U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

80–977 PDF 2013

EYES IN THE SKY: THE DOMESTIC USE OF 

UNMANNED AERIAL SYSTEMS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

HOMELAND SECURITY, AND INVESTIGATIONS 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MAY 17, 2013 

Serial No. 113–40 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, HOMELAND SECURITY, AND INVESTIGATIONS

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

HOWARD COBLE, North Carolina 

SPENCER BACHUS, Alabama 

J. RANDY FORBES, Virginia 

TRENT FRANKS, Arizona 

JASON CHAFFETZ, Utah 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 
(III) 

C O N T E N T S 

MAY 17, 2013 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ................................................ 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ................................................ 2 

WITNESSES 

John Villasenor, Nonresident Senior Fellow, The Brookings Institution 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 6 

Gregory S. McNeal, Associate Professor of Law, Pepperdine University School 

of Law 

Oral Testimony ..................................................................................................... 19 

Prepared Statement ............................................................................................. 21 

Tracey Maclin, Professor of Law, Boston University School of Law 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

Christopher R. Calabrese, Legislative Counsel, American Civil Liberties 

Union (ACLU) 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 40 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ...... 1 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations ...... 3 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 52 

(1) 

EYES IN THE SKY: THE DOMESTIC USE OF 

UNMANNED AERIAL SYSTEMS 

FRIDAY, MAY 17, 2013 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON CRIME, TERRORISM, HOMELAND SECURITY, AND INVESTIGATIONS

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9 a.m., in room 2141, 

Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Gohmert, 

Coble, Franks, Chaffetz, Gowdy, Poe, Conyers, Scott, Chu, Bass, 

Richmond, and Jackson Lee. 

Staff Present: (Majority) Sam Ramer, Counsel; Allison Halataei, 

Parliamentarian & General Counsel; Alicia Church, Clerk; and (Minority) Joe Graupenspurger, Counsel. 

Mr. SENSENBRENNER. The Subcommittee on Crime, Terrorism, 

Homeland Security, and Investigations will come to order. Today 

we are having a hearing called, ‘‘Eyes in the Sky: The Domestic 

Use of Unmanned Aerial Systems,’’ and this is dealing with the use 

of these systems within the United States. There are a lot of privacy and civil liberties concerns that are raised in there. 

We are supposed to have votes about 10:00, and to try to get the 

hearing over with prior to the time we have votes because I do not 

think many Members will come back, I am going to ask, first, 

unanimous consent that the Chair be authorized to declare recesses 

when there are votes on the floor and, secondly, ask unanimous 

consent that all Members’ opening statements be placed in the 

record, including mine and the Ranking Member’s, and at this 

time, I will yield to the Ranking Member, Mr. Scott, to say whatever he wants to say. 

[The prepared statement of Mr. Sensenbrenner follows:] 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, Homeland Security, and Investigations 

Welcome to the Subcommittee on Crime, Terrorism, Homeland Security and Investigations’ hearing, ‘‘Eyes in the Sky: the Domestic Use of Unmanned Aerial Systems.’’ Today we will explore the use of unmanned aircraft within the United States. 

We will discuss the possible uses and capabilities of such unmanned aircraft, and 

we will learn about the effect such use may have on the privacy of Americans. We 
2 

will also discuss the constitutional issues that may arise when the government uses 

unmanned aircraft for law enforcement and public safety purposes. 

The United States remains at the forefront of technological progress. Every day 

we hear of some advancement in communications or computer technology that promises vast improvements in our daily lives. We have become a much more interconnected and informed population than we were just 10 years ago. 

Within the last few years, high powered computers and data networks have been 

combined with aircraft, allowing them to be piloted remotely. Now, we are witnessing a boom in unmanned aerial systems, or UAS. Small, maneuverable UAS 

promise benefits in many fields that used to rely on manned aircraft. Law enforcement and public safety are increasingly becoming the most prevalent uses for UAS. 

Unmanned aircraft can now be flown for longer times and for longer distances 

than ever before. Improved technology enables ground operators to both control UAS 

and to receive images and data from the aircraft. UAS are safer and less expensive 

to operate. It is now possible to purchase a UAS helicopter from a hobby store for 

a few hundred dollars and pilot it remotely from your smart phone or computer tablet. 

The ability to fly a small, unmanned aircraft with cameras and sensors can also 

profoundly affect privacy and civil liberties in this country. No longer restricted to 

the high cost and short flight time of manned flight, UAS can hover outside a home 

or office. Using face recognition software and fast computer chips, a UAS may soon 

be able to recognize someone and follow them down the street. These new surveillance capabilities, in the hands of the police, may be intrusive to our concepts of 

individual liberty. 

That is why I have cosponsored the ‘‘Preserving American Privacy Act of 2013,’’ 

a bill sponsored by Representative Ted Poe of Texas and Representative Zoe Lofgren 

of California. 

As UAS becomes more prevalent in our lives, we need to look at the 4th amendment and privacy implications of technology that enables prolonged remote flight. 

It has been well-settled in Supreme Court cases that the ‘‘reasonable expectation of 

privacy’’ applies to the home and surrounding cartilage. In contrast, generally 

speaking, a person that walks down the street no longer enjoys that expectation of 

privacy. This is commonly referred to as the open fields doctrine. 

The distinction between one’s home and curtilage versus the open fields is an important legal concept for understanding how the 4th amendment is applied to our 

daily lives. 

UAS capabilities may affect how we decide the extent of the curtilage, along with 

the position of fences and walls. This is a subject that has great relevance today. 

This past March, in the case of Florida v. Jardines, the Supreme Court ruled that 

a police dog sniffing for marijuana at the front door of a house qualifies as a search 

under the 4th amendment. Justice Scalia, in that opinion, wrote about the importance of the curtilage, saying that the curtilage is ‘‘part of the home itself for 4th 

amendment purposes.’’ 

UAS may affect the debate where curtilage ends and the ’open fields’ start. Any 

technology carried by a UAS that will magnify or enhance human senses could affect privacy concerns under the 4th amendment. 

Every advancement in crime fighting technology, from wiretaps to DNA, has resulted in courts carving out the constitutional limits within which the police operate. With us today are several experts in UAS and constitutional law, and we will 

discuss the implications for this new technology and the constitution. We will discuss the directions in which constitutional legal theory is likely to go, and what the 

implications are for this promising, and potent new technology. 

I look forward to hearing more about this issue and thank all of our witnesses 

for participating in today’s hearing. 

Mr. SCOTT. Thank you, Mr. Chairman. 

I am pleased that we are examining these important topics and 

look forward to working with my colleagues on the Committee to 

update our laws to conform our expectation of privacy to emerging 

technology and ask that the rest of my statement be placed in the 

record. 

Mr. SENSENBRENNER. Without objection. 

[The prepared statement of Mr. Scott follows:] 
3 

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, 

Subcommittee on Crime, Terrorism, Homeland Security, and Investigations 

Good morning. Today the Subcommittee continues its focus on issues relating to 

evolving technology and privacy by discussing the use of drones by domestic law enforcement agencies. 

As with the prior issues we’ve discussed with concerning email privacy and cell 

phone location privacy, advances in technology are outpacing our privacy laws. 

I am pleased that we are examining these important topics and look forward to 

working with my colleagues on the Committee to update our laws where necessary. 

The subject of drones is one of these areas that requires our attention. With expected action by the FAA to allow for the increased use of drones in U.S. airspace, 

drones will assist our society in many ways. Remote observation through the use 

of such drones has a wide variety of potential applications in the United States, 

such as helping to find lost children, identifying hot spots in forest fires, monitoring 

the health of crops, recording atmospheric data, and identifying traffic congestion. 

Equipped with sophisticated cameras and sensing devices, drones will also greatly 

assist law enforcement with surveillance. Used appropriately, drones can help make 

us safer—but we must set clear rules establishing how the government may use 

drones for collecting information for law enforcement purposes. 

We do not know how the courts would rule on the constitutionality of the 

warrantless use of drones by law enforcement, but the Supreme Court has allowed 

the warrantless use of aerial surveillance in some circumstances by aircraft with onboard pilots. 

In those cases, the warrantless surveillance that was allowed involved the use of 

aircraft over fixed locations to detect and observe violations of the law. However, 

those cases did not involve the wide range of situations in which drones could be 

used by law enforcement, such as tracking individuals for long periods of time. 

We should take note that Supreme Court justices are beginning to express concern about the degree and extent that new and emerging technologies impact privacy. The decision last year in U.S. v. Jones demonstrates that we are at a crossroad with respect to privacy and these new technologies. 

While the Jones case generated a narrow ruling by Justice Scalia concerning a 

GPS tracking device, the concurring opinions of Justice Sotomayor and Justice Alito 

are relevant to the issue we are discussing today. Both of those justices expressed 

concern about the use of rapidly developing technology to track our movements. 

Justice Alito cited the ability of the government, using new technology, to engage 

in long-term monitoring of an individual without the usual, practical constraints on 

law enforcement, such as resources and need for multiple personnel. He stated that, 

‘‘In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.’’ 

I note that my home state of Virginia recently adopted legislation providing for 

a 2-year moratorium on drone use by law enforcement, with some exceptions. 

As we discuss the use of drones by law enforcement today, I believe we should 

take heed of Justice Alito’s concerns and begin examining ways for Congress to legislatively address privacy concerns presented by the use of drones for law enforcement purposes. 

Thank you. 

Mr. SENSENBRENNER. We have a very distinguished panel today. 

I will begin by swearing in our witnesses before introducing them. 

If you would, please all rise. 

[Witnesses sworn.] 

Mr. SENSENBRENNER. I will be very brief in the opening introductions. 

Our first witness is Mr. John Villasenor, who is a nonresident 

scholar, senior fellow in the governance studies for the Center of 

Technology and Center For Technology Innovation at Brookings. 

