[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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81-775 WASHINGTON : 2013
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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
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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
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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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