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81–775 PDF 2013

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 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 69 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 73 

WITNESSES 

Calo, Ryan, Assistant Professor, University of Washington School of Law, 

Seattle, Washington ............................................................................................. 10 

Miller, Benjamin, Unmanned Aircraft Program Manager, Mesa County Sheriff’s Office, Mesa County, Colorado, and Representative, Airborne Law Enforcement Association .......................................................................................... 5 

Stepanovich, Amie, Director, Domestic Surveillance Project, Electronic Privacy Information Center, Washington, DC ........................................................ 7 

Toscano, Michael, President and Chief Executive Officer, Association for Unmanned Vehicle Systems International, Arlington, Virginia ........................... 8 

QUESTIONS AND ANSWERS 

Responses of Ryan Calo to questions submitted by Senators Grassley and 

Lee ......................................................................................................................... 33

Responses of Benjamin Miller to questions submitted by Senators Grassley 

and Lee ................................................................................................................. 39 

Responses of Amie Stepanovich to questions submitted by Senator Grassley ... 42 

Responses of Michael Toscano to questions submitted by Senators Grassley 

and Lee ................................................................................................................. 48 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Washington, DC, statement .......................................................................................... 58 

Calo, Ryan, Assistant Professor, University of Washington School of Law, 

Seattle, Washington, statement .......................................................................... 70 

Miller, Benjamin, Unmanned Aircraft Program Manager, Mesa County Sheriff’s Office, Mesa County, Colorado, and Representative, Airborne Law Enforcement Association, statement ....................................................................... 75 

Stepanovich, Amie, Director, Domestic Surveillance Project, Electronic Privacy Information Center (epic.org), Washington, DC, statement .................... 84 

Toscano, Michael, President and Chief Executive Officer, Association for Unmanned Vehicle Systems International (AUVSI), Arlington, Virginia: 

statement .......................................................................................................... 92 

(AUVSI), attachments ...................................................................................... 97 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government or other criteria determined by the Committee, list: 

The Economic Impact of Unmanned Aircraft Systems Integration in the 

United States, AUVSI, Report, March 2013 

(1) 

THE FUTURE OF DRONES IN AMERICA: LAW 

ENFORCEMENT AND PRIVACY CONSIDERATIONS 

WEDNESDAY, MARCH 20, 2013 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:38 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Durbin, Klobuchar, Franken, 

Blumenthal, Hirono, Grassley, Lee, and Cruz. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I appreciate everybody being here, and as you 

know, we are having budget and other matters going on. That is 

why some of us are in and out of this hearing. 

I had breakfast this morning with the Chairman of the Joint 

Chiefs of Staff, General Dempsey. When I mentioned this hearing, 

I pointed out to him that this is on domestic, non-military use of 

drones. Recently the debate about the use of unmanned aerial vehicles, or ‘‘drones,’’ has largely focused on the lethal targeting of suspected terrorists, including Americans. I continue to have deep concerns about the constitutional and legal implications of such targeted killings, and both Senator Grassley and I have requested all 

the OLC material on that. I have spoken with Senator Durbin, who 

next month will chair a hearing in the Constitution Subcommittee 

that is going to examine these issues carefully. 

As I noted at the beginning of this Congress, I am convinced that 

the domestic use of drones to conduct surveillance and collect other 

information will have a broad and significant impact on the everyday lives of millions of Americans. Just in the last decade, technological advancements have revolutionized aviation to make this 

technology cheaper and more readily available. As a result, many 

law enforcement agencies, private companies, and individuals have 

expressed interest in operating drones in our national airspace. I 

should mention that we are not talking just about the large Predator drones that are being used by the military or along our borders, but also about smaller, lightweight unmanned vehicles. We 

are going to hear testimony about that. The one that Mr. Sheehan 

is bringing up here now is from the Mesa County Sheriff’s Office, 
2 

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 
3 

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 
4 

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? 
5 

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 
6 

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-yearold 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 
7 

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 sur-
8 

veillance, 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 
9 

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.] 
10 

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.] 
11 

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 
12 

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. Obvi-
13 

ously, 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. 
14 

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? 
15 

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 
16 

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. 
17 

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? 
18 

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, 
19 

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. 
20 

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 col-
21 

lect 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 guide-
22 

lines 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 contentbased 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 
23 

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 stopgap the idea of asking the Federal Aviation Administration to con-
24 

sider 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 
25 

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 
26 

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? 
27 

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 Gov-
28 

ernment 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. 
29 

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 
30 

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 
31 

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? 
32 

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.] 
33 

QUESTIONS AND ANSWERS 

W SCHOOL OF LAW UNIVERSITY of WASHINGTON 

April 10, 2013 

Senators, 

Thank you for your insightful questions about the law and policy that attend the 

domestic use of drones, and again for inviting me to testify on this important issue. I 

have provided some initial answers below and would be happy to continue the 

conversation at the Committee's convenience. 

Sincerely, 

Ryan Calo 

Assistant Professor 

University of Washington School of Law 

Jniversitv of Washington School of Law 
34 

w SCHOOL OF LAW UNIVERSITY of WASHINGTON 

QUESTIONS FROM RANKING MEMBER CHARLES GRASSLEY 

Question l.A: Does the reasoning in Jones or Jardines change the analysis for 

reviewing aerial surveillance by unmanned systems of the Fourth 

Amendment? 

Maybe. Jones signals a willingness on the part of a majority of Justices (five of nine) to 

revisit the doctrine that citizens enjoy no reasonable expectation of privacy in public, 

whereas Jardines suggests that drug or bomb-sniffing drones would not be subject to the 

Fourth Amendment unless they were to fly so low as to interfere with property rights. 

Technically Jones holds that attaching a GPS device to a vehicle for the purpose of 

gathering information and without the citizen's permission constitutes a search. As 

drones can follow a car without touching it, the majority opinion would not seem to 

control. Yet five Justices, over several concurrences, worried aloud about following a 

citizen in public by electronic means and suggested that such surveillance might trigger 

Fourth Amendment scrutiny if sufficiently extensive. 

Jardines, meanwhile, holds that bringing a police dog within the curtilage of a home (in 

this case, the front porch) constitutes a search for purposes of the Fourth Amendment. 

We may tacitly consent to officers coming to knock on our front door to ask a question, 

but we do not, the Court reasoned, tacitly consent to bringing an instrumentality of 

investigation onto our property. 

But now please assume no trespass or "intrusion" onto a citizen's property. Imagine a 

drone equipped with the ability to detect unlawful chemicals that flies over a public 

street or high above the suspect's house. In that case, I would think that at least 

Justice Thomas, who was in the majority in Jardines, would move over and join the 

four-Justice dissent, creating a five to four opinion finding no search because citizens 

enjoy no reasonable expectation of privacy in contraband (Illinois v. Caballes). 

Question l.B: Does the low cost and effort associated with drone surveillance 

change the Fourth Amendment calculus? 

It may. Again, five Justices in Jones evinced a concern over how easy it had become to 

follow people around in public using electronic means. 

University of Washington School of Law 
35 

w SCHOOL OF LAW 

UNIVERSITY of WASHINGTON 

Question 1.C: Does the addition of technology, such as facial recognition, 

biometric recognition, and thermal imaging equipment affect whether there is 

a reasonable expectation of privacy? 

Facial and biometric recognition underscore the shortcomings of the doctrine that 

citizens possess no reasonable expectation of privacy in public. The same Justices I've 

mentioned in Jones might be prepared to accept as reasonable (Katz test) an expectation 

of privacy against drones or even linked cameras that can re-identify individuals using 

facial recognition. These technologies and others (e.g., license plate readers) make it 

possibly to follow someone around electronically without committing much in the way of 

manpower. 

I believe the Supreme Court's decision in Kyllo puts thermal imaging in its own category. 

The use of thermal imaging to detect activity within a private space likely requires a 

warrant or else must qualify under a limited exception. On the other hand, the use of 

thermal imaging merely to detect bodies in public at night probably would not. It might 

also be that thermal imaging is today in widespread enough use that the Court would 

revisit whether citizens are reasonable in not expecting it. (A company called Essess, 

for instance, drives around taking thermal images of people's houses.) 

Question 2.A: Does the First Amendment prohibit Congress from restricting 

the use of drone technology by the press? 

As I understand the relevant doctrine, the First Amendment generally tolerates 

restrictions on data collection activities as long as they are reasonable and apply to 

everyone equally. Congress probably could not single out the press for a ban on drone 

photography. But even today, the press may not fly drones because of Federal Aviation 

Administration rules that apply to all private entities excepting hobbyists. 

Question 2.B: What reasonable restrictions could Congress considering placing 

on the use of drones by the press? 

I would think any press-specific limits on the use of drones could be constitutionally 

problematic. Even California's anti-paparazzi law-recently upheld in state court 

against a challenge to its constitutionality-is grounded in trespass and intrusion upon 

seclusion and written in general terms that would, for the most part, apply equally to 

anyone (California Civil Code Section 1708.8). 

University of Washington School of Law 
36 

w SCHOOL OF LAW 

UNIVERSITY of WASHINGTON 

Question 2.C: What restrictions and limitations on private data collection by 

corporations exist? 

Consumer privacy laws in the United States are notoriously sector and activity specific. 

Thus, certain categories of information (financial, health) are subject to specific rules 

whereas some areas (online advertising) are subject only to the Federal Trade 

Commission's mandate to police against unfair or deceptive practice. Moreover, the 

laws in place tend not to restrict collection as such, but rather require notice to the 

consumer, adequate data security, and so forth. Corporations no less than individuals 

are still subject to the common law tort of intrusion upon seclusion, wherein the 

defendant intentionally invades the reasonable expectation of privacy of another through 

an outrageous conduct. 

Question 2.D: What recourse would private citizens have if they feel their 

privacy rights have been violated by the press, private citizens, or companies 

using drones? 

The opportunities for redress vary by jurisdiction. In many places, citizens may bring 

suit under one the four common law torts: intrusion upon seclusion, publication of 

privacy fact, false light, and publicity. Some states have codified these torts and even 

provided for damages-which can otherwise be a difficult hurdle for a plaintiff to 

surmount. 

Question 3: Is the FAA the best agency for authorizing the domestic use of 

drones? 

I would say that the FAA is a perfectly adequate authority, in the short term, to deal 

with the privacy issues drones present. The agency's charge from Congress, as I 

understand it, is to create a comprehensive plan to integrate drones into domestic 

airspace. I believe successful integration will entail addressing all legitimate citizen 

discomfort with the technology. 

According to a 2012 Government Accountability Office report, one or more FAA officials 

believe privacy falls outside of the FAA's mission to promote aircraft safety. 

respectfully disagree. Agency missions evolve, and other agencies have had no trouble 

dealing with ancillary factors such as privacy. For instance, in its examination of 

University of Washington School of Law 
37 

w SCHOOL OF LAW 

UNIVERSITY of WASHINGTON 

driverless cars, the National Highway Traffic Safety Administration has considered the 

issues of driver privacy and autonomy. And "Safety" is literally their middle name. 

I believe the FAA has since acknowledged its potential role in addressing privacy and I 

am encouraged that, in recent months, the FAA has reached out to the privacy 

community to seek input in connection with its selection of drone testing sites. I believe 

the agency can go further and require COA applicants to develop and adhere to a privacy 

plan or risk losing their certificate, as the Electronic Privacy Information Center has 

formally requested. 

Thank you again for your insightful questions. 

University of Washington School of Law 
38 

w SCHOOL OF LAW 

UNIVERSITY of WASHINGTON 

QUESTION FROM SENATOR MICHAEL LEE 

Questions 1: How would the Supreme Court likely decide a case in which law 

enforcement obtained evidence from the curtilage of-i.e., the area 

immediately surrounding-the home using an unmanned aircraft system? 

In Florida v. Riley, the Supreme Court recognized that the area being observed by 

helicopter was "within the curtilage of the house." I believe the Court would apply the 

same logic to a standard flyover using an unmanned aircraft system (UAS). I would 

make several caveats, however: 

First. although homeowners do not own all the rights above and below their property as 

they once did, they still own those air rights they could reasonably use and enjoy. 

Accordingly, were the UAS to fly low enough to implicate the owner's property rights, one 

could readily imagine a court treating the act as a trespass and hence a search for 

purposes of the Fourth Amendment. 

Second, a court could conceivably treat peering into a home through a window differently 

than peering into a greenhouse through a missing tile. A court might apply the 

reasoning of Kyllo u. United States, the thermal imaging case, on the theory that UAS are 

"sense enhancing technology" not (yet) in public use. Even before Kyllo, cases such as 

United States v. Taborda, in the U.S. Court of Appeals for the Second Circuit, held that 

the use of telescope to look into a dwelling constituted a search. 

In short, I believe that the use of a UAS to gather evidence within the area immediately 

surrounding a home from a reasonable distance would not trigger the Fourth 

Amendment under current precedent, but could readily imagine facts that would make 

for a harder case. 

Thank you for your great question. 

University of Washington School of Law 
39 

Senate Committee on the Judiciary 

Hearing on "The Future of Drones in America: Law Enforcement and Privacy Considerations" 

Questions for the Record 

From Ranking Member Charles E. Grassley 

Questions for Benjamin Miller 

(I) Urban versus Rural Environments 

Drone technology can provide valuable assistance to police officers in remote areas where it is 

hard to reach and inaccessible because of proximity or terrain. 

• What type of assistance would drone technology offer police officers in cities or a 

more urban environment? Unmanned aircraft systems offer much of the same 

valuable assistance to police officers in urban areas as they do in remote areas. Given 

the advantages of flight, variables on the ground have minor influence on the 

outcomes of this equation. In both environments, UAS provide for the opportunity to 

see from a different vantage point, a 'higher ground' perspective if you will. Whether 

the device is being used for a search and rescue mission in eastern Montana or a traffic 

accident investigation in downtown Los Angeles, the assistance is provided from an 

elevated position. 

• Are drones currently being used by law enforcement in urban areas? If yes, what types 

of drones and drone technology are used in urban areas? Including the Mesa County 

Sheriff's Office, we are aware of four law enforcement agency operational Certificates 

of Authorization for the use of UAS. They are U.S. Customs and Border Protection, 

Grand Forks County (ND) Sheriff's Office, and Arlington (TX) Police Department. 

The Airborne Law Enforcement Association (ALEA) does not collect data that would 

answer whether or not these devices are being utilized in urban areas. As such, we 

would suggest contacting the Federal Aviation Administratation and/or the agencies 

directly. 

• Aside from the use of drones in protecting the Nation's borders, are you aware of any 

Federal law enforcement agency utilizing drone technology for surveillance or other 

activity? ALEA does not collect data that would answer this question. We would 

suggest contacting the Federal Aviation Administratation and/or the agencies directly. 
40 

, 

l. 
41 

photos would have been deemed evidence and submitted as such. In this case, the flight 

was not a search and thus no warrant was necessary. It should be noted however, that in 

the four years that my agency has used unmanned aircraft, we've seen the predominance 

of use fall under non-criminal operations such as search and rescue. 

4. If the beneficial use ofUAS you have mentioned do not implicate such concerns, would you 

support a strict requirement that warrants be obtained for those uses of UAS by law enforcement 

that implicate these concerns? 

As you know, the Fourth Amendment requires a warrant for a search or seizure. When the 

use of unmanned aircraft has been determined to be a search, under the fourth amendment, a 

warrant is already required. A duplicative piece of legislation may require further steps that 

hinder the use of unmanned aircraft for public safety users in operations that are not 

considered searches under the Fourth Amendment and could unnecessarily add obstacles to 

saving lives. We feel it would be much more constructive to pursue regulation that addresses 

how sensitive information can be stored, used and deleted. 
42 

Senate Committee on the Judiciary 

Hearing on "The Future of Drones in America: Law Enforcement and Privacy Considerations" 

Questions for the Record 

From Ranking Member Charles E. Grassley 

Questions for Arnie Stepanovich: 

(I) Fourth Amendment Considerations 

At the hearing, I asked a number of questions about the application of the Fourth Amendment to 

the use of unmanned aerial vehicles by law enforcement. I appreciate the answers you provided, 

but would like to follow-up on a couple of those matters in light of the recent decision by the 

Supreme Court in Florida v. Jardines. In Jardines, the Court held, 5-4, that the use of a drug 

sniffing dog at the front door of a private residence where law enforcemcnt suspect illegal drugs 

are being grown constitutes a search under the Fourth Amendment. 

This decision was based upon the common law notion of trespass extending the Court's 

reasoning from the 2011 decision in United States v. Jones. The majority opinion authored by 

Justice Scalia reasoned that it was nnnecessary to address whether the use of the dog sniff 

violated the individual's reasonable expectation of privacy, because the trespass onto private 

property implicated the Fourth Amendment regardless of whether the trcspass invades an 

individual's reasonable expectation of privacy. 

The use of trespass doctrine to examine the application of the Fourth Amendment to 

law enforcement activity has implications for the use of drones. Do you believe that 

the reasoning in both Jones and Jardines change any ofthe analysis for reviewing 

aerial surveillance by unmanned systems under the Fourth Amendment? If so, 

please describe. If not, why not? 

In the recent cases of United States v. Jones, 132 S. Ct. 945 (2012), and 

Florida v. Jardines, 133 S. Ct. __ (2013), the Court held that certain law 

enforcemcnt bchavior violated the Fourth Amendment. The majority opinions in 

both cases focuscd on the physical intrusion oflaw enforcement onto private 

property. 

In both cases, Justice Scalia wrote a majority opinion that made clear that 

thc trespass tcst was a standard to provide baseline privacy protections, and was 

not intended to overrule or otherwise change Katz's "reasonable expectation of 

privaey" test. Justice Sotomayor agreed with Sealia in a concurrence in Jones, 

referring to the trespass standard as an "irreducible minimum" of Fourth 

Amendment protection. Justice Scalia set out a two-part test, first asking if the 

intrusion violated a constitutionally-protected area (such as the curtilage of the 

house), and, ifso, whether the physical intrusion was unlicensed. In Jardines, 

Scalia noted, "in permitting, for example, visual observation of the home from 
43 

'public navigable airspace,' wc were careful to note that it was done 'in a 

physically nonintrusivc manner.'" 

Drones carry surveillance technology that makes it unneccssary to cross 

personal property lines in order to obtain sensitive, personal information about an 

individual, family, group, or organization. Drones are capable of hovering in an 

area adjacent to the property for prolonged pcriods of timc while collecting vast 

amounts of personal information. The majority holdings in Jones and Jardines do 

not change the test for determining whether the usc of drone technology that has 

not trespassed on private property violates a "rcasonable expectation of privacy." 

Justice Kagan's concurrcnce in Jardines wrote, "where ... the Government uses a 

device that is not in general public use, to explore details of the horne that would 

previously have been unknowable without physical intrusion, the surveillance is a 

'search' and is presumptively unreasonable without a warrant." But the greater 

insight of Justice Kagan's concurrence, which was joined by Justice Ginsburg and 

Justice Sotomayor, is that privacy intrusions can raise concerns under both the 

trespass doctrine and thc Katz reasonable expectation of privacy doctrine. This is 

particularly true, she observed, where the surveillance that takes place is of the 

horne: it is both the trespass onto private property as well as the intrusion into 

private life that is significant. 