He is a professor of electrical engineering and public policy at 

UCLA and a member of the World Economic Forum’s Global Agenda Council on the Intellectual Property System. 
4 

Mr. McNeal is a professor at Pepperdine University School of 

Law, and he previously served as the assistant director of the Institute for Global Security and co-directed a transitional 

counterterrorism program for the Justice Department. 

Mr. Tracey Maclin is a professor at Boston University School of 

Law. He has served as counsel of record for the ACLU in issues 

addressing Fourth Amendment issues. 

Mr. Calabrese is the legislative counsel for privacy-related issues 

in the ACLU’s Washington legislative office. Prior to that he served 

as the project counsel on the ACLU Technology and Liberty 

Project. 

And with that, I will say that, without objection, all of the witnesses’ full statements will be placed into the record. 

Each of you will have 5 minutes to summarize your full statement. We have a timer in front of you. I think you are all familiar 

with the green, yellow, and red lights. 

And Mr. Villasenor, you are first. 

TESTIMONY OF JOHN VILLASENOR, NONRESIDENT SENIOR 

FELLOW, THE BROOKINGS INSTITUTION 

Mr. VILLASENOR. Good morning, Chairman Sensenbrenner, 

Ranking Member Scott, and Members of the Subcommittee. Thank 

you very much for the opportunity to testify today on the important 

topic of privacy and unmanned aircraft systems or UAS. I am a 

nonresident senior fellow in governance studies in the Center for 

Technology and Innovation at the Brookings Institution. I am also 

a professor at UCLA, where I hold appointments in both the electrical engineering department and the department of public policy. 

The views I am expressing here are my own and do not necessarily represent those of the Brookings Institution or the University of California. 

When discussing unmanned aircraft privacy, it is helpful to keep 

in mind the incredible variety of platforms made possible by this 

rapidly developing technology. Some unmanned aircraft, such as 

the Global Hawk, used by the U.S. military, are as large and nearly as fast as business jets. Some can stay aloft for very long periods 

of time. In the summer of 2010, a solar-powered airplane with a 

wingspan of about 74 feet but weighing only slightly over 110 

pounds stayed aloft for over 2 continuous weeks over Arizona. Boeing is under contract with DARPA to develop the SolarEagle, which 

will be able to stay aloft in the stratosphere for 5 continuous years. 

Some unmanned aircraft are amazingly small. The Nano Hummingbird, developed by California-based AeroVironment, weighs 

only two-thirds of an ounce, including an onboard video camera. A 

few weeks ago a team of Harvard researchers reported the successful flight of the RoboBee, a robotic insect powered by electricity delivered through a thin wire attached to an external power source. 

The RoboBee weighs less than one three-hundredth of an ounce. 

Unmanned aircraft can be employed in an endless variety of civilian applications, the overwhelming majority of them beneficial. 

They can help rescuers identify people in need of assistance following a natural disaster. They can provide vital overhead imagery 

to police officers attempting to defuse a hostage standoff. In agriculture, they can be used for crop spraying. Scientific applications 
5 

include air quality assessment, wildlife tracking, and measuring 

the internal dynamics of violent storms. 

Unmanned aircraft will provide a significant important new tool 

for news gathering as well. And they will generate significant economic benefits, both by creating jobs in unmanned aircraft design 

and production and by spurring advances in robotics that will 

apply well beyond aviation in fields ranging from manufacturing to 

surgery. 

However, like any technology, unmanned aircraft can also be 

misused. In particular, there are legitimate and important privacy 

concerns. For unmanned aircraft operated by nongovernment entities, privacy involves contention between First Amendment freedoms and common law and statutory privacy protections. The First 

Amendment privilege to gather information is extensive, but it is 

not unbounded, and it ends when it crosses into an invasion of privacy. 

With respect to government-operated unmanned aircraft systems, 

the Fourth Amendment is of course central to the privacy question. 

While the Supreme Court has never explicitly considered 

warrantless observations using unmanned aircraft, a careful examination of Supreme Court jurisprudence suggests that the Fourth 

Amendment will provide a stronger measure of protection against 

government unmanned aircraft privacy abuses than is widely appreciated. 

The Fourth Amendment has served us well since its ratification 

in 1791, and there is no reason to suspect it will be unable to do 

so in a world where unmanned aircraft are widely used. 

This does not mean that there is no need for additional statutory 

unmanned aircraft privacy protections. In fact, it makes eminent 

sense to consider appropriately balanced legislation. However, 

when considering new laws for unmanned aircraft privacy, it is important to recognize the inherent difficulty of predicting the future 

of any rapidly changing technology. Legislative initiatives in the 

mid-1990’s to heavily regulate the Internet in the name of privacy 

would likely have impeded its growth while also failing to address 

the more complex privacy issues that arose in the subsequent decade with the advent of social networking and location-based wireless services. 

When considering new laws for unmanned aircraft privacy, it is 

also important to recognize the power of existing legal frameworks. 

Those frameworks can play a vital role in preserving privacy in the 

face of a lengthening list of technologies that might be misused to 

violate it. Some of the best privacy protection may, in fact, lie not 

in statutory text drafted with a keen eye on the latest innovations 

in unmanned aircraft technology but instead in constitutional text 

drafted over 200 years ago. 

Thank you again for the opportunity to testify on this important 

topic. 

[The prepared statement of Mr. Villasenor follows:] 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 

Mr. SENSENBRENNER. Thanks very much. 

Mr. McNeal. 

TESTIMONY OF GREGORY S. McNEAL, ASSOCIATE PROFESSOR 

OF LAW, PEPPERDINE UNIVERSITY SCHOOL OF LAW 

Mr. MCNEAL. Good morning, Mr. Chairman, Ranking Member 

Scott, Members of the Subcommittee. I am pleased to be here to 

testify on this important issue. I want to commend the Subcommittee for the approach that you are taking, too. This is a very 

difficult issue to legislate on, and the approach that the Committee 

is taking I think is really a wise one, beginning first, of course, 

with our Fourth Amendment precedents and then working our way 

down through various privacy considerations. 

The looming prospect of expanded use of unmanned aerial vehicles, colloquially known as drones, has raised understandable concerns regarding privacy. Those concerns have led some to call for 

legislation mandating that nearly all uses of drones be prohibited 

unless the government has first obtained a warrant. Such an approach would exceed the requirements of the Fourth Amendment 

and lead in some cases to perverse results that in some instances 

would prohibit the use of information when gathered by a drone 

but would allow the same information to be admitted if gathered 

by nearly any other means. 

Such a technology-centered approach to privacy I think misses 

the mark. If privacy is the public policy concern, then legislation 

should address the gathering and use of information in a technology-neutral fashion. This testimony outlines six key issues that 

Congress should remain cognizant of when drafting legislation. 

First, Congress should reject calls for a blanket requirement that 

all drone use be accompanied by a warrant. Proposals that prohibit 

the use of drones for the collection of such evidence or information 

unless authorized by warrant are overbroad and in my view ill-advised. Such legislation treats the information from a drone differently than information gathered from a manned aircraft, differently than that gathered by a police officer in a patrol car or 

even an officer on foot patrol. Under current Fourth Amendment 

jurisprudence police are not required to shield their eyes from 

wrongdoing until they have a warrant. Why impose such a requirement on the collection of information by drones? 

Second, Congress should reject broadly worded use restrictions 

that prohibit the use of any evidence gathered by drones in nearly 

any proceeding. Such restrictions exceed the parameters of the 

Fourth Amendment and, in some circumstances, may only serve to 

protect criminals while not deterring government wrongdoing. 

Third, if Congress chooses to impose a warrant requirement, it 

should carefully consider codifying some exceptions to the warrant 

requirement. For example, it should codify—as the Supreme Court 

has noted, suppressing evidence has serious consequences for the 

truth seeking and law enforcement objectives of our criminal justice system and, as such, should present a high obstacle for those 

urging for its application. It should be our last resort, not our first 

impulse. As such, the measures for when we should apply the exclusionary rule should not be whether a drone was used but, rather, should be when the benefits of deterrence outweigh the costs. 
20 

Fourth, Congress should spend a substantial amount of time 

carefully defining terminology and specifying what places are entitled to privacy protection. What a layperson sees when they read 

the word ‘‘search,’’ what a legislator means, and what a court may 

think the legislature meant are all different things. As such, when 

using terms like ‘‘search,’’ ‘‘surveillance,’’ ‘‘reasonable expectations,’’ 

‘‘curtilage,’’ ‘‘private property,’’ ‘‘public place’’ and other terms of art 

that we as lawyers are familiar with, Congress should specify what 

the terms mean. This definitional task will be the most important 

part of the legislative drafting process as the terminology will drive 

what actions are allowable and what places are entitled to privacy 

protection. 

Congress should consider adopting an entirely new set of definitions where necessary and be prepared to reject the existing terminology which may be confusing or overprotective or underprotective. 

Fifth, Congress may want to consider crafting simple surveillance legislation rather than very detailed drone-based legislation. 

Some of the ways that Congress might want to look at this would 

be to craft a sliding scale for surveillance that looks at the duration 

for which surveillance might be conducted rather than looking at 

the platform from which the surveillance is launched, from which 

the surveillance takes place. 

Sixth, Congress should consider adopting transparency and accountability measures, perhaps in lieu of a warrant requirement or 

suppression rules. Transparency and accountably measures may be 

more effective than suppression rules or warrants for controlling 

and deterring wrongful government surveillance. To hold law enforcement accountable, Congress should mandate that the use of all 

drones or unmanned systems be published on a regular basis, perhaps quarterly, on the Web site of the agency operating the system. 

These usage logs should detail who operated the system, when it 

was operated, where it was operated, perhaps even including GPS 

coordinates, and what the law enforcement purpose for the operation was. Congress may even mandate that manufacturers of unmanned systems make their systems equipped with software that 

allows for the easy export of flight logs that contain this information. Such logs will allow privacy advocates and concerned citizens 

to closely monitor how drones are being used and enables the political process as a mechanism to check government action rather 

than relying on the courts. 

