I
113th CONGRESS
1st Session
H. R. 1262
IN THE HOUSE OF REPRESENTATIVES
March 19, 2013
Mr. Markey introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend the FAA Modernization and Reform Act of 2012 to provide guidance and limitations regarding the integration of unmanned aircraft systems into United States airspace, and for other purposes.
Short title
This Act may be cited as the
Drone Aircraft Privacy and
Transparency Act of 2013
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Findings
Congress finds the following:
On February 14, 2012, President Obama signed the FAA Modernization and Reform Act of 2012 ( Public Law 112–95 ; 49 U.S.C. 40101 note) into law, and sections 331 through 336 of such Act require the Federal Aviation Administration to fully integrate government, commercial, and recreational unmanned aircraft systems, commonly known as drones, into United States airspace by October 2015.
Unmanned aircraft systems have traditionally been used almost exclusively overseas by military and security organizations; however, State and local governments, businesses, and private individuals are increasingly using unmanned aircraft systems in the United States, including deployments for law enforcement operations.
As the technology advances and the cost decreases—unmanned aircraft systems are already orders of magnitude less expensive to purchase and operate than piloted aircraft—the market for Federal, State, and local government and commercial unmanned aircraft systems is rapidly growing.
It has been estimated there could be as many as 30,000 unmanned aircraft systems in the sky in the United States by 2020.
There will no
doubt be many beneficial applications of this technology, for as Secretary of
Transportation Ray LaHood said in a statement on March 7, 2012, Unmanned
aircraft can help us meet a number of challenges, from spotting wildfires to
assessing natural disasters.
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However, there also is the potential for unmanned aircraft system technology to enable invasive and pervasive surveillance without adequate privacy protections, and currently, no explicit privacy protections or public transparency measures with respect to such system technology are built into the law.
Federal standards for informing the public and protecting individual privacy with respect to unmanned aircraft systems are needed.
Guidance and limitations regarding unmanned aircraft systems
Subtitle B of title III of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note) is amended by adding at the end the following new sections:
Privacy study and report
Study
The Secretary of Transportation, in consultation with the Secretary of Commerce, the Chairman of the Federal Trade Commission, and the Chief Privacy Officer of the Department of Homeland Security, shall carry out a study that identifies any potential threats to privacy protections posed by the integration of unmanned aircraft systems into the national airspace system, including any potential violations of the privacy principles.
Report
Not later than 180 days after the date of enactment of this section, the Secretary of Transportation shall submit a report on the study conducted under subsection (a) to—
the Committee on Transportation and Infrastructure of the House of Representatives;
the Committee on Energy and Commerce of the House of Representatives;
the Committee on Homeland Security of the House of Representatives;
the Committee on Environment and Public Works of the Senate;
the Committee on Commerce, Science, and Transportation of the Senate; and
the Committee on Homeland Security and Governmental Affairs of the Senate.
Definitions
For purposes of this section and the succeeding sections of this subtitle—
the term privacy protections means protections that relate to the use, collection, and disclosure of information and data about individuals and groups of individuals;
the term privacy principles means the principles described in Part Two of the Organization for Economic Co-operation and Development guidelines titled Annex to the Recommendation of the Council of 23rd September 1980: Guidelines Governing The Protection Of Privacy And Transborder Flows Of Personal Data, adopted by the Organization for Economic Co-operation and Development on September 23, 1980; and
the term law enforcement means—
any entity of the United States or of a State or political subdivision thereof, that is empowered by law to conduct investigations of or to make arrests for offenses; and
any entity or individual authorized by law to prosecute or participate in the prosecution of such offenses.
Rulemaking
As part of the rulemaking process required under section 332(b)(1) and the final rule adopted under such section, the Secretary of Transportation shall establish procedures to ensure that the integration of unmanned aircraft systems into the national airspace system is done in compliance with the privacy principles.