The law should clarifY in what circumstances a drone has physically 

invaded or "trespassed" into a constitutionally protected area. Congress could, for 

example, codify the current standard of up to 400 feet above private property as a 

minimum basis for a protected area. In addition, comprehensive legislation could 

preserve current expectations of privacy against increased surveillance, including 

unregulated data collection and storage. 

Physical surveillance is difficult and expensive given manpower constraints. Drones 

can conduct surveillance for hours on end with low cost and little effort. Given the 

length of time drones can stay on a target, and the low burden on law enforcement, 

does that change the Fourth Amendment calculus? If so, please explain. 

Practical barriers to surveillance are being reduced by the development of 

new and inexpensive technologies. The affordabiJity and ease of drone operations 

will enable increased surveillance unless statutory protections arc enactcd. 

In United States v. Jones, the Supreme Court unanimously found that the 

warrantless attachment and usc ofa GPS device to a suspect's car for the purpose 

of monitoring the suspcct's movements for a one-month period was a violation of 

the Fourth Amendment. 

The majority opinion in Jones rested on a physical trespass rationale. 

However, a group of four Justices joined Justice Alito's concurring opinion 

holding that the long-term GPS monitoring also violated a reasonable expectation 

of privacy. Justice Sotomayor joined the majority opinion, but also wrote in 

concurrence to note that she agreed with Justice Alito's reasonable expectation of 

privacy analysis. These concurring opinions created shadow majority in the Jones 

decision. Justice Alito's opinion held that "the use oflonger term GPS monitoring 

in investigations of most offenses impinges on expectations of privacy," and even 
44 

though he docs not indicate precisely whcre the line between "short-term" and 

"long-term" monitoring lies, "the line was surely crossed beforc the 4-week 

mark." 

Justice Sotomayor agreed with Justice Alito's conclusion that "at the very 

least, 'longer term GPS monitoring in investigations of most offenses impinges on 

expectations of privacy.'" Justice Sotomayor noted, "cases involving even shortterm monitoring ... require particular attention" because the "Government can 

store such records and efficicntly mine them" for information years into the 

future." Justice Sotomayor focused on aspects of GPS tracking that also apply to 

drone technology, namely that it "is cheap ... proceeds surreptitiously, [and] it 

evades the ordinary chccks that constrain abusive law enforcemcnt practices: 

'limited police rcsources and community hostility.'" Generally, the Court's 

analysis suggests that in the absence of a legal standard enacted by Congress, 

drone surveillance will proliferate over time. 

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? If so, please explain. 

Drones already earry infrared camcras, heat sensors, GPS, sensors that 

detect movement, and automated license plate readers. In the near future, 

government and corporate actors may attempt to outfit drones with facial 

recognition technology, Stingray cell-site simulators, and electronic frisking 

scanners. 

The use of this technology to conduct surveillance of activities within the 

home (e.g. thermal imaging) should trigger Fourth Amendment protections. In 

Kyllo v. United States, 533 U.S. 72 (2001), and, morc recently, in Justice Kagan's 

concurring opinion in Florida v. Jardines, the Court indicated that "where [a] 

device is not in general public use, training it on a home violates our minimal 

expectation of privacy." Absent Congressional action to preserve current 

expectations of privacy, the availability and proliferation of surveillance 

technology may degrade the current standards of privacy protection against 

surveillance in and around the home. 

The curtilage, or the area directly surrounding the home, enjoys special 

Fourth Amendment protections similar to the home itself United States v. Hester, 

365 U.S. 57 (1924). In Florida v. Jardines, the Court held that the curtilage "is 

part of the home itself for Fourth Amendmcnt purposes." However, the Court has 

previous allowed warrantless law enforcement surveillance of the curtilage from 

the vantage point of a fixed-wing manned aircraft flying over the home within the 

public airspace. Florida v. Riley, 488 U.S. 445 (1989), see also California v. 

Ciraolo, 476 U.S. 207 (1986). By contrast, at least one Circuit Court has held that 

long-term fixed-camera surveillance of curtilage violated the Fourth Amendment 

United States v. Anderson-Bagshaw, 2012 WL 6600331 (2012). Courts will 

continue to struggle with the question of when surveillance of the curtilage using 

advanced technology constitutes a Fourth Amendment search. 
45 

As Justice Sotomayor's concurring opinion in Jones explained, extended 

surveillance, such as that made possible by advanced technologies, can generate 

"a wealth of data" about a person and reveal intimate dctails of their life that 

would not otherwise be public. Because of this risk to privacy, Congress should 

set defined limits on the warrantless use of these technologies, even in public 

spaces. 

(2) First Amendment Considerations 

The use of drones by private entities, such as the news media, to gather information on 

individuals and organizations is fast becoming a reality. Government regulation of private drone 

use is likely to be a new battlegronnd under First Amendment. Even now, states legislators are 

proposing new laws to severely curtail the use of drones by private persons and entities. For 

example, a new bill proposed in California would prevent people or entities not affiliated with 

the government from using unmanned aircraft "for the purposc of surveillance of another person 

without that person's consent. 

The First Amendment protects the freedom of the press, subject to reasonable restrictions. Drone 

technology could potentially offer the press a powerful tool in terms of surveillance. 

Does the First Amendment prohibit Congress from restricting use of drone 

technology by the press? 

Drones do not enjoy more Constitutional protection than other 

technologies or methods for newsgathcring or documentation. As with all forms 

of expression, content-based restrictions on drones would be unconstitutional 

under the First Amendment. Laws such as the Video Voyeurism Protection Act 

and state paparazzi laws are currently in force that restrict imagc collection in 

certain, limited situations. 

What reasonable restrictions could Congress consider placing on the use of drone 

technology by the press? 

Ovcr private property, laws could define the parameters under which a 

drone would commit a trespass, violate a rcasonable expectation of privacy, or 

intrude upon an individual's right of enjoyment of his or her property. Noncontent based restrictions on the use of drones may be permissible. For example, 

Congress could clarity the current standard by defining individual property 

ownership of the airspace up to 400 feet and codify current expectations of 

privacy against increased surveillance. 

However, even non-content based restrictions on the use of drones by 

individuals should be carefully considered. Drones may be powerful tools for 

journalism in many instances. For instance, in holding public officials accountable 

in the performance of their official duties or reporting on weather-related events, 

such as hurricanes or earthquakes. 
46 

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 and limitations on private data collection by 

corporations exist? 

There is not a comprehensive privacy law in the United States to restrict 

the collection or use of personal information by commercial entities. A patchwork 

of sector-specific laws include protections for privacy, such as the Gramm-LeachBliley Act and the Fair Credit Reporting Act. In addition, the Federal Trade 

Commission investigates "unlawful or deceptive" trade practices by industry, 

including those involving corporate privacy practices. 

The Electronic Communications Privacy Act ("ECP A") restricts the 

interception of wire, oral, or electronic communications. In 2012, the U.S. 

Department of Justice refused to file charges against Google, Inc. after the 

company had intercepted Wi-Fi data with Wi-Fi receivers concealed in the 

Company's Street View vehicles. Following independent investigations, Google 

conceded that it gathered MAC addresses (the unique device ID for Wi-Fi 

hotposts) and network SSIDs (the user-assigned network ID name) that it stored 

along with location information for private wireless networks. Google also admits 

that it intcrcepted and stored Wi-Fi transmission data, which included email 

passwords and email content. Congress should clarify that such practices are 

impermissible. 

What recourse would private citizens have ifthey feel that their privacy rights have 

been violated by the press, or by other private citizens or companies utilizing 

drones? 

Absent Congressional action to create private right of action, individuals 

have limited recourse available to them against a private citizen or company who 

operates a drone in a way to violates their privacy or civil liberties. While some 

relicfmay be available under the U.S. common law for torts or pursuant to state 

laws, these protections arc inconsistent and insufficient to address the unique 

aspects of surveillance made possible by drones. When the drone operator can be 

identified, a criminal action may be maintained in some states in the more 

egregious circumstances, such as stalking. This, however, also becomes an issue 

since drones may be operated in a manner to make identification of the operator 

difficult, and there are currently no public licensing requirements. 

(3) Regulation of Unmanned Aerial Vehicles by the Federal Aviation Administration (FAA) 

The F cderal Aviation Administration (FAA) is currently the lead federal agency in approving the 

use of drones in the public airspace. Law enforcement agencies, civilian agcncies, and 

individuals must apply with the FAA for a permit to authorize domestic drones. 

In your opinion, is the FAA the best agency for authorizing the domestic use of 

drones? If not, what additional agencies should be involved? 
47 

The FAA is required to "promote safe flight of civil aircraft." The FAA 

Modernization and Reform Act requires the FAA to, within a certain amount of 

time, "develop a comprehensive plan" to implement drones into civil commerce. 

Before May 14,2012 the FAA must "simply the process" by which government 

entities operate drones in the national airspace. This authority places the FAA into 

the best position to assess many of the privacy problems associated with the 

highly intrusive nature of drone aircraft, and the ability of operators to gain access 

to private areas and to track individuals over large distances. 

In addition, to the extent that the Department of Homeland Security, as 

well as other agencies that choose to operate drones, are responsible for greater 

aerial surveillance of individuals within the United States, we believe that the 

Agency should also develop appropriate regulations to safeguard privacy. 

Congress should require all agencies choosing to own and operate drones to 

promulgate, subject to the public notice and comment provisions of the 

Administrative Procedure Act (5 U.S.c. § 553), rules and standards for the 

protection of individual privacy and civil liberties. 
48 

Senate Committee on the Judiciary 

Hearing on "The Future of Drones in America: Law Enforcement and Privacy Considerations" 

Questions for the Record 

From Ranking Member Charles E. Grassley 

Questions for Michael Toscano: 

(I) Addition of Technology to Unmanned Aerial Platforms 

News reports have identified a wide range of technology that can be used with drones. For 

example, we have heard reports about thermal imaging equipment, high resolution cameras, 

sound recording devices, facial recognition tools, and biometric recognition tools. 

• What technology is currently being used on drones to help law enforcement in criminal 

investigations? 

• What technology is currently available to help farmers and those involved in agriculture? 

• What types of limitations should Congress consider which would protect the privacy 

rights of law abiding citizens without stifling innovation in the private sector? 

Answer from Michael Toscano: 

What technology is currently being used on drones to help law enforcement in criminal 

investigations? 

Due to size and weight constraints, especially on small UAS, the cameras or sensors on a UAS 

are significantly less advanced than cameras or sensors on manned aircraft, including police 

helicopters. During the hearing, Ben Miller with the Mesa County Sheriffs Office testified that 

that his small rotorcraft VAS is equipped with "a low cost point and click camera" that can be 

bought at Wal-Mart. 

Currently, there are fewer than five law enforcement agencies that have permission from the 

FAA to fly for operational missions. Those that do have approval are usually limited to flying 

during the daytime, less than 400 feet in altitude, and within visual line of sight, all of which are 

required for safety reasons. Even with these limitations, law enforcement and public safety 

agencies still want to use UAS to get better situational awareness, and the best way to do that is 

from above. Here are a few ways VAS can help in public safety: 

• Supporting law enforcement. Like other first responders, law enforcement officers and 

border patrol agents work in dangerous environments. VAS can be invaluable in aiding 

search and rescue missions, pursuing a fugitive loose in a neighborhood or offer a critical 

vantage point when responding to a hostage situation. In February 2013, a VAS was used 

by law enforcement responding to a hostage situation in Alabama. 

UAS also help law enforcement agencies cut costs. Operating manned police helicopters 

can cost between $200 and $400 per hour, while operating an unmanned aircTaft can cost 

as low as $25 to $75 per hour. The purchase price of a UAS can also be significantly less 
49 

than a manned aircraft. A small UAS can cost less than $50,000, which is about the price 

of a patrol car with standard police gear. 

• Fighting fires safely and strategically. Firefighters and other first responders do their 

jobs in incredibly dangerous environments. UAS can minimize the risks they face, while 

helping them to act faster and with the best information available to save lives. Ablc to 

fly through smoke-filled skies too dangerous for manned flights, UAS give firefighters 

the ability to better understand the circumstances they are facing, such as the size and 

scope of a wildfire or hotspots in a burning building, before putting a firefighter in harm's 

way. 

In 2008, NASA assisted the state of California in fighting wildfires with the use of a 

UAS. The information about the fires was transmitted to command centers within 

minutes, and then distributed into the field giving firefighters crucial situational 

awareness. Throughout the operation, NASA pilots operating the UAS were in close 

communication with the FAA to ensure its safe separation from other aircraft. 

• Improving search and rescue. UAS can reach higher vantage points and survey a large 

search grid for a missing child, acres of land consumed by wild fires or vast expanses of 

water where a boat might be adrift. Bad weather and difficult terrain can prolong search 

and rescue efforts, lowering chances for survival while raising the financial cost. 

However, UAS make searching for lost hikers and missing persons cheaper, faster and 

safer than using manned helicopters. 

• Responding to disasters. UAS can enter hazardous spaces too dangerous, difficult or 

costly for humans to enter. UAS have been used to survey flooding in the upper Midwest 

to assess damage and provide responders and engineers with live video and radar. NASA 

recently flew UAS into a Costa Rican volcano's plume a mission that could destroy a 

manned aircraft's engines. UAS were also used in Japan following the 2011 earthquakeinduced tsunami, which damaged the nuclear facility in Fukushima. With leaking 

radiation making it impossible for emergency responders to approach the facility's 

reactors, a UAS was used to fly over the damaged facility and use advanced sensors to 

help responders gain situational awareness. 

What technology is currently available to helpfarmers and those involved in agriculture? 

Currently, the FAA does not allow for commercial use of UAS, including for agriculture. The 

FAA's UAS policy requires operators who wish to fly for civil use obtain an airworthiness 

certificate the same as any other type of aircraft. However, the FAA is currently only issuing 

special airworthiness certificates in the experimental category. Experimental certificates are 

issued with accompanying operational limitations, which only allow them to be flown for 

research and development, marketing surveys, or crew training. Until the FAA writes the safety 

rules, UAS will not be allowed to fly for commercial purposes. Congress directed the FAA to 

implement those safety rules by October 2015. 
50 

However, as was stated in my testimony, an economic report on VAS recently released by my 

organization projects that agriculture will make up 80 percent of the potential commercial VAS 

market, for crop surveys and precision applications. A variety of remote sensors are being used 

to scan plants for health problems, record growth rates and hydration, and locate disease 

outbreaks. Precision application, a practice especially useful for crop farmers and horticulturists, 

utilizes effective and efficient spray techniques to more selectively cover plants and fields. This 

allows farmers to provide only the needed pesticide or nutrient to each plant, reducing the total 

amount sprayed, and thus saving money and reducing environmental impacts. 

While the farmers in the U.S. are still prohibited from using VAS, farmers in Japan have been 

taking advantage of the technology for the past two decades. According to manufacturer 

Yamaha, in 2011, there more than 2,300 unmanned helicopters registered in Japan performing 90 

percent of the nation's crop spraying. The advantages afforded by using VAS in agriculture 

include improved operational efficiency, zero soil compaction, zero crop damage, superior spray 

deposition, reduced applicator exposure to chemicals and increased operator safety. 

What types of limitations should Congress consider which would protect the privacy rights of 

law abiding citizens without stifling innovation in the private sector? 

AVVSI supports the development and advancement of VAS technology in a safe and responsible 

manner, while respecting existing privacy laws and ensuring transparency and accountability. To 

help safeguard Americans' right to privacy, AUVSI supports: 

• The registration of unmanned aircraft and pilots with the Federal Aviation 

Administration (FAA). 

• The enforcement of established law and policy, governing the collection, use, storage, 

sharing and deletion of data, regardless of how it is collected. 

o These policies should be available for public review. 

o The policies should outline strict accountability for unauthorized use. 

• The International Association of Chiefs of Police recommended guidelines for VAS 

operations and their recommendations on data collection, which have been adopted by 

the Airborne Law Enforcement Association and others. 

• The 4th Amendment's requirement that the government obtain a search warrant before 

intruding upon someone's reasonable expectation of privacy. 

• Holding accountable any individual who misuses any technology to unlawfully violate 

someone's privacy through illegal surveillance. UAS manufacturers should not be held 

responsible for improper or illegal use of unmanned aircraft systems. 

This issue should focus on the extent to which the government can collect, use and store personal 

data which is why transparency and accountability are key. Instead of focusing on how the 

government collects information, AUVSI supports an open debate on the government's!igh1 to 

collect, use, store, share, and delete personal data. 

When considering drafting federal legislation aimed at protecting privacy, Congress must be 

careful to not stifle this new industry before it is allowed to even take off. In a recent article 

entitled, Observations from Above: Unmanned Aircraft Systems and Privacy, 36 Harvard Journal 
51 

of Law and Public Policy 457-517 (2013), John Villasenor, a UCLA professor and Brookings 

Institution Nonresident Senior Fellow, concluded, 

When considering potential new statutory UAS privacy protections, it is helpful to keep 

in mind what has occurred with the Internet and mobile telephones, two technologies that 

are associated with privacy threats that are in some respects much more significant than 

those that will arise from unmanned aircraft. Both the Internet and mobile phones grew as 

fast as their underlying technologies enabled. As a result, the public and legislative 

dialogue regarding how best to address the privacy issues they raise has been conducted 

with a strong appreciation of their benefits. By contrast, while the privacy concerns 

associated with domestic UAS are real and deserving of attention, they are getting 

significant focus long before the potential benefits of the technology are widely 

recognized. 

With this in mind, it is important to note that although the United States is currently the world 

leader in UAS technology, the rest of the world is working hard to catch up. In fact, many 

countries, such as Canada, Australia, Germany, England, and others, allow for routine small 

UAS flights for commercial purposes, including agriculture, infrastructure monitoring, 

photography, and public safety. This is a competitiveness issue, and it would be unfortunate for 

the United States to stifle this new aerospace industry. 

AUVSI contends that the FAA is the wrong agency to oversee UAS-related privacy issues. The 

FAA should focus on its stated mission, which is to provide the safest, most efficient aerospace 

systems in the world. The FAA's criteria for permitting access to the airspace should solely be 

based on safety. 

Other federal agencies with expertise dealing with privacy issues, such as the U.S. Department of 

Justice, the Department of Homeland Security, as well as the judicial system, could address 

privacy. 

