore, able to conduct an incredible amount more 
surveillance and subject individuals to the surveillance.
    They are also designed, built and designed to carry some of 
the most invasive surveillance technology that is on the market 
today, and this further puts individuals at risk.
    Senator Lee. I assume that part of your analysis in that 
has to do with the stealth factor by virtue of their size and 
the way many of them are operated. They do not make as much 
noise. They are harder to see. They are harder to hear. And 
they can move in and out, you know, like a thief in the night. 
You will not necessarily know that they are there. I assume 
that is one of the factors that significantly factors into your 
assessment on that front. Is that right?
    Ms. Stepanovich. Yes, Senator.
    Senator Lee. And then in your testimony, you mentioned 
several concerns that you have about drones. Even with current 
advancements, present-day technology and the cost of that 
technology places some real significant practical limitations 
on the use of drones. As Justice Alito discussed in a recent 
opinion, some of the most effective privacy protections are 
neither constitutional nor statutory but practical. But as 
technology advances, those practical limitations cease to act 
as an effective constraint on the privacy concerns that we are 
discussing here.
    As you noted, the technology related to drones has 
developed much in the last decade, and it is going to continue 
to advance and make those same concerns even more significant.
    One of my concerns relates to the coming years and the 
likelihood that those limitations will recede, along with the 
technological advances. In other words, as the technological 
advances make drones more effective and more cost-effective, 
these concerns can become more significant.
    So, in your view, how should the potential for development 
of drone technology and the future uses of those systems affect 
our analysis here when we are examining the privacy 
implications of drone technology?
    Ms. Stepanovich. I think the best thing to do, because of 
the incredible advancement of drone technology and where it is 
going to be--recently technologist Bruce Schneier said that 
today's rare and expensive is tomorrow's commonplace--is that 
we need legislation on this issue that is going to be 
technology neutral, and that means it is not going to become 
quickly outdated as technology increases. And this has been 
done in several laws in the past. If we look at the Electronic 
Communications Privacy Act, which is in the process of being 
updated now, many years late, it was able to hold through 
tremendous advances in technology and only recently is going to 
have to be--needs to be updated because of not being able to 
foresee the future of the Internet at that time. And I think it 
is important for all technology and privacy legislation to try 
to be as technology neutral as possible.
    Senator Lee. Thank you.
    Chairman Leahy. Thank you. Thank you very much, Senator 
Lee. On the advance of technology, I referenced in my opening 
statement the theft done by Google of people's passwords and 
all. I mean, if somebody broke into your house and did that, 
you would want them arrested. They were doing it by driving by, 
and it was an egregious breach of people's privacy.
    I am going to yield now to Senator Klobuchar. I have to go 
back to the floor because of the budget matters, but Senator 
Franken has offered to take the gavel, and I appreciate that, 
Senator Franken.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you to all of you, and I do appreciate, being in Minnesota with 
the Red River Valley flooding and forest fires, those things 
that used the public safety use here. But I am concerned, as I 
hear more about the potential for individual citizens, for 
commercialization of this drone use, and also, obviously, some 
of the limits that were brought up even in the surveillance 
piece of this as well.
    So my first question was just to follow up on Senator 
Feinstein where she was asking about--maybe Mr. Toscano and Mr. 
Miller--the safety issues in the airspace. And while I 
understand all this 400 feet and the limitations, if you 
started getting these in the hands of people that maybe did not 
quite know how to run them or something went wrong, what would 
happen--this is my simple question: What would happen if one of 
them came up against a small aircraft? Or would it matter? Or 
if you got a bigger drone? I mean, isn't there some safety 
concerns with that?
    Mr. Toscano. When you look at the national airspace, there 
are rules and regulations that the FAA says you cannot fly 
anything within a certain distance of that airspace. If you do 
that, whether it is any type of machine, then you are violating 
the law, and there is a safety concern that you would be 
concerned about. That is why they have----
    Senator Klobuchar. I understand all that. I am just saying, 
What would happen if one of them hit a small plane? Like when 
birds hit a plane, it can create problems.
    Mr. Toscano. In that case there, you can see what they are, 
and they range from 2 pounds up to very large type systems. 
And, yes, any incident where you have--there was a collision, 
then there could be damage.
    Senator Klobuchar. OK. Then the second piece of information 
is just, again, back to you, Mr. Calo, on just this 
commercialization, and I know someone asked you about it 
earlier, but what are the limits right now if someone wanted to 
just privately fly one?
    Mr. Calo. Well, there are State statutes in some instances, 
and there is a common law privacy tort, intrusion upon 
seclusion, that says that if you really violate people's 
reasonable expectation of privacy--although you often have to 
do it repeatedly and you have to do it through outrageous 
conduct, then someone could sue you in civil court. There is an 
aerial surveillance case, at least one, involving trade secrets 
through aerial surveillance that came out in favor of the 
plaintiff.
    Senator Klobuchar. So someone could just buy one right now? 
Is that----
    Mr. Calo. Well, you could go and buy----
    Senator Klobuchar. Would they have to get a certification 
from the FAA?
