House committee hears domestic drones concernsThursday, May 23, 2013 at 9:42 am by Michael Figura
On May 17, the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations, held a hearing to address the growing concerns surrounding the domestic use of drones. The committee featured three witnesses, John Villasenor of the Brookings Institution, Gregory McNeal, professor at Pepperdine Law School, Tracey Maclin of Boston University School of Law and Chris Calabrese of the American Civil Liberties Union (ACLU).
Generally ,the witnesses differed on the extent to which new legislation was needed to address the privacy concerns raised by the coming proliferation of domestic drones. Professor McNeal suggested that existing Fourth Amendment law covering search and seizure would be sufficient to uphold privacy in the face of changed brought by drones. The other panelists, and seemingly many members of the committee, agreed that at least some additional legislation from Congress would be necessary to assure that Americans do not lose their rights to privacy as technology makes widespread surveillance easier, cheaper and more discreet.
The witnesses identified several key Supreme Court cases that serve as guideposts for current constitutional law on aerial surveillance and tracking. In California v. Ciraolo, the Supreme Court ruled that law enforcement officers could use evidence obtained by flying a plane over a person’s fenced property, even though they did not have a warrant. In United States v. Jones, the Court found that attaching a GPS tracker to a car and monitoring its movements for four weeks was a violation of the target’s privacy. In Kyllo v. United States, the court found that when “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”
While these cases provide some ideas about how the courts might restrict or allow the use of drones for tracking and surveillance, Professor Maclan pointed out that such constitutional law is in flux, and may not prohibit the invasive searches that are easily accomplished with drones. Moreover, drones are becoming readily available for the consumer market, which might obviate the any barrier that the Kyllo ruling presents for government drone spying.
In his testimony on behalf of the ACLU, Calabrese highlighted H.R. 637, the Preserving American Privacy Act of 2013, a bill sponsored by Rep. Ted Poe (R-TX), which would impose a warrant requirement for certain governmental uses of drones. He also laid out four principles for the regulation of drones: a bar on mass surveillance, a prohibition of utilizing inadvertently captured information, a ban on weaponization and mandatory oversight.
H.R. 637 already has a bipartisan set of 20 co-sponsors in the house. The bipartisan consensus in the bill’s sponsors portends a larger transpartisan consensus on rights and liberties issues, including protection from surveillance and spying by drones. Also encouraging was questioning from members of both democrats and republicans in the committee that suggested they were concerned with impact of domestic drone use on American’s privacy and civil liberties.
While Congress is not yet near a vote on federal drone legislation, states and cities across the country have made great strides in addressing the problem. Over 41 states and a growing number of cities have introduced laws that ban or restrict the use of drones. Using BORDC’s model legislation, you can start a movement to ban or regulate the use of drones in your city or town.