Powered by developments in aviation, sensing, and software technology, the drone industry is projected to be one of the fastest growing industries, with sales expected to top $12 billion by 2021.[2] Within the next decade, the commercial drone industry alone is expected to generate more than $82 billion and could provide 100,000 new jobs.[3]
The unprecedented growth of the drone and unmanned aerial systems (“UAS”) industry has not waited for governmental regulation to catch up. Now, federal, state, and municipal governments are struggling with how to regulate UAS use. Regulation of UAS by both federal and state governments has led to issues relating to federal and state preemption, with both authorities continuing to assert that they possess the authority to regulate drones. For instance, the U.S. Senate recently introduced the Drone Federalism Act of 2017.
Illinois is another State that has recently has taken its first steps to lay the groundwork for UAS regulation and the future use of drones in the State.
Freedom from Drone Surveillance Act
Presently, the only statute in Illinois expressly addressing drone use is the Freedom from Drone Surveillance Act (the “Act”).[4] The Act provides generally that law enforcement agencies cannot use drones to gather information.[5] However, the Act allows for the use of drones by a law enforcement agency in the following limited circumstances:
- to counter a high risk of a terrorist attack if the United States Secretary of Homeland Security determines that credible intelligence indicates there is that risk;
- if a law enforcement agency first obtains a search warrant based on probable cause, provided the warrant is limited to 45 days;
- if a law enforcement agency possesses reasonable suspicion that swift action is needed to prevent imminent harm to life, or to forestall the imminent escape of a suspect or destruction of evidence; provided, however, the use of the drone is limited to a period of 48 hours;
- if a law enforcement agency is attempting to locate a missing person, and is not also undertaking a criminal investigation;
- if a law enforcement agency is using a drone solely for crime scene and traffic crash scene photography; provided, however, the use of a drone on private property requires a search warrant based on probably cause or lawful consent to search; and
- if a law enforcement agency is using a drone during a disaster or public health emergency.[6]
Moreover, except as provided by one of the exceptions above, a law enforcement agency may not acquire information from or direct the acquisition of information through the use of a drone owned by a private third party.[7] If a court finds by a preponderance of the evidence that a law enforcement agency used a drone to gather information in violation of the Act, then the information is presumed to be inadmissible in any judicial or administrative proceeding.[8]
The Illinois Unmanned Aerial System Oversight Task Force
On August 18, 2015, Public Act 99-392 became effective, creating the Unmanned Aerial System Oversight Task Force (the “Task Force”). The mission of the Task Force was “to study and make recommendations for the operation, usage, and regulation of Unmanned Aerial Systems.”[9] On June 30, 2016, the Task Force submitted its recommendations to the Governor and General Assembly, which struck a balance between safety, deference to federal oversight, and allowing commercial use of UAS to become a considerable economic driver in Illinois.[10]
The Task Force found that UAS operations should generally be permitted if they do not cause a safety hazard, do not infringe on the privacy or property rights of others, and if performed in accordance with applicable FAA rules and regulations.[11] Any legislative action relating to UAS was recommended to be flexible to adapt State-level oversight to the changing UAS regulatory landscape at the federal level.[12]
To this end, the Task Force found that statutes currently exist that address individual concerns, such as privacy and property rights.[13] For instance, statutes and ordinances exist regarding voyeurism, harassment, stalking, disorderly conduct, public nuisance, reckless endangerment, and recording of individuals in locations where there exists a reasonable expectation of privacy.[14] As such, the Task Force found no reason to create numerous new laws or amend existing statutes related to acts committed by UAS.[15] Rather, it was recommended that the General Assembly consider a global “extension of oneself” clause that would serve to link the operator with the UAS.[16]