The emergence of unmanned aerial vehicles in domestic skies 

raises understandable privacy concerns that require careful and 

sometimes creative legislation. Rather than pursuing a drone-specific approach or a warrant-based approach, Congress should consider surveillance legislation aimed at making the use of these systems more transparent and empowering the people to hold government accountable. Thank you. 

[The prepared statement of Mr. McNeal follows:] 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 

Mr. SENSENBRENNER. Thank you very much. 

Mr. Maclin. 

TESTIMONY OF TRACEY MACLIN, PROFESSOR OF LAW, 

BOSTON UNIVERSITY SCHOOL OF LAW 

Mr. MACLIN. Thank you, Mr. Chairman, Ranking Member Scott, 

and Members of the Committee for inviting me to testify about the 

Fourth Amendment issues surrounding the domestic issue—domestic use of drones by law enforcement officials. The constitutionality 

of drones for domestic law enforcement purposes raises several important questions that are not easily answered by the Supreme 

Court’s current Fourth Amendment jurisprudence. 

As you know, drones can be equipped with sophisticated cameras, thermal imaging devices, license plates readers, and laser 

radar systems. According to a recent paper by the Congressional 

Research Service, drones will soon be able to operate with facial 

recognition or soft biometric recognition equipment that can recognize and track individuals based on attributes, such as height, age, 

gender, skin color. Because of the advanced technology now available, comparing a drone to a traditional airplane or helicopter is 

like comparing a frisk from a police officer to a modern x-ray machine that can see beneath one’s clothes and graphically depict 

one’s physical features. 

The Supreme Court’s 1980 Supreme Court rulings that airplanes 

and helicopter surveillance do not implicate the Fourth Amendment were premised on naked eye observations and surveillance 

equipment that was readily available to the public. For example, 

in California v. Ciraolo, Chief Justice Burger’s majority opinion 

distinguished concerns about future electronic developments from 

what he called, quote, simple visual observations from a public 

place that were challenged in Ciraolo. Moreover, in each of these 

cases the court signaled that more intrusive and sophisticated police surveillance would raise different and very, and more difficult 

Fourth Amendment issues. 

Thus, I agree with our previous speaker, John Villasenor that 

the Court’s 1980 rulings do not control the use of drones that are 

capable of capturing much more detail unavailable to the human 

eye. Furthermore, it is important to recognize, even among the Justices of the current Court, that the definition of what constitutes 

a search and thus what triggers the Fourth Amendment is subject 

to change, and I would say is in a state of flux. 

In the recent GPS case, United States v. Jones, five justices indicated a willingness to reassess traditional notions of privacy under 

the Court’s Katz analysis. For example, Justice Sotomayor encouraged her colleagues to reconsider the Court’s traditional analysis 

for even short-term monitoring of a person’s public activities. And 

Justice Alito, although not going as far as Justice Sotomayor, indicated his willingness to consider the Court’s current privacy jurisprudence. And I state from Justice Alito’s concurrence and dissent, 

he said, quote, The use of longer-term GPS monitoring investigations of most criminal offenses impinges expectations of privacy. 

Now, what I read from that are five of the justices are saying that 

you have an expectation of privacy vis-a-vis long-term electronic 

monitoring when you are in the public. Well, if you have got that 
33 

expectation of privacy, at least in the eyes of five of the Justices 

when you are in the public, when you are on the public streets, you 

certainly ought to have that same level of expectation of privacy 

when you are on your own property, notwithstanding the fact that 

a drone may or may not be in navigable air space. 

A final point I think the Committee should consider is the following: When considering whether drone surveillance constitutes a 

search under the Fourth Amendment, I would urge the Committee 

to avoid resolving this question with litmus tests or, as Mr. McNeal 

pointed out, legal terms of art. The expectation of privacy tests out 

of Katz is a vague subjective test. Most of the Justices have acknowledged that, even Justice Harlan, who of course is responsible 

for the expectation of privacy tests, disavowed that test in the 

United States v. White decision, which was a 1971 decision. Often 

judges when deciding Fourth Amendment cases will simply say all 

the Fourth Amendment requires is reasonableness, and they will 

judge the case accordingly. In these cases, the courts typically 

apply what amounts to a rational basis test, simply deciding 

whether or not the government activity was rationally related to a 

legitimate governmental interest. 

This degree of deference to police intrusions, I suggest, is at odds 

with the central meaning of the Fourth Amendment. The Fourth 

Amendment was not asserted in the Bill of Rights so that judges 

could defer to governmental intrusions on privacy. Rather, we 

know, the amendment was put in the Bill of Rights so that the government could control. 

Sorry, Mr. Chairman. 

[The prepared statement of Mr. Maclin follows:] 
34 
35 
36 
37 
38 

Mr. SENSENBRENNER. Thank you very much, Mr. Maclin. 

Mr. Calabrese. 

TESTIMONY OF CHRISTOPHER R. CALABRESE, LEGISLATIVE 

COUNSEL, AMERICAN CIVIL LIBERTIES UNION (ACLU) 

Mr. CALABRESE. Thank you, Chairman Sensenbrenner, Ranking 

Member Scott, Members of the Committee, thank you for inviting 

me to testify today. The ACLU believes that the widespread domestic use of unmanned aerial systems, also known as drones, raises 

significant new privacy issues which cannot be adequately addressed by existing law. 

Drones share some characteristics with manned aerial surveillance, such as planes and helicopters, but the privacy invasion they 

represent is substantially greater in both scope and volume. 

Manned aircraft are expensive to purchase, operate, and maintain. This expense has always imposed a natural limit on the government’s aerial surveillance capability. 

Drones’ low cost and flexibility erode that natural limit. Small, 

hovering platforms can explore hidden spaces or peer in windows, 

and large static blimps enable continuous, long-term monitoring, 

all for much less than the cost of a plane or helicopter. 

Ongoing improvements in computing technology exacerbate these 

privacy issues. High-powered night vision cameras and see-through 

imaging provide more and better detail. Imagine technology similar 

to the naked body scanners at the airports attached to a drone. 

Through technologies like face recognition, improved analytics, and 

wireless Internet, it is possible to track specific individuals with 

multiple drones. Uses could extend all the way from high-tech, 

long-term surveillance to traffic enforcement. 

While drones certainly have beneficial uses for search-and-rescue 

missions, firefighting, dangerous police tactical operations, these 

technological realities point to significant possible harms if left unchecked. With the use of video cameras, we have seen ongoing 

problems with voyeurism and racial profiling by operators. If there 

is a persistent danger of monitoring, it creates the real danger that 

people will change how they act in public, whether at a protest 

rally or just sunning themselves in their backyard. 

Drones must be integrated into the Federal air space by 2015. 

While the use of this technology is poised to explode, current law 

has not yet caught up to this new technology. As Professor Maclin 

has noted, the Supreme Court has authorized aerial surveillance 

and photography of private property. The Court may eventually extend Fourth Amendment protections to ongoing and unlimited 

automated tracking, but no cases have yet been decided around 

drone use. 

Federal privacy protections are spotty and State statutory protections are in their infancy. 

As the entity that regulates the skies, the Federal Government 

is in the best position to create rules for the use of drones by law 

enforcement. The ACLU recommends that these rules be based on 

four key principles: First, no mass surveillance. No one should be 

spied upon by the government unless the government believes that 

person has committed a crime. Drone use over private property 

should only happen with a search warrant based on probable 
39 

cause, the same standard used to search someone’s house or business. It may be permissible to monitor individuals in public at a 

lower standard, perhaps reasonable suspicion, but the key is to prevent mass suspicion-less searches of the general population, including for intelligence gathering. In order to prevent this pretextual 

use of drones, exceptions to this rule should be limited to emergencies connected to life and safety or narrowly drawn administrative exceptions. 

Second, information collected from drones for one purpose, to 

combat a fire or perform a search and rescue, should not be used 

for another purpose, such as general law enforcement. Information 

collected by drones should also be kept securely and destroyed 

promptly once it is no longer needed. 

Third, drones should not carry weapons. Weapons developed on 

the battlefield in Iraq and Afghanistan have no place in the United 

States. There is a consensus forming on this issue. In fact, the Heritage Foundation and the International Association of Chiefs of Police both support sharp limits on weaponized drones. 

Finally, oversight is crucial. Communities, not just law enforcement, must play a central role in whether to purchase a drone. 

Like any new technology, drone use must be monitored to make 

sure it’s a wise investment that works. Drones should only be used 

if subject to a powerful framework that regulates their use in order 

to avoid abuse and invasions of privacy. The ACLU believes that 

some Members of the Committee have already taken great strides 

to find this balance, with H.R. 637, the Preserving Americans Privacy Act. We support this bipartisan legislation from Mr. Poe and 

urge the Committee to make marking it up a priority. Thank you. 

[The prepared statement of Mr. Calabrese follows:] 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 

Mr. SENSENBRENNER. Thank you very much, Mr. Calabrese. 

The Chair will recognize Members to ask questions under the 5- 

minute rule, and the first up will be the Chairman of the full Committee, the gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

I appreciate your holding this hearing and for your forbearance, 

I would ask that my opening statement be made a part of the 

record. 

Mr. SENSENBRENNER. Without objection. 

[The prepared statement of Mr. Goodlatte follows:] 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the Judiciary 

Thank you, Chairman Sensenbrenner. 

Technology in the United States continues to advance at a rapid pace, with profound implications for law enforcement and the privacy of U.S. citizens. From DNA 

technology to cyber attacks, we here at the Judiciary Committee are fully engaged 

in examining the effects of new technology on Americans, and on our legal system. 

Today we are discussing the increased use of unmanned aerial systems—or UAS— 

for domestic use. 

