It was very clear Wednesday at the Senate Judiciary Committee’s hearing on drones that senators in both parties are worried about the threat to Americans’ privacy posed by the personal, commercial and law enforcement use of drones, or unmanned aerial vehicles (UAVs). Senators expressed deep concerns about the spreading use of a technology that is rapidly evolving and comes at a relatively affordable price tag.
But it was equally clear that they’ve only just begun to grasp the dimensions of the drone controversy, and are very far from being decided on whether a federal law is need to regulate the use of drones inside the United States -- much less what legislative approach to use.
Last year, Congress gave the Federal Aviation Administration until 2015 to devise rules to integrate drones into the national airspace system. The agency predicted last year that 30,000 drones will be traveling the skies above America in the next 20 years.
To some degree senators at Wednesday’s hearing were still caught up in marveling at the gee-whiz, technological capabilities of UAVs.
“How small can these things get?” asked Sen. Al Franken, D-Minn. A drone as small as a hummingbird is being developed, replied a witness at the hearing, Amie Stepanovich, director of the Domestic Surveillance Project at the Electronic Privacy Information Center (EPIC). “The technology is increasing at an exponentially rapid rate.”
“Presumably at some point you could have one the size of a mosquito that has a battery that operates for weeks and you could have the mosquito following you around and not be aware of it,” said Franken. “God help us if an adolescent boy gets hold of one of these.”
One witness at Wednesday’s hearing, Benjamin Miller of the Mesa County, Colo., sheriff’s office, who was representing the Airborne Law Enforcement Association, brought a small two-pound UAV with him to the hearing and assured committee members that his department was using its UAVs for traditional law enforcement functions. His office used a UAV last May to search for a missing woman, saving much time by searching large areas at low cost.
And cost is a major factor in domestic law enforcement drone use: “drones drive down the cost of aerial surveillance to worrisome levels,” said University of Washington law professor Ryan Calo, adding that he could imagine drones flying around with chemical sensors in order to detect drug trafficking.
Miller estimated that “unmanned aircraft can complete 30 percent of the missions of manned aircraft for two percent of the cost.” He assured Judiciary Committee chairman Sen. Patrick Leahy of Vermont that domestic law enforcement agencies would “absolutely not” seek to arm UAVs with lethal weapons. Miller also testified that hours and hours of tracking a criminal suspect was “not affordable” and that need for “persistent surveillance” – whether using an airplane or a drone -- was “relatively low.”
But EPIC’s Stepanovich told Leahy “persistent surveillance” was the greatest threat from domestic use of drones.
Some senators’ questions reflected a fear of an Orwellian Big Brother monitoring Americans.
Sen. Ted Cruz, R-Texas, said he had “very deep concerns about the government collecting information on the citizenry, and with the ease and availability of drones, I think there is real concern that the day-to-day conduct of American citizens going about their business might be monitored, catalogued, and recorded by the federal government.”
Sen. Dianne Feinstein, D-Calif., voiced similar fears: “I know what drones can do … I’ve seen drones do all kinds of things and those all kinds of things bring on great caution,” she said, alluding to her role as chairman of the Senate Intelligence Committee.
After she left the hearing Feinstein told reporters more of her worries, “You can say that you won’t permit any drone to be armed but how do you see that that (restriction) is carried out? Can a drone look into somebody’s window and photograph them in the privacy of their home?”
She added, “The technology is way ahead of our ability to know how to cope with it.”
Asked whether she supported EPIC’s call for requiring a warrant whenever a domestic law enforcement agency uses a UAV for surveillance, she said, “It all depends. If it’s surveillance, yes. If it’s traffic guidance, that kind of thing, for which a drone, much like a helicopter, can be very useful, we have to think this thing out. I don’t really want to commit myself because I don’t really know at this stage.”
While law enforcement agencies can get permission from FAA to use drones, private-sector commercial operators for now are limited to experimental uses for tests, demonstrations and training.
But Michael Toscano, the president of the Association for Unmanned Vehicle Systems International (AUVSI), told the committee that drones are poised to be one of America’s growth industries, with 70,000 new jobs, just as soon as federal regulations are set in the next few years.
Asked after the hearing about the possibility that Congress might crimp this commercial development, Toscano said, “I think you’ll find that we’ll be able to come to a meeting of the minds” to allow commercial use of drones while not violating privacy rights.
He said that “Congress shouldn’t knee-jerk into passing legislation that would be prohibitive” and should allow the continued development of unmanned air systems.
But Stepanovich said after the hearing that “we hope to see (legislative) action, if not in this term of Congress, then definitely prior to 2015 when the amount of drones in the U.S. is expected to increase pursuant to the FAA regulations.”
She also noted that a pending court challenge might affect the legal landscape for drone use.
The Customs and Border Protection agency, a part of the Department of Homeland Security, lends out its Predator drones to local law enforcement agencies to conduct operations unrelated to the border control mission. In North Dakota in 2011, a man was accused of stealing cattle. Police called in a Predator drone which flew over his property and helped police find and arrest him. He is now challenging the use of the drone in federal court as a violation of his Fourth Amendment rights. The police in that case did not seek a warrant before using the drone, Stepanovich said.
In 1989 the Supreme Court upheld police use of a helicopter flying 400 feet above a person’s property to see marijuana growing in a greenhouse. Since the helicopter was in navigable airspace, where any member of the public could have flown, the justices ruled that a search warrant was not required.
If a police helicopter can observe you or your house from 400 feet, what limits should there be on a drone?
The Congressional Research Service said in a report last year the crucial question is “whether drones have the potential to be significantly more invasive than traditional surveillance technologies such as manned aircraft or low-powered cameras — technologies that have been upheld in previous cases.”