Data collection statements and data minimization statements
In general
Beginning on the date of enactment of this section, the Secretary of Transportation may not approve, issue, or award any certificate, license, or other grant of authority to operate an unmanned aircraft system in the national airspace system unless the application for such certificate, license, or other grant of authority includes—
a data collection statement in accordance with the requirements of subsection (b) that provides reasonable assurance that the applicant will operate the unmanned aircraft system in accordance with the privacy principles; and
in the case of such an unmanned aircraft system that is to be operated by a law enforcement agency or a law enforcement agency contractor or subcontractor, a data minimization statement in accordance with the requirements of subsection (c) that provides reasonable assurance that the applicant will operate the unmanned aircraft system in accordance with the privacy principles.
Data collection statement
A data collection statement under subsection (a), with respect to an unmanned aircraft system, shall include information identifying—
the individuals or entities that will have the power to use the unmanned aircraft system;
the specific locations in which the unmanned aircraft system will operate;
the maximum period for which the unmanned aircraft system will operate in each flight;
whether the unmanned aircraft system will collect information or data about individuals or groups of individuals, and if so—
the circumstances under which such system will be used; and
the specific kinds of information or data such system will collect about individuals or groups of individuals and how such information or data, as well as conclusions drawn from such information or data, will be used, disclosed, and otherwise handled, including—
how the collection or retention of such information or data that is unrelated to the specified use will be minimized;
whether such information or data might be sold, leased, or otherwise provided to third parties, and if so, under what circumstances it might be so sold or leased;
the period for which such information or data will be retained; and
when and how such information or data, including information or data no longer relevant to the specified use, will be destroyed;
the possible impact the operation of the unmanned aircraft system may have upon the privacy of individuals;
the specific steps that will be taken to mitigate any possible impact identified under paragraph (5), including steps to protect against unauthorized disclosure of any information or data described in paragraph (4), such as the use of encryption methods and other security features that will be used;
a telephone number or electronic mail address that an individual with complaints about the operation of the unmanned aircraft system may use to report such complaints and to request confirmation that personally identifiable data relating to such individual has been collected;
in the case that personally identifiable data relating to such individual has been collected, a reasonable process for such individual to request to obtain such data in a timely and an intelligible manner;
in the case that a request described in paragraph (8) is denied, a process by which such individual may obtain the reasons for the denial and challenge the denial; and
in the case that personally identifiable data relating to such individual has been collected, a process by which such individual may challenge the accuracy of such data and, if the challenge is successful, have such data erased or amended.
Data minimization statement
A data minimization statement described in this subsection, with respect to an unmanned aircraft system operated by a law enforcement agency, contractor, or subcontractor described in subsection (a)(2), shall detail the applicable—
policies adopted by the agency, contractor, or subcontractor, respectively, that—
minimize the collection by the unmanned aircraft system of information and data unrelated to the investigation of a crime under a warrant;
require the destruction of such information and data, as well as of information and data collected by the unmanned aircraft system that is no longer relevant to the investigation of a crime under a warrant or to an ongoing criminal proceeding; and
establish procedures for the method of such destruction; and
audit and oversight procedures adopted by the agency, contractor, or subcontractor, respectively, that will ensure that such agency, contractor, or subcontractor, respectively, uses the unmanned aircraft system in accordance with the parameters outlined in the data collection statement and the statement required by this subsection.
Disclosure of approved certificates, licenses, and other grants of authority
In general
The Administrator of the Federal Aviation Administration shall make available on the public Internet Web site of the Federal Aviation Administration in a searchable format—
the approved certificate, license, or other grant of authority for each unmanned aircraft system awarded a certificate, license, or other grant of authority to operate in the national airspace system, including any such certificate, license, or other grant of authority awarded prior to the date of enactment of this section;
information detailing where, when, and for what period each unmanned aircraft system will be operated;
information detailing any data security breach that occurs with regard to information collected by an unmanned aircraft system; and
in the case of a certificate, license, or other grant of authority awarded on or after the date of enactment of this section to operate an unmanned aircraft system in the national airspace system, the data collection statement described in section 339(b) and, if applicable, the data minimization statement described in section 339(c) required with respect to such unmanned aircraft system.