As with much technological innovation, UAS bring both new opportunities and 

new challenges. These unarmed, unmanned platforms can be flown with cameras 

and other sensors and transmit information instantaneously to ground crews. In an 

era of record deficits, UAS could make law enforcement more efficient and cost effective. UAS can also enhance safety for law enforcement officers. 

Law enforcement already uses manned helicopters and airplanes equipped with 

sophisticated technology and sensors. We saw an example of this during the manhunt for the suspects in the Boston Marathon bombing last month. After the surviving suspect was located in a boat in someone’s back yard, the police surrounded 

the area. They did not know the condition of the suspect, who was armed and dangerous. So, they flew a manned helicopter, equipped with a thermal imager, over 

the boat. 

The thermal imager was able to reveal the location and the movements of the suspect. Footage from the camera is now on the Internet, and anyone can see how the 

sensors clearly revealed the inside of the boat, and the suspect within. One advantage of UAS is that they could employ similar technology to achieve the same results more inexpensively and with less risk to law enforcement officers. 

UAS could also be used for a multitude of other applications. For example, the 

Royal Canadian Mounted Police announced last week that they successfully used a 

small UAS, equipped with a thermal imager, to locate and treat an injured man 

whose car had flipped over in a remote, wooded area in near-freezing temperatures. 

The Department of Homeland Security (DHS) uses UAS to police the nation’s borders to deter unlawful border crossings by unauthorized aliens, criminals, and terrorists, and to detect and interdict the smuggling of weapons, drugs, and other contraband into the country. 

Furthermore, DHS, in conjunction with local law enforcement agencies, has been 

testing UAS capabilities in other situations including detecting radiation, monitoring hostage situations, firefighting, and finding missing persons. 

While there are many useful applications for UAS, there are also many reasons 

to be concerned about the privacy implications of UAS. 

Unchecked law enforcement use of UAS could lead to violations of U.S. citizens’ 

Constitutional rights. Overly aggressive bureaucrats behind the controls of UAS 

could lead to an expansion of the federal government’s footprint, harassment and 

serious violations of privacy. 

In fact, to protect against these types of abuses, the Virginia legislature recently 

passed a 2 year moratorium on the use of UAS by law enforcement, except in certain emergency situations, making Virginia the first state legislature in the country 

to pass such legislation. 

In addition to government use of UAS, there is now a great movement to develop 

commercial use of UAS, which brings additional opportunities and challenges. 

For example, companies are promoting use of UAS for sports photography, to film 

amateur climbers and surfers as they compete. And that is just one example—the 

potential for commercial use of UAS technology is virtually limitless. 
53 

However, this commercial development also brings forth new privacy questions. 

Can a private individual use a UAS to check whether a neighbor is building his 

fence in the right spot? Should a home owner’s association be able to use a UAS 

to patrol a group of homes? Last month, the animal rights group, PETA, announced 

plans to acquire a UAS in order ‘‘to spy on hunters and catch them in the act as 

they terrorize animals and break game laws.’’ Clearly, there are a host of privacy 

implications that we should consider as unmanned air activity becomes more prevalent. 

Computer systems, combined with aviation, will make it possible for people, businesses and governments to use aviation on a scale never seen before. Many people 

believe that our legal system will adapt to this new technology the way it has in 

the past. Others believe that special measures should be taken in advance of UAS 

development to ensure that Americans’ rights are protected. 

The Judiciary Committee’s challenge is to make sure our nation’s legal structures 

continue to protect Americans’ privacy, while allowing technology to flourish and improve our safety, security, and economic progress. 

I thank Subcommittee Chairman Sensenbrenner for holding this hearing and I 

look forward to hearing the witnesses’ testimony on this important subject. 

Mr. GOODLATTE. Thank you. Is it Villasenor? I am close? 

Mr. VILLASENOR. Close enough. 

Mr. GOODLATTE. Which do you believe are in the best position to 

regulate UAS on privacy grounds, courts, Congress, or the States? 

Mr. VILLASENOR. Well, in terms of actually regulating—is the 

question specific to privacy or more—— 

Mr. GOODLATTE. Primarily. 

Mr. VILLASENOR. For privacy, I think with respect to law enforcement use, I am on record stating and I do believe that the Fourth 

Amendment is going to provide quite a bit more protection than is 

generally recognized, and in that case, of course, it would be 

through the courts. 

With respect to private party use, which has not been the focus 

of as much attention as public use, it is of course at the State level 

that you have statutes against invasion of privacy, stalking, harassment, and the like, and so I think that there is a role at the 

State level to ensure that those statutes properly anticipate privacy 

abuses that could occur with unmanned aircraft. 

Mr. GOODLATTE. Thank you. 

Mr. McNeal, should Congress regulate the future commercial use 

of unmanned aircraft or should, as Mr. Villasenor suggested, that 

could be left to the States? 

Mr. MCNEAL. I am not sure. So with regard to the privacy issues, 

I am not sure that you can get around privacy without Congress 

doing it. So let me sort of rephrase that. For commercial uses, if 

we are concerned about privacy, it seems that Congress is the most 

appropriate body to legislate in a way that we would have equal 

laws across the board, but I am in sort of the same camp as Mr. 

Villasenor that if we think that the Fourth Amendment protections 

that currently exist are sufficient, we could copy those over for 

commercial purposes and adopt those as our statutes for privacy 

protections. 

The problem with commercial uses is that we have got a big body 

of law on privacy with regard to what law enforcement does but far 

fewer rules with regard to what private parties and our commercial 

parties might do, and so this is one of the things that I think people get really concerned about, commercial uses being just my 

neighbor flying around doing video for photography or for his 
54 

YouTube page or for real estate purposes that can then start to 

look a lot like snooping or Peeping Tom types of things. Some of 

that is covered by State laws, but when you look at the line of 

cases where people have been able to successfully sue when they 

feel like their privacy rights are being violated, you do not see a 

lot of success. It is a high bar for people to overcome, and so there 

might be some room there for Congress to regulate. 

But I do not think that is the—when you look at the big time 

commercial uses, we are thinking about flight of unmanned systems for like FedEx and what not, privacy isn’t really the big issue 

that is driving our concerns there; it is more safety concerns. 

Mr. GOODLATTE. Thank you. 

Mr. Calabrese, I take it from your warrant-based approach to use 

of UAS by governmental entities, you do have an exception for an 

emergency situation. So, for example, if the Tsarnaev brothers in 

Boston had been somehow detected by a drone, that would still be 

evidence admissible in court, under your circumstances, if they 

were following them down the street and they were either impeded 

from placing their explosives or were not impeded but that evidence was available to show that they were the perpetrators of that 

crime? 

Mr. CALABRESE. Yes, that is correct. As Mr. Poe’s legislation indicates, there is a strong emergency exception that allows in the 

cases of danger to life or limb the use of drones in order to provide—you know, you have to play out the scenario a little more in 

terms of, you know, where they are in the investigation, but, yes, 

there is clearly a very strong emergency exception as well as an 

ability to act before a warrant is issued. 

Mr. GOODLATTE. And Mr. Maclin, can you explain how UAS may 

affect police discretion and whether police discretion is something 

that should be limited by statute? 

Mr. MACLIN. I think it should certainly be limited by statute. 

When I talk about police discretion, I am talking about the ability 

of law enforcement to simply fly a drone over, examine, surveil 

without any probable cause or reasonable suspicion, and certainly 

if you do not have either one of those two things, you can not get 

a warrant. 

I would take slight objection with the notion that if we are going 

to require warrants, we should allow, possibly allow warrants 

based on reasonable suspicion. I mean, the Court, I think, albeit 

other than the administrative search context, has said when you 

need a warrant, it has to be based on probable cause. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Calabrese, can you say a word about how the technology has 

complicated this issue in terms of the difference between one photograph all the way to tracking someone even in public for long periods of time, what the expectation is? 

Mr. CALABRESE. Certainly, Mr. Scott, thank you. It is a great 

question. 

To be clear, it is actually not just drones, right? I mean, if you 

think about the technologies at issue here, you can imagine track-
55 

ing with the drone, coupled with tracking using a cell phone, which 

I know is something this Committee has considered recently, plus 

tracking with a license plate scanner, and all of these things could 

be used to couple to really provide mass surveillance all the time. 

But in terms specifically of drones, they have become smaller. They 

have become cheaper. The surveillance technologies on them can 

penetrate more deeply at night, you know, with smaller and greater cameras. 

A Nova special recently indicated one camera, called the ARGUS, 

could cover multiple square miles and do detailed surveillance literally of an entire city. Imagine that technology coupled with surveillance. You know, it changes the way people think of as public 

and what a public space is. It really merits further regulation by 

Congress. 

Mr. SCOTT. You mentioned the problem with weapons. Are weapons ever appropriate with drones? 

Mr. CALABRESE. I think we need to explore the question of 

weaponization carefully. I mean, by and large, the answer is no; 

weapons should not be used because a drone is not in the same 

kind of danger as a police officer is. Clearly, a police officer has got 

to be able to defend himself. We all understand that or take appropriate action to apprehend someone. A drone is not going to need 

to defend itself. It is not going to need to apprehend anyone. And 

a drone operator may not have the same judgment or expertise 

peering through a little camera as a police officer does on the 

ground. All of that argues against weaponization. There may be 

some limited exceptions for training or other purposes, but by and 

large, weapons do not belong on drones. 

Mr. SCOTT. You mentioned the possibility of discrimination. Can 

you say a word about how you choose which areas are under surveillance? 

Mr. CALABRESE. Well, I think that is an outstanding question. I 

mean, it goes to a couple of important issues. One is having the 

community be involved. You should know if there is surveillance. 

The community should be able to decide if they think getting a 

drone is an appropriate tool and how it should be used. 

Also, just in the question of discrimination generally, we have 

seen in monitoring video cameras that video surveillance is frequently a very boring task for an operator. It is dull, you know, 

minds tend to wander. They tend to follow around—honestly, the 

research shows they tend to follow around pretty girls, and then 

they tend to follow their biases and look for particular, you know, 

racial minorities that they may think are more likely to commit 

crimes. We think it is very probable that that could happen with 

a drone as well. 

