Look! Up in the Sky! It’s a Bird! It’s a Plane! It’s an Unmanned Aircraft System! States Grapple With Limits on Domestic Use of “Drone” Aircraft


For the public, the term “drone” aircraft conjures images of half-size, remote-controlled and weaponized airplanes tracking down terrorists half-way around the globe. Little thought is given to the commercial use of drones in the United States.


All that may soon change as the domestic commercial market begins to open up. State legislatures around the country are struggling to determine how drones, or Unmanned Aircraft Systems (UAS)—the industry’s and Federal Aviation Administration’s preferred term—should be regulated in a society that values privacy and civil liberties. Without national legislation on this subject, the solution will evolve over time through the “laboratory of democracy” found in our state legislatures.


New FAA Rules


Presently, domestic UAS use is limited and highly restricted. Law enforcement and governmental agencies must obtain special permission from the FAA to operate a UAS unit. Businesses and educational institutions can apply for research permits. Model aircraft hobbyists must comply with strict limits on size, altitude and location. Commercial uses are prohibited. But these limits soon will be gone.


In 2012, Congress passed a law requiring the FAA to develop a plan by 2015 for integrating UAS into the national airspace system. FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, §§331-336, 126 Stat. 11 (2012). In November 2013, the FAA issued a “Roadmap” report outlining its integration plan, starting with small UAS (55 lbs. or less), followed by larger units. In 2014, the FAA is to award permits for six regional test sites for researching the technical and safety aspects of adding unmanned systems to the existing aviation system. Also in 2014, the FAA is to issue preliminary draft regulations for operating small UAS.


Projections for Growth and Civil Liberty Concerns


Currently, authorized domestic UAS units number in the hundreds. Upon implementation of the FAA’s integration plan, those numbers are projected to skyrocket. The FAA projects there may be 15,000 UAS flying in the national airspace by 2020 and 30,000 by 2030. A trade association, the Association for Unmanned Vehicle Systems International (AUVSI), estimates the UAS industry will produce 70,000 jobs and $13.6 billion in economic growth in the first three years of commercial use, with a 10-year cumulative impact of $82 billion. The AUVSI projects that every year’s delay in the integration plan will cost the U.S. economy $10 billion.


The thought of large numbers of UAS flying in the sky raises civil liberty concerns with some groups. Unlike many military operations, where UAS often are fairly large craft that are flown at relatively high altitudes, a significant segment of the domestic commercial market will focus on small units operating at lower altitudes. The small UAS will work in situations where helicopters will not because of their size, noise and flight space requirements, and at a lower cost. The models favored by many law enforcement agencies weigh just a few pounds and are small enough to fit in the trunk of a car.


With ever-increasing camera resolution and audio amplification powers, the prospects of “drone stalking” and corporate espionage do not seem far-fetched.  In fact, some would say they are already here. In the spring of 2013, a Seattle woman complained of a man who refused to stop flying a camera-equipped drone around her house and backyard. He claimed to be doing “research”; she felt he was spying. In the summer, a model airplane hobbyist in Florida attached a GoPro digital video camera to a small helicopter drone, which he flew around residential apartment complexes (filming a bikini-clad sunbather in the process) and over a busy interstate highway before losing control and crashing the drone. His stated purpose? To create a short film with a musical background that he could post on YouTube.  In the fall of 2013, a three-pound drone equipped with a camera was flown through the high-rise corridors of Manhattan during the height of rush hour before crashing to the sidewalk near Grand Central Station, narrowly missing a pedestrian.  Overseas, where commercial use of UAS is more freewheeling, the aircraft are used by paparazzi to capture photographs of celebrity weddings. Incidents like these give rise to civil liberty and privacy concerns.


State Legislative Responses


Because the FAA’s focus is on the technological and safety aspects of integrating UAS into the national airspace, state legislatures are left to address the way in which UAS may be used. At least 43 state legislatures considered UAS legislation in 2013. Seven states (Florida, Idaho, Illinois, Montana, Oregon, Tennessee and Texas) passed laws limiting the ways UAS can be used. Two states (North Carolina and Virginia) enacted moratoriums on UAS use. Four states authorized funding for UAS research and study, and 10 more adopted various resolutions regarding UAS operations. At least 10 bills were introduced in Congress relating to UAS operations.