Deadline
The Administrator shall complete the requirements under subsection (a) with regard to each unmanned aircraft system—
in the case of a certificate, license, or other grant of authority awarded before the date of enactment of this section, not later than 90 days after such date of enactment; and
in the case of a certificate, license, or other grant of authority awarded on or after the date of enactment of this section, as soon as is practicable after the date of approval of such certificate, license, or other grant of authority.
Warrants required for generalized surveillance
In general
A person or entity may not use an unmanned aircraft system or request information or data collected by another entity using an unmanned aircraft system for protective activities, or for law enforcement or intelligence purposes, except pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction, or as otherwise provided in the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
Exception
In general
Subsection (a) shall not apply in exigent circumstances (as defined in paragraph 2).
Exigent circumstances defined
Exigent circumstances exist when a law enforcement entity reasonably believes there is—
an imminent danger of death or serious physical injury; or
a high risk of a terrorist attack by a specific individual or organization, when the Secretary of Homeland Security has determined that credible intelligence indicates there is such a risk.
Required documentation
In the case of a person or entity operating an unmanned aircraft system under the exception for exigent circumstances created by paragraph (1), documentation justifying the exception shall be submitted to the Secretary of Transportation not later than 7 days after the date of the relevant unmanned aircraft system flight.
Information or data unrelated to exigent circumstances
A person or entity operating an unmanned aircraft system under the exception for exigent circumstances created by paragraph (1) shall minimize the collection by the unmanned aircraft system of information and data unrelated to the exigent circumstances, and if such unmanned aircraft system incidentally collects any such information or data while being operated under such exception, the person or entity operating the unmanned aircraft system shall destroy such information and data.
Prohibition on information sharing
A person or entity shall not intentionally divulge information collected in accordance with this section with any other person or entity, except as authorized by law.
Prohibition on use as evidence
Whenever information has been collected by means of use of an unmanned aircraft system, no part of the contents of such information and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof unless that information is collected in accordance with this section.
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Enforcement
Prohibited conduct
In general
It shall be unlawful for a person or entity to operate an unmanned aircraft system in a manner that is not in accordance with the terms of a data collection statement submitted under section 339(a)(1) of the FAA Modernization and Reform Act of 2012, as added by section 3 of this Act, or in a manner that violates any portion of the final rule required under section 332(b)(1) of such Act insofar as such portion relates to the procedures described in section 338 of such Act.
Regulations
The Commission may promulgate regulations in accordance with section 553 of title 5, United States Code, to carry out paragraph (1) with respect to persons and entities described in subsection (b)(3).
Enforcement by Federal Trade Commission
Unfair or deceptive acts or practices
A violation of subsection (a) or the regulations promulgated under such subsection shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ) regarding unfair or deceptive acts or practices.
Powers of Commission
The Commission shall enforce subsection (a) and the regulations promulgated under such subsection in the same manner, by the same means, and with the same powers and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ) were incorporated into and made a part of this Act, and any violator shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act .
Applicability
Paragraphs (1) and (2) shall apply—
with respect to persons, partnerships, and corporations over which the Commission has jurisdiction under section 5(a)(2) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(2) ) (except to the extent such person, partnership, or corporation is a law enforcement contractor or subcontractor); and
notwithstanding such section, with respect to air carriers and foreign air carriers.
Actions by States
Civil actions
In any case in which the attorney general of a State, or an official or agency of a State, has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by an act or practice in violation of subsection (a) or a regulation promulgated under such subsection, or by the operation of an unmanned aircraft system in violation of the terms of a data minimization statement submitted under section 339(a)(2) of the FAA Modernization and Reform Act of 2012 ( 49 U.S.C. 40101 note), the State may bring a civil action on behalf of the residents of the State in an appropriate State court or an appropriate district court of the United States to—
enjoin the violation;
enforce compliance with such subsection, regulation, or statement;
obtain damages, restitution, or other compensation on behalf of residents of the State; or
obtain such other legal and equitable relief as the court may consider to be appropriate.