Mr. SCOTT. You mean in terms of selecting the areas to be under 

surveillance? 

Mr. CALABRESE. I think not just the areas under surveillance but 

the individuals who they might choose to follow. If you had mass 

surveillance over a particular area, they may be picking out particular individuals and deciding to follow them around and see if 

they are going to commit crimes. 

Mr. SCOTT. If you have a legal exception for surveillance in a recording, what happens when you see something that you did not 
56 

have probable cause to suspect but you noticed because it was 

under surveillance? 

Mr. CALABRESE. Well, I think that that is going to be relatively 

uncommon. We do have an exception for—— 

Mr. SCOTT. If you have got an entire traffic area that is doing 

a mile, and you are doing traffic surveillance, and you say that is 

okay, and you see some drug deal over on the side, does that, do 

you get to use that? 

Mr. CALABRESE. Well, I think what we would say, first of all, is 

we would hope we would not have mass surveillance like that, that 

we would not have cameras up in the sky all the time. So, you 

know, we would assume that surveillance would largely be—by 

drone—would largely be directed and targeted, and so if individual, 

you know, if individual acts were already being monitored by law 

enforcement, we would expect that they would likely come under 

an existing reasonable suspicion standard if the investigation was 

done, for example, in public because we would already have a court 

order that would say that it is okay to do drone use in public at 

these particular times under a reasonable suspicion. 

Mr. SCOTT. But if you have got all this stuff recorded, could there 

be a limitation on what you can do with it after you have got it? 

Mr. CALABRESE. I think that there has to be, yes. I think that 

we do not want people to be recorded all the time. We do not want 

to feel like those drones are constantly monitoring them. And we 

want people to know that they are safe, but not just in private but 

also in public to live their lives without worrying that what they 

do is going to end up on YouTube. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Under the procedures that have been announced by the Chairman of the Committee, full Committee Members who are not Members of a Subcommittee are entitled to sit on the dais but are not 

entitled to ask questions, unless a Member yields them time to do 

so. 

And under that procedure, the Chair yields his time, his 5 minutes to the gentleman from Texas, Mr. Poe. 

Mr. POE. Thank you, Mr. Chairman. 

I appreciate you yielding, and all four of you being here. I guess 

the crowning decision, concept is the Supreme Court’s dicta, for 

lack of a better phrase, of expectation of privacy down the road is 

going to be not expanded but made smaller. I think that is what 

the Court, members of the Court to me are saying, which concerns 

me. So it seems to me that Congress in the area of drones needs 

to set a standard rather than let the courts down the road set a 

standard. 

I am from Houston, and our local sheriff of the county, Sheriff 

Adrian Garcia, third largest county in the country, he will not use 

any kind of drones because he does not know what the law is going 

to be. And he does not want to wait for the Supreme Court to rule 

10 years from now on a search, throw out a case that he has arrested some bad guy and put him in jail, so he is not using drones, 

so he is waiting for somebody to give him and other law enforcement agencies some direction on the use of drones. 
57 

It seems to be two issues—law enforcement use and private 

use—and what is the expectation of privacy in those areas, and 

should we do anything about it or just wait? 

Mr. Calabrese, let me ask you, there has been comments made 

that the Court should make these decisions about the Fourth 

Amendment, which courts have been doing, applying what is lawful 

under the Fourth Amendment, what is not lawful under the Fourth 

Amendment. Should the courts be the answer for solving this issue 

of drones and the Fourth Amendment? 

Mr. CALABRESE. Well, I think that your legislation does a very 

good job of creating a careful balance, something that Congress is 

particularly good at and the courts are not always particularly good 

at. When we think about how we would want to use a drone, it is 

clear that most of the uses—finding a missing person, fighting a 

forest fire—are not uses that particularly implicate the Fourth 

Amendment. And your legislation is very careful to carve those out, 

and I think by creating clarity, you allow the use of drones for all 

of these good purposes, including commercial purposes, where people do not have to worry that that drone in the sky is spying on 

them, while—so you allow for the growth of the industry while still 

protecting people’s privacy in a reasonable way. 

So, yes, I think Congress absolutely has a role, and I think it is 

a very strong role and one that you are well suited to perform. 

Mr. POE. What about the FAA? Right now, the FAA decides who 

gets a permit for a drone. They make that decision. The President 

has weighed in on that, told the FAA to be sensitive to privacy concerns when giving new permits. What about the FAA making that 

decision? 

Mr. CALABRESE. I think the FAA does have a role, clearly, in 

some of the things, like deciding what is going to happen with information once it is collected, providing notice of what particular 

drones are being flown and how, but I think Congress has the central role in regulating itself, regulating the government. 

So, you know, you have got to be, Congress has got to be the one 

to decide how the police, how the Fourth Amendment should be interpreted, because, of course, Congress has a role in interpreting 

the Constitution as well. You are constitutional officers. So the 

FAA can certainly perform an expert function. I think that Congress’ role has got to remain central. 

Mr. POE. Since the issue of drones has come up, there are a lot 

in the industry, the drone industry and other industries saying, 

well, if we are going to talk about the Fourth Amendment, let’s expand it and revisit the whole concept of the Fourth Amendment 

and not just with drones but with all new technologies. What do 

you think about that? 

Mr. CALABRESE. Well, I certainly believe in expanding the Fourth 

Amendment, there is no question about that. I know you do as 

well. I think the Committee is doing that right now. I mean, you 

are not just considering drones. You are also considering surveillance of cell phones. The Committee has had another hearing on 

electronic communications privacy. So you really are revisiting the 

entire issue, and I think you are doing it in a very intelligent and 

very deliberative manner, so, you know this is a piece of that. 
58 

Mr. POE. So, once again, on the other technologies and some yet 

to be invented, should Congress set the standard perimeters on law 

enforcement civilian use, or should we just, again, wait for the Supreme Court to make those ultimate decisions? 

Mr. CALABRESE. Well, I think that in the 21st century, as we 

have gotten new technologies, we have got to make sure that our 

values come with us—right—that we do not lose those constitutional values as we move to new technologies. You, of course, are 

perfectly suited to do that. 

Mr. POE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you very much. 

Could I ask, Mr. Villasenor, Professor McNeal, and Professor 

Maclin, have you heard about the Poe legislation 637, Preserving 

American Privacy Act, and are you able to comment on it at all? 

Please do. 

Mr. VILLASENOR. Yes. I am certainly, first of all, very appreciative of any attention that Congress is giving to this very important issue. 

One of the concerns I have with overly broad warrant requirements is that the problems that could arise. I certainly agree that 

we should not countenance government fishing expeditions using 

unmanned aircraft or any other technology, but, for example, suppose that a law enforcement unmanned aircraft is monitoring a 

traffic intersection after an accident, and on the sidewalk next to 

the intersection, a terrible assault takes place, and suppose that 

the video evidence from the unmanned aircraft is the only evidence 

that clearly identifies the perpetrator of that assault. I think it 

would defy reason for us all to say to the victim, well, we know who 

the perpetrator is, but we are going to let the perpetrator go because we did not have a warrant, and there was some legislation 

that said we can not use it. So I think we need to be cognizant of 

the potentially bad, unintended consequences of what sounds at 

first blush like something which is only going to be good. 

Mr. CONYERS. Uh-huh. 

Mr. McNeal? 

Mr. MCNEAL. So Mr. Villasenor highlighted one of the points 

that I make in my written testimony where I provide a few examples where the legislation, the current Preserving American Privacy Act and the one of 2012 as well, where they both create a circumstance where we might be suppressing inadvertently discovered information, so we are out doing a search-and-rescue mission, 

for example, in public parks or something, and along the way while 

looking for that lost hiker you come across evidence of a crime, and 

now that evidence can not be used. 

Some privacy advocates want a ban on the use of this secondary 

evidence in all circumstances, and I understand the impulse. The 

idea is that if you say that you are using it for search and rescue 

purposes and then you use the evidence for crime collection purposes, it presents this circumstance where we might have the general surveillance that we are all somewhat concerned with. But I 

think there has to be some way in the legislation that we craft an 

exception for that. 
59 

Mr. CONYERS. Uh-huh. 

Thank you. 

Professor Maclin? 

Mr. MACLIN. Mr. Conyers, I am not in a position to comment on 

it because I have not studied it, so I would not want to express an 

opinion. 

Mr. CONYERS. Of course. 

Let me turn now to the very disturbing consideration of this general subject. You know, this is a prime example of technology overtaking established law, and I think we are going to have to go beyond the Fourth Amendment. There are going to have to be a body 

of statutes that go into some of this detail. It is not all about privacy, but privacy is, of course, always a continuing exception. 

Do any of you want to recommend to this Subcommittee, which 

might be the ones that take on this responsibility, any courses of 

action that we might take to examine all of this? As has been remarked, this goes beyond drones, because there could be new technology coming out to further complicate it. 

Mr. MCNEAL. Congressman, I think you hit the nail on the head 

when you said this goes beyond drones, and I will just give you an 

example. In New York City, NYPD has a helicopter; they call it 23, 

I think, for the 23 NYPD officers killed on 9/11. It has a camera 

that can observe activity 2 miles away. It is more—it can see the 

detail on people’s faces, read their name tag if they have a name 

tag on their shirt or something from up to 2 miles away. So this 

isn’t a drone-specific thing. It is really an advancement of technology thing. 

And so I think that the approach if Congress wanted to legislate 

on this would be to look at the issue of surveillance, define what 

surveillance is, and I put some definitions in my written testimony, 

and then create some lines based on the duration of surveillance 

that would—maybe we allow officers at their own discretion to observe individuals from any platform for a period of time, let’s say 

2 hours in a 7-day period, but then once we get to the end of that 

7-day period, maybe they need reasonable suspicion to continue the 

surveillance for a 48-hour period of time, and then anything longer 

than that might require a warrant. 