AUVSI believes information gathered by a UAS should be treated no differently than 

information gathered by a manned aircraft, or any other electronic means. Any new legislation or 

regulation addressing privacy should be technology neutraL 

AUVSI looks forward to continuing to work with you, the Senate Judiciary Committee, and the 

Congress as this technology matures and begins to be used to do tasks that are currently to 

dangerous, difficult, dull, or expensive for manned aircraft. 
52 

WRITTEN QUESTIONS FROM SENATOR LEE 

"The Future of Drones in America: Law Enforcement and Privacy Considerations" 

Wednesday, March 20, 2013 

Michael Toscano (CEO of Association for Unmanned Vehicle Systems International) 

I. In your testimony, you stated that there currently is a "robust legal framework" with respect to 

privacy and the use ofVnmanned Aircraft Systems or VAS. With respect to constitutional 

violations of privacy, the Supreme Court has never spoken directly to the issue of the application 

of the Fourth Amendment to VAS. And it seems somewhat unclear how the Court would apply 

precedents such as Kyllo and Jones to a case in which evidence was obtained using VAS. 

a. What legal framework is currently in place with respect to privacy and the use of VAS 

and do you think that framework is adequate? 

2. There has been some discussion today of the role of the FAA in imposing restrictions on the use 

of VAS to protect privacy. It is my understanding that the FAA, in implementing its statutory 

duty to integrate VAS into national airspace, is considering privacy policies. 

a. Do you support the FAA making privacy protection an integral part of their VAS 

licensing scheme, and if so, what are some of the more important considerations they 

should include in their analysis? 

Response from Michael Toscano 

1. Senator Lee, you are correct that there are currently no V.S. Supreme Court cases directly 

addressing Constitutional privacy issues related to evidence gathered from an unmanned aircraft 

system (VAS), primarily because this technology is new and only a handful of law enforcement 

agencies have permission to fly a VAS. 

However, the Supreme Court has reviewed the implications of technology and aerial surveillance 

for the past several decades, and AVVSI believes these cases provide valuable precedent in 

which to consider VAS. It is important to recognize upfront that although the vehicle may be 

different, the system it is carrying, usually a camera or sensor, are often the same used on 

manned aircraft. Simply removing the pilot from the aircraft does not change the fact that there is 

always a human responsible for the flight. 

As John Villasenor stated in a recent article, Observations from Above: Unmanned Aircraft 

Systems and Privacy, (36 Harvard Journal of Law and Public Policy 457-517 (2013)) "a careful 

examination of Supreme Court privacy jurisprudence suggests that the Constitution will provide 

a much stronger measure of protection against government VAS privacy abuses than is widely 
53 

appreciated. The Fourth Amendment has served us well since its ratification in 1791, and there is 

no reason to suspect it will be unable to do so in a world where unmanned aircraft are widely 

used. In addition, there are substantial statutory and common law protections that will limit the 

ability of non-government entities to violate privacy using manned aircraft." 

As you know, the Fourth Amendment of the U.S. Constitution prohibits unreasonable searches 

and seizures and requires search warrants to be based upon probable cause. Although I am not a 

lawyer, or a Constitutional expert, below are some U.S. Supreme Court cases I believe are 

relevant to the discussion of the government's use aircraft and technology for surveillance. In 

talking with law enforcement, they are comfortable with the rules established by the Court, and 

they are confident they can utilize UAS technology in full compliance with them. 

In Katz v. United States (1967), the Supreme Court found it unconstitutional to place an 

eavesdropping device on a closed public phone booth saying, the "Fourth Amendment search 

occurs when the government violates a subjective expectation of privacy that society recognizes 

as reasonable". "These considerations do not vanish when the search in question is transferred 

from the setting of a home, an office, or a hotel room to that of a telephone booth." "Wherever a 

man may be, he is entitled to know that he will remain free from unreasonable searches and 

seizures." This case extended an individual's right to privacy outside of their home. 

In California v. Ciraolo (1986), the Court created the "reasonable expectation of privacy" test, 

which the Court found the police did not violate when it flew a small manned airplane over 

private property and photographed marijuana growing in a backyard (within the curtilage of the 

defendants home). That observation and the photographs taken were used to secure a search 

warrant to seize the marijuana. The Court found, "the Fourth Amendment protection of the home 

has never been extended to require law enforcement officers to shield their eyes when passing by 

a home on public thoroughfares." The Court considered "public navigable airspace" a 

thoroughfare and found it permissible for the police to fly anywhere the general public has the 

right to fly. 

In Dow Chemical Company v. United States (1986), which was decided on the same day as 

California v. Ciraolo, the Court found it permissible for the Environmental Protection Agency to 

fly a manned aircraft over a business and take detailed pictures from a sophisticated mapping 

camera, ruling, "The taking of aerial photographs of an industrial plant complex from navigable 

airspace is not a search prohibited by the Fourth Amendment." 

In Florida v. Riley (1989), the Court found it permissible for the police to fly a manned 

helicopter 400 feet above a greenhouse, which was located behind a home, and use observations 

made by looking through missing window panels to secure a warrant to seize the marijuana 

being grown inside. The Court affirmed its reasoning in Ciraolo, saying, "Any member of the 

public could legally have been flying over Riley's property in a helicopter at the altitude of 400 

feet and could have observed Riley's greenhouse. The police officer did no more." 

2 
54 

In Kyllo v. United States (2001), the Court held that the use ofa thennal imaging device from a 

public vantage point to monitor the radiation of heat from a person's home was a search within 

the meaning of the Fourth Amendment and thus required a search warrant. The Court found that 

allowing the government to collect infonnation emanating from a house would put people "at the 

mercy of advancing technology - including imaging technology that could discern all human 

activity in the home." 

Although the Court discussed at length whether or not a "device is in general public use", the 

fact remains that when people have a Constitutional right to privacy, the police need a warrant to 

conduct a search, regardless of the technology being used. If it is unconstitutional for the police 

to use a handheld thennal imaging device from their police car on a public street, it will also be 

unconstitutional for the police to use a thennal imaging device to look at a house from a manned 

aircraft, or a UAS, absent a warrant. 

Recently, the Court in United States v. Jones (2012) found the police violated the Fourth 

Amendment on trespassing grounds by sticking a global positioning system tracker on a car to 

monitor a person's whereabouts for an extended period of time. The Court acknowledged that 

extended electronic surveillance without a physical trespass may violate the Fourth Amendment; 

however, the Court declined to rule on those grounds. 

Earlier this year, the Court once again found an unreasonable trespass when it ruled in Florida v. 

Jardines (2013) that the police cannot bring a drug-sniffing dog on your front porch to inspect 

for drugs without a warrant. 

Clearly, there are lots of ways to track someone's whereabouts, or monitor activities 

electronically, and it would not be surprising if someday the Court takes up a case, similar to 

Kyllo, where they address an individual's right to privacy, without ruling on trespass grounds. 

However, given that cases are fact specific, it is too early to tell how the Court will rule on 

electronic surveillance without a trespass. 

If Congress wants to consider legislation addressing UAS privacy issues, it should do so in a 

technologically-neutral way. Ultimately, the issue is about data. Does the government have the 

right to collect and use data it gathers by any sort of means against you? 

As you know, the government uses a lot of tools that can collect infonnation on us; however, 

they do not routinely violate our privacy rights because they have policies and procedures in 

place. The best way to ensure government does not abuse its power is to ensure transparency and 

accountability. In the event the police use technology improperly, the judicial system is there to 

hold the government in check. Evidence gathered improperly is not allowed to be used. To echo 

John Villasenor's comments, our current system has served us well for over 222 years, and there 

is no reason to think we cannot handle this new technology. 

3 
55 

AUVSI does not believe the FAA is the appropriate agency to govern the privacy implications of 

UAS operations. The FAA should focus on its stated mission, which is to provide the safest, 

most efficient aerospace systems in the world. 

Other federal agencies with expertise dealing with privacy issues, such as the U.S. Department of 

Justice, the Department of Homeland Security, as well as the judicial system, could address 

privacy. The FAA's criteria for permitting access to the airspace should solely be based on 

safety. 

AUVSI believes information gathered by a UAS should be treated no differently than 

information gathered by a manned aircraft, or any other electronic means, as was discussed 

above in my answer to your first question. Any new legislation or regulation addressing privacy 

should be technology neutral. 

2. You are correct to point out that the FAA is currently soliciting public comments on how to 

address privacy issues related to the establishment of six UAS test sites around the country, 

which Congress called for in the FAA Modernization and Reform Act (Public Law 112-95). 

However, nowhere in the FAA law did Congress direct the FAA to regulate UAS based on 

privacy issues. 

The FAA intends to use the Congressionally-mandated UAS test sites to collect valuable safety 

data, which will help it create safety rules. However, in response to privacy concerns raised by 

the public and some in Congress, the FAA has published a notice of availability and request for 

comments in the Federal Register (Docket No. F AA-20 13-0061). In addition to collecting safety 

data, the UAS test sites will also help educate the public about UAS and provide best practices 

for community engagement, transparency, and accountability. 

Below are the UAS test site privacy policy requirements the FAA is currently soliciting public 

comment on: 

(1) The Site Operator must ensure that there arc privacy policies governing all activities 

conducted under the OTA [Other Transaction Agreement), including the operation and 

relevant activities of the UASs authorized by the Site Operator. Such privacy policies 

must be available publically, and the Site Operator must have a mechanism to receive and 

consider comments on its privacy policies. In addition, these policies should be informed 

by Fair Information Practice Principles. The privacy policies should be updated as 

necessary to remain operationally current and effective. The Site Operator must ensure 

the requirements of this paragraph are applied to all operations conducted under the OT A. 

(2) The Site Operator and its team members are required to operate in accordance with 

Federal, state, and other laws regarding the protection of an individual's right to privacy. 

Should criminal or civil charges be filed by the U.S. Department of Justice or a state's 

law enforcement authority over a potential violation of such laws, the FAA may take 

4 
56 

appropriate action, including suspending or modifying the relevant operational authority 

(e.g., Certificate of Operation, or OTA), until the proceedings are completed. If the 

proceedings demonstrate the operation was in violation of the law, the FAA may 

terminate the relevant operational authority. 

(3) If over the lifetime of this Agreement, any legislation or regulation, which may have an 

impact on UAS or to the privacy interests of entities affected by any operation of any 

UAS operating at the Test Site, is enacted or otherwise effectuated, such legislation or 

regulation will be applicable to the OT A, and the FAA may update or amend the OT A to 

reflect these changes. 

(4) Transmission of data from the Site Operator to the FAA or its designee must only include 

those data listed in Appendix B to the OT A. (Appendix B to the OT A is available as part 

of the SIR [Screening Information Request] at htfp:l/faacojaa.gov.) 

The FAA anticipates that test site operator privacy practices as discussed in their privacy 

policies will help inform the dialogue among policymakers, privacy advocates, and the 

industry regarding broader questions concerning the use ofUAS technologies. The 

privacy requirements proposed here are specifically designed for the operation of the 

UAS Test Sites. They are not intended to pre-determine the long-term policy and 

regulatory framework under which commercial UASs would operate. Rather, they aim to 

assure maximum transparency of privacy policies associated with UAS test site 

operations in order to engage all stakeholders in discussion about which privacy issues 

are raised by UAS operations and how law, public policy, and the industry practices 

should respond to those issues in the long run. 

AUVSI supports the development and advancement ofUAS technology in a safe and responsible 

manner, while respecting existing privacy laws and ensuring transparency and accountability. 

AUVSI supports the registration of unmanned aircraft and pilots with the FAA, much like they 

do for manned aircraft. A UVSI supports the creation and enforcement of policies governing the 

collection, use, storage, sharing, and deletion of data, regardless of how it is collected. Those 

policies should be available for public review, and they should outline strict accountability for 

unauthorized usc. 

Furthermore, AUVSI supports the International Association of Chiefs of Police recommended 

guidelines for UAS operations and their recommendations on data collection. AUVSI supports 

the Fourth Amendment's requirement that the government obtain a search warrant whenever 

someone's reasonable expectation of privacy is violated, and AUVSI supports holding 

accountable individuals who misuse any technology to violate privacy laws. AUVSI does not 

condone the use ofUAS for illegal surveillance. 

5 
57 

As Congress and regulators continue to examine UAS and work towards implementing UAS into 

the airspace, it is important to tread carefully. Onerous laws or rules, aimed at restricting UAS 

development and use, will stifle a new industry that has the potential to create 70,000 new jobs 

and bring over $13 billion in economic growth within the first three years of integration. There 

should be no doubt, the future of aviation is unmanned, and the United States can remain the 

global leader in this new competitive field; however, only if this new industry is allowed to grow 

without undue burdens. 

AUVSI looks forward to continuing to work with you, the Senate Judiciary Committee, and the 

Congress as this technology develops. 

6 
58 

SUBM!SSIONS FOR THE RECORD 

AMERICAN CIVIL LIBERTIES UNION 

WRITTEN STATEMENT OF 

THE AMERICAN CIVIL LIBERTIES UNION 

For a Hearing on 

"The Future of Drones in America: Law Enforcement and Privacy Considerations" 

Submitted to the Senate Judiciary Committee 

March 20, 2013 

ACLU Washington Legislative Office 

Laura W. Murphy, Director 

Christopher Calabrese, Legislative Counsel 

Jay Stanley, Senior Policy Analyst 

Catherine Crump, Staff Attorney 
59 

The American Civil Liberties Union (ACLU) submits this statement to the Senate 

Judiciary Committee on the occasion of its hearing addressing "The Future of Drones in 

America: Law Enforcement and Privacy Considerations." This statement describes the privacy 

and civil liberties implications of the domestic use of unmanned surveillance vehicles, also 

known as drones, and recommends new protections for use of the technology. 

1. Introduction 

Unmanned aircraft carrying cameras raise the prospect of a significant new avenue for 

the surveillance of American life. Many Americans are familiar with these aircraft, commonly 

called drones, because of their use overseas in places like Afghanistan and Yemen. But drones 

are coming to America. Recently passed legislation requires the Federal Aviation Administration 

to "develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft 

systems into the national airspace system."j This new legislation has dramatically accelerated the 

deployment of drones and pushed this issue to the forefront. Meanwhile, the technology is 

quickly becoming cheaper and more powerful, interest in deploying drones among police 

departments is increasing, and our privacy laws are not strong enough to ensure that the new 

technology will be used responsibly and consistently with constitutional values. In short, the 

specter of routine aerial surveillance in American life is on the near horizon - a development 

that would profoundly change the character of public life in the United States. 

We need a system ofrules to ensure that Americans can enjoy the benefits of this 

technology without bringing our country a large step closer to a "surveillance society" in which 

every move is monitored, tracked, recorded, and scrutinized by the authorities. This statement 

outlines a set of protections that would protect Americans' privacy in the coming world of 

drones. 

Aerial surveillance from manned aircraft has been with us for decades. One of the first 

aircraft the Wright brothers built was a surveillance aircraft, and it was sold to the U.S. Army. 

Many common uses of drone aircraft-search and rescue, fighting wildfires, dangerous tactical 

police operations-are beneficial. In the 1980s the Supreme Court ruled that the Fourth 

Amendment does not categorically prohibit the government from carrying out warrantless aerial 

surveillance of private property. 

But manned aircraft are expensive to purchase, operate and maintain, and this expense 

has always imposed a natural limit on the government's aerial surveillance capability. Now that 

surveillance can be carried out by unmanned aircraft, this natural limit is eroding. The prospect 

of cheap, small, portable flying video surveillance machines threatens to eradicate existing 

practical limits on aerial monitoring and allow for pervasive surveillance, police fishing 

expeditions, and abusive use of these tools in a way that could eventually eliminate the privacy 

Americans have traditionally enjoyed in their movements and activities. In order to prevent this 

harmful and invasive outcome, Congress must act. 

II. The Technology 

1 FAA Modernization and Reform Act of2012, P.L. 112-95, §332, 126 Stat. II , 73. 

2 
60 

There are hundreds of different types of Unmanned Aerial Vehicles (UAVs), as drones 

are formally known.2 They can be as large as commercial aircraft or as small as hummingbirds, 

and include human remotely guided aircraft as well as autonomous, self-guided vehicles. They 

include: 

• Large fixed-wing aircraft. The largest UAVs currently in use, such as the Israeli-made 

Eitan, are about the size of a Boeing 737 jetliner. The Eitan's wingspan is 86 feet, and it 

can stay aloft for 20 hours and reach an altitude of 40,000 feet. 3 The Predator B drone, 

which has been used extensively on overseas battlefields as well as on the U.S.-Mexico 

border, has a wingspan of 66 feet, and it can stay aloft for over 30 hours and reach an 

altitude of 50,000 feet. 4 In Pakistan and Afghanistan, the U.S. military and CIA deploy 

Predators and Reapers armed with surveillance capability as well as missiles capable of 

destroying a moving vehicle from thousands of feet in the air.s 

• Small fixed-wing aircraft. Smaller fixed-wing aircraft are the current favorite for 

domestic deployment. The Houston police department, for example, recently tested the 

ScanEagle, made by Boeing subsidiary Insitu.6 The ScanEagle is 4 Y2 feet long with a 

wings~an of 10 feet, and it can climb to 19,500 feet and stay aloft for more than 24 

hours. 

• Backpack craft. Another class of craft is designed to be carried and operated by a single 

person. The hand-launched Aero Vironment Raven, for example, weighs 4 pounds, has a 

wingspan of 4.5 feet and a length of 3 feet, can fly up to 14,000 feet and stay aloft for up 

to 110 minutes. Similar-sized products include a three-foot helicopter called the 

Draganflyer X6, a one-foot-Iong, one-pound fixed-wing craft called the Aero Vironment 

Wasp, and a fan-propelled craft called the Honeywell T-Hawk that can "hover and stare." 

Individual hobbyists have also built a number of drones in this size range. 8 

2 See Wikipedia, "List of unmanned aerial vehicles," at 

http://en.wikipedia.orglwiki/List of unmanned aerial vehicles. 

J "Israel unveils world's largest UAV," Homeland Security Newswire, Feb. 23, 2010, online at 

http://homelandsecuritynewswire,cornlisrael-unveils-worlds-largest-uav. 

4 See General Atomics web page on Predator B at http://,,ww.ga-asi.com/products!aircraft/predator b.php; R.P.G. 

Collinson, Introduction to Avionic Systems (2011), p. 495 

5 Yochi J. Dreazen, "From Pakistan, With Love: The technology used to monitor the skies over Waziristan is 

coming to your hometown," National Journal, March 13, 2011, online at 

http://www.nationaljoumal.com/magazine/ drones-mav-be-com ing-to-your-hometown-20110313. 

"Stephen Dean, "Police line up to use drones on patrol after Houston secret test," Houston Examiner, Jan. 11,2010, 

online at http://www.examiner.com/page-one-in-houstonipolice-Iine-up-to-use-drones-on-patrol-after-houstonsecret-test. 

7 lnsitu, ScanEagle brochure, online at 

http://www.insitll.com!documentsiTnsitu%20WebsitelMarketing%20CollateraliScanEagle%20Folder''1020Insert.pdf 

8 AeroVironment brochure, online at http://www.avinc.comldo .. "loadslRaven Domestic 121O.pdf; AeroVironment 

web page on the Wasp at http://www.avinc.com/uas!smalluas/wasp/;CarrieKahn ... It·sABird!It·sAPlane!It·sA 

Drone!" National Public Radio, March 14,2011, online at http://www.npr.orgl2011l03114/134533552lits-a-bird-itsa-plane-its-a-drone; "Drones on the home front," Washington Post, Jan. 23, 2011, online at 

http://www.washingtonpost.com/wp-srv/specialinationidrone-galleryl 

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61 

• Hummingbirds. A tiny drone called the Nano Hummingbird was developed for the 

Pentagon's Defense Advanced Research Projects Agency (DARPA) by AeroVironment. 