The increased use of drones also raises questions regarding the balance between federal and state regulation. Importantly, the Task Force analyzed the topic of preemption at length.[17] With regard to federal preemption, the Task Force determined that any State-level oversight relative to UAS operations should complement and not conflict with FAA rules and regulations.[18] As to State preemption, the Task Force recommended that the General Assembly enact State-level preemption regarding UAS oversight in Illinois.[19] The Task Force reasoned that a patchwork of local ordinances would lead to confusion and would place an increased burden on UAS operators and the UAS industry.[20] In addition, a patchwork of local ordinances would negatively impact commercial and public operators that operate UAS in multiple locations throughout the State and across municipal boundaries.[21]
The Task Force also focused on the potential commercial use of UAS in Illinois.[22] Finding the commercial use of UAS is heavily regulated at the federal level, the Task Force noted that commercial use should generally not be subjected to additional operating restrictions provided operations are performed safely and in accordance with the FAA.[23] The Task Force determined that UAS can develop into an economic driver for the State, by enhancing employee efficiency and productivity, through retail sales revenues, and also by creating or sustaining jobs in UAS design, development, manufacturing, distribution, retail, and professional commercial operators.[24]
City of Chicago
Chicago was the first major American city to approve a comprehensive set of drone regulations.[25] The regulations appear to balance protecting public safety while at the same time encouraging innovation and technology.[26] The ordinance provides that it is unlawful to operate a drone in the City unless it is registered with the Department of Aviation.[27] Registration is valid for one (1) year and costs an annual fee of $50.[28] In addition, the owner of a drone must maintain a liability insurance policy that insures the owner, lessee, and operator of the aircraft.[29] The insurance policy must name the City of Chicago as an additional insured.[30] A drone must also have a valid identification tag issued by the Department of Aviation affixed to it.[31]
Under the ordinance, it is unlawful for a person to operate a drone in City airspace: for the purpose of conducting surveillance, unless permitted by law; within five (5) miles of an airport; that is equipped with a firearm or other weapon; with intent to use the small unmanned aircraft to cause harm to persons or property; within one-quarter mile of an open air assembly unit, school, hospital, or place of worship; at any altitude higher than four hundred (400) feet above ground level; outside the line of sight of the operator; while under the influence of alcohol or drugs; whenever weather conditions would impair the operator’s ability to do so safely; or between the hours of 8:00 p.m. and 8:00 a.m.[32] Any person who violates the ordinance will be fined not less than $500.00 nor more than $5,000.00 for each offense, or may be incarcerated for a term not to exceed 180 days, or both.[33]
Favorable regulations relating to drone use could result in great economic potential for the future use of drones in Illinois, a notion that the Task Force seemed to understand. The Task Force’s recommendations balance the competing interests of public safety and commercial use. It is still too early to tell if the General Assembly will heed the Task Force’s advice. However, practitioners and businesses operating in Illinois should be on look-out for legislative and regulatory changes in this burgeoning area of the law. In addition, continue to visit Fox Rothschild’s blog for updates on how such changes will affect the general landscape of UAS regulations.
[2] BI Intelligence, The Drones Report: Market forecasts, regulatory barriers, top vendors, and leading commercial applications, June 10, 2016, available at http://www.businessinsider.com/uav-or-commercial-drone-market-forecast-2015-2
[3] The White House, Fact Sheet: New Commitments to Accelerate the Safe Integration of Unmanned Aircraft Systems, August 2, 2016, available at https://www.whitehouse.gov/the-press-office/2016/08/02/fact-sheet-new-commitments-accelerate-safe-integration-unmanned-aircraft
[4] 725 ILCS 167/1, et. seq.
[5] 725 ILCS 167/10.
[6] Id. at § 15.
[7] Id. at § 40.
[8] Id. at § 30.
[9] 20 ILCS 5065/15(a).
[10] Illinois Unmanned Aerial System Oversight Task Force, UAS Recommendations Report, June 30, 2016, available at http://www.idot.illinois.gov/Assets/uploads/files/Transportation-System/Reports/Aero/IUASOTF/UAS%20Recommendations%20Report-IUASOTF-2016-06-30.pdf.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Justin Peters, SLATE, Chicago Becomes the First Big City to Enact Drone Regulations, Nails Them, Nov. 20, 2015, available at http://www.slate.com/blogs/future_tense/2015/11/20/
chicago_enacts_drone_regulations_that_are_really_good.html.
[26] Id.
[27] Chicago Municipal Code, 9-121-020(a).
[28] Id. at 9-121-030(a).
[29] Id. at 9-121-040(a).
[30] Id. at 9-121-040(b).
[31] Id. at 9-121-050(a).
[32] Id. at 9-121-060(a).
[33] Id. at 9-121-070.
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