    Mr. Calo. No, not really. So you could buy--I do not know 
if this stretches the limits to call it a drone, but you can 
buy something like a Parrot AR for about $300. It is an aerial 
vehicle that you can control with your iPad, and you could fly 
it around your neighborhood within line of sight, and unlikely 
you are not going to be running against any--you are not going 
to get sued over that in all likelihood.
    The FAA, of course, does ban the commercial use of drones 
today, but that ban is set to be relaxed in 2015, and then we 
will, of course, have an economic incentive.
    Incidentally, in my own personal view, to the extent you 
are interested, I think this is going to be a wonderful thing 
because I think this technology is deeply transformative, and I 
think that the--I think they are basically flying smartphones. 
And I think that one private industry gets their hands on these 
things, we are going to see some really great wonders.
    However, we are never going to get there unless we place 
some limits and domesticate this problem of privacy. Because of 
our reactions to these drones, we are not going to avail 
ourselves of the technology.
    Senator Klobuchar. Ms. Stepanovich, how would you respond 
to that in terms of the issues in the hands of private 
commercialization?
    Ms. Stepanovich. I think right now we are seeing already, 
even without commercial operators being legally able to operate 
drones, I think about every week, every month, I heard a story 
of the FAA having to go and shut down some commercial operator 
who is trying to take advantage of this technology before they 
are able to. So I think Mr. Calo is right that there are going 
to be incredible commercial uses of these. Google has already 
started using them actually to assist in their street view 
operations in other countries, not yet in the United States. So 
they are going to be used commercially, and I think that, as I 
said in my opening statement, creates new challenges as well.
    Senator Klobuchar. Senator Lee was asking about some of the 
technology and how that comes up against the laws and citing 
the Alito opinion. And according to the Congressional Research 
Service, some drones have facial recognition technology and 
radar, which can see through walls, in the same matter that 
airport security is used through layers of clothing.
    What are some of these more advanced features of domestic 
drones? And how do you see this being developed? I guess I 
could ask you, Mr. Toscano.
    Mr. Toscano. The technology that is being utilized on 
unmanned air systems is no different than the technology that 
exists today and can be used by manned systems. There is no 
technology leap that has taken place by the introduction of a 
UAS. What it allows you to do and the concerns that we are 
having that you might be able to do these sort of things at a 
very low cost and with a larger volume is the same things that 
cause the economic benefits with what we are seeing of the 
utilization.
    So it is something that we have to address because there is 
a very huge upside to this technology, and because of that you 
cannot stop people from misusing any technology, just like you 
said, whether it is facial recognition, thermal imaging, or 
whatever. If they misuse it, the laws tell you that if you 
violate the laws, then you should be punished.
    Senator Klobuchar. I just do not think the laws have 
probably caught up with this new technology.
    Mr. Toscano. And that may be the issue that we really 
should be discussing, is it is the technology that exists 
today, not the delivery system.
    Senator Klobuchar. Well, our laws need to be as 
sophisticated as the people that are potentially breaking them, 
so I think that is where we are headed to. So thank you very 
much.
    Senator Franken. [presiding.] Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman. Thank you to all of 
the witnesses for coming and testifying today.
    It seems to me that drones are a technological tool that, 
as with most tools, can be used productively or can be abused. 
When we think about our conduct overseas, in particular in 
counterterrorism, I think drones have proven an effective tool 
in certain circumstances, and in particular have enabled us to 
deal with terrorists without placing servicemen and -women 
directly in harm's way.
    At the same time, it seems to me that overseas our conduct 
needs to be consistent with the laws of war, and domestically 
in the United States that our conduct in all circumstances 
needs to be consistent with the Constitution. And how that 
applies to drone surveillance or, a topic for another day, use 
of lethal force is not necessarily an easy question.
    I would like to begin, Mr. Miller, with a question for you, 
which is: Are there limitations on the uses of drones that your 
members would support as common-sense protections of the 
privacy of American citizens?
    Mr. Miller. The easy answer is yes. We already looked to 
case law. One of the things that we have positioned our program 
on, or the concept is that we have not really invented a new 
ability to collect information. You know, the camera has done 
that for us. It has done that for us in decades, you know, in 
the past, and so there is case law out there that speaks to the 
direction which we take when we consider putting a camera in 
the air.
    You know, really, the fact that it flies on this size 
system or, you know, the typical police helicopter you see 
really has not changed the way we think about it or view it.
    Senator Cruz. So what limitations would your members 
support?
    Mr. Miller. Let me clarify. I think the limitations that we 
would support are the ones that we currently have identified 
through the study of case law that has occurred to this time.