And the times that I have thrown out are just my sort of best 

guess at what might be good privacy protection. Some might put 

it lower, at 20 minutes; some might put it much higher. But by 

doing that, we are treating all technology the same, so a camera 

trained on someone’s home persistently day after day will be treated the same as if it is a camera on a drone or someone, you know, 

standing on a rooftop using the camera. We are treating that technology and the invasion, the persistent surveillance the same. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. CONYERS. Thank you. 

Mr. SENSENBRENNER. The gentleman from Arizona, Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, I have the privilege of being on the Armed Services Committee, where we quite often have to struggle with issues 

of unmanned aerial vehicles because more and more, the technology is allowing us almost to pilot from the ground in many different circumstances, and this is also true of missile technology. It 
60 

is guided missiles and piloted-on-the-ground aerial vehicles. This 

technology is beginning to emerge, and it does present some pretty 

significant challenges. You know, we like to say never send a man 

to do a missile’s job. But the reality is that the technology is becoming more and more difficult, and it raises constitutional issues, 

as I think the previous gentleman very astutely articulated. 

So I guess my first question is how to apply the time-honored 

constitutional principles essentially according to original intent in 

a way that is reasonable and appropriate. So let me give this example, and I will ask Mr. Maclin if he would respond to it. 

Just recently, the City of Boston endured, obviously, a terrible 

terrorist attack, and the street cameras recording the scene from 

every angle were key to law enforcement in the hunt for the terrorists. Then the police used thermal images from helicopters to locate 

the armed suspect as he hid from the police. Now, any of these images could have been derived from unmanned aircraft. So, constitutionally, Mr. Maclin, and this is not a trick question. I thought Mr. 

Conyers’ point was very spot on. Does it matter to you constitutionally whether those street images in that particular case came 

from a street camera or from an unmanned aerial surveillance? 

Mr. MACLIN. Constitutionally speaking, no, I do not think it matters. What matters is who is responsible for those cameras. 

Now, I may be mistaken, but I believe one of the cameras was 

from Lord & Taylor, the Lord & Taylor store, but let’s assume that 

they were put up by the City of Boston. No, constitutionally speaking, it does not matter. It does not matter. 

Mr. FRANKS. Well, then let me direct a question to Mr. 

Calabrese, am I saying that properly, sir? 

Mr. CALABRESE. Calabrese. 

Mr. FRANKS. Okay. You stated in your testimony that the UAS 

would be acceptable to you for, quote, reasonable nonlaw enforcement purposes by nonlaw enforcement agencies, where privacy will 

not be substantially affected, where the surveillance will not be 

used for secondary law enforcement purposes, and to the previous 

gentleman’s, Mr. Maclin’s comment, so it is your position, if I am— 

that the Fourth Amendment applies only to law enforcement agencies for law enforcement purposes? 

Mr. CALABRESE. To the government generally. I am sorry. As opposed to—the Fourth Amendment applies to government generally. 

Mr. FRANKS. But, I mean, for reasonable nonlaw enforcement 

purposes, then that would no longer apply? 

Mr. CALABRESE. That is correct—well, I would not say that the 

Fourth Amendment does not apply. I would say that I think the 

biggest—because the Fourth Amendment is always going to apply, 

no matter what I say. 

Mr. FRANKS. But I am reading what you said. 

Mr. CALABRESE. Right, yeah, I understand. I am sorry. What we 

believe the biggest danger is, is that the law enforcement will use 

drones in an invasive manner, so—but we still want to create the 

ability of government to use drones in a non-invasive manner. So, 

for example, a firefighter is obviously a government agent. They 

should still be able to use a drone to investigate a fire, and we do 

not want to keep that from happening. Whether or not the Fourth 
61 

Amendment applies there, we certainly—which it does, but of 

course it’s not a search for law enforcement purposes. 

Mr. FRANKS. It seems to be a pretty challenging parse there if 

one tries to apply the Fourth Amendment to nonlaw enforcement 

agencies different than law enforcement agencies when the effect 

is the same, and I know that is one of the issues we will grapple 

with a very long time. 

Would anyone else on the panel like to address either of those 

questions? 

Mr. MCNEAL. Congressman, I just want to direct you to page 6 

of my testimony, where I try and thread this needle which is by— 

I think the Fourth Amendment issue, I think what we need to 

focus on is the legislation that will address this policy concern that 

you have brought up, and that requires some definitions of what 

a ‘‘search’’ is, that might go beyond the Fourth Amendment. And 

I think the big thing that we have been bandying about here is the 

distinction between a general search, parking a blimp over a town, 

versus a targeted search against a particular individual. And I 

think that we will want to address those two different types of 

searches in different ways, because New York City, for example, 

you are subject to a general search at all points in time because 

of the cameras, and that is different than the targeted search. 

Mr. FRANKS. Thank you. 

Mr. SENSENBRENNER. The time of the gentleman has expired. 

The gentlewoman from California, Ms. Bass. 

Ms. BASS. Thank you very much, Mr. Chair. 

I just wanted to ask some questions of the panel in general about 

what you believe laws and restrictions should be placed on drone 

use by private citizens to conduct aerial surveillance. It is my understanding that if a private citizen wants to use a drone they have 

to get FAA approval, but beyond that, I wanted to know if you had 

suggestions. 

Mr. VILLASENOR. Well, maybe I can at least partially try to respond to that question. So, first of all, currently commercial use in 

the United States of unmanned aircraft is not yet permitted. The 

FAA is in the process under the FAA Modernization and Reauthorization Act of 2012, under the process of drafting those regulations. 

So—but the question is still—— 

Ms. BASS. That is to come, right? 

Mr. VILLASENOR. That is to come, and by—and according to the 

schedule laid out in that legislation by late 2015 those regulations 

would be complete. So the question is an eminently reasonable one. 

There is a very significant body of common law as well as in most 

States statutes, both civil and criminal, related to invasion of privacy. And those statutes are usually tied to this concept of reasonable expectation of privacy. So if a private party used an unmanned aircraft in a manner that does invade privacy, it is actionable under usually multiple grounds, and so I am confident that 

there are existing protections, although there is also a good reason 

to sort of look at those statutes to make sure things like harassment and stalking statutes also cover potential misuses by unmanned aircraft. 

Ms. BASS. And in my area, there is a concern over the paparazzi, 

which has gone to some extreme lengths to invade people’s privacy. 
62 

Mr. VILLASENOR. I am certainly not going to defend the privacy 

invasions that the paparazzi commit. I think we all know that they 

happen, and that is not a technology problem; that is a paparazzi 

problem. 

Ms. BASS. Any other comments from anyone? 

Mr. CALABRESE. I would just say that the private use does raise 

serious First Amendment concerns. We think there is a lot of existing law around invasions of privacy, at both the State level but also 

to some extent at the Federal level. It is both intentional invasions 

of privacy under tort law; it is Peeping Tom laws. 

Ms. BASS. Right. 

Mr. CALABRESE. It is trespass laws, and of course, there is California-specific paparazzi law as well. So I think that, unlike the 

Fourth Amendment government context, where we spent a lot of 

time talking, where it is largely unregulated and I think the Committee needs to focus, I think here there is a fair amount of existing law, and it may be appropriate to see how that plays out before 

we do a lot of legislating in the private use area. 

Ms. BASS. Anyone else? 

You know, when I learn about some of the drones being so small, 

like the size of a bird or whatever, how do you see in the future 

that being regulated? I mean, what is to stop an individual from 

just getting that without FAA approval? 

Mr. VILLASENOR. Well, I think there is already a hobbyist exception for unmanned aircraft, model aircraft as defined in the legislation, and I think, frankly, it as very important to provide exceptions for hobbyists and so that, you know, a parent who goes and 

flies a model aircraft at a flying field with his or her child does not 

need to get FAA approval before doing so. So, at the very small 

end, there is certainly going to be some flexibility in terms of acquiring these platforms. But, again, it is the use where we draw 

the line, and to the extent that these platforms might be used in 

an invasive or unlawful, otherwise unlawful manner, that is where 

we would then address that behavior. 

Ms. BASS. Okay, thank you. 

Yield back my time. 

Mr. SENSENBRENNER. The gentleman from Utah, Mr. Chaffetz. 

Mr. CHAFFETZ. Thank you, Mr. Chairman. 

I thank the panel for being here. I think this is an important 

topic because obviously the rapid expansion of technology—technology is great as long, as it is used in the right and proper way. 

I want to talk a little bit about the Jones case if we could. My 

apologies, I walked in a little bit late. I was interested by Justice 

Sotomayor’s opinion on this. Obviously a 9-0 ruling is fairly conclusive, but it does beg the question of what other areas should this 

be applicable to. From your perspective and experience, our current 

Justice Department and the implementation by the FBI and others, 

have they taken this Jones case and implemented it the way you 

see it should be implemented, or are they missing something here? 

What should the Justice Department and the Federal Government 

be doing with that Jones case? I will start with Mr. Calabrese if 

we could. 

Mr. CALABRESE. Well, obviously, the Jones case deals with location tracking. And in the ACLU’s view, the government has been 
63 

deficient in applying Jones. We believe that a majority of the court, 

no matter how you read it, said that systematic tracking of individuals over time is an invasion, it implicates the Fourth Amendment, 

and is a search. Given that rationale, we believe that all manner 

of tracking currently undertaken by the government, whether that 

is cell phone tracking, whether that is tracking with a GPS device 

by a car, implicates the Fourth Amendment and should be done 

with a warrant. 

I think it is a very interesting question as to whether that same 

rationale should be expanded to drones. Clearly, drones could be 

used to track an individual for long durations in a very detailed 

manner. Perhaps U.S. v. Jones will also come to regulate how 

drones are used as well. 

Mr. CHAFFETZ. Does anybody else care to comment? 

Yes. 