Notice
Before filing an action under this subsection against a person, partnership, or corporation over which the Commission has jurisdiction under section 5(a)(2) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(2) ) (except to the extent such person, partnership, or corporation is a law enforcement contractor or subcontractor) or an air carrier or foreign air carrier, the attorney general, official, or agency of the State involved shall provide to the Commission a written notice of that action and a copy of the complaint for that action. If the attorney general, official, or agency determines that it is not feasible to provide the notice described in this paragraph before the filing of the action, the attorney general, official, or agency shall provide written notice of the action and a copy of the complaint to the Commission immediately upon the filing of the action.
Authority of the Commission
In general
On receiving notice under paragraph (2) of an action under this subsection, the Commission shall have the right—
to intervene in the action;
upon so intervening, to be heard on all matters arising therein; and
to file petitions for appeal.
Limitation on State action while Federal action is pending
If the Commission or the Attorney General of the United States has instituted a civil action for violation of subsection (a) or a regulation promulgated under such subsection (referred to in this subparagraph as the Federal action), no State attorney general, official, or agency may bring an action under this subsection during the pendency of the Federal action against any defendant named in the complaint in the Federal action for any violation as alleged in that complaint.
Rule of construction
For purposes of bringing a civil action under this subsection, nothing in this Act or any amendment made by this Act shall be construed to prevent an attorney general, official, or agency of a State from exercising the powers conferred on the attorney general, official, or agency by the laws of that State to conduct investigations, administer oaths and affirmations, or compel the attendance of witnesses or the production of documentary and other evidence.
Private right of action
In general
A person injured by an act in violation of subsection (a) or the regulations promulgated under such subsection, or by the operation of an unmanned aircraft system in violation of the terms of a data minimization statement submitted under section 339(a)(2) of the FAA Modernization and Reform Act of 2012 ( 49 U.S.C. 40101 note), may bring in an appropriate State court or an appropriate district court of the United States—
an action to enjoin such violation;
an action to recover damages for actual monetary loss from such violation, or to receive up to $1,000 in damages for each such violation, whichever is greater; or
both such actions.
Intentional violations
If the defendant committed a violation described in paragraph (1), and intended to do so, the court may increase the amount of the award to an amount equal to not more than 3 times the amount available under paragraph (1)(B).
Costs
The court shall award to a prevailing plaintiff in an action under this subsection the costs of such action and reasonable attorney’s fees, as determined by the court.
Limitation
An action may be commenced under this subsection not later than 2 years after the date on which the person first discovered or had a reasonable opportunity to discover the violation.
Nonexclusive remedy
The remedy provided by this subsection shall be in addition to any other remedies available to the person.
Suits against governmental entities
Notwithstanding the Federal Trade Commission Act (15 U.S.C. 41 et seq.), a suit under subsection (c) or subsection (d) may be maintained against a governmental entity.
License revocation
The Federal Aviation Administration shall revoke the certificate, license, or other grant of authority to operate an unmanned aircraft system if such system is operated in a manner that—
is not in accordance with the terms of—
a data collection statement submitted under section 339(a)(1) of the FAA Modernization and Reform Act of 2012 ( 49 U.S.C. 40101 note), as added by this Act; or
a data minimization statement submitted under section 339(a)(2) of such Act; or
violates any portion of the final rule required under section 332(b)(1) of such Act insofar as such portion relates to the procedures described in section 338 of such Act, as added by this Act.
Violations
Each day on which each unmanned aircraft system is operated in violation of subsection (a), or the regulations promulgated under such subsection, or the terms of a data minimization statement submitted under section 339(a)(2) of the FAA Modernization and Reform Act of 2012 ( 49 U.S.C. 40101 note), as added by section 3 of this Act, shall be treated as a separate violation.
Definitions
In this section:
Commission
The term Commission means the Federal Trade Commission.
Law enforcement
The term law enforcement has the meaning given such term in section 337(c)(3) of the FAA Modernization and Reform Act of 2012, as added by section 3 of this Act.
State
The term State means each of the several States, the District of Columbia, each commonwealth, territory, or possession of the United States, and each federally recognized Indian tribe.
Unmanned aircraft system
The term unmanned aircraft system has the meaning given such term in section 331 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note).
Model aircraft provision
Nothing in this Act may be construed to apply to model aircraft as defined in section 336(c) of the FAA Modernization and Reform Act of 2012.