    Senator Cruz. It seems to me that there should be an 
important distinction between individuals for whom there is 
probable cause, substantial evidence to be suspected of a 
crime, and law enforcement has always had extensive tools for 
operating in that environment, and the collection of data 
concerning ordinary citizens. When you overlay the availability 
of drones with the proliferation of things such as stationary 
cameras--I will note my hometown of Houston recently voted to 
take down red light cameras. I think a great many of us, myself 
included, have very deep concerns about the Government 
collecting information on the citizenry. And with the ease and 
availability of drones, I think there is a real concern that 
the day-to-day conduct of American citizens going about their 
business might be monitored, catalogued, and recorded by the 
Federal Government. And then I for one would have very deep 
concerns about that.
    I would ask a question of Ms. Stepanovich. Do you share 
those concerns? And if so, what reasonable limitations should 
be considered to protect the privacy rights of all Americans?
    Ms. Stepanovich. I think anytime when you come up with a 
new surveillance technology, you are going to have instances 
where the technology catches bad actors doing bad deeds. 
However, if those few instances are at the expense of Dragnet 
constant surveillance of all citizens as they go about their 
daily lives, it is not consistent with our constitutional 
protections and what our country was built on.
    I think we need to prevent drones from becoming 
alternatives for police patrols flying up and down or in some 
instances, when you are not talking about aerial drones, 
driving up and down the street collecting all sorts of 
information about individuals, supplemented by the facial 
recognition technology, the automatic license plate readers. I 
think we do need to enforce a warrant requirement for drones in 
circumstances where they are collecting criminal evidence, and 
I think we need to address, in addition to law enforcement use, 
also commercial and individual uses of drones.
    Senator Cruz. Mr. Toscano.
    Mr. Toscano. Senator, I think that is the core of the issue 
that we have here today. The conversation should be focused on 
what is the Government's right to collect, to use, to store, to 
disseminate, to share information.
    Last year, we put out a Code of Conduct that says this is 
how you should use UASes in order to get the benefit and to 
make sure that you do not violate the privacy of an individual. 
The IACP, the International Association of Chiefs of Police, 
put out their guidelines and which the ACLU has applauded as 
being the good guidelines in order how to use this technology.
    There is a tremendous opportunity for this technology to be 
used, and it is not a different type of surveillance. The 
technology is the same technology that exists today. It is how 
it is being used. And I understand the benefits that you get 
from having a low-cost, reliable capability that can provide 
you with the ability to move a mission package payload from one 
point to another. But what you do with that and the human being 
that is involved in it is the one that is responsible. Just 
because there is not a pilot in the plane, the individual that 
is operating that platform is still responsible. And if that 
person uses it in an incorrect way or misuses it, then that 
person should be held accountable.
    Senator Cruz. Thank you, Mr. Chairman.
    Senator Franken. Thank you.
    Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman, and to all of the 
panelists.
    Professor Calo, I think you are the person who mentioned 
that the Fourth Amendment only applies to state actors, and so 
at least there are protections against unreasonable Government 
intrusion. So my concern really centers around what happens 
when non-state actors can utilize this technology? And after 
2015 apparently the sky is the limit. Do you think that 
Congress has the power to prohibit private citizens and 
corporations from using drones with cameras that are capable of 
storing images? Or, in fact, what is the limit to what Congress 
can do to provide limitations on non-state actors and their use 
of drones?
    Mr. Calo. Yes, I think that Congress can provide those 
limits. Again, the First Amendment draws a distinction between 
stopping someone from talking about something and general 
prohibitions. So, for instance, the Government may say that you 
are not allowed to do X, Y, and Z in order to gather 
information in the first instance, and that can apply across 
the same way to the press or individuals, whoever else they 
might be. And so as a consequence, yes, they probably can.
    Now, that said, they would not be able to make sort of 
content-based kind of distinctions about who can use drones and 
who cannot. But setting basic privacy limits for everybody to 
use drones will apply in equal measure to individuals in the 
press and so forth. And so, yes, I think Congress does have 
that capability.
    Senator Hirono. Well, it is coming up with what constitutes 
these basic privacy limitations. That is the rub, right?
    Mr. Miller. Yes.
    Senator Hirono. It is not going to be so easy to come up 
with that kind of language.
    With this technology changing as fast as we can probably 
sit here talking about this, I was intrigued with Ms. 
Stepanovich--when you said that any laws that we propose should 
be technology neutral, I am very intrigued by that. What would 
you consider a technology-neutral way to set some limits on the 
private use of drones?
    Ms. Stepanovich. I think the best way is to look at the 
surveillance that drones can conduct, looking at data retention 
and data minimization, and making sure that no individual has 
kind of persistent data bases of information collected on them.
    One of the great places we have to turn are the Fair 
Information Practices, which have been incorporated by the OECD 
in their guidelines to look for what protections need to be in 
place whenever information is collected about individuals.
    Senator Hirono. So, Ms. Stepanovich, perhaps other panel 
members could weigh in on this, too, but I would think that it 
would be pretty difficult to enforce these kinds of statutes 
for law enforcement. For example, you know, if we establish 
some parameters, geographic parameters or height parameters or 
visual sighting parameters, who is supposed to enforce whether 
all of these limitations are being met?
