WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today questioned witnesses during a Senate Judiciary Committee hearing entitled “Defending Against Drones: Setting Safeguards for Counter Unmanned Aircraft Systems Authorities.” Today’s hearing highlighted the growing use of unmanned aircraft systems (UAS), commonly known as drones, and how Congress can strike the right balance in response. It also examined the existing statutory authorities that enable the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to track, disable, seize, and even shoot down drones. Finally, the hearing also provided an opportunity to consider how to provide sufficient authorities to law enforcement while also safeguarding the national airspace and important privacy rights and civil liberties—including ensuring that actions to counter drones respect First and Fourth Amendment rights and Fifth Amendment due process.
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Durbin began by asking Professor Laura Donohue, Professor of Law at Georgetown University; Director of Georgetown’s Center on National Security and the Law; and Director of the Center on Privacy and Technology, about the balance of protecting privacy and civil liberties, as well as our security, when it comes to the use of UAS.
According to the Federal Aviation Administration (FAA), there are more than one million drones registered in the United States for commercial and recreational purposes. While most are harmless, UAS can pose serious safety risks when flown near airports, other critical infrastructure, or near mass gatherings like sporting events, parades, or concerts. Drones can also be used by malicious actors including criminals, cartels, terrorist groups, and foreign adversaries.
“If I were sitting in Wrigley Field… and I saw a drone overhead, I would want to be sure it was a safe and friendly drone. I don’t know that when I’m sitting there. Somebody has to find out or at least ask the question. With over one million drones in our country today… it raises a question of who is going to monitor that activity to make sure these are safe… [and] don’t endanger anyone. At the same time, those drones could be gathering information… and there is a privacy angle there too. Who is protecting the privacy of the people that they are gathering information on?” Durbin said. “How do you balance this?”
Professor Donohue responded, “As a matter of large scale, outdoor events, most states have regulations and law in place that prohibit the use of drones over large scale events” and noted that many have carveouts that don’t allow others to fly drones over private property without the consent of the property owner themselves. She also noted that the way to balance civil liberties concerns is to make sure there are restrictions.
Durbin continued by asking Professor Donohue, “Let’s talk about the practical world: you have air traffic controllers monitoring commercial aircraft… but in terms of monitoring actual drone activity to the point of knowing whether it is complying with the state law and if it is not, what to do about it, what’s the answer there? How is it enforced?”
Professor Donohue responded that both states and the FAA play a role. Currently, DOJ and DHS are also authorized to conduct counter drone operations to protect certain covered facilities and assets related to their missions. However, existing authorities do not sufficiently cover airports, critical infrastructure, or events that federal authorities do not have the capacity or resources to protect. The way to balance these authorities with civil liberties, Professor Donohue noted, is to make sure that there are appropriate restrictions on these authorities.
Durbin concluded by asking, “Professor Donohue, if counter drone authorities are not drafted carefully, could they permit government authorities to intercept data or communications in violation of the Fourth Amendment?”
Professor Donohue simply responded, “Yes.”
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