Intended for stealth surveillance, it can fly up to 11 miles per hour and can hover, fly 

sideways, backwards and forwards, for about 8 minutes. It has a wingspan of 6.5 inches 

and weighs only 19 grams-less than a single AA battery.9 

• Blimps. Some blimps are envisioned as high-altitude craft, up to 300 feet in diameter, 

that would compete with satellites, while others would be low-altitude craft that would 

allow the police to monitor the streets. Supporters say they are more cost-effective than 

other craft due to their ability to stay aloft for extended periods.!O 

III Drone Capabilities-Today and in the Future 

The aircraft themselves are steadily improving and, as with so many technologies, that is 

likely to continue. They are becoming smaller. The military and law enforcement are keenly 

interested in dcveloping small drones, which have the advantages of being versatile, cheap to buy 

and maintain, and in some cases so small and quiet that they will escape notice.!! They are also 

becoming cheaper. The amazing continual decreases in the prices of electronics that have 

become normal in our time all but guarantee that the surveillance technologies attached to UA V s 

will become less expensive and yet more powerful-and with mass production, the aircraft that 

carry those electronics will become inexpensive enough for a po lice department to fill the skies 

over a town with them. 

Drones are also becoming smarter. Artificial intelligence advances will likely help drones 

carry out spying missions. Korean researchers, for example, are working to teach robots how to 

hide from and sneak up upon a subject. 12 They also will have better staying power, with a greater 

ability to stay aloft for longer periods of time. Mechanisms for increasing time aloft could 

include solar power, or the use of blimps or gliders.J3 

Although the primary uses of drones so far have been military, even on overseas 

battlefields their main use is surveillance. The larger drones can be fitted with weapons or other 

Q W.J. Hennigan, "'It's a bird! It's a spy! It's both," Los Angeles Times, Feb. J7, 2011, online at 

http://articles.latimes.coml20 Il/febI17!business/la-fi-hummingbird-drone-20 11 02 J 7. 

10 On high-altitude blimps see Elliott Minor, "Interest Growing in 'Security' Blimps," Associated Press, April 27, 

2004, available online at http://\Vww.rustvsforum.com/cgibin/domains/com/rustysforum/frc bb/ultimatebb.cgi?ubb~next topic&f~1 &t~000807&go~older; on low-altitude 

blimps see e.g. James Nelson, "Utah city may use blimp as anti-crime spy in the sky," Reuters, Jan. 16,201 I, online 

at http://www.reuters.com/articJeI2011l0 I i16Ius-crime-blimp-utah-idUSTRE70F lOJ20 II 0 I 16. 

II WI Hennigan, "It's a bird! It's a spy! It's both," Los Angeles Times, Feb. 17,2011, online at 

http://articles.latimes.com/20 I I!febil7/bllsiness/la-fi-hllmmingbird-drone-20 11 0217. 

12 M. Ryan Calo, "Robots and Privacy," April 2010, online at http://ssm.com!abstract~1599189. 

13"Gliders Emerge As Surveillance UAVs," Aviation Week, June 8, 2010, online at 

http://www.aviationweek.com/aw/genericistory generic.jsp?topicName=ila 2010&id=news/awx/2010/06/08/awx 0 

6 08 2010 pO-232627.xml; James Nelson, "Utah city may use blimp as anti-crime spy in the sky," Reuters, Jan. 16, 

20 I I, online at http://www.reuters.com/articJei20 I 1/0 II16!lIs-crime-blimp-utah-idUSTRE70F lOJ20 II 0116; Ned 

Smith, "Solar-powered UAV can stay aloft 5 years," TechNewsDaily, Sept. 22, 2010, online at 

http://www.msnbc.msn.comlid/393 I 3306/ns/technology and science-tech and gadgets!!1 solar-powered-uav-canstay-aloft-years. 

4 
62 

heavy payloads, but all of them can carry cameras and other imaging technologies that have 

developed amazing capabilities in recent years and are likely to become even more capable in the 

near future. 

Except for possibly the very lightest craft, drones can carry the full range of advanced 

surveillance technologies that have been developed-and are likely to be developed-including: 

• High-power zoom lenses. UA V s can carry increasingly powerful lenses that allow 

significant zooming, increasing the chance that individuals will come under scrutiny from 

faraway aircraft without knowing it. And the density of photo sensors is growing at an 

exponential pace (in line with Moore's law), allowing for higher and higher resolution 

photos to be taken for the same price camera. 14 

• Night vision. Infrared and ultraviolet imaging enable night vision by capturing light 

outside the spectrum visible to the human eye. Infrared imaging (also known as thermal 

imaging) shows heat emitted by an object, and so is especially suited for identifying 

humans and animals in the dark. 15 Ultraviolet (UV) imaging can detect some materials 

not visible in natural or infrared light, and can also be used to enhance detail; for 

instance, it can be used to image surface textures not apparent in visible light. 16 Moving 

forward, thermal imaging is likely to improve-for example becoming more sensitive 

and available at higher resolutions. 

• See-through imaging. The military is developing radar technologies that can see through 

ceilings and walls and allow the tracking of human targets even when they are inside 

buildings.17 A technology called Synthetic Aperture Radar, for example, can see through 

cloudy and dusty conditions and through foliage, and has the potential to penetrate the 

earth and walls. Is 

• Video analytics. This field seeks to apply artificial intelligence techniques not just to 

collect but also to "watch" video. The technology has been improving rapidly, and can 

14 Nathan Myhrvold, "Moore's Law Corollary: Pixel Power," New York Times, June 7, 2006, online at 

http://w\V\iV.nytimcs.com/2006/06/07/techno1ogy/circuitsf07essay.htm1. Moore's law is the observation that the 

number of transistors that can be placed on an integrated circuit-and therefore broadly speaking the power of 

computers--<loubles approximately every two years. It has held true for over 50 years. 

15 NASA Science Mission Directorate, ~'Infrared Energy," Mission: Science, 2010, online at 

http://missionscience.nasa.gov/ems/07inrraredwaves.html. 

16 Austin Richards, "Digital Reflected-Ultraviolet Imaging," Advanced Imaging, Apr. 20Q6, online at 

http://www.uvcorder.com/pdf/ AD10406%20Component%20 18-20 .pdt: 

17 See e.g., William Saletan, "Nowhere To Hide," Slate.com, Sept. 17,2008, online at 

http://www.slate.com/articles!healthandscience/humannature/2008/09/nowheretohide.htmIGreg Miller and 

Julian E. Barnes, "Special drones pursue militias," Los Angeles Times, Sept. 12,2008, online al 

http://articles.lalimes.com!2008/sep!12!world/fg-pakistan12. 

18 "Ground Moving Target Indicator (GMTl) Radar Discrimination of Combatants versus Animals in Severe 

Clutter," DARPA, undated document (topic number SB082-0 19), online at 

http://www.dodsbir.netlsitis!archives display topic.asp?Bookmark~32303. Sandia National Laboralories, 

"Synthetic Aperture Radar Applications," undated, online at http://www.sandia.gov/radarlsarapps.html; Alicia 

Tejada, "MIT Develops New Radar Technology: Military Could See Through Walls," ABC News, Oct. 20, 2011, 

online at htlp:liabcnews.go.com/Technology/radar-technology-mit-waIIs/story?id= 14773871. 

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recognize and respond to specific people, events, and objects. 19 One of the most 

significant uses would be to continually track individuals or vehicles as they move about, 

using face recognition or other bodily characteristics.20 It might also be used to identify 

particular movement ~attems as "suspicious," or to identify and flag changes in routines, 

buildings or grounds. 1 Computers performing these tasks have a distinct advantage over 

human observers, because as one observer summed it up, "machines do not blink or 

forget. They are tireless assistants.,,22 

The PBS series NOVA, "Rise of the Drones," recently aired a segment detailing the capabilities 

of a powerful aerial surveillance system known as ARGUS-IS. This system, which is basically a 

super-high, 1.8 gigapixel resolution camera that can be mounted on a drone, demonstrates many 

of these capacities. The system is capable of high-resolution monitoring and recording of an 

entire city. To see a demonstration of this capacity please see: 

http://ww\v.youtube.com/watch?feature=player embedded&v= l3BahrdkMU8 

IV UAVs and Possible Harms 

With the federal government likely to permit more widespread use of drones, and the 

technology likely to become ever more powerful, the question becomes: what role will drones 

play in American life? Based on current trends-technology development, law enforcement 

interest, political and industry pressure, and the lack of legal safeguards-it is clear that drones 

pose a looming threat to Americans' privacy. The reasons for concern reach across a number of 

different dimensions: 

• Mission creep. Even where UA Vs are being envisioned for search and rescue, fighting 

wildfires, and in dangerous tactical police operations, they are likely to be quickly 

embraced by law enforcement around the nation for other, more controversial purposes. 

The police in Ogden, Utah think that floating a surveillance blimp above their city "will 

be a deterrent to crime when it is out and about.,,23 In Houston, police suggested that 

drones could possibly be used for writing traffic tickets. 24 The potential result is that they 

become commonplace in American life. 

• Tracking. The Justice Department currently claims the authority to monitor Americans' 

comings and goings using GPS tracking devices-without a warrant. Fleets ofUAVs, 

interconnected and augmented with analytics software, could enable the mass tracking of 

vehicles and pedestrians around a wide area. 

]9 Vigilant Video, online at http://www.vigilantvideo.com 

20 Noah Shachtman, "Army Tracking Plan: Drones That Never Forget a Face," Wired.com, Sept. 28, 2011, online at 

http://www.wired.com/dangerroom/20 II /091 drones-never-for~et-a-face/. 

21 On change detection, see Sandia National Laboratories, "Synthetic Aperture Radar Applications," undated, online 

at http://www.sandia.goviradarlsarapps.html. 

22 Steve Lohr, "Computers That See You and Keep Watch Over You," New York Times, Jan. 1,2011, online at 

http://www.nvtimes.com/2011/01/02/sciencei02see.html. 

23 James Nelson, "Utah city may use blimp as anti-crime spy in the sky," Reuters, Jan. 16,2011, online at 

http://www.reuters.com/article/2011 10 1I16/us-crime-blimp-utah-idUSTRE70FI DJ20 II 0 116. 

24 Stephen Dean, "Police line up to use drones on patrol after Houston secret test," Houston Examiner, Jan. II, 20 I 0, 

online at htlP:llwww.examiner.com/page-one-in-houstonipolice-line-up-to-use-drones-on-patrol-after-houstonsecret-test. 

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64 

• New uses. The use of drones could also be expanded from surveillance to actual intervention in law enforcement situations on the ground. Airborne technologies could be 

developed that could, for example, be used to control or dispel protesters (perhaps by 

deploying tear gas or other technologies), stop a fleeing vehicle, or even deploy 

weapons.25 

Tn addition, drones raise many of the same issues that pervasive video surveillance brings 

in any context. For example: 

• Chilling effects. What would be the effect on our public spaces, and our society as a 

whole, if everyone felt the keen eye of the government on their backs whenever they 

ventured outdoors? Psychologists have repeatedly found that people who are being 

observed tend to behave differently, and make different decisions, than when they are not 

being watche~. This effect is s? great that a ~ec:nt study found that "merely ha~gi~s6up 

posters of starmg human eyes IS enough to signIficantly change people's behaVIOr .. 

• Voyeurism. Video surveillance is susceptible to individual abuse, including voyeurism. 

In 2004, a couple making love on a dark nighttime rooftop balcony, where they had every 

reason to expect they enjoyed privacy, were filmed for nearly four minutes by a New 

York police helicopter using night vision. This is the kind of abuse that could become 

commonplace if drone technology enters widespread use. (Rather than apologize, NYPD 

officials flatly denied that this filming constituted an abuse, telling a television reporter, 

"this is what police in helicopters are supposed to do, check out people to make sure no 

one is ... doing anything illegal,,)27 

• Discriminatory targeting. The individuals operating surveillance systems bring to the 

job all their existing prejudices and biases. In Great Britain, camera operators have been 

found to focus disproportionately on people of color. According to a sociological study of 

how the systems were operated, "Black people were between one-and-a-half and twoand-a-half times more likely to be surveilled than one would expect from their presence 

in the population. ,,28 

• Institutional abnse. In addition to abuse by the inevitable "bad apples" within law 

enforcement, there is also the danger of institutional abuse. Sometimes, bad policies are 

" Joseph Nevins, "Robocop: Drones at Home," Boston Review, January/February 2011, online at 

http://www.bostonreview.neVBR36.I/nevins.php. 

26 Sander van der Linden, "How the Illusion of Being Observed Can Make You a Better Person," Scientific 

American, May 3, 20 II, online at http://www.scientificamerican.com/article.cfin?id~how-the-iIlusion-of-beingobserved-can-make-you-better-person; M. Ryan Calo, "People Can Be So Fake: A New Dimension to Privacy and 

Technology Scholarship," 114 Penn SI. L. Rev. 809, online at 

http://www .pennstatelawreview .org! articles/l141114 %20Penn%20St. %20L. %20 Rev. %20809. pdf. 

27 "Did NYPD Cameras Invade A Couple'S Privacy?" WCBS-TV report, Feb. 24, 2005, video no longer available 

online; Jim Dwyer, "Police Video Caught a Couple's Intimate Moment on a Manhattan Rooftop," New York Times, 

Dec. 22, 2005, online al http://w .. w.nytimes.com/200S112/22/nyregion/22rooftop.html. 

28 Clive Norris and Gary Armstrong, "The Unforgiving Eye: CCTV Surveillance in Public Spaces," Centre for 

Criminology and Criminal Justice at Hull University, 1997. 

7 
65 

set at the top, and an entire law enforcement agency is turned toward abusive ends. That 

is especially prone to happen in periods of social turmoil and intense political conflict. 

During the labor, civil rights, and anti-Vietnam war movements of the 20th century, the 

FBI and other security agencies engaged in systematic illegal behavior against those 

challenging the status quo. And once again today we are seeing an upsurge in spying 

against peaceful political protesters across America.29 

• Automated enforcement. Drones are part of a trend toward automated law enforcement, 

in which cameras and other technologies are used to mete out justice with little or no 

human intervention. This trend raises a variety of concerns, such as the fact that 

computers lack the judgment to fairly evaluate the circumstances surrounding a supposed 

violation, and may be susceptible to bugs and other software errors, or simply are not 

programmed to fairly and properly encapsulate the state of the law as passed by 

legislatures?O 

One point that is often made about new surveillance technologies is that, while they may increase 

government surveillance of individuals, they can also increase individuals' ability to record the 

activities of officials, which can serve as a check on their power. Too often, however, the 

authorities seek to increase their surveillance over individuals (for example, by installing surveillance cameras throughout public spaces) while restricting individuals' ability to use that same 

technology as a check a~ainst their power (for example, by attempting to prevent individuals 

from videotaping police 1). Already, security experts have started expressing concern that 

unmanned aircraft could be used for terrorism32 -which naturally raises the question: will 

individuals be able to make use of the new technology for their own purposes, or will 

government seek a monopoly over the new technology by citing fears of its use for terrorism? 

V. The Fourth Amendment and the U~e of Drones 

The Supreme Court has never taken a position on whether the Fourth Amendment places 

limits on government use of UA V surveillance. However, it allowed some warrantless aerial 

surveillance from manned aircraft. 

• In the 1986 decision California v. Ciraolo, the Supreme Court focused on whether an 

individual has a privacy interest in being free from aerial surveillance of his backyard. 

The police had received a tip that Dante Ciraolo was growing marijuana in his backyard, 

but high fences prevented them from viewing his backyard from the street. The police 

borrowed a plane, flew it over the backyard and easily spotted marijuana plants growing 

there. Ciraolo argued that his Fourth Amendment rights were violated because the 

government did not get a warrant. The Court rejected this argument, explaining that there 

29 See ACLU "Spyfiles" web site at www.aclu.orglspvfiles. 

30 Danielle Keats Citron, "Technological Due Process," 85 Washington University Law Review 1249 (2008), online 

at http://lawreview.wustl.edu/inpnnt/85/6iCitron.pdf. 

31 See Jay Stanley, "You Have Every Right to Photograph That Cop," ACLU, online at http://www.aclu.orglfreespeech/you-have-every-right-photograph-cop. 

32 Agence France Press, "Flying Robot Attacks 'Unstoppable' Say Experts," Agence France Press, May 11,2006, 

available online at http://www.rense.comigeneraI71/sspm.htm. 

8 
66 

was no intrusion into his privacy because "[a]ny member of the public flying in this 

airspace who glanced down could have seen everything that these officers observed.,,)3 

• Dow Chemical Co. v. United States, also decided in 1986, the Supreme Court addressed 

whether the Environmental Protection Agency violated Dow's Fourth Amendment rights 

when it employed a commercial aerial photographer to use a precision aerial mapping 

camera to take photographs of a chemical plant. The Court found no violation, in part 

because the camera the EPA used was a "conventional, albeit precise, commercial camera 

commonly used in mapmaking," and "the photographs here are not so revealing of 

intimate details as to raise constitutional concerns." However, the Court suggested that 

the use of more sophisticated, intrusive surveillance might justify a different result. It 

wrote, "surveillance of private property by using highly sophisticated surveillance 

equipment not generally available to the public, such as satellite technology, might be 

constitutionally proscribed absent a warrant. ,,34 

• In Florida v. Riley, decided in 1989, the police had received a tip that Michael Riley was 

growing marijuana in a greenhouse on the property surrounding his home. The interior of 

the greenhouse was not visible from the ground outside the property, and the greenhouse 

had a ceiling, though two panels in the ceiling were missing. A police officer flew over 

the greenhouse and spotted marijuana through the openings in the roof. While no 

reasoning commanded a majority of the Court, four justices concluded that its decision in 

Ciraolo applied because Riley had left part of the greenhouse open to public view, and so 

the search was constitutional. 35 

Because of their potential for pervasive use in ordinary law enforcement operations and 

capacity for revealing far more than the naked eye, drones pose a more serious threat to privacy 

than do manned flights. There are good reasons to believe that they may implicate Fourth 

Amendment rights in ways that manned flights do not. 

Government use ofUAVs equipped with technology that dramatically improves on 

human vision or captures something humans cannot see (such thermal or x-ray images) should be 

scrutinized especially closely by the courts. This follows from the Supreme Court's statement in 

Dow Chemical that using sophisticated technology not generally available to the public may be 

considered a search under the Fourth Amendment. It is also suggested by the 2001 case Kyllo v. 