    Ms. Stepanovich. Some of the things that we have asked for 
include audits that would reveal when possible violations are 
occurring, and private rights of action, so individuals who 
observe drones being operated in a way that they are not 
supposed to be or allowed to be can actually bring suit against 
the drone operator.
    However, I want to note that at least a Federal statute 
would be enforceable. Mr. Toscano brought up the AUVSI 
guidelines and the chiefs of police guidelines. The AUVSI 
guidelines have one line in them about privacy. The chiefs of 
police guidelines are a little more protective. However, 
neither of those are enforceable provisions, and I think that 
we----
    Senator Hirono. Do you think a private cause of action--and 
I could ask Professor Calo also--in this area might be a very 
important part of any law that we propose?
    Ms. Stepanovich. Yes.
    Mr. Calo. I am not sure where I come down on that. I think 
there are couple of dangers of legislating at the Federal 
level, and maybe one approach to think about is to allow the 
States to come up with individual ways of doing things and see 
whether the common law torts can also adapt to changing 
circumstances.
    So I am not sure I come down one way or the other about 
whether there is a good idea of a private cause of action. I do 
think that some safeguards are absolutely necessary because 
otherwise I think Americans are going to reject this technology 
which could be very beneficial.
    Senator Hirono. Thank you. My time is up.
    Senator Franken. Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman.
    Let me pursue the question that arises from your last 
response, if I may, and ask you whether, in fact, if there is 
legislation, shouldn't it be at the Federal level because we 
are dealing with an industry which is Federal in scope, issues 
that pertain to air safety? Obviously, the FAA has a mandate to 
provide for integration by 2015 because of the prospect of 
30,000 or more of these UAVs, drones, whatever you want to call 
them, flying around in our airspace. Isn't this sort of 
quintessentially an issue for Federal regulation if there is 
going to be legislation?
    Mr. Calo. The short answer is I just do not know. I mean, I 
completely agree with respect to safety that, of course, FAA 
has expertise, it has its own integrated approach. I also 
support as a stop-gap the idea of asking the Federal Aviation 
Administration to consider privacy as one of the prerequisites 
to issuing licenses. I think that all makes a lot of sense.
    I do think that there is some benefit of the fact that the 
States are laboratories of ideas, and so you have some States 
which say, look, anything goes here, and other States that say 
nothing goes here; and maybe we will learn from that 
experience. And that is all I am trying to say.
    Senator Blumenthal. And I agree as a former State law 
enforcement official that States sometimes are much better 
equipped and able to deal with these kinds of questions, and I 
think at a certain level very likely States can safeguard 
privacy concerns, establish standards that are then proven or 
disproved in the laboratory as--I think it was Justice 
Frankfurter referred to them as the ``laboratory for legal 
development.''
    Do you know of any challenges that are ongoing now--and any 
of the members of the panel can respond--challenges either to 
private practices or law enforcement actions pending in the 
courts or planned? And maybe I should begin with Ms. 
Stepanovich. You would probably know.
    Ms. Stepanovich. I know of one right now. Customs and 
Border Protection has an ongoing program where they allow State 
and local law enforcement and other Federal agencies to borrow 
their Predator B drones and use them to conduct surveillance 
that is not related to the Customs and Border Patrol mission. 
This is something that EPIC has been pursuing, and we are 
submitting today a petition to Customs and Border Protection 
for them to suspend this practice. However----
    Senator Blumenthal. You are submitting it today?
    Ms. Stepanovich. Today. However, North Dakota, this 
practice has already been used to conduct surveillance of a 
suspected and alleged cattle thief who was holed up on his 
property. They flew the drone over his property and collected 
information about him and used that information to arrest him. 
It is the first use of a drone to arrest a U.S. citizen on U.S. 
soils.
    Senator Blumenthal. And the courts really could be relied 
on to protect privacy in the law enforcement setting except 
almost certainly those cases will arise in the context of 
efforts to exclude evidence in a criminal prosecution rather 
than, let us say, surveillance or monitoring or other 
potentially invasive activities that might not result in the 
prosecution where a motion to exclude evidence would be filed.
    Ms. Stepanovich. Exactly, and we believe that we need the 
protections in advance of getting to that stage in the 
prosecution. When a court challenge has already been brought to 
exclude evidence or for surveillance issues, that means that 
rights have already been violated. And we think that 
legislative efforts could put protections in place to prevent 
that from ever happening.
    Senator Blumenthal. Well, my general view is that we need 
to update the law. Clearly there is a need for everyone's 
interest to update the law, if only to provide the industry 
with the kind of bright lines and standards it needs and 
deserves to develop and apply this new technology. I am amazed 
that the case that is sought by all sides for reliance as to 
the doctrines applicable here is a 1986 case involving aerial 
surveillance from an airplane where the U.S. Supreme Court 
upheld that practice by law enforcement officials, and here we 
have an entirely new, advancing, fast-changing, potentially 
very intrusive technology, but also with very positive uses as 
well, if properly channeled.