Mr. MACLIN. Well, I would just say this about Jones. I think the 

story on Jones and the scope of Jones is unwritten. Certainly, Justice Sotomayor and Justice Alito’s opinion talk about electronic 

monitoring. Justice Scalia’s opinion is careful not to rely on the 

Katz test and not to rely on any concerns about electronic monitoring. His opinion was solely about the physical intrusion and the 

purpose for the governmental conduct. 

And I think if you read the most recent ruling from the court in 

this area, Florida v. Jardines, with, again, Justice Scalia writing 

the majority opinion, you will again see the focus of Scalia’s concern on the physical intrusion in that case. 

So I think with respect to Jones, I am not—— 

Mr. CHAFFETZ. What is your opinion about it? It seems to be 

shortsighted to think that just the physical intrusion—— 

Mr. MACLIN. I agree with that. My own personal opinion is that 

the concerns with the monitoring are more important because we 

are already at a time where government does not need a physical 

intrusion. 

Mr. CHAFFETZ. No. You can triangulate things electronically 

without actually physically attaching something. And that is my 

concern, Mr. Chairman. 

I have a geolocation bill that we have done with Senator Wyden 

in a bipartisan way. You have been very supportive of this. I do 

not think it is just merely the physical intrusion of attaching a 

GPS device and technology over the course of time. 

And let me get the other two gentlemen’s opinion of this. I think 

one of the things we need to look at, Mr. Chairman, is air space. 

If you have private property, and you may have something very 

small, you may have something large, say a 5-acre parcel of land, 

I do think there is a reasonable expectation of privacy that isn’t 

just limited by walking down the street and okay, you put up a 

fence. But I think the air space is something in general that we 

should look at. But maybe if you could talk to that and the Jones. 

I want to leave time for our last—the other person as well. 

Mr. MCNEAL. Congressman, what you have articulated as the 

reasonable expectation of privacy that I think you expect and that 

your constituents expect is something that is broader than the Supreme Court has articulated. So going back to the Oliver case and 

the other aerial surveillance cases, going to Katz, what we know-
64 

ingly expose to the public isn’t a matter of Fourth Amendment concern. 

And so, if you want to protect the air space over someone’s yard 

and whatnot, it will require legislation because the court does not 

seem prepared to identify that yet. 

Mr. CHAFFETZ. My time is almost up. 

Mr. VILLASENOR. I actually read Jones more optimistically than 

perhaps many with respect to prohibiting long-term extended surveillance. Majority of the Justices—Justice Alito was joined by 

three Justices in concurrence—that makes four. And then Justice 

Sotomayor agreed with Justice Alito’s statement that long-term 

tracking itself, even without the actual trespass associated with the 

attachment of the device, violated a reasonable expectation of privacy. And even Justice Scalia in his majority opinion said it may 

be unconstitutional. So I am actually quite encouraged that the Supreme Court would find that unconstitutional. 

Mr. CHAFFETZ. I think that is the right direction. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Louisiana, Mr. Richmond. 

Mr. RICHMOND. Thank you, Mr. Chairman. 

Mr. Maclin, let me start with you. Because a lot of conversation 

and a lot of what goes on depends on reasonable expectation of privacy, as we discussed another bill. 

Do you think it is ever going to get to a point where we have to 

say what a reasonable expectation of privacy is, period? Because 

the more and more that things evolve, the more and more I think 

that I have any expectation of privacy. And at some point, will 

someone say your expectation of privacy is just unreasonable? 

Mr. MACLIN. Of course. I agree with you. I think this Committee, 

and Congress in general, can use their powers under section 5 of 

the 14th Amendment to enforce the Fourth Amendment and say, 

yes, a reasonable expectation of privacy includes the following. 

Mr. RICHMOND. Mr. Calabrese, you talked earlier about the fact 

that we have tort laws and other things for 

nongovernmental actors. As I watched the news this morning, 

there is an incident in New York where a guy took pictures of people in the adjacent building; did not capture their face but caught 

very intimate moments. Those pictures are now in a gallery selling 

for $8,000. The subjects of them were very upset. And the lawyers 

that talked about it said there is no recourse for them. I guess it 

is that sort of thing that concerns me in terms of if we get to 

drones, how do we reconcile that? 

Mr. CALABRESE. They are very difficult questions. But they are 

very difficult questions both because they are potential real invasions but also because of the powerful need to protect the First 

Amendment. I think that Peeping Tom laws would deal with a 

drone right up on someone’s window. Across the building but with 

a powerful camera, it is a harder question. 

The First Amendment protects our right to gather information 

for really important reasons: regulating how government operates, 

giving people the ability to talk about what is going on in their 

lives, share information, the obvious need to protect the press. We 

have seen that this week. 
65 

So we are going to have to balance those. We do think that there 

is a lot of law in this area. So I think we are going to have to tread 

carefully in regard to the First Amendment. And I do think there 

are more existing protocols and controls around First Amendmentrelated activity for private use than there are for the Fourth 

Amendment space in government use. 

Mr. RICHMOND. We talked a little bit about the drones and the 

fact that they will have the capability of license plate readers. But 

my police chief is excited about the fact that he is putting license 

plate readers on every stoplight. At what point do you think we get 

to—or do you think police now would need some authorization to 

record and store the data from license plate readers, for example, 

if you have a spree of burglaries, that they can go back and see if 

there is any car that went through the red lights close to any of 

those homes. Can they just store that information? 

Mr. CALABRESE. I believe that there is a reason that we have license plate readers. I believe, for example, looking for stolen cars 

is a perfectly appropriate reason to have a license plate reader. I 

believe that information should be destroyed at the end of the shift, 

once the purpose that you gathered it for is no longer operative. 

And I do believe that that is because if we do not do that, we are 

going to live in a society where we have mass surveillance. We live 

in a world of records now. Everything we do generates a record. So 

if we are going to start saying, Let’s keep it just in case, our entire 

lives are going to be out there to be investigated anytime someone 

wants to poke through those records. 

Mr. RICHMOND. And that is what I was worried about, the ‘‘just 

in case.’’ 

Did anyone else want to comment on that? 

Mr. VILLASENOR. I guess I will just add that while I fully am 

sympathetic to these concerns, there is a gray area here. It is very 

difficult. If, as Mr. Calabrese suggested, all of these records were 

destroyed at the end of a shift, suppose there was a kidnapping or 

missing persons report that was not reported for 48 hours after it 

happened. Again, I do not think anyone would deem it a positive 

thing if we had intentionally destroyed information that might 

have led us to solve that more quickly. So I do not claim to have 

any perfect answer, but those are hard questions. 

Mr. RICHMOND. Thank you, Mr. Chairman, and I yield back. I 

see my time has expired. 

Mr. SENSENBRENNER. The gentleman from South Carolina, Mr. 

Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Gentlemen, I think Justice Alito said this, new technology made 

provide increased convenience or security at the expense of privacy, 

and many people may find the tradeoff worthwhile. 

How will we know whether people find the tradeoff 

worthwhile and who gets to make that decision? 

Mr. MACLIN. Can I comment on that, Congressman? 

Mr. GOWDY. Sure. 

Mr. MACLIN. That is a catchy statement. The problem is with an 

individual—— 

Mr. GOWDY. Well, it is not my statement. 
66 

Mr. MACLIN. I know it is not yours. I understand that. My concern with that statement is that because society or members of society would be willing to make that tradeoff, the individual will be 

the one who suffers the harm. And I think, again, that is the job— 

I assume that is one of the reasons why this Committee is holding 

these hearings, is get a view. And I agree with Congressman Richmond that this body should make a determination of that because 

if it is just a matter of what society would prefer for what tradeoffs 

society would be willing to make, individuals are going to be the 

ones who suffer. 

Mr. GOWDY. So if I remember common law correctly, the Bill of 

Rights kind of sets the minimum. And if States or this entity, perhaps, wanted to have a more arduous view of one of the amendments, like the Fourth Amendment, we could do so, right? 

Mr. MACLIN. Well, I would just caution, because the jurisprudence under City of Boerne v. Flores, as I am sure Members of this 

Committee understand, does not lend itself to Congress going beyond what the Supreme Court has done. That said, however—— 

Mr. GOWDY. I thought the Constitution allowed Congress to in 

some instances set the jurisdiction of the courts. 

Mr. MACLIN. Allowed to set the jurisdiction of the court. But 

under section 5, the court has been somewhat restrictive. The City 

of Boerne is the main case, and there have been recent precedence 

since then, and it is go be interesting to see what they do with the 

Shelby County case, but the court has invalidated several congressional statutes where Congress has imposed on States restrictions 

that the court has found constitutional. 

Mr. GOWDY. How does the expenditure of manpower or 

womanpower impact a Fourth Amendment analysis? I can see an 

analysis where if you had to invest detectives or line officers in surveillance, that is one analysis. And it would be a different analysis 

than just having a computer doing it. Am I dreaming up that the 

investiture of resources would be part of—I mean Jason, my friend, 

love him to death, he has got a bill dealing with GPS tracking. And 

part of the analysis, I think, is that at least when you are having 

a person doing it, you are investing time, you are investing resources. That is a different analysis than just having some device 

do it. So how does that play into it? 

Mr. MACLIN. Well, I know of no Supreme Court case in which the 

court has said how much resources or the degree of resources invested makes any difference in the Fourth Amendment question. 

Mr. GOWDY. I think there is, but you guys are the experts. 

The gentleman beside you is shaking his head, probably to agree 

with you and not with me, but you can go right ahead. 

Mr. MCNEAL. I think I agree with you, Congressman. I think the 

appropriate place for us to calibrate these expectations is in the 

legislature, rather than letting judges write things up. This body 

here is in the best position to know what your constituents expect 

with regard to privacy. And if we want to control the types of surveillance, be it GPS or geolocation data or whatnot, then Congress 

can pass legislation to require a warrant before getting that, rather 

than allowing it to be obtained through a subpoena. I think that 

is completely appropriate. 
67 

Mr. GOWDY. Do all of you agree that technology can impact 

whether or not a search is considered reasonable? 