Of the seven states setting limits on UAS activity, most focused on their use by law enforcement agencies. Those laws generally had four common features: (1) law enforcement agencies must obtain search warrants for UAS surveillance or evidence collection; (2) information obtained without a search warrant will be inadmissible at trial; (3) individuals damaged by unauthorized uses of UAS can sue for damages; and (4) the search warrant requirement is excused in times of emergency (defined in different ways by each state).


Some states set limits on civilian use of UAS. Idaho, for example, prohibits the collection of information about farms, dairies, ranches or other agricultural activities and the publication of a person’s image without the consent of the property owner or the individual. Idaho Code §21-213 (2013). The law creates a private cause of action against violators, allowing the recovery of the greater of $1,000 or actual damages, plus attorneys’ fees. Illinois makes it illegal to use UAS to interfere with hunting and fishing activities. 720 ILL. COMP. STAT. 5/48-3(b)(10), (c)(3) (2013). Some speculate these statutes were prompted in part by PETA’s announcement in April 2013 of plans to use UAS to monitor hunters, fishermen, large “factory farms” and “other venues where animals routinely suffer and die.”


Texas entered the fray with the “Texas Privacy Act,” a statute with far-reaching implications. 4 TEX. GOV. CODE, Ch. 423 (Vernon Supp. 2013). Similar to other states, Texas encourages (but does not explicitly require) the use of search warrants, and makes illegally-obtained UAS evidence inadmissible in court. The statute is more notable, however, for its criminal and civil penalties. It makes the intentional capture or possession of an image or the “surveillance” of a person or private property a Class C misdemeanor punishable by a fine of up to $500. Publication of an image is a Class B misdemeanor punishable by a fine of up to $2,000 and 180 days in jail. For unauthorized images of private property or owners or tenants while on the property, the statute creates a civil cause of action by which violators can be liable for a civil penalty of $5,000 for capturing images, $10,000 for distributing the images, actual damages if done with malice, and mandatory attorneys’ fees and costs. An obvious purpose of the private cause of action is to protect against acts of corporate espionage and invasions of personal privacy.


Perhaps reflective of the compromises necessary to enact legislation, the Texas law went through numerous changes as it wound its way through the legislative process. Beginning as a broadly worded prohibition against UAS surveillance, the bill was engrafted with exception after exception (19 in all) authorizing UAS imaging for various law enforcement, public health and safety, educational and industrial uses. The final product, in the words of one Texas legislator, is a “zebra law,” where the definition of legal and illegal activity changes in “extremely confusing” ways depending on the specific activity involved.


Unlike the Illinois statute, which expressly recognizes a First Amendment “free speech” defense, the Texas statute does not seem to take First Amendment rights into account.  Some in the media worry statutes like this will criminalize and have a chilling effect on “drone journalism.” Others fear it will create criminal and civil liability for private citizens like the Dallas hobbyist who accidentally discovered an illegal dumping operation while operating his UAS over a local river. Interestingly, civil rights organizations such as the ACLU, while fully endorsing limitations on governmental uses of UAS, have a more sanguine view of the need for regulating commercial uses.  They question the dangers of commercial UAS operations compared to the more certain economic and societal benefits to be gained.


More to Come in 2014


With the FAA’s awarding of the six regional test sites imminent and the introduction of commercial operations on the horizon, capital investment is pouring into the field. Large, established companies and small entrepreneurs alike are looking for new, innovative and different ways to convert UAS from military applications to commercial ventures. Leaders in state government see this coming and recognize the need to establish rules of operation in advance, rather than respond after the fact. Lawmakers want headline stories about “drone abuse” to be the exception, not the norm. That way, when people see a UAS in the sky, they will have some assurance that it is being used with appropriate safeguards and not just snooping around.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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