    So I hope that whether it is State courts and State law or 
Federal courts in advance of legislation or Federal agencies, 
the FAA, for example, issuing permits and applying privacy 
standards, can somehow develop doctrines that update our 
current constitutional principles and safeguard privacy, which 
is very much in need of protection, not only in the collection 
of data but also retention and distribution. For me, the issues 
are not only what private companies or the Government does to 
collect data, but also how they retain it, how they store it, 
how they keep it, and what they do with it--selling, 
exchanging, disseminating it.
    So thank you, Mr. Chairman.
    Senator Franken. Thank you, Senator.
    Senator Durbin.
    Senator Durbin. Thank you, Mr. Chairman.
    As Chair of the Privacy Subcommittee, Senator Franken takes 
up these issues with some frequency, and I am reminded that 
when I first came to this Committee, someone noted that the 
word ``privacy'' cannot be found in our Constitution. But we 
have established that right, and I believe most of us believe 
it is a very important right that we cherish and want to 
protect, and that is what this conversation is about.
    We are trying to take a document, the Constitution in this 
case, written many years ago and apply it to the modern world, 
and at times we have had to struggle with that. The telephone 
was beyond anyone's imagination when the Constitution was 
written. The Internet and all of the trafficking that goes on 
through computers 20 or 30 years ago was unthinkable. And I 
will tell you, serving as Chairman of a Subcommittee that deals 
with the military and our intelligence operations, the capacity 
that we have for surveillance is dramatically improving, and we 
are using it to our benefit to keep America safe. And I am glad 
that we are. We may lead the world in that category. I want us 
to continue to.
    But when it comes to this emerging technology, the 
challenge has been discussed here at length on this Committee--
the intersection of our personal privacy and the march of 
technology, and what we need to do by way of law or policy to 
really face it.
    Professor Calo, cases that you noted in your testimony 
really, as you said, are not right on point. More or less the 
Supreme Court is talking about GPS detection of a suspect, 
thermal imaging, and the like. So it appears to me that there 
is more to be said when it comes to the question of our civil 
liberties, the prosecution of a crime, and the use of this 
technology. What do you think are the major elements that are 
still out there unresolved in these court decisions?
    Mr. Calo. There is a tremendous amount of flexibility in 
the doctrine, and so at its core, what we are talking about is 
whether someone has a subjective expectation of privacy that 
then society is prepared to accept as reasonable. And so what 
we have is a bunch of data points saying that if someone flies 
over your house or your company or whatever it happens to be, 
with a helicopter or a plane, that your expectation of privacy 
vis-a-vis people in national airspace is not reasonable. Or we 
have cases suggesting that affixing a GPS device to a vehicle 
is technically a trespass and, hence, is a search under the 
Constitution and so forth.
    So I agree that they are not directly on point, but they--
--
    Senator Durbin. Well, what about red light cameras? I am 
driving through this intersection and did not even know it, 
there is a red light camera that is monitoring my conduct and 
may end up taking a photograph and sending me a ticket in a 
week or two.
    Mr. Calo. Yes, I mean, I think that there are real dangers 
there, but I think the current constitutional doctrine will not 
capture that. That is to say, I do not think that that is going 
to be seen as violating the Fourth Amendment. And I do not 
think that most uses of drones are going to be seen as 
violating the Fourth Amendment. And that is potentially really 
the problem, which is that not just drones but surveillance 
technology has vastly outpaced privacy law, in my view, and it 
needs updating.
    One of the dangers of regulating in this space and limiting 
the regulation to unmanned aircraft systems is that there are 
other things, like traffic cameras; you know, there are robots 
that climb the side of a building. Would those be captured by 
an unmanned aircraft system? I think it is more of an updating 
all of privacy law to reflect contemporary technology.
    Senator Durbin. So, Mr. Miller, you are in the law 
enforcement field. Let us follow through on that. Currently 
there are efforts underway in many communities, not all, to 
collect this information from just the general conduct of the 
population. Now, do you see that as a parallel to the use of 
drones?
    Mr. Miller. No, I do not think as a parallel. I think you 
speak to really the issue at hand is the information. As I am 
listening to Professor Calo, I am thinking about medical 
information. And I think what we are doing today, the 
conversation is centered around a tool as if medical 
information and the protections that protect my medical 
information matters that a doctor collects it, maybe asks that 
hard question, and a nurse does not. Or, you know, the 
physician's assistant is only allowed to ask me these questions 
or what they do with the information.
    I think in this conversation it is very important to focus 
on the information. I can tell you that that is where my agency 
stands, is to focus on the information. It is the information--
it does not matter how we collect it. It is what we do with it, 
how we maintain that public trust with the public by not taking 
the photo of you in the traffic infraction and putting it on 
the front page of the paper.
    Senator Durbin. So let me just challenge you on that point. 
It is not a matter of how we collect but what we do with it. 
What about the right to be left alone, which is really kind of 
basic in America? You know, and whether we are talking law 
enforcement on one side, the private sector on another, just 
generally collecting information about my life.
    Mr. Miller. I think you make a great point, but, again, I 
think it is--you bring that question about, you know, I just 
want to be left alone, or that comment, and you bring that back 
to--it is not really just law enforcement, but what can we 
collect, and once we have, what can we do with it?