United States, in which the court rejected the use of thermal imaging devices to peer into a 

suspect's home without a warrant.36 

Further, the Supreme Court has suggested that the pervasive or continuous use of a 

surveillance technology may heighten Fourth Amendment concerns. In United States v. Knotts, 

the Supreme Court addressed whether attaching frimitive "beeper" tracking technology to a car 

violated the driver's Fourth Amendment rights. 3 Although it concluded that the use of the 

33 476 U.S. 207 (1986). 

34 476 U.S. 227 (1986). 

35 488 U.S. 445 (1989). 36 533 U.S. 27 (2001). 

37 460 U.S. 276, 283-84 (1983). 

9 
67 

beeper in that case did not violate the Fourth Amendment, it held that if "such dragnet type law 

enforcement practices" as "twenty-four hour surveillance of any citizen of this country" ever 

arose, it would determine if different constitutional principles would be applicable. 

Similarly, in US v. Jones, decided last year, a concurrence joined by 5 justices found that 

GPS tracking ofa car implicated an individual's reasonable expectation of privacy and noted 

"society's expectation has been that law enforcement agents and others would not-and indeed, 

in the main, simply could not-secretly monitor and catalogue every single movement of an 

individual's car for a very long period.,,38 While this decision may eventually playa role in 

regulating drone usage, the technology is moving far more rapidly than our jurisprudence, and it 

is critical that Congress not delay action, especially with a looming 2015 deadline set by the 

FAA Reauthorization Act. 

VI. Recommendations 

UA V s can be an extremely powerful surveillance tool, and their use must be subject to 

strict limitations, as should all government power. Like any tool, UAVs have the potential to be 

used for good or ill. With implementation of good privacy ground rules, our society can enjoy 

the benefits ofthis technology without having to worry about its darker potential. Placing 

reasonable limitations on law enforcement is by no means a new idea. For example authorities 

may take a thermal image of someone's home only when they get a warrant. Congress should 

impose appropriate rules, limits and regulations on UA V s as well in order to preserve the privacy 

Americans have always expected and enjoyed. 

At a minimum, Congress should enact the following core measures to ensure that this 

happens: 

• Usage restrictions. UA Vs should be subject to strict regulation to ensure that their use 

does not eviscerate the privacy that Americans have traditionally enjoyed and rightly 

expect. Innocent Americans should not have to worry that their activities will be 

scrutinized by drones. To this end, the use of drones should be prohibited for 

indiscriminate mass surveillance, for example, or for spying based on First Amendmentprotected activities. In general, drones should not be deployed except: 

o where there are specific and articulable grounds to believe that the drone will 

collect evidence relating to a specific instance of criminal wrongdoing or, if the 

drone will intrude upon non-public spaces where the government has obtained a 

warrant based on probable cause; or 

o where there is a geographically confined, time-limited emergency situation in 

which particular individuals' lives are at risk, such as a fire, hostage crisis, or 

person lost in the wilderness; or 

38 132 S.Ct. 945. 

10 
68 

o for reasonable non-law enforcement purposes by non-law enforcement agencies, 

where privacy will not be substantially affected, such as geological inspections or 

environmental surveys, and where the surveillance will not be used for secondary 

law enforcement purposes. 

• Image retention restrictions. Images of identifiable individuals captured by aerial 

surveillance technologies should not be retained or shared unless there is reasonable 

suspicion that the images contain evidence of criminal activity or are relevant to an 

ongoing investigation or pending criminal trial. 

• Public notice. The policies and procedures for the use of aerial surveillance technologies 

should be explicit and written, and should be subject to public review and comment. 

While it is legitimate for the police to keep the details of particular investigations 

confidential, policy decisions regarding overall deployment policies-including the 

privacy trade-offs they may entail-are a public matter that should be openly discussed. 

• Democratic control. Deployment and policy decisions surrounding UAVs should be 

democratically decided based on open information-not made on the fly by police 

departments simply by virtue of federal grants or other autonomous purchasing decisions 

or departmental policy fiats. 

• Auditing and effectiveness tracking. Investments in UAVs should only be made with a 

clear, systematic examination of the costs and benefits involved. And ifaerial surveillance technology is deployed, independent audits should be put in place to track the use 

ofUAVs by government, so that citizens and other watchdogs can tell generally how and 

how often they are being used, whether the original rationale for their deployment is met, 

whether they represent a worthwhile public expenditure, and whether they are being used 

for improper or expanded purposes. 

• Ban on weaponization. Weapons developed on the battlefield in Iraq and Afghanistan 

have no place inside the U.S. The national consensus on this issue is reflected by the fact 

that the Heritage Foundation and the International Association of Chiefs of Police join us 

in supporting sharp limits on weaponized drones. 39 

While this new technology certainly has beneficial uses - for search and rescue missions, 

firefighting, dangerous police tactical operations - it also poses significant possible harms if left 

unchecked. Drones should only be used if subject to a powerful framework that regulates their 

use in order to avoid abuse and invasions of privacy. The ACLU is eager to work with the 

members of this committee in order to create a robust and appropriate framework for drone use. 

39 International Assocation of Cheifs of Police, Aviation Committee, Recommended Guidelines for the use of 

Unmanned Aircraft. August 2012, see: http://www.theiacp.org/portals/0/pdfs/IACP UAGuidelines.pdf; Paul 

Rosenzweig, Steven P. Bucci, Ph.D., Charles "Cully" Stimson and James Jay Carafano, Ph.D., Drones in Us. 

Airspace: Principles for Governance, The Heritage Foundation, September 20,2012, see: 

http://www .heritage.org/research!reports/20 12/09!drones-in-us-airspace-principles-for-governance 

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Statement of Senator John Comyn 

Senate Judiciary Committee Hearing Entitled: "Drones in America: 

Law Enforcement and Privacy Considerations" 

Technological innovation has driven incredible economic growth in the United States, 

and has improved nearly every aspect of our lives. But new technologies, especially when used 

inappropriately, can raise serious privacy concerns. The use of unmanned aerial surveillance 

systems in the United States brings these issues to the forefront, and I am glad we are holding 

this hearing to learn more about them. 

In Texas, the United States Border Patrol has used unmanned aerial surveillance systems 

to help apprehend thousands of illegal immigrants and criminals on the Southern Border. 

Congress must ensure that these unmanned aerial surveillance systems are only used for 

legitimate national security and law enforcement purposes, and never used to harass, intimidate, 

or infringe upon the rights of United States citizens. 

-30-
70 

United States Senate Committee on the Judiciary 

"The Future of Drones In America: Law Enforcement and Privacy Considerations" 

March 20, 2013 

WRITTEN STATEMENT OF RYAN CALO 

ASSISTANT PROFESSOR 

UNIVERSITY OF WASHINGTON SCHOOL OF LAW 

Thank you Chairman Leahy, ranking Member Grassley, and Members of the 

Committee for this opportunity to testify today. 

My name is Ryan Calo and I am a law professor at the University of Washington. I 

am also the former director for privacy and robotics at the Stanford Law School 

Center for Internet and Society. 

Last year, Congress charged the Federal Aviation Administration (FAA) with 

accelerating the integration of unmanned aircraft systems-known colloquially as 

"drones"-into domestic airspace.! Drones are not new; we deployed them for 

target practice throughout World War IJ.2 What is new is the prospect of their 

widespread use over American cities and towns. 

Drones have a lot of people worried about privacy-and for good reason. Drones 

drive down the cost of aerial surveillance to worrisome levels. Unlike fixed cameras, 

drones need not rely on public infrastructure or private partnerships. And they can 

be equipped not only with video cameras and microphones, but also the capability 

to sense heat patterns, chemical signatures, or the presence of a concealed firearm. 

American privacy law, meanwhile, places few limits on aerial surveillance. We enjoy 

next to no reasonable expectation of privacy in public, or from a public vantage like 

the nation's airways. The Supreme Court has made it clear through a series of 

decisions in the nineteen-eighties that there is no search for Fourth Amendment 

purposes if an airplane or helicopter permits officers to peer into your backyard. 3 I 

see no reason why these precedents would not extend readily to drones. 

1 FAA Modernization and Reform Act of2012, P.L. 112-95, 126 Stat. I!. 

2 LAWRENCE NEWCOME, UNMANNED AVIATION: A BRIEF HISTORY OF UNMANNED AERIAL VEHICLES 48 

(2004). 

3 See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986); Dow 

Chern. Co. v. United States, 476 U.s. 227 (1986). 

1 
71 

Drones may also follow people around from place to place, even after the recent 

decision of United States v. Jones. 4 Jones held that affixing a global positioning device 

to a vehicle for the purpose of tracking the location of the occupant is a search 

within the meaning of the Fourth Amendment. But it is far from certain how Jones 

would apply to surveillance by a drone, which need not be affixed to anything. 

Citizens have no reasonable expectation of privacy in contraband. Dogs can sniff 

luggage or cars without triggering the Fourth Amendment because, courts assume, 

dogs only alert in the presence of narcotics or other illegal possessions.s A logical 

extension of this precedent, it seems to me, is that drones could fly around testing 

the air for drug particles and report back suspicious activity to law enforcement 

without ever implicating the Constitution.6 

I have heard it suggested that the Supreme Court's decision in Kyllo v. United States 

involving thermal imaging limits how drones might be used for surveillance. Kyllo 

holds, in essence, that officers need probable cause to peer into the home using 

technology that is unavailable to the general public,7 Setting aside whether drones 

would even draw a Kyllo analysis, the technology will indeed be available to the 

general public as soon as 2015 when the FAA relaxes its ban on commercial use. 

The subject of today's hearing is drones and law enforcement. I pause only to note 

that, if anything, there are even fewer limits on the use of drones by individuals, 

corporations, or the press. The common law privacy torts such as intrusion upon 

seclusion tend to track the constitutional doctrine that there should be no 

expectation of privacy in public.8 Some might go further and argue that the press (at 

least) has a free speech interest in using technology to cover newsworthy events.9 

This combination of cheap, powerful surveillance and inadequate privacy law has 

understandably resulted in a backlash against drones, one further compounded by 

our association of the technology with the theatre of war. 

4132 S.Ct. 945 (2012). 

5 See Illinois v. Caballes, 543 U.S. 405 (2005); United States v. Place, 462 U.S. 696, 707 

(1983) ("A 'canine sniff' by a well-trained narcotics detection dog, however, does not ... 

expose noncontraband items that otherwise would remain hidden from public view."). 

6 See Ryan Calo, The Drone as Privacy Catalyst, 64 STAN. L. REV. ONLINE 29, 31 (2011). 

7 Kyllo v. United States, 533 U.S. 27 (2001). 

8 E.g., RESTATEMENT (SECOND) OF TORTS § 652B. But see Daily Democrat v. Graham, 276 Ala. 

380,381 (1964) (plaintiff-whose dress had been blown up by the wind in a public placeallowed to pursue privacy tort against defendant photographer). 

9 Cf Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (holding that a citizen has a First 

Amendment right to videotape police during course of his arrest). Thank you to Margot 

Kaminiski for this pointer. 

2 
72 

This is in many ways a shame. Drones have the potential to be a transformative 

technology, helping governments, empowering civilians, and fostering innovation in 

countless ways. As the Congressional Research Service recently stated in a report, 

"the extent of [drone's] potential domestic application is bound only by human 

ingenuity."lO Drones can be lifesavers in the hands of police and firefighters and 

flying smart phones in the hands of consumers and private industry. 

I am very concerned that we will not realize the potential of this technology because 

we have been so remiss in addressing the legitimate privacy concerns that attend it. 

There are several ways the government could change this picture. Ideally, we would 

take the opportunity to finally drag privacy law into the twenty-first century by 

reexamining our outmoded doctrines. This is a slow process, but courts do seem to 

be making strides in recent years. 

Several federal bills have proposed placing limits on drones. I think we should be 

very careful here for a few reasons. First, the problem is broader than unmanned 

aircraft systems: flight is not a prerequisite for threatening civil liberties. There are 

robots that climb the side of buildings, for instance, that would not be covered under 

the draft bills I've read. Second, there is likely some benefit to allowing individual 

states to adopt different approaches to drones and seeing what works and what 

does not. 

There is one approach that I believe could act as stop-gap, and that is for Congress to 

instruct the FAA to take privacy into account as part of its mandate to integrate 

drones into domestic airspace.ll The agency has been largely silent on the issue of 

privacy-only recently did members of the privacy community receive a letter from 

the FAA asking for input in connection with the selection of drone testing centers. 

But the FAA could require public and eventually private applicants to furnish the 

agency with a plan to minimize their impact on privacy as part of the application. 

The agency could then consider the plan, and even withdraw the license for those 

who flout it. This might help allay reasonable concerns over drones in the short 

term while continuing to permit their innovative and lifesaving uses. 

Thank you again for the opportunity to speak today. I look forward to your 

questions. 

10 Allison Dolan and Richard Thompson II, Integration of Drones into Domestic Airspace: 

Selected Legal Issues, CRS Report for Congress, R42940 Gan. 30, 2013). 

11 Representative Ed Markey made this suggestion in the Drone Aircraft Privacy and 

Transparency Act of 2012 (H.R. 6766) and the Electronic Privacy Information Center has 

formally petitioned the FAA to adopt privacy safeguards. 

3 
73 

Statement of Senator Patrick Leahy (D-Vt.), 

Chairman, Senate Judiciary Committee, 

Hearing On 

"The Future of Drones in America: Law Enforcement and Privacy Considerations" 

March 20, 2013 

The focus oftoday"s hearing is on the 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. [continue to have deep concerns about 

the constitutional and legal implications of such targeted killings. I have spoken with Senator 

Durbin, and next month he will chair a hearing in the Constitution subcommittee that will 

examine these issues carefully. In addition, I will continue to press the administration to provide 

this Committee with all relevant Office of Legal Counsel opinions related to the use of drones to 

conduct targeted killings. 

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 going forward. 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 note 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 like this one - about which we 

will hear testimony later. With the Federal Aviation Administration (FAA) estimating as many 

as 30,000 drones like this operating in the national airspace by the end of this decade, Congress 

must carefully consider the policy implications of this fast-emerging technology. 

During our discussion of the domestic use of drones, I know that we will hear about many of 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 missions. 

While there may be many valuable uses for this new technology, the use of unmanned aircraft 

raises serious concerns about the impact on the constitutional and privacy rights of American 

citizens. 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. In addition, a 

growing 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 regarding aerial 

surveillance: 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 what should be done with the data that is collected? And although no drones operating in the 
74 

u.s. are yet weaponized, 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 commercial use of drones in the domestic airspace, we need 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 can lead to vast over-collection 

and potential privacy violations. Similarly, a simple scan of amateur videos on the internet 

demonstrates how prevalent drone technology is becoming amongst private citizens. Small, 

quiet unmanned aircraft can easily be built or purchased online for only a few hundred dollars, 

and 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. 

On this issue, we cannot take a short-sighted view, and we must realize that technology in this 

area will advance at an incredible rate. This topic is of significant interest to many members of 

our Committee, and I hope that this hearing will be just the beginning of an ongoing dialogue as 

to how best to manage the unique privacy threats associated with this modem technology, while 

not stifling this nascent industry that has enormous potential to improve our lives. 

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, the head ofthe 

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. I thank the witnesses for being with us today. 

##### 
75 

Written Testimony 

Of 

Benjamin Miller, 

Unmanned Aircraft Program Manager, 

Mesa County Sheriffs Office 

and 

Representative of the 

Airborne Law Enforcement Association 

Before the Committee on the judiciary 

United States Senate 

For the Hearing: 

"The Future of Drones in America: Law Enforcement and Privacy 

Considerations" 
76 

Good morning Chairman Leahy and members of the Committee. My name is Benjamin Miller, 

Unmanned Aircraft Program Manager with the Mesa County Sheriffs Office and 

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 Sheriffs Office is a middle sized agency 

employing approximately 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. 

Today, I speak to you not only on behalf of the Mesa County Sheriffs Office, but on behalf of 

the Airborne Law Enforcement Association (ALEA). The ALEA has guided our agency 

through the last four years of research and program genesis in the responsible use of unmanned 

aircraft. It is over these last four years that we've gained the experience using unmanned 

aircraft that I'd like to share with you today. 

In four years, we have flown 185 hours in just over 40 missions with two small, battery 

operated unmanned aircraft systems. The Draganflyer X6 is a backpack sized helicopter that 

can fly for 15 minutes. Our small airplane, called Falcon UA V, can fly for an hour and can fit 

in the trunk of a car. Both systems are used to carry cameras. 

I'd like to share with you today some examples of how we've used these systems to provide 

you with a picture of how unmanned aircraft are playing a role in our department's commitment 

to public safety. 

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 then flew a point and 

click camera, available at your neighborhood Walmart, 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 a few weeks ago when a 62 year old woman was reported missing. 

We launched our Falcon UAV in an effort to find this woman. Flying all day, we were able to 

clear large areas in a short time that would normally take much longer and involve more 

resources. 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, has little to do with law enforcement, but it offers a 

glimpse as to the real benefit of unmanned aerial systems and that is, affordability. Each year, 

Mesa County spends nearly ten thousand dollars 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 with our unmanned aircraft for a mere two hundred dollars in cost to the taxpayer. 

By flying back and forth over the landfill, using yet another low cost point and click camera, 
77 

we were able to combine those photos with geographic reference data and provide a volume to 

the landfill to an accuracy of 10 cubic centimeters. 

This example speaks to the real heart of what we've leamed in the last few years. I must admit 

that when we started this project, I had thoughts of grandeur, chasing criminals across the 

landscape and solving all my community's public safety problems with state of the art 

technology seen on the news in Iraq and Afghanistan. Four years later, the reality is the 

equipment we use and the military "Drones" you see on TV have as much in common as a 

bicycle and a race car. 

While military unmanned aircraft fly for hours and sometimes days at enormous altitudes, we 

fly just minutes to photograph a crime or accident scene and cannot exceed an hour of flight 

time, nor can we fly more than 400 feet above the ground we stand on. 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 into your home. Our small unmanned aerial vehicles cannot 

carry weapons nor do we have a desire to have them do so. Furthermore, we can only fly 

during daylight conditions and our vehicles must remain within line of sight of the operator. 

On the other side of the spectrum from the large "predator-type drones," are the micro 

unmanned aerial vehicles which you may have seen in some internet andlor TV 

demonstrations, where numerous vehicles move in complex formations. While we can 

fearfully contemplate massive swarms of police drones covering the skies, such fears fail to 

consider simple variables such as wind, making such devices virtually irrelevant for unmanned 

airborne public safety missions. 

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 long standing 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 Sheriffs 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 per hour. It actually costs just one 

cent to charge a flight battery for either of our systems. 

The Airborne Law Enforcement Association embraces the conduct of public safety missions 

within the specified confines of our nation's laws at all levels of government -- federal, state, 

and local. We also embrace the introduction of new technologies, such as unmanned aerial 

systems, that support public safety missions. Additionally, we strongly support the 

Constitutional process oflawfully obtaining a search warrant when there are specific, 

articulable grounds to believe that the use of an aircraft, including unmanned aircraft, will 

intrude upon reasonable expectations of privacy. However, in situations where time is of the 

essence and no reasonable expectation of privacy exists, we would be opposed to restrictions 

that would limit the effectiveness of this technology. Further, the introduction of this new 

technology as a tool of public safety does not transfer to the notion that public safety officers, 
78 

by virtue of the use of this new tool, will retract their oaths of office to uphold the laws of this 

nation, to include the laws that protect the privacy of its citizens. 

