Untamed Skies: Domestic Drones Remain Unregulated

by Best Best & Krieger LLP

What once was a technology confined almost exclusively to military use has now made its way into the handsdrone aircraft-web of businesses, domestic agencies and private hobbyists. Small, Unmanned Aerial Vehicles (or UAVs), more commonly known as “drones,” are becoming a more frequent sight over American skies as operators continue to find new uses for the remotely operated devices. Equipped with a high-definition camera that gives its operator relatively inexpensive access to a unique aerial vantage point, a drone can allow a farmer to survey acres of crops in a matter of minutes, enable a firefighting crew to safely monitor the path and progress of a wildfire or permit a law enforcement officer to quickly and surreptitiously view the enclosed backyard of a private residence.

As this developing technology becomes a regular tool for law enforcement, however, existing case law may prove insufficient to address the privacy concerns that come with this increase in police power. While the Supreme Court has held that police officers do not need a warrant to observe an individual’s property from public airspace, those cases involved police observation from large, conspicuous aircraft (a police helicopter in Florida v. Riley and a privately chartered airplane in California v. Ciraolo) which are necessarily limited in use and scope by the government resources they consume. Recently, Justice Alito authored a concurring opinion in United States v. Jones where he expressed concerns over the ease with which police officers, without a warrant, were able to use a small tracking device to inexpensively monitor the around-the-clock movement and whereabouts of a suspect. Similarly, courts may soon be tasked with determining to what degree an individual or their property may be observed by an officer using a drone, a relatively inexpensive aircraft small enough, in some cases, to be transported in and launched from an ordinary patrol vehicle.

The privacy concerns regarding drones are not just limited to law enforcement’s use of UAVs. The increasing popularity of drone-flying as a hobby has made some members of the public uncomfortable, to say the least. Recently, a crowd of celebrating Los Angeles Kings fans threw objects at a remote controlled “quad-propeller” drone hovering above the mass of hockey supporters, eventually knocking it out of the sky. Another L.A. man, known for posting videos online depicting police encounters and DUI checkpoints, has recently started using a drone to help him monitor law enforcement activity. On a larger scale, this past month the National Park Service instituted a temporary ban on the use of drones at all U.S. National Parks after receiving a spate of complaints from visitors uncomfortable with the noise and perceived invasiveness of the unmanned vehicles.

The National Park Service’s moratorium reflects the larger state of uncertainty concerning the regulation of drones. At the national level, the Federal Aviation Administration claims the authority to regulate domestic drones, but its first published sets of rules regulating the unmanned vehicles are not due to be finalized until late September, 2015. At the state level in California, a bill that would have placed restrictions on the use of drones, SB 15, passed in the State Senate, but as of yet has failed to make it through the assembly.

To date, no city in California has enacted an ordinance regulating unmanned aircraft, and it is unclear whether a state or local law or regulation regulating drones would be preempted by the federal government. On its website, the FAA claims that any such regulation “that prohibits or limits the operation of an aircraft, sets standards for airworthiness, or establishes pilot requirements generally would be preempted.”

But “state and local governments do retain authority to limit the aeronautical activities of their own departments and institutions. Under most circumstances, it would be within state or local government power to restrict the use of certain aircraft, including a [drone], by the state or local police or by a state department or university” according to the FAA website. Another bill pending before the California legislature would do just that. AB 1327, which would require law enforcement to obtain a warrant prior to using a drone for surveillance, unless certain exigent circumstances exist, passed in the State Assembly and is making its way through the State Senate. If the bill becomes law, it will be the first of its kind in California, joining only a handful of other states which have made a pass at regulating this new frontier.


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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