    Senator Durbin. So, Professor Calo, this common law tort 
that you talked about, it is the first time I had ever heard of 
it. What is it again?
    Mr. Calo. Intrusion upon seclusion.
    Senator Durbin. That is alliterative. And how often has it 
been tested? I mean, is this an established tort?
    Mr. Calo. It is an established tort. In fact, it was--the 
intellectual underpinnings are the same as the right to be left 
alone, so it is an 1890 Law Review article that has been very 
influential sort of sets out the elements that are later 
codified or adopted by other courts.
    It is not tested all the time. Part of the reason is that 
the conduct at issue has to be pretty outrageous for it to 
trigger, and that is because, you know, all of us are going 
around looking at one another all the time, and so you want to 
be able to have a threshold that gets met.
    I do, though, tend to agree that there really is a 
subjective element of harm to being--living in a society where 
you feel like you are under surveillance. So irrespective of 
whether the data is being collected or shared, just feeling 
like you are living under drones could have that effect if 
there are no safeguards in place.
    Senator Durbin. Mr. Chairman, I wish we had more time here, 
and I thank the panel for their contribution. I will tell you 
that----
    Senator Franken. Just go ahead and take as much time as you 
want.
    Senator Durbin. No. I have to leave, unfortunately, but I 
want to mention that after Easter recess, we are going to have 
a hearing in the Subcommittee on the Constitution about the use 
of drones in an international context. I am glad Senator Leahy 
kicked this off with Senator Franken, but it will get into the 
whole question of the lethal use of drones, the law of war, and 
the Constitution, which is another challenging area of the law. 
But I thank you for this hearing. It is timely and very 
important.
    Senator Franken. Thank you, Senator.
    As Senator Durbin said, I am Chairman of the Subcommittee 
on Privacy, Technology, and the Law, and this sort of seems 
like this hearing could have been held in that Subcommittee. I 
am glad we did it as the whole Committee.
    This is the perfect example of why I believe there is--I 
would characterize the Constitution as ``a living 
Constitution.'' The Founders, I think it would be fair to say, 
probably did not anticipate this. They did not anticipate the 
phone, and that is why at a certain point we had to decide 
whether phone taps were a violation of the Fourth Amendment. 
And that really came down to people's expectation of privacy, 
and that is kind of a big part of what we are talking about 
here today.
    Look, there is no question that this technology has 
unbelievable potential for law enforcement, for legitimate law 
enforcement, for commercial applications, certainly no one 
would argue with agricultural applications, no one would argue 
for mining or for--there are all kinds of unbelievable uses of 
this, but we do have these privacy concerns.
    I guess one of my questions is about who should oversee 
this, who exactly--I will start with Ms. Stepanovich. Last 
year, the Government Accountability Office, told us that, ``No 
single Federal agency has been statutorily designated with 
specific responsibility to regulate privacy matters.'' But what 
they were referring to related to domestic drones.
    There is disagreement on whether that responsibility should 
be centralized in one body, and if so, which agency could do it 
the most effectively.
    In your opinion, what type of oversight would most 
effectively protect Americans' civil liberties, their privacy 
when it comes to UAS?
    Ms. Stepanovich. Mr. Calo has mentioned a couple times that 
there is a stop-gap with the FAA's oversight and licensing 
authority. EPIC recognized that back in February 2012 after the 
FAA Act was passed and petitioned the FAA to implement privacy 
regulations as part of their process to increase the use of 
drones in the United States. We believe that the FAA does have 
a critical role to play in this by mandating as a contingent on 
licensing for drone operators to turn over information about 
what surveillance operations they are going to conduct and to 
make that information publicly available and to hold them 
accountable to sticking to that information. So we think that 
the FAA is the primary regulating source.
    We also believe that when other entities choose to operate 
drones, such as Customs and Border Protection or the Department 
of Justice, they need to implement privacy regulations and 
surveillance limitations within their own use of drones, 
subject to notice and comment rulemaking.
    Senator Franken. I am not quite sure then who is overseeing 
that, if there is a single agency. Mr. Toscano.
    Mr. Toscano. If we have a privacy concern or debate right 
now today, where would you go for that? You would not go to the 
FAA. They have very limited, if any, expertise in the area of 
privacy. What they do have and what is mandated by them is they 
are responsible for safety. Anything that flies in the national 
airspace can only be done by virtue of the granting of the FAA 
saying that it is done in a safe manner. And that is the 
responsibility of the FAA, and that is a tremendous 
responsibility that we take in high regard. So I think we 
should let the FAA do what they do best.
    And when you talk about privacy, I am very fortunate to 
have lawyers to the left and to the right of me, and actually 
in front of me and in back of me. Those are the individuals----
    Senator Franken. Very fortunate indeed.
    Mr. Toscano. Yes.
    [Laughter.]
    Mr. Toscano. Those are the individuals--and as we have 
talked about today, this is about privacy in general. This is 
about the concern of gathering information, how it is used, how 
it is stored, how it is disseminated, and how it is destroyed. 