In almost a century since law enforcement's first use of aviation, numerous judicial opinions 

have been handed down that uphold the Fourth Amendment's protections against unreasonable 

searches and seizures. 

My agency's use of unmanned aircraft is primarily for search and rescue and crime scene 

reconstruction, but 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 many years. 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 (see Exhibit 1), 

whereby agencies do not keep images that do not qualify as evidence. These guidelines have 

also been endorsed by the Airborne Law Enforcement Association (see Exhibit 2). 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 ofthe many benefits 

unmanned aircraft can provide to public safety. 

Thank you for the opportunity to speak with you today. 
79 
80 

DEFINITIONS: 

1. Model Aircraft - A remote controlled aircraft used by hobbyists, which is 

manufactured and operated for the purposes of sport, recreation and/or competition. 

2. Unmanned Aircraft (UA) An aircraft that is intended to navigate in the air without 

an on-board pilot. Also called Remote Piloted Aircraft and "drones." 

3. UAS Flight Crewmember - A pilot, visual observer, payload operator or other 

person assigned duties for a UAS for the purpose of flight. 

4. Unmanned Aircraft Pilot - A person exercising control over an unmanned aircraft 

during flight. 

COMMUNITY ENGAGEMENT: 

I. Law enforcement agencies desiring to use UA should first determine how they will 

use this technology, including the costs and benefits to be gained. 

2. The agency should then engage their community early in the planning process, 

including their governing body and civil liberties advocates. 

3. The agency should assure the community that it values the protections provided citizens 

by the U.S. Constitution. Further, the agency will operate the aircraft in full compliance 

with the mandates of the Constitution, federal, state and local law governing search and 

seizure. 

4. The community should be provided an opportunity to review and comment on 

agency procedures as they are being drafted. Where appropriate, recommendations 

should be considered for adoption in the policy. 

5. As with the community, the news media should be brought into the process early in 

its development. 

SYSTEM REOUIREMENTS: 

I. The UAS should have the ability to capture flight time by individual flight and 

cumulative over a period of time. The ability to reset the flight time counter should be 

restricted to a supervisor or administrator. 

2. The aircraft itself should be painted in a high visibility paint scheme. This will facilitate 

line of sight control by the aircraft pilot and allow persons on the ground to monitor the 

location of the aircraft. This recommendation recognizes that in some cases where officer 

safety is a concern, such as high risk warrant service, high visibility may not be optimal. 
81 

However, most situations of this type are conducted covertly and at night. Further, given 

the ability to observe a large area from an aerial vantage point, it may not be necessary to 

fly the aircraft directly over the target location. 

3. Equipping the aircraft with weapons of any type is strongly discouraged. Given the 

current state of the technology, the ability to effectively deploy weapons from a small UA 

is doubtful. Further, public acceptance of airborne use of force is likewise doubtful and 

could result in unnecessary community resistance to the program. 

4. The use of model aircraft, modified with cameras, or other sensors, is discouraged due to 

concerns over reliability and safety. 

OPERATIONAL PROCEDURES: 

I. UA operations require a Certificate of Authorization (CAO) from the Federal Aviation 

Administration (FAA). A law enforcement agency contemplating the use of UA should 

contact the FAA early in the planning process to determine the requirements for 

obtaining a COA. 

2. UAS will only be operated by personnel, both pilots and crew members, who have been 

trained and certified in the operation of the system. All agency personnel with UA 

responsibilities, including command officers, will be provided training in the policies and 

procedures governing their use. 

3. All flights will be approved by a supervisor and must be for a legitimate public safety 

mission, training, or demonstration purposes. 

4. All flights will be documented on a fonn designed for that purpose and all flight time 

shall be accounted for on the form. The reason for the flight and name of the supervisor 

approving will also be documented. 

5. An authorized supervisor/administrator will audit flight documentation at regular 

intervals. The results of the audit will be documented. Any changes to the flight time 

counter will be documented. 

6. Unauthorized use of a UA will result in strict accountability. 

7. Except for those instances where officer safety could be jeopardized, the agency should 

consider using a "Reverse 911" telephone system to alert those living and working in the 

vicinity of aircraft operations (if such a system is available). If such a system is not 

available, the use of patrol car public address systems should be considered. This will not 

only provide a level of safety should the aircraft make an uncontrolled landing, but 

citizens may also be able to assist with the incident. 
82 

8. Where there are specific and articulable grounds to believe that the UA will collect evidence 

of criminal wrongdoing and ifthe UA will intrude upon reasonable expectations of privacy, 

the agency will secure a search warrant prior to conducting the flight. 

IMAGE RETENTION: 

I. Unless required as evidence of a crime, as part of an on-going investigation, for training, 

or required by law, images captured by a UA should not be retained by the agency. 

2. Unless exempt by law, retained images should be open for public inspection. 
83 

Exhibit 2 

51) ennui! C,eek. Wny. Suite 260 F'rederiC\;. MD 21101 

BlJ~ (30 I ) 63 t ·2400 F"" (30 !) 63 1-2466 

~v.ate~L():..rg 

RESOLUTION 

IN SlJVPORT OF THE 

INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE 

A VIATION COMMITTEE'S 

Recommended Guidelines for tile use of Ummllmed 

AircI'aft 

WH"~REAS, the Airborne Law Enforcement Association (ALEA) is a non· 

profit public benefit corporation of tile Stale ofCaJifomia whose primury 

purpose is 10 promote. develop, pn:pare, ui:;.slllllioatc lind eV!litlllle infonn3tion 

with respecllo the sufe 1IIill,.alion of aircraft as a tool of Jaw enforcement a.nd 

airborne ,awenforcement techniques. e'quipmel1t, llml phHosorhy a.~ an 

edl.'Cntionul service for meanbers of tile Ol'gonizaliol1 and the pub,ic; and. 

WIH;;IU:;AS, ALEA cmbmces m!w technologies, such ail Ullluanned Aerial 

Systems (VAS), :Il"l support public ~aj;;,!y missions, and; 

WHERE/loS. ALEA embmlOes ,he conduct ofpubUc sutety mi~sions wilhin 

Ihe specified confill"!; (,r "ur 'talion's laws. fecleml, state, :md local: and 

WHF.RltAS, ALEA recognizes Ihllt tile introduction ofUAS inio lhe IL'1lional 

"irsp;)!:c brings with it unit:; ue privacy cmUlcms that thrcl\tel\ to overshadow Ill" 

benefits OfUlis technology; 

THEREJi'OIUi; Ill, rf RESOLVED THAT Ihe Airborne Law Enforcement 

Association adnpl lind promotc the [niemu\ion<lI/\~s"d;\Iion of Chiefs of Police 

1\ \,;'11 iOIl Commillcc's lI;<!,"ommendec{ Gn/datillCls fuJ' Iii£! use of Unmanned 

AiI'/"nifi, 

Ai (Oplfd hy Ihe ;l)rhoNW £ml' Entrm.,'I!M:ml A.tsn(ialion Board of {)fref'lOf.,' lHf 

AII#lIS/29,101], ' 
84 

l p 

• 

N 
85 

Mister Chairman and Members of the Committee, thank you for the opportunity to 

testify today concerning the use of drones by law enforcement in the United States. My 

name is Arnie Stepanovich. I am the Director of the Domestic Surveillance Project at the 

Electronic Privacy Information Center. 

EPIC is a non-partisan research organization, established in 1994, to focus public 

attention on emerging privacy and civil liberties issues.1 We work with a distinguished 

panel of advisors in the fields oflaw, technology, and public policy.2 We have a particular 

interest in the protection of individual privacy rights against government surveillance. In 

the last several years, EPIC has taken a particular interest in the unique privacy problems 

associated with aerial drones. 

The Federal Aviation Administration ("FAA") has been directed to fully integrate 

drones into the National Airspace by 2015.3 In 2012 EPIC petitioned the FAA, as it 

considers new regulations to permit the widespread deployment of drones, to also develop 

new privacy safeguards.4 The FAA heeded our warning, and is now considering privacy 

policies for drone operators. However, more must be done to protect the privacy of 

individuals in the United States. 

We appreciate the Committee's interest in domestic drone use and its substantial 

impact on the privacy of individuals in the United States. In my statement today, I will 

describe the unique threats to privacy posed by drone surveillance, the problems with 

current legal safeguards, and the need for Congress to act. 

I. Aerial Drones Pose a Unique Threat to Privacy 

A drone is an aerial vehicle designed to fly without a human pilot on board. Drones 

can either be remotely controlled or autonomous. Drones can be weaponized and deployed 

for military purposes.s Drones can also be equipped with sophisticated surveillance 

technology that makes it possible to spy on individuals on the ground. In a report on 

drones published by EPIC in 2005, we observed, "the use of [drones] gives the federal 

government a new capability to monitor citizens clandestinely, while the effectiveness of 

the ... surveillance planes in border patrol operations has not been proved."6 Today, drones 

greatly increase the capacity for law enforcement to collect personal information on 

individuals. 

1 About EPEC, EPIC, http://www.epic.org/about (last visited July 16, 2012). 

2 EPEC Advisory Board, EPIC, http://www.epic.org/epic/advisory_board.html(last visited July 16, 2012). 

3 Federal Aviation Administration Modernization and Reform Act of 2012 ("FMRA"), Pub. L. 112-95 §§ 331-

336 (2012), available at http://www.gpo.gov /fdsys/pkg/PLAW-112pubI95/pdf/PLAW-112pubI95.pdf. 

4 Unmanned Aerial Vehicles (UAVs) and Drones, EPIC, http://www.epic.org/privacy/drones (last visited July 

16,2012). 

5 See, e.g., Predator B UAS, General Atomics Aeronautical, http://www.gaasLcom/products/aircraft/predator_b.php (last visited June 25, 2012); X-47B UCAS, Northrop Grumman, 

http://www.as.northropgrumman.com/products/nucasx47b/index.html(last visited July 16, 2012). 

6 Spotlight on Surveillance: Unmanned Planes Offer New Opportunities for Clandestine Government Tracking 

(August 2005), EPIC, http://epic.org/privacy/surveillance/spotlight/0805/ (last visited July 16, 2012). 

EPIC Testimony 

Future of Drones in America 

2 March 20, 2013 

Senate Judiciary Committee 
86 

We recognize that there are many positive applications for drones within the United 

States. With little to no risk to individual privacy, drones may be used to combat forest 

fires, conduct search and rescue operations, survey emergency situations, and monitor 

hurricanes and other weather phenomena.7 In Dallas, a drone used by a hobbyist 

photographer was able to pinpoint an instance of gross environmental abuse at a nearby 

factory.a In Alabama, drones were recently used to assist in monitoring a hostage situation 

involving a young boy abducted off of the school bus.9 

However, when drones are used to obtain evidence in a criminal proceeding, intrude 

upon a reasonable expectation of privacy, or gather personal data about identifiable 

individuals, rules are necessary to ensure that fundamental standards for fairness, privacy, 

and accountability are preserved. 

The technology in use today is far more sophisticated than most people understand. 

Cameras used to outfit drones are among the highest definition cameras available. The 

Argus camera, featured on the PBS Nova documentary on drones, has a resolution of 1.8 

gigapixels and is capable of observing objects as small as six inches in detail from a height 

of 17,000 feet. 10 On some drones, sensors can track up to 65 different targets across a 

distance of 65 square miles.11 Drones may also carry infrared cameras, heat sensors, GPS, 

sensors that detect movement, and automated license plate readers.12 

Recent records received by EPIC under the Freedom of Information Act 

demonstrate that the Bureau of Customs and Border Protection procured drones outfitted 

7 See, e.g., Tim Wall, Flying Drones Fight Fires, Discovery News (Nov. 10, 2011), available at 

http://news.discovery.com/earth/flying-drones-fight-fires-llll10.html; Meghan Keneally, Drone Plane 

Spats a River of Blood FlaWing From the Backofa Dallas Meat Packing Plant, Daily Mail Online (Jan. 24, 2012), 

availa ble at http://www.dailymail.co.uk/ news/article-209115 9 / A-drone-plane-spots-river-blood-flowingDallas-meat-packing-planthtml; Sean Holstege, Drones' Goad Flies Hand in Hand with Bad, Experts Fear, 

AZCentral (fuly 7, 2012), available at 

http://www.azcentral.com/12news/news/articles/2012/07 /07 /201Z0707arizona-unmanned-dronesconcerns.html. 

B Meghan Keneally, Drone Plane Spats a River of Blood Flawing From the Back of a Dal/as Meat Packing Plant, 

Daily Mail Online (Jan. 24, 2012), available at http://www.dailymail.co.uk/news/article-2091159 / A-droneplane-spots-river-blood-flowing-Dallas-meat-packing-plant.html. 

9 See Military Tactics, Equipment Helped Authorities End Alabama Hostage Standoff, Fox News (Feb. 7, 2013), 

http://www.foxnews.com/us/2013/02/07 /alabama-kidnapper-was-killed-in-firefight-during-stormingbunker-fbi-says/. 

10 Ryan Gallagher, Could the Pentagan's 1.8 Gigapixe/ Drane Camera Be Used for Domestic Surveillance, Slate 

(Feb. 6, 2013), 

http://www.slate.com/blogs/future_tense/2013/02/06/argusjs_could_the_pentagon_s_1_B..gigapixetdrone 

_camera_be_usedJor_domestic.htmL 

llid. 

12 Customs and Border Protection Today, Unmanned Aerial Vehicles Support Border Security (July/Aug. 

2004), available at http://www.cbp.gov /xp/CustomsToday /2004/ Aug/ other / aeriat vehicles.xml. 

EPIC Testimony 

Future of Drones in America 

3 March 20, 2013 

Senate Judiciary Committee 
87 

with technology for electronic signals interception and human identification.13 Following 

receipt ofthese documents, EPIC and a broad coalition of privacy and civil liberties 

organizations petitioned the CBP to suspend the domestic drone program, pending the 

establishment of privacy safeguards.14 

Much of this surveillance technology could, in theory, be deployed on manned 

vehicles. However, drones present a unique threat to privacy. Drones are designed to 

maintain a constant, persistent eye on the public to a degree that former methods of 

surveillance were unable to achieve. Drones are cheaper to buy, maintain, and operate than 

helicopters, or other forms of aerial surveillance.15 Drone manufacturers have recently 

announced new designs that would allow drones to operate for more than 48 consecutive 

hours,16 and other technology could extend the flight time of future drones into spans of 

weeks and monthsP Also, "by virtue of their design, size, and how high they can fly, 

[drones] can operate undetected in urban and rural environments."lS 

Drones are currently being developed that will carry facial recognition technology, 

able to remotely identify individuals in parks, schools, and at political gatherings.19 The 

ability to link facial recognition capabilities on drones operated by the Department of 

Homeland Security ("DHS") to the Federal Bureau of Investigation's Next Generation 

Identification database or DHS' !DENT database, two of the largest collections of biometric 

data in the world, further exacerbates the privacy risks.20 

13 Declan McCullagh, DHS Built Domestic Surveillance Tech into Predator Drones, CNET (Mar. 2, 2013), 

http://news.cnetcom/830 1-135783-5 7 5 72207 -38/ dhs-built-domestic-surveillance-tech-into-predatordrones/. 

14 Letter from the Electronic Privacy Information Center, et a!. to David V. Aguilar, Deputy Commissioner, U.S. 

Bureau of Customs and Border Protection (Mar. 19,2013), available at http://epic.org/drones_petition/. 

15 Nick Wingfield and So mini Sengupta, Drones Set Sights on U.s. Skies, NY Times (Feb. 17, 2012), available at 

http://www.nytimes.com/2012/02/18/technology/drones-with-an-eye-on-the-public-cleared-tofly.html?pagewanted=all; http://www.wired.com/autopia/2012j05j drone-auto-vidsj; Sabrina Hall, Shelby 

County Sheriffs Department Wants Drones, WREG (May 3, 2012), available at 

http://wreg.com/2012/05/03/shelby-county-sheriffs-department-wants-drones/. Drones can run from 

$300 for the most basic drone, able to record and transmit video, to $18 million for a General Atomics 

Predator B drone, the model owned by the United States Bureau of Customs and Border Protection. See Parrot 

AR.Drone 2.0, Apple, http://store.apple.com/us/product/H8859ZM/A (last visited fuly 16,2012); Office afthe 

Inspector Gen., Dep't Homeland Security, OIG-12-85, CBPs Use afUnmanned Aircraft Systems in the Nation's 

Border Security (May 2012), available at http:j /www.oig.dhs.gov/assetsjMgmtj2012/OIG_12-85_May12.pdf 

[hereinafter DHS OlG Report] at 2. 

16 Mark Brown, Lockheed Uses Ground-Based Laser to Recharge Drone Mid-Flight (July 12, 2012), available at 

http://www.wired.co.ukjnews/archive/2012-07/12/lockheed-lasers. 

17 Steven Aftergood, Secret Drone Technology Barred by "Political Conditions" (Mar. 22, 2012), available at 

http://www.fas.org/blag/secrecY/2012/03/sandia_drone.html. 

18 Jennifer Lynch, Are Drones Watching You?, Electronic Frontier Foundation (Jan. 10, 2012), available at 

https://www.eff.org/deeplinks/2012/01/drones-are-watching-you. 

19 Clay Dillow, Army Developing Drones that Can Recognize Your Face From a Distance, PopSei (Sept 2B, 2011, 

4:01 PM), http://www.popsci.com/technology/article/2011-09/army-wants-drones-can-recognize-yourface-and-read-your-mind. 

20 See Next Generation Identification, Federal Bureau of Investigation, http://www.fbi.gov /aboutus/cjis/fingerprints_biometrics/ngi/ngi2/ (last visited July 16, 2012); Privacy Impact Assessment, 

EPIC Testimony 

Future of Drones in America 

4 March 20, 2013 

Senate Judiciary Committee 
88 

Law enforcement offices across the country have expressed interest in the purchase 

and use of drone technology to assist with law enforcement operations. Records released in 

2012 by the Federal Aviation Administration show that over 220 public entities have 

already received approval to operate drones over the United States, including Police 

departments from Texas, Kansas, Washington, and other states.21 The Florida Police Chiefs 

Association expressed a desire to use drones to conduct general crowd surveillance at 

public events.22 News reports demonstrate that other police departments are not only 

interested in invasive surveillance equipment, but have also voiced interest in outfitting 

drones with non-lethal weapons.23 

II. Current Privacy Safeguards are Inadequate 

The Supreme Court has not yet considered the limits of drone surveillance under the 

Fourth Amendment, though the Court held twenty years ago that law enforcement may 

conduct manned aerial surveillance operations from as low as 400 feet without a 

warrant.24 In addition, no federal statute currently provides adequate safeguards to protect 

privacy against increased drone use in the United States. Accordingly, there are substantial 

legal and constitutional issues involved in the deployment of aerial drones by law 

enforcement and state and federal agencies that need to be addressed. Technologist and 

security expert Bruce Schneier observed earlier this year at an event hosted by EPIC on 

Drones and Domestic Surveillance, "today's expensive and rare is tomorrow's 

commonplace."25 As drone technology becomes cheaper and more common, the threat to 

privacy will become more substantial. High-rise buildings, security fences, or even the 

walls of a building are not barriers to increasingly common drone technology. 

