Crime, Terrorism, Homeland Security and Investigations Subcommittee Chairman Jim Sensenbrenner (R-WI) prepared the following opening statement for today’s hearing on “Eyes in the Sky: the Domestic Use of Unmanned Aerial Systems”:

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 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 curtilage .  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.