That is done through a different framework.
    And so I look to this and say that is the essence of what 
we are talking about, and it will come down from law. Whether 
it comes from State Peeping Tom laws or whether it comes from 
the Constitution or the Fourth Amendment, which is based on----
    Senator Franken. You are talking about legislation.
    Mr. Toscano. Correct.
    Senator Franken. And the legislation by necessity will kind 
of appoint some agency to oversee this, I would think. And who 
should that be, Professor? Or is it not one agency, centralized 
in one agency?
    Mr. Calo. There is economic scholarship, at least that I 
have read, suggesting that we are faring relatively well with 
the multiple hats approach here. Also, I confess that I am not 
convinced that Federal legislation is the right move at this 
time.
    I will disagree with Mr. Toscano about the FAA. I mean, it 
is true historically that the FAA has looked at safety, but I 
do not see any reason why the FAA could not gain expertise 
around privacy.
    I received a letter from the FAA----
    Senator Franken. Now, the FAA did tell GAO that this was 
not--they have no expertise on privacy.
    Mr. Calo. That is true. I recall them telling GAO that, but 
then only in February, I received a letter from the FAA saying, 
``We would like your input on how we should think about privacy 
in connection to testing centers.'' And so the truth of the 
matter is I think that the FAA is capable of gaining expertise, 
as any agency is, and that they could be a good repository.
    Senator Franken. OK. Well, we will keep thinking about 
that.
    There has been some testimony and talk about questions 
about or mention of data retention and dissemination. What are 
the issues and who would be overseeing that? In other words, 
again, is that a legislative responsibility? And would we be 
talking about a privacy law regarding UAV or UAS information?
    Mr. Calo. The Privacy Act actually does place some limits 
on sharing among agencies and with the public of private, 
personally identifiable information with respect to Government 
actors.
    Senator Franken. I am sorry to interrupt you, but we have 
smartphones now, and someone referred to this as a flying 
smartphone.
    Mr. Calo. That was me, yes.
    Senator Franken. OK. Well, we are having a little bit of a 
problem, you know, in that regard, trying to put our finger on 
exactly how we regulate that.
    Mr. Calo. Senator, you are preaching to the converted on 
this issue. You know, I think that the FTC and the FCC have 
struggled mightily, not just with, you know, the network and 
the device itself, but all the apps on top of it. It is a 
little bit of a mess.
    I am not sure that we will fare any better around drones. I 
think that perhaps it is a matter of triage. If we want to 
avail ourselves of this technology, as many here agree we 
should, then perhaps we should have at least something in place 
so Americans feel more comfortable. And I think that the most 
obvious authority for that right now is the FAA, although, 
again, I believe that, you know, we really should be updating 
Fourth Amendment law in general to deal with contemporary 
surveillance technology.
    Senator Franken. Speaking of flying smartphones, I am just 
interested in--I mean, we are now talking about technology that 
obviously we have not talked about until now and we certainly 
would not have been talking about 10 years ago. So I am 
wondering about nanotechnology. You know, I think people would 
probably have been surprised before this hearing to see that 
that is what--that is a UAV, OK, and that is what we are 
talking about in large part.
    How small can these things get? And I think maybe the 
answer to that is we do not know, and a thousand years from 
now, I bet you they will be smaller, and we may just be brains 
on a thing. So never mind that.
    [Laughter.]
    Senator Franken. Let us not go there.
    But what we are talking about here in terms of the 
capabilities here are obviously--I will go to Ms. Stepanovich. 
You get to handle this. You are talking about technology 
neutral, but we are going to have--this technology is just 
going to exponentially get more sophisticated and probably 
smaller, don't you think?
    Ms. Stepanovich. I do believe so, and one of the major 
images we think of when we think of drones are the big Predator 
drones, which are being operated in the United States. But we 
also have the ones that you see on the desk in front of you all 
the way down to there are now drones the size of a humming bird 
being developed, and micro drones and drones even smaller. So 
the technology is increasing at an exponentially rapid rate, 
and as we move forward, we are just going to see the 
capabilities of these devices increase.
    Senator Franken. So presumably at some point you could have 
one the size of a mosquito that has a battery that operates for 
weeks, and you could have a mosquito following you around and 
not be aware of it.
    Ms. Stepanovich. There are already images online of a 
mosquito drone being developed by the National Security Agency 
and them trying to figure out what technology they can put on 
it, to make small enough to put on it.
    Senator Franken. God help us if an adolescent boy gets a 
hold of one of those.
    [Laughter.]
    Senator Franken. Mr. Toscano.
    Mr. Toscano. You know, there was----
    Senator Franken. I do not know what that meant, by the way.
    [Laughter.]
    Mr. Toscano. Obviously, we have had tremendous advancement 
in technology over the last couple hundred years, and we can 
continue to understand how that may go forward. A lot of that 
is due to different properties that have happened in processing 
capabilities and things of that nature. But the figure was used 
before that the FAA said there would be 30,000 of these flying 
in the airspace. Well, that was an earlier figure. They have 
now revised that to say about 10,000.