The Supreme Court is aware of the growing risks to privacy resulting from new 

surveillance technology but has yet to address the specific problems associated with drone 

surveillance. In United States v. Jones, a case that addressed whether the police could use a 

GPS device to track the movement of a criminal suspect without a warrant, the Court found 

Department of Homeland Security, Automated Biometric Identification System (IDENT) (July 31,2006), 

http://www.dhs.gov /xlibrary / assets/ privacy/privacy _pia_usvisit)dent_final.pdf. 

21 See letter from Michael Huerta, Acting Administrator, Federal Aviation Administration to the Honorable 

Edward J. Markey (Sept. 21, 2012), available at 

http:// markey.house.gov / sites/ markey.house.gov /files/ documents/FAA %2 Odrones%20response. pdf; see 

also Jennifer Lynch,fust How Many Drone Licenses Has the FAA Really Issued, Electronic Frontier Foundation 

(Feb. 21, 2013), https://www.eff.org/deeplinks/2013/02/just-how-many-drone-Iicenses-has-faa-reallyissued (providing details on contradictory statements made by the Federal Aviation Adminstration regarding 

the issuance of drone licenses). 

22 See Florida Ban on Drones Advances Despite Law Enforcement Objections, Fox News (Feb. 7, 2013), 

http://www.foxnews.com/politics/2013/02/07/fla-police-want-to-use-drones-for-crowd-control/. 

23 See Conor Friedersdorf, Congress Should Ban Armed Drones Before Cops in Texas Deploy One, the Atlantic 

(May 24, 2012), http://www.theatlantic.com/nationa!/archive/2012/05/congress-should-ban-armeddrones-before-cops-in-texas-deploy-one/257616/. 

24 See Florida v. Riley, 488 U.S. 445 (1989) (holding that a police helicopter flying more than 400 feet above 

private property is not a search). 

25 Drones and Domestic Surveillance, EPIC, http://epic.org/events/drones/ (last visited Mar. 15,2013). 

EPIC Testimony 

Future of Drones in America 

5 March 20, 2013 

Senate Judiciary Committee 
89 

that the installation and deployment of the device was an unlawful search and seizure.z6 

Justice Sotomayor in a concurrence pointed to broader problems associated with new 

forms of persistent surveillanceP And Justice Alito, in a separate concurrence joined by 

three other Justices, wrote, "in circumstances involving dramatic technological change, the 

best solution to privacy concerns may be legislative."z8 

Regarding the invasive use of drones by commercial operators, current law does not 

anticipate the use of mobile devices that can hover outside a bedroom window or follow a 

person down a street. Legal standards should be established to protect people from a 

violation of reasonable expectations of privacy, including surveillance in public spaces. In 

consideration legislation to address law enforcement use of drones, it would be 

appropriate also to establish privacy standards for the commercial use of drones. 

III. Congress Should Establish Safeguards Related to the Use of Drones 

As the Chairman has indicated, the privacy and security concerns arising from the 

use of drones needs to be addressed.29 In order to mitigate the risk of increased use of 

drones in our domestic skies, Congress must pass targeted legislation, based on principles 

of transparency and accountability. 

State and local governments have considered a wide array oflaws and regulations 

to prevent abuses associated with drone technology.3o A current survey demonstrates that 

over 30 states have proposed legislation to protect against unregulated drone surveillance 

of individuals}1 Most of these bills mandate a warrant requirement for the collection of 

information by drones operated by law enforcement officials.32 Other bills require 

26 United States v.Jones, 132 S.Ct. 945, 949 (2012). See also U.S. v. Jones, EPIC, http://epic.org/amicus/jones/. 

27 [d. at 954-57. 

28 [d. at 964. 

29 Press Release from Senator Patrick Leahy, The Agenda of the Senate Judiciary Committee for the 113th 

Congress (Jan. 16, 2013), available at http://www.leahy.senate.gov/press/l13-sjc-agenda-speech (I am 

concerned about the growing use of drones by federal and local authorities to spy on Americans here at 

home. This fast-emerging technOlogy is cheap and could pose a Significant threat to the privacy and civil 

liberties of millions of Americans."). 

30 See, e.g., Erika Neddenien, ACLU Teams with Lawmaker to Push Regulation of Unmanned Drones in VA, WTVR 

[July 12, 2012http://wtvr.com/2012/07 /12/aclu-working-with-lawmaker-to-push-regulation-of-unmanneddrones-in-va/ (last visited July 16, 2012); Press Release, Seattle City Council, Seattle City Council Committee 

to Discuss Drones in Seattle and the Issues they Present (May 1, 2012), available at 

http:// council.seattle.gov /2012/05/0 1/ seattle-city-council-committee-to-discuss-drones-in-seattle-and-theissues-they-present/ . 

31 Allie Bohm, Status of Domestic Drone Legislation in the States, American Civil Liberties Union (Mar. 14, 

2013), http://www.aclu.org/blog/technology-and-liberty/status-domestic-drone-legislation-states. 

32 Allie Bohm, Drone Legislation:What's Being Proposed in the States?, American Civil Liberties Union (Mar. 6, 

2013), http://www.aclu.org/blog/ technology-and -liberty-national-security / drone-Iegislation-whats-beingproposed-states (Noting that states that have introduced a bill to require a warrant for police drone 

surveillance include Arizona, California, Florida, Georgia, Idaho, lllinois, Kentucky, Maryland, Massachusetts, 

Minnesota, Missouri, Montana, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, 

South Carolina, Tennessee, Texas, Washington, and Wyoming.). 

EPIC Testimony 

Future of Drones in America 

6 March 20. 2013 

Senate Judiciary Committee 
90 

reporting requirements for drone operators.33 A bill in Georgia restricts law enforcement 

use of drones strictly to felony investigations,34 and a bill circulating in Oregon would 

require state approval for all drones, including federal drones, that would fly over the 

state's airspace,35 

Even as states consider these various measures, it would be appropriate for 

Congress to establish privacy standards for the operation of drones in the United States. 

First, Congress should require all drone operators, both public and commercial, to submit, 

prior to receipt of a drone license, a detailed report on the drones' intended use. This 

report should describe, the specific geographic are where the drone will be deployed, the 

mission that the drone is expected to fulfill, and the surveillance equipment with which the 

drone will be outfitted. Each ofthese reports should be made publicly available at a 

publicly accessible web site. A private right of action and, in certain instances, federal 

prosecution authority should be included to ensure that drone operators comply with the 

terms of these statements. 

In order to prevent abuses associated with the use of this technology, a strict 

warrant requirement needs to be implemented for all drone surveillance conduct by law 

enforcement. A warrant requirement would establish a presumption that evidence 

obtained by means of an aerial search should require judicial approval. Statutory 

exceptions could be created for exigency in order to address drone use in emergency 

situations or when necessary to protect human life. In addition, mandatory public 

reporting requirements, similar to those required by the Wiretap Act, would increase the 

transparency and accountability oflaw enforcement drone operations.36 

Ongoing surveillance of individuals by aerial drones operating in domestic airspace 

should be prohibited. The invasiveness of drone technology represents a privacy risks to 

individuals as they pursue their daily activities. A drone, with the capability of staying aloft 

for hours or days at a time, could monitor a person's entire life as they go from home to 

work to school to the store and back Even if law enforcement is not able to immediately 

discern exactly what a person says or does or buys at a particular location, simply tracking 

an individual's public movements in a systematic fashion for extended periods of time can 

create a vivid description of their private lifeP Broad, unregulated drone surveillance 

would have a chilling effect on the speech and expression rights of individuals in the United 

States. Drones should not be used as robotic patrol officers for law enforcement. 

Finally, drone surveillance technology may allow the collection of information and 

images that would otherwise be inaccessible to prying eyes, such as activities within the 

home. Congress should prohibit drone operators from conducting surveillance of 

33 See id. (Noting that states that have introduced a bill that includes a reporting requirement include Hawaii, 

Illinois, Maine, Mass, Rhode Island, Washington.). 

34 See id. 

35 Oregon SB 71 (2013), available atwww.leg.state.or.us/13reg/measures/sb0001.dor/sb007l.intro.html. 

36 See 18 V.S.c. § 2519. 

37 See EPIC: Locational Privacy, https://epic.org/privacy/location_privacy/defaulthtml. 

EPIC Testimony 

Future of Drones in America 

7 March 20, 2013 

Senate Judiciary Committee 
91 

individuals that infringes on property rights. A federal "Peeping Tom" statute, recognizing 

the enhanced capabilities of aerial drones, would provide baseline privacy protection for 

individuals within the home. Additional provisions should prevent against any use of 

drones to collect information that would not otherwise be retrievable without a physical 

trespass. 

Additional drone legislation should include: 

Use Limitations - Prohibitions on general surveillance that limit law enforcement 

drone surveillance to specific, enumerated circumstances, such as in the case of 

criminal surveillance subject to a warrant, a geographically-confined emergency, or 

for reasonable non-law enforcement use where privacy will not be substantially 

affected; 

Data Retention Limitations - Restrictions on retaining or sharing surveillance data 

collected by drones, with emphasis on personally identifiable information; 

Transparency and Public Accountability - A requirement for all federal agencies that 

choose to operate drones to promulgate privacy regulations, subject to the notice 

and comment provisions of the Administrative Procedure Act. In addition, the law 

should provide for third party audits and oversight for law enforcement drone 

operations. 

These three principles would further help protect the privacy interests of individuals 

against both government and commercial drone operators. 

IV. Conclusion 

The increased use of drones to conduct surveillance in the United States must be 

accompanied by increased privacy protections. The current state of the law is insufficient 

to address the drone surveillance threat. EPIC supports legislation aimed at strengthening 

safeguards related to the use of drones as surveillance tools and allowing for redress for 

drone operators who fail to comply with the mandated standards of protection. We also 

support compliance with the Administrative Procedure Act for the deployment of drone 

technology and limitations for federal agencies and other organizations that initially obtain 

a drone for one purpose and then wish to expand that purpose. 

Thank you for the opportunity to testify today. I will be pleased to answer your 

questions. 

EPIC Testimony 

Future of Drones in America 

8 March 20, 2013 

Senate Judiciary Committee 
92 

AUVSI 

ASSOctATION FOR UNMANNED 

VEHICLE SYSTFMS INTFRNATIONAL 

OPENING STATEMENT OF MICHAEL TOSCANO 

PRESIDENT & CEO 

ASSOCIATION FOR UNMANNED VEHICLE SYSTEMS INTERNATIONAL (AUVSI) 

Senate Judiciary Committee Hearing 

"The Future of Drones in America: Law Enforcement and Privacy Considerations" 

March 20, 2013 

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 non-profit 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 the 

U.S. economy, as well. Earlier this month, my organization released a study, which found the unmanned 

aircraft industry is poised to help create 70,000 new jobs and $13.6 billion in economic impact in the 

first three years following the integration of unmanned aircraft into the national airspace. 

However, the industry fully understands the technology is new to many 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 UAS, because they are 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 an unmanned system. 

1 
93 

The term "drone" also carries with it a hostile connotation and does not reflect how UAS are actually 

being used domestically. UAS are used to perform dangerous and difficult tasks safely and efficiently. 

They were used to assess the flooding of the Red River in the upper Midwest. They were used to help 

battle California wildfires. 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 UAS, the systems most likely be used by public safety agencies are small systems, many 

weighing less than 5 pounds, with limited flight duration. As for weaponization, it is a non-starter. The 

FAA prohibits deploying weapons on civil aircraft. And for the record: AUVSI does not support the 

weaponization of civil UAS. 

I also want to correct the misperception there is no regulation of domestic UAS. The FAA strictly 

regulates who, where, when, and why unmanned aircraft may be flown. If public entities want to fly 

UAS, they must obtain a Certificate of Authorization or COA from the FAA. UAS are generally flown 

within line of sight of the operator, lower than 400 feet, and during daylight hours. It is also currently a 

violation of FAA regulations to fly a UAS for commercial purposes. 

As we focus on the use of UAS by law enforcement, it is important to recognize the robust legal 

framework already in place, rooted in the Fourth Amendment to our Constitution and decades of case 

law, which regulates how law enforcement uses any technology - whether it is unmanned aircraft, 

manned aircraft, thermal imaging, GPS, or cell phones. 

Safeguarding people's privacy is important to my industry, as well. Last year, AUVSI published a Code of 

Conduct explicitly directing users to respect individual privacy. AUVSI also endorsed guidelines published 

by the International Association of Chiefs of Police for the use of unmanned aircraft by law enforcement. 

These guidelines were not only praised by our industry, but the ACLU as well. AUVSI strongly opposes 

any misuse of UAS technology. Just like with any technology, those who abuse it should be held 

accountable. 

In conclUSion, AUVSI believes all stakeholders can work together to advance this technology in a 

thoughtful way that recognizes the benefits and fuels job creation, while protecting Americans' safety, 

as well as their rights. Thank you, and I look forward to your questions. 

2 
94 

United States Senate Committee on the Judiciary 

"The Future of Drones In America: Law Enforcement and Privacy Considerations" 

March 20, 2013 

WRITTEN STATEMENT OF RYAN CALa 

ASSISTANT PROFESSOR 

UNIVERSITY OF WASHINGTON SCHOOL OF LAw 

Thank you Chairman Leahy, ranking Member Grassley, and Members of the 

Committee for this opportunity to testify today. 

My name is Ryan Calo and I am a law professor at the University of Washington. 

am also the former director for privacy and robotics at the Stanford Law School 

Center for Internet and Society. 

Last year, Congress charged the Federal Aviation Administration (FAA) with 

accelerating the integration of unmanned aircraft systems-known colloquially as 

"drones"-into domestic airspace.1 Drones are not new; we deployed them for 

target practice throughout World War IJ.Z What is new is the prospect of their 

widespread use over American cities and towns. 

Drones have a lot of people worried about privacy-and for good reason. Drones 

drive down the cost of aerial surveillance to worrisome levels. Unlike fixed cameras, 

drones need not rely on public infrastructure or private partnerships. And they can 

be equipped not only with video cameras and microphones, but also the capability 

to sense heat patterns, chemical signatures, or the presence of a concealed firearm. 

American privacy law, meanwhile, places few limits on aerial surveillance. We enjoy 

next to no reasonable expectation of privacy in public, or from a public vantage like 

the nation's airways. The Supreme Court has made it clear through a series of 

decisions in the nineteen-eighties that there is no search for Fourth Amendment 

purposes if an airplane or helicopter permits officers to peer into your backyard. 3 I 

see no reason why these precedents would not extend readily to drones. 

1 FAA Modernization and Reform Act of 2012, P.L. 112-95, 126 Stat. 11. 

2 LAWRENCE NEWCOME, UNMANNED AVIATION: A BRIEF HISTORY OF UNMANNED AERIAL VEHICLES 48 

(2004). 

3 See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986); Dow 

Chern. Co. v. United States, 476 U.S. 227 (1986). 

1 
95 

Drones may also follow people around from place to place, even after the recent 

decision of United States v. jones.4 jones held that affixing a global positioning device 

to a vehicle for the purpose of tracking the location of the occupant is a search 

within the meaning of the Fourth Amendment. But it is far from certain how jones 

would apply to surveillance by a drone, which need not be affixed to anything. 

Citizens have no reasonable expectation of privacy in contraband. Dogs can sniff 

luggage or cars without triggering the Fourth Amendment because, courts assume, 

dogs only alert in the presence of narcotics or other illegal possessions.s A logical 

extension of this precedent, it seems to me, is that drones could fly around looking 

for unusual heat patterns or testing the air for drug particles and report back 

suspicious activity to law enforcement without ever implicating the Constitution.6 

I have heard it suggested that the Supreme Court's decision in Kyllo v. United States 

involving thermal imaging limits how drones might be used for surveillance. Kyllo 

holds, in essence, that officers need probable cause to peer into the home using 

technology that is unavailable to the general public.? Setting aside whether drones 

would even draw a Kyllo analysis, the technology will indeed be available to the 

general public as soon as 2015 when the FAA relaxes its ban on commercial use. 

The subject of today's hearing is drones and law enforcement. I pause only to note 

that, if anything, there are even fewer limits on the use of drones by individuals, 

corporations, or the press. The common law privacy torts such as intrusion upon 

seclusion tend to track the constitutional doctrine that there should be no 

expectation of privacy in public.8 Some might go further and argue that the press (at 

least) has a free speech interest in using technology to cover newsworthy events.9 

This combination of cheap, powerful surveillance and inadequate privacy law has 

understandably resulted in a backlash against drones, one further compounded by 

our association of the technology with the theatre of war. 

4132 S.Ct. 945 (2012). 

5 See Illinois v. Cabelles, 543 U.S. 405 (2005); United States v. Place, 462 U.S. 696, 707 

(1983) ("A 'canine sniff by a well-trained narcotics detection dog, however, does not ... 

expose noncontraband items that otherwise would remain hidden from public view."). 

6 See Ryan Calo, The Drone as Privacy Catalyst, 64 STAN. L. REV. ONLINE 29, 31 (2011). 

7 Kyllo v. United States, 533 U.s. 27 (2001). 

8 E.g., RESTATEMENT (SECOND) OF TORTS § 6528. But see Daily Democrat v. Graham, 276 Ala. 

380, 381 (1964) (plaintiff-whose dress had been blown up by the wind in a public placeallowed to pursue privacy tort against defendant photographer). 

9 Cf Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (holding that a citizen has a First 

Amendment right to videotape police during course of his arrest). Thank you to Margot 

Kaminisky for this pointer. 

2 
96 

This is in many ways a shame. Drones have the potential to be a transformative 

technology, helping governments, empowering civilians, and fostering innovation in 

countless ways. As the Congressional Research Service recently stated in a report, 

"the extent of [drone's] potential domestic application is bound only by human 

ingenuity."lo Drones can be lifesavers in the hands of police and firefighters and 

flying smart phones in the hands of consumers and private industry. 

I am very concerned that we will not realize the potential of this technology because 

we have been so remiss in addressing the legitimate privacy concerns that attend it. 

There are several ways the government could change this picture. Ideally, we would 

take the opportunity to finally drag privacy law into the twenty-first century by 

reexamining our outmoded doctrines. This is a slow process, but courts do seem to 

be making strides in recent years. 

Several federal bills have proposed placing limits on drones. I think we should be 

very careful here for a few reasons. First, the problem is broader than unmanned 

aircraft systems: flight is not a prerequisite for threatening civil liberties. There are 

robots that climb the side of buildings, for instance, that would not be covered under 

the draft bills I've read. Second, there is likely some benefit to allowing individual 

states to adopt different approaches to drones and seeing what works and what 

does not. 