Mr. VILLASENOR. I think I can at least partially answer that. The 

Supreme Court has ruled that if the government uses a large team 

of agents to literally follow somebody around, that that is not a violation of the Fourth Amendment. Whereas, the Supreme Court, in 

the Jones majority, is on record leaving open the question of performing that same tracking with technology may be a violation of 

the Fourth Amendment. 

Of course, as I mentioned a moment ago, Justice Alito and four 

other Justices think that it is a violation of the Fourth Amendment. 

Mr. GOWDY. Do you agree—and I know I am almost out of time— 

that technology impacts our reasonable expectation of privacy and 

that it is a scale that changes from culture or generation to generation? 

Mr. VILLASENOR. I think to some extent we are all far more comfortable with the concept of photography than people were in the 

late 1800’s when it first became possible to capture an irrefutably 

accurate image of somebody at will. So technology does impact our 

views of privacy, but it does not mean that we do not have privacy. 

Mr. MACLIN. I would agree with that, Congressman. Technology 

does affect our Fourth Amendment. 

Mr. GOWDY. Well, I am out of time. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentlewoman from California, Ms. Chu. 

Ms. CHU. Thank you, Mr. Chair. I would like to ask Mr. 

Calabrese about the issue of the storage of data and its implications for privacy. We know that local police departments are applying to obtain permits from the FAA to use drones for law enforcement purposes. And I understand that there is some potential that 

a large amount of data could be collected by drones and stored for 

a very long period of time. I am concerned that limitless data collection can pose a threat to Americans’ privacy. Can you tell us 

what types of data these drones can collect and if those law enforcement agencies who acquire drones have data minimization 

policies in place? 

Mr. CALABRESE. Those are all incredibly good questions, Congresswoman, that do not necessarily have clear answers at this 

point. Let me try to sketch a view of the parameters out for you. 

I think that absolutely the widespread collection of detailed information, say HD camera level video, can create huge privacy implications. It really changes way we consider public space. We do not 

consider ourselves to be recorded when we are in public. We may 

be in public but not preserved over time. We can also apply powerful new technologies like face recognition to that detailed video. We 

can use it to zoom in, for example, or examine particular things 

that we might not have noticed at the time. 

In terms of data retention policies, we think those are best practices. We think every police department should limit the amount of 

collection for particular purposes and discard it after it no longer 

needs it for those purposes. Whether that is happening now, I 

think it is tough to say on a local level the particular data collec-
68 

tion practices. We certainly hope it will be something the FAA requires and that all local law enforcement does. 

Ms. CHU. Do you think we should require that agencies who use 

drones have some sort of data minimization policy in place, and 

what kind of policy would be best in terms of considering civilian 

drone usage? 

Mr. CALABRESE. Yes, I do believe the data minimization policy is 

vital. I would say that it is bounded by the other reasons for collection. You put a drone up for a particular reason. Once that reason 

is expired, you have examined the person, searched the person, or 

followed the person that you are looking into, the case is over, you 

no longer need it, discard the data. If you do not do any mass surveillance, then you will not have to worry about keeping data for 

long periods of time. 

Ms. CHU. We have to update many of our other Federal laws that 

deal with electronic communications, but what can we learn from 

our experiences in dealing with other technologies when it comes 

to protecting individual privacy? 

Mr. CALABRESE. Well, I think that we have powerful frameworks 

in place now. Certainly, the Privacy Act in itself has all the principles that we believe would apply here. They have some Privacy 

Act exceptions, but it also is a powerful framework. Clearly, we do 

not want to discard things like the very strong protections of the 

Wiretap Act, for example, against listening to peoples’ communication. Those all have to remain in place. I think what we can learn 

is to articulate, I hope, some of the things that we believe should 

be in any bill, which is use limitations, collection only for a particular purpose, not converting it to other purposes, discarding it 

when it is done, notifying people about when their information is 

being collected, and why, and giving them input into that. 

Ms. CHU. Okay. Mr. Villasenor, I would like to focus on the positive benefit of drones. As a representative from southern California, we face many dangerous and costly 

wildfires each year, and we certainly can benefit from additional 

tools to fight these fires. For example, the station fire in the Angeles National Forest in my district killed two firefighters and burned 

160,000 acres, and it was the largest wildfire in the modern history 

of LA County. 

Is the FAA Modernization Act helping to accelerate the production of firefighting prevention drones so that local firefighters can 

have these tools in the near future? Are there any barriers that 

warrant any congressional review? 

Mr. VILLASENOR. I think the FAA is very well aware of the importance of applications like firefighting. The FAA, of course, is not 

involved in the production of the aircraft but is working diligently 

and hard on the regulations that are enabling uses, such as firefighting, that nobody in this room I am sure finds objectionable in 

the least. And so I think that is moving at a pace quite well. 

Ms. CHU. Thank you. 

And I yield the balance of my time to Congress Member Sheila 

Jackson Lee. 

Mr. SENSENBRENNER. The gentlewoman is recognized for 15 seconds. 

Ms. JACKSON LEE. Thank you. 
69 

Mr. Calabrese, I just have a simple question. What is the opportunity for racial profiling and how dangerous is that with the utilization of drones? 

Mr. CALABRESE. We have certainly seen racial profiling in the 

use of video cameras. It seems logical to believe it might be applied 

here. 

Mr. SENSENBRENNER. The gentlewoman’s time is expired. 

The gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

I do appreciate your being here. I would like to follow up on Ms. 

Chu. I am curious, the line of questioning she had. I will give an 

example. There is a doctor friend in Tyler, my hometown, who set 

his incredible new camera with incredible new lens skyward and 

took pictures of a shuttle going over and then later saw on the 

news that it had broken up and got that to the paper. Didn’t sell 

it, just put it out. And it was the most—it was a photograph that 

has been on more front pages of publications than any other. 

On the other hand, if he took that same camera and pointed it 

in someone’s window from a long distance, then you would get an 

issue. So, obviously, technology makes a difference. And it seems 

that we do get into some intent issues. 

But I am curious, Mr. Calabrese, you say that there is a lot of 

law in this area—and I was not sure which area you were talking 

about—but I am curious, if Congress went about setting what we 

believed—and I think there is a lot of room for agreement on both 

sides. I appreciated Ms. Bass, Ms. Chu’s questions, Mr. Richmond’s 

questions. I think we agree on a great deal in this area. So if we 

came to an agreement on what we in Congress believed was an appropriate, reasonable expectation of privacy, are you guys aware of 

a law that would create a problem for us setting such an reasonable expectation of privacy? 

Mr. CALABRESE. No, I do not believe so. I believe you have got 

a very powerful piece of legislation in front of you right now, H.R. 

637, and I think that is a very good beginning on setting the parameters for how drones should be used. I think that is a great 

place to start. 

Just to answer your question in terms of the area where there 

is existing law, I was largely talking about private use. So keeping 

time logs, stuff like that. 

Mr. GOHMERT. Is anybody aware of laws that would be adverse 

to us trying to set a reasonable expectation of privacy? 

Mr. MCNEAL. I am not aware of that, but I would just urge some 

caution here, Congressman, in that the courts have had decades to 

try and define reasonable expectation of privacy. 

Mr. GOHMERT. I understand. It is a difficult area. 

Mr. MCNEAL. I think you might be better served by focusing on 

the government conduct that you want to control, defining terms 

like ‘‘search’’ and ‘‘public place’’ and whatnot and controlling, focusing your legislation there rather than trying to define privacy. 

What is a reasonable expectation of privacy in New York City is 

very different than what it might be somewhere else. 

Mr. GOHMERT. Sure. And Ms. Bass was pointing out she has a 

lot of paparazzi. In east Texas, we do not have that. But her concern is still my concern. It is not just public government entities, 
70 

but if you have a nosy neighbor that has that telescope and points 

it to your backyard or inside your house, instead of skyward, there 

ought to be some point that you can expect privacy, right? 

Mr. MCNEAL. Right. Focusing, again, on the conduct that we 

would want to control, it would be either the collection of that information by a private party or the subsequent use of that information. And so sometimes you walk down the street at night in 

Georgetown and people leave their blinds open, you can see the 

fancy houses and whatnot. They might feel their privacy is violated, but it is not something that we would want to legislate. If 

you start snapping photos and using them, then maybe the use of 

that information internal in the home is the thing that we would 

want to control. 

Mr. MACLIN. Congressman, I would just say this. There is one example of this. In the mid-1970’s in United States v. Miller, the Supreme Court said we do not have a reasonable expectation of privacy with respect to our banking records. Congress passed legislation which effectively reversed that ruling and gave individuals 

more privacy. 

Mr. GOHMERT. That is a good point. Let me ask this real quick 

because my time is running out. Is anybody aware of any laws that 

would prohibit you shooting down a drone in an area in which you 

were allowed to shoot? I had this question come up with somebody. 

If it is over your air space, your home, and it is a private, not a 

government, drone. 

Mr. VILLASENOR. I think it would be a very bad idea. 

Mr. GOHMERT. No, I am just asking if there are any laws. I had 

a guy from Georgia say, Hey, we need at least 50 rounds because 

that is about how many it takes to bring down a drone. 

Mr. VILLASENOR. If they did it and ended up hurting some else, 

they could be charged with reckless discharge. 

Mr. GOHMERT. I understand that. But specifically, can you shoot 

down a drone over your property? 

Mr. SENSENBRENNER. Fortunately, the gentleman’s time has expired. 

Mr. GOHMERT. I appreciate that, Mr. Chairman, since you normally allow people to answer questions that were already asked. 

Mr. SENSENBRENNER. All Members of the Subcommittee either 

having used or yielded their time, those who have been present, 

without objection, the Subcommittee stands adjourned. 

[Whereupon, at 10:18 a.m., the Subcommittee was adjourned.] 

Æ