    But if you looked at what those 10,000 might be, they are 
not going to be 10,000 surveilling drones that are just 
following Americans. If you look at the report we did, 80 
percent of the application is going to be in farming, in 
precision agriculture. And if you look at it from a public 
safety standpoint--and that includes the law enforcement which 
talked today, but also firefighters, first responders, things 
of this nature--you are going to see that that is a small 
quantity in the bigger picture. And, you know, when Ms. 
Stepanovich mentioned about one that was used in order to go 
over a rancher's facility, that was called in by State entities 
to a Federal request. It could have been done with a manned 
system. They could have done it with a helicopter. But the 
technology was there and available, and they took advantage of 
it.
    So I guess the point we are making is that we seem to be 
fixated on the truck or the what-if of this thing could be 
happening. But like I say, we have already talked about it. It 
is the law of--the privacy aspect of the information that is 
being collected. That is what is key and critical. And that is 
something that we are going to have to keep dealing with as not 
just this technology. Fifty years ago, we had this thing called 
the Internet that came out of the military, and there were many 
hearings just like this that were concerned about the privacy 
of this thing called the Internet, that you were going to put 
your personal data on this thing, and you would be connected to 
all these different entities without having any measures in 
place.
    Well, 50 years later, here we are and the Internet is an 
integral part. It has helped us tremendously with the gross 
national product of our Nation and in the world. It has made 
our lives better. Are there misuses of the Internet? Well, I 
think we can all attribute to that and understand that that is 
a true statement. But we now have, what, bullying laws that 
have come up that say because someone is misusing this 
technology, we have to put the right legislation or the right 
parameters in place to make sure that we get to take advantage 
of all the upside, which is a huge upside, and still make sure 
that it is protected.
    Senator Franken. I think no one is questioning the 
commercial potential and the public safety potential and the 
public good that can come from this. But we are--you know, one 
of my big duties here in the Senate is to look out for people's 
privacy, and I see that Professor Calo wanted to respond.
    Mr. Calo. Thank you, Senator. I appreciate it.
    I just wanted to use the Internet analogy and say that when 
we first deployed the commercial Internet, there were many 
people that were very nervous about using it. They did not want 
to go on there and do transactions online. And we had to get 
security adequate enough so that people felt comfortable using 
the Internet so that it can be what it is today.
    The same has to be said about drones. If we are going to 
realize the commercial potential of drones, we are going to 
need to get these privacy and civil liberties issues right.
    Senator Franken. Safeguards will enhance the ability to use 
them in the correct way.
    Mr. Calo. Correct. And we concur. That is what is needed.
    Senator Franken. One last thing that came up, and then we 
will bring this to an end. Ms. Stepanovich, facial recognition 
has been brought up, and when I started to talk about the 
technological development of these, I mean, is there fear that 
this can be used in a way--and, again, the fear is that we kind 
of have to address in order to make sure that we are able to 
use them properly--that there will be--that use of facial 
recognition--and not just in the hands of law enforcement or 
the Government, but also in the hands of private entities, and 
what possible misuse could this be put to?
    Ms. Stepanovich. I do not think there is as much fear as a 
realistic expectation that this is going to be deployed on 
drones. We have already seen reports that it is being 
developed, and both commercial and public entities wishing to 
deploy it on drones.
    Facial recognition technology comes with its own risks 
because it totally connects an individual's life. You can keep 
a full picture of what happens to an individual throughout the 
day, not only in their public life but on their online 
transactions. You can connect those kind of two separate worlds 
once you start deploying facial recognition information.
    So this technology in the hands of commercial and 
Government operators on drones increases the kind of 
surveillance picture for what drones are going to be able to 
collect.
    Senator Franken. And could give everyone the sense 
essentially of having no privacy whatsoever in their lives.
    Ms. Stepanovich. Yes.
    Senator Franken. Which is a tremendous loss. So we have to 
make sure that we can handle that through the law so that we 
can do the positive uses of this technology.
    Thank you all for your time and for your testimony. I think 
it has been a very productive hearing, and it is clear to me 
that the tremendous potential of this technology to create jobs 
and reduce costs for law enforcement operations cannot be 
overstated. But it is also clear that there are serious privacy 
and civil liberties concerns felt by all the members of this 
Committee. We need to be doing more to prevent drones from 
being used in an abusive manner that violates Americans' 
privacy rights, and I think only if we do this, to follow up on 
Professor Calo, then that will allow us to do the commercial 
applications and only if we do that properly.
    This hearing has been an important first step toward 
explaining these complex issues, and I hope this panel will 
continue to work with me, all of you, and other members of this 
Committee on appropriate legislation to address the privacy 
concerns discussed today. Thank you all again for your 
testimony.
    The hearing record will stay open for a week if anyone 
would like to submit additional statements or questions. This 
meeting is adjourned. Thank you all.
    [Whereupon, at 12:24 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files, see contents.]

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