There is one approach that I believe could act as stop-gap, and that is for Congress to 

instruct the FAA to take privacy into account as part of its mandate to integrate 

drones into domestic airspace.!1 The agency has been largely silent on the issue of 

privacy-only recently did members of the privacy community receive a letter from 

the FAA asking for input in connection with the selection of drone testing centers. 

But the FAA could require public and eventually private applicants to furnish the 

agency with a plan to minimize their impact on privacy as part of the application. 

The agency could then consider the plan, and even withdraw the license for those 

who flout it. This might help allay reasonable concerns over drones in the short 

term while continuing to permit their innovative and lifesaving uses. 

Thank you again for the opportunity to speak today. I look forward to your 

questions. 

10 Allison Dolan and Richard Thompson II, integration of Drones into Domestic Airspace: 

Selected Legal issues, CRS Report for Congress, R42940 Gan. 30, 2013). 

11 Representative Ed Markey made this suggestion in the Drone Aircraft Privacy and 

Transparency Act of 2012 (H.R. 6766) and the Electronic Privacy Information Center has 

formally petitioned the FAA to adopt privacy safeguards. 

3 
97 

AUVSI 

ASSOCiAtiON FOR UNMANNFD 

VLHiCU:; SYS 1 f::.MS !N t bP .. f'.;AI10NAl. 

Unmanned Aircraft Systems Privacy Statement 

Unmanned Aircraft Systems (UAS) increase human potential by doing dangerous or difficult tasks safely 

and efficiently. Whether it is improving agriculture practices and output, helping first responders, 

advancing scientific research, or making business more efficient, UAS are capable of saving t!me, saving 

money and most importantly, saving lives. 

The Association for Unmanned Vehicle Systems International (AUVSI) supports the development and 

advancement of UAS technology in a safe and responsible manner, while respecting existing privacy 

laws and ensuring transparency and accountability. AUVSI does not support additional restrictive 

legislation that will prohibit, delay, or prevent the use of UAS by our public safety agencies and other 

end users. AUVSI recognizes this new industry is poised to create over 70,000 new jobs within the first 

three years of UAS being integrated into the National Airspace System in the United States; however, 

restrictive legislation will inhibit this new industry. 

AUVSI supports: 

Registration of unmanned aircraft and pilots with the Federal Aviation Administration (FAA). 

• Enforcement of established law and policy, governing the collection, use, storage, sharing and 

deletion of data, regardless of how it is collected. 

• These policies should be available for public review. 

• The policies should outline strict accountability for unauthorized use. 

AUVSI supports the International Association of Chiefs of Police recommended 

guidelines for UAS operations and their recommendations on data collection, which 

have been adopted by the Airborne Law Enforcement Association and others. 

• UAS manufacturers shall not be held responsible for improper or illegal use of 

unmanned aircraft systems. 

AUVSI does not condone the use of UAS to illegally spy on people. AUVSI fully supports the prosecution 

of individuals that violate privacy laws. AUVSI fully supports the 4th Amendment's requirement that a 

search warrant be obtained prior to the government invading an individual's privacy. 

AUVSI is opposed to many of the bills that have been introduced in Congress and at state capitals 

around the country. These bills would fundamentally change current search warrant requirements, 

which the courts have ably shaped over the past 225 years. The issue should be focused on the extent 

to which the government can collect, use and store personal data - which is why transparency and 

accountability are key. 

Instead of focusing on how the government collects information, AUVSI supports an open debate on the 

government's jjgjJj; to collect, use, store, share, and delete personal data. AUVSI believes information 

gathered by a UAS should be treated no differently than information gathered by a manned aircraft, or 

other electronic means. 

In 2012, AUVSI recently released the industry's first Code of Conduct which is built around safety, 

professionalism and respect. 
98 

AUVSI 

AssociATION FOR UNMANNED 

VEHICLE SYSTEMS INTERNATIONAL 

Unmanned Aircraft System Operations 

Industry "Code of Conduct" 

The emergence of unmanned aircraft systems (UAS) as a resource for a wide variety of public and 

private applications quite possibly represents one of the most significant advancements to aviation, the 

scientific community, and public service since the beginning of flight. Rapid advancements in the 

technology have presented unique challenges and opportunities to the growing UAS industry and to 

those who support it. The nature of UAS and the environments which they operate, when not managed 

properly, can and will create issues that need to be addressed. The future of UAS will be linked to the 

responsible and safe use of these systems. Our industry has an obligation to conduct our operations in a 

safe manner that minimizes risk and instills confidence in our systems. 

For this reason, the Association for Unmanned Vehicle Systems International (AUVSI), offers this Code of 

Conduct on behalf of the UAS industry for UAS operation. This code is intended to provide our 

members, and those who design, test, and operate UAS for public and civil use, a set of guidelines and 

recommendations for safe, non-intrusive operations. Acceptance and adherence to this code will 

contribute to safety and professionalism and will accelerate public confidence in these systems. 

The code is built on three specific themes: Safety, Professionalism, and Respect. Each theme and its 

associated recommendations represent a "common sense" approach to UAS operations and address 

many of the concerns expressed by the public and regulators. This code is meant to provide UAS 

industry manufacturers and users a convenient checklist for operations and a means to demonstrate 

their obligation to supporting the growth of our industry in a safe and responsible manner. By adopting 

this Code, UAS industry manufacturers and users commit to the following: 

Safety 

• We will not operate UAS in a manner that presents undue risk to persons or property on the 

surface or in the air. 

• We will ensure UAS will be piloted by individuals who are properly trained and competent to 

operate the vehicle or its systems. 

• We will ensure UAS flights will be conducted only after a thorough assessment of risks associated 

with the activity. This risks assessment will include, but is not limited to: 

Weather conditions relative to the performance capability of the system 

Page 11 
99 

Identification of normally anticipated failure modes (lost link, power plant failures, loss of 

control, etc) and consequences of the failures 

Crew fitness for flight operations 

Overlying airspace, compliance with aviation regulations as appropriate to the operation, 

and off-nominal procedures 

Communication, command, control, and payload frequency spectrum requirements 

Reliability, performance, and airworthiness to established standards 

Professionalism 

We will comply with all federal, state, and local laws, ordinances, covenants, and restrictions as 

they relate to UAS operations. 

• We will operate our systems as responsible members ofthe aviation community. 

• We will be responsive to the needs of the public. 

• We will cooperate fully with federal, state, and local authorities in response to emergency 

deployments, mishap investigations, and media relations. 

• We will establish contingency plans for all anticipated off-nominal events and share them openly 

with all appropriate authorities. 

Respect 

• We will respect the rights of other users of the airspace. 

• We will respect the privacy of individuals. 

• We will respect the concerns of the public as they relate to unmanned aircraft operations. 

We will support improving public awareness and education on the operation of UAS. 

As an industry, it is incumbent upon us to hold ourselves and each other to a high professional and 

ethical standard. As with any revolutionary technology, there will be mishaps and abuses; however, in 

order to operate safely and gain public acceptance and trust, we should all act in accordance with these 

guiding themes and do so in an open and transparent manner. We hope the entire UAS industry will 

join AUVSI in adopting this industry Code of Conduct. 

Page I 2 
100 
101 

AUVSIO 

ASSOCtATION FOR UNMANNED 

VEHICLE SYSTEMS INTERNATIONAL 

Past/Current Uses 

Enhancing Public Safety 

Unmanned Aircraft Systems: 

Current and Future Uses 

o Fighting wildfires in California - In 2008, NASA assisted the state of California in fighting wildfires with 

the use of Ikhana, a UAS equipped with advanced technology. The information about the fires collected 

by IIkhana was transmitted to command centers within minutes, and then distributed into the field 

giving firefighters crucial situational awareness. Throughout the operation, NASA pilots operating 

IIkhana were in close communication with the FAA to ensure its safe separation from other aircraft. 

o Finding missing persons in New Mexico - On January 9, 2012, an Oklahoma couple became lost in the 

White Sands National Monument in New Mexico. UAS were brought in to assist with the search. Once 

the couple's location was pinpOinted, the UAS relayed specific coordinates of the couple and monitored 

their location and movement as rescue helicopters were en route. 

o Patrolling the U.S.-Mexico border - The U.S. Customs and Border Patrol use unmanned systems to patrol 

the U.S.-Mexico border, helping prevent drug smuggling and potential terrorist threats. The UAS 

monitor areas, which would take agents on the ground days to reach. 

Enabling Scientific Research 

o NASA studying hurricanes - NASA is launching a three-year project using UAS to monitor hurricanes and 

help scientists better understand why tropical storms become hurricanes, and what signs predict the 

metamorphosis. Scientists have been unable to determine why or how some storms strengthen so 

rapidly. UAS are able to fly straight through hurricane clouds to measure conditions, something manned 

flights and satellites cannot do. 

o Nicholls State protecting the Gulf Coast - Nicholls State University is using a six-foot UAS to map the 

Louisiana coast. Louisiana's barrier islands are an important habitat for migratory birds, as well as the 

first line of defence against hurricanes. Erosion of the island has damaged the habitat, as well as the 

important protective function the islands serve. By flying more frequently and hover longer than 

satellites or manned aircraft, the UAS save money and provide a better picture of the situation on the 

coast. 

Mitigating Disasters 

o Helping rescue efforts following Hurricane Katrina - UAS were used to help search and rescue teams in 

the aftermath of Hurricane Katrina. Scientists from the University of South Florida worked with Florida 

rescuers in Mississippi, in what was the first known use of small UAS for an actual disaster. Brought in to 

survey Pearlington, MS, within two hours, the responders had the data from the UAVs showing that no 

survivors were trapped and that the flood waters from the cresting Pearl River were not posing an 

additional threat. 

o Surveying damage caused by flooding of the Red River - UAS aided the response to the severe flooding 

of the Red River in the upper Midwest in April 2011. According to the U.S. Customs and Border 

Protections Office, which leant the UAS to the effort, the UAS mapped more than 800 nautical miles 

along the flooded tributaries and basins in Minnesota and North Dakota, and provided streaming video 

and analysis of the areas affected by the flood such as levee integrity and ice damming. The information 
102 

provided by UAS gave forecasters more accurate predictions of when and where the flooding would be 

at its worst. 

o Assessing faliout from the damaged Fukushima nuclear plant - After Japan was struck by a devastating, 

earthquake-induced tsunami on March 11, 2011, a nuclear facility in Fukushima began to leak dangerous 

levels of radiation, making it impossible for emergency responders to approach the facility's reactors. A 

UAS from America was used to fly over the damaged facility and use advanced sensors to help 

responders gain situational awareness they were prevented from otherwise obtaining due to the 

radiation. 

Potential Future Uses 

Enhancing Public Safety 

o Enhancing search and rescue efforts -In January 2012, the Mesa (CO) County Sheriffs office purchased 

small VAS to assist in search and rescue operations. The UAS can cover wide swaths of land and uses 

cameras and infrared imaging to send video to ground controllers. The use of UAS is also cheap, with the 

direct operational cost totaling $3.36 per hour. In addition to aiding search and rescue missions, it could 

also help fight wildfires by determining hotspots and improving situational awareness. 

Enabling Scientific Research 

o Safely tracking fish and wildlife - After colleagues were killed in a helicopter crash, Idaho fish biologist 

Phil Groves has led an effort to develop small, maneuverable UAS for use tracking fish and wildlife. 

Currently in a multi-year test, Groves says the use of UAS could be a safer and more affordable way to 

count fish nests than the traditional way of using helicopters. 

Mitigating Disasters 

o Enabling communications following a disaster - The Federal Communications Commission is examining 

the use of UAS to help with communication relays in the event of a disaster to ensure emergency 

responders are able to communicate with each other. Following Hurricane Katrina, dozens of 911 call 

centers were knocked out of commission. UAS could help ensure connectivity until land-based 

communications are restored. 

o Assisting in oil spill response - The University of Alaska Fairbanks is testing UAS focused on improving oil 

spill response and dean up capabilities in difficult terrain and conditions. The technology gathers 3-D 

aerial data to produce a detailed image of the affected area, and allows oil spill responders to complete 

shoreline clean-up and assessment survey work with minimal impact on the shoreline or critical habitat. 

Supporting Agriculture 

o Helomg farmers fight disease in crops Researchers at the University of Florida are developing 

helicopter-style UAS to help farmers detect diseases and stress in their crops. Using GPS technology, the 

UAS take photographs and measurements and are proving particularly useful for citrus growers, 

allowing producers to easily detect tree health problems that aren't visible to the human eye. 

Expanding Commercial Uses 

o Monitoring energy infrastructure - Energy companies have been testing small UAS to potentially be 

used to monitor miles of pipeline and drilling rigs. Rather than using manned helicopters that cost an 

average of $300 per hour to operate, UAS could provide a more cost-effective alternative. UAS ability to 

go into areas too hazardous for humans also holds potential for energy companies. The flames produced 

by crude processing operations can jump as high as 300 feet in seconds, making it too dangerous for 

manned aircraft to survey maintenance needs without shutting down the operation. Using small UAS, 

however, allows companies to take pictures of the equipment while the flares are burning. 
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ASSOCIATION fOR UNMANNED 

VEHICLE SYSTEMS INTERNATIONAL 

Past/Current Uses 

Enhancing Public Safety 

Unmanned Aircraft Systems: 

Current and Future Uses 

o Fighting wildfires in California - In 2008, NASA assisted the state of California in fighting wildfires with 

the use of Ikhana, a UAS equipped with advanced technology. The information about the fires collected 

by IIkhana was transmitted to command centers within minutes, and then distributed into the field 

giving firefighters crucial situational awareness. Throughout the operation, NASA pilots operating 

IIkhana were in close communication with the FAA to ensure its safe separation from other aircraft. 

o Finding missing persons in New Mexico - On January 9, 2012, an Oklahoma couple became lost in the 

White Sands National Monument in New Mexico. UAS were brought in to assist with the search. Once 

the couple's location was pinpointed, the UAS relayed specific coordinates of the couple and monitored 

their location and movement as rescue helicopters were en route. 

o Patrolling the U.S.-Mexico border - The U.s. Customs and Border Patrol use unmanned systems to patrol 

the U.s.-Mexico border, helping prevent drug smuggling and potential terrorist threats. The UAS 

monitor areas, which would take agents on the ground days to reach. 

Enabling Scientific Research 

o NASA studying hurricanes - NASA is launching a three-year project using UAS to monitor hurricanes and 

help scientists better understand why tropical storms become hurricanes, and what signs predict the 

metamorphosis. Scientists have been unable to determine why or how some storms strengthen so 

rapidly. UAS are able to fly straight through hurricane clouds to measure conditions, something manned 

flights and satellites cannot do. 

o Nicholls State protecting the Gulf Coast - Nicholls State University is using a six-foot UAS to map the 

Louisiana coast. Louisiana's barrier islands are an important habitat for migratory birds, as well as the 

first line of defence against hurricanes. Erosion of the island has damaged the habitat, as well as the 

important protective function the islands serve. By flying more frequently and hover longer than 

satellites or manned aircraft, the UAS save money and provide a better picture of the situation on the 

coast. 

Mitigating Disasters 

o Helping rescue efforts following Hurricane Katrina - UAS were used to help search and rescue teams in 

the aftermath of HUrricane Katrina. Scientists from the University of South Florida worked with Florida 

rescuers in Mississippi, in what was the first known use of small UAS for an actual disaster. Brought in to 

survey Pearlington, MS, within two hours, the responders had the data from the UAVs showing that no 

survivors were trapped and that the flood waters from the cresting Pearl River were not posing an 

additional threat. 

o Surveying damage caused by flooding of the Red River - UAS aided the response to the severe flooding 

of the Red River in the upper Midwest in April 2011. According to the U.s. Customs and Border 

Protections Office, which leant the UAS to the effort, the UAS mapped more than 800 nautical miles 

along the flooded tributaries and basins in Minnesota and North Dakota, and provided streaming video 

and analysis of the areas affected by the flood such as levee integrity and ice damming. The information 
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provided by UAS gave forecasters more accurate predictions of when and where the flooding would be 

at its worst. 

o Assessing faliout from the damaged Fukushima nuclear plant - After Japan was struck by a devastating, 

earthquake-induced tsunami on March 11,2011, a nuclear facility in Fukushima began to leak dangerous 

levels of radiation, making it impossible for emergency responders to approach the facility's reactors. A 

UAS from America was used to fly over the damaged facility and use advanced sensors to help 

responders gain situational awareness they were prevented from otherwise obtaining due to the 

radiation. 

Potential Future Uses 

Enhancing Public Safety 

o Enhancing search and rescue efforts -In January 2012, the Mesa (CO) County Sheriffs office purchased 

small UAS to assist in search and rescue operations. The UAS can cover wide swaths of land and uses 

cameras and infrared imaging to send video to ground controllers. The use of UAS is also cheap, with the 

direct operational cost totaling $3.36 per hour. In addition to aiding search and rescue missions, it could 

also help fight wildfires by determining hotspots and improving situational awareness. 

Enabling Scientific Research 

o Safely tracking fish and wildlife - After colleagues were killed in a helicopter crash, Idaho fish biologist 

Phil Groves has led an effort to develop small, maneuverable UAS for use tracking fish and wildlife. 

Currently in a multi-year test, Groves says the use of UAS could be a safer and more affordable way to 

count fish nests than the traditional way of using helicopters. 

Mitigating Disasters 

o Enabling communications following a disaster - The Federal Communications Commission is examining 

the use of UAS to help with communication relays in the event of a disaster to ensure emergency 

responders are able to communicate with each other. Following Hurricane Katrina, dozens of 911 call 

centers were knocked out of commission. UAS could help ensure connectivity until land-based 

communications are restored. 

o Assisting in oil spill response - The University of Alaska Fairbanks is testing UAS focused on improving oil 

spill response and clean up capabilities in difficult terrain and conditions. The technology gathers 3-D 

aerial data to produce a detailed image of the affected area, and allows oil spill responders to complete 

shoreline clean-up and assessment survey work with minimal impact on the shoreline or critical habitat. 

• Supporting Agriculture 

o Helping farmers fight disease in crops - Researchers at the University of Florida are developing 

helicopter-style UAS to help farmers detect diseases and stress in their crops. Using GPS technology, the 

UAS take photographs and measurements and are proving particularly useful for citrus growers, 

allowing producers to easily detect tree health problems that aren't visible to the human eye. 

Expanding Commercial Uses 

o Monitoring energy infrastructure - Energy companies have been testing small UAS to potentially be 

used to monitor miles of pipeline and drilling rigs. Rather than using manned helicopters that cost an 

average of $30D per hour to operate, UAS could provide a more cost-effective alternative. UAS ability to 

go into areas too hazardous for humans also holds potential for energy companies. The flames produced 

by crude processing operations can jump as high as 300 feet in seconds, making it too dangerous for 

manned aircraft to survey maintenance needs without shutting down the operation. Using small UAS, 

however, allows companies to take pictures of the equipment while the flares are burning.