The proliferation of drone technology has taken the world by storm. Quadcopters that cost many thousands of dollars just years ago are now available to hobbyists, commercial operators, and photographers for just a few hundred dollars. This new technology has also fostered several regulatory challenges.
Known as Unmanned Aerial Systems, quadcopters, or simply drones, they are similar to remote control helicopters and planes. However, unlike RC aircraft, many of these drones are able to be flown out of the box without training or practice and are generally equipped with HD video and still photo cameras attached.
A threat to big government?
Drones were brought to the forefront of the national debate last fall when a drone was almost shot down by police during the Standing Rock pipeline protest in South Dakota. Police had long been using drones to monitor protests from the air, but protesters and the media complained that they didn’t have the same privileges because of a ‘no drone zone’ over the protest.
Police and government agencies are upset about drones simply because they level the playing field. Police had birds in the air to track the demonstrators. Protesters used drones to document the protest and any police misconduct that may have taken place. Recording the police is generally protected by law and should be similarly protected when done via a drone.
The government has long used domestic surveillance drones to monitor American in violation of civil liberties. Agencies such as the DEA, FBI, DHS, and ATF as well as local and state law enforcement have deployed drones in a variety of situations. No doubt the NSA and CIA have done the same. Nevertheless, the scope of drone usage by government entities remains a mystery.
Unsurprisingly, any and all drone regulations currently in place are not applicable to government agencies. At the least, search warrants should be required for drone deployments by government agencies in a surveillance capacity.
Because drones allow citizens similar surveillance abilities to the government, a war on drones has been declared. Because of concerns about the drones, the FAA has taken the opportunity to cram down executive regulations.
The increased accessibility and affordability of drone technology has led to concerns about privacy and security. Some feel that peeping toms will be able to use drones to peer through windows and into backyards. Still, others take issue with the ability of drones to surveil airports, military installations, and government property. Another problem is the use of drones to smuggle weapons, drugs, and phones into prisons or across borders. Additionally, drones have interfered with commercial planes and injured pedestrians.
Privacy concerns have led people across the country to shoot down drones flying over their property. Case law is spotty on this subject, but after a homeowner shot down a drone recently, he was sued in civil court and forced to pay for a new drone.
The real question in this debate is how far in the air do property rights extend? There is no clear answer, unfortunately, as to what constitutes aerial trespass.
As for the issue of national security, perhaps the rules for ground photography should apply for aerial photography. Inside sensitive infrastructure, no-pictures rules can be upheld, but after a recent court battle with the ACLU, DHS released a memo allowing Americans to photograph the exterior of government property from public access without being accosted.
Although some drones have been used to disrupt commercial flights, the vast majority of drone operators are not engaged in this conduct. Perhaps the best solution is to treat drones like the laser pointers which have been used to interfere with planes. Don’t restrict them for law-abiding people, but come down extremely hard when they are used to commit a crime.
The border patrol has been using drones for years to monitor illegal border crossings but has come face-to-face with a new threat: drones being used to smuggle contraband across the border. With the advent of a bevy of new anti-drone technologies that detect, shoot down, or hack into drones, the border patrol, as well as prisons, in which drones are used should be able to handle the issue without further regulation.
Due to these concerns, many municipalities and neighborhoods have restricted or prohibited drones entirely. However, the Federal Aviation Administration pre-empted state and local regulations in a 2016 memo, stating that it has complete authority “to regulate the areas of airspace use, management and efficiency, air traffic control [and] safety…”
However, many localities still prohibit drones in local parks and public lands or require a permit to operate there.
The FAA itself has also taken steps to regulate drone usage. All drones over 0.55 pounds are required to be registered with the FAA. In addition, drones may not be flown within five miles of airports and clearance must be received from helipads in close proximity before flying.
The FAA has also created so-called ‘no drone zones’ encompassing the entirety of Washington D.C. as well as most stadiums. ‘No drone zones’ have also been temporarily utilized in cities hosting high-profile events such as last summer’s political conventions.
However, the FAA takes it further by prohibiting drone flight over 400 feet in altitude and over 100 miles per hour. In addition, careless or reckless operation is also prohibited, and as with most alphabet-soup regulations, it is unclear as to what constitutes such operation.
This leads us to the unconstitutionality of the executive regulatory state. The legislative branch is responsible for making laws, and it is under legislative purview to draft drone regulations. The executive branch, specifically the FAA, should be tasked with enforcing the laws with regard to drones.
I propose a legislative measure which would be called the ‘UAS safety bill’. This would codify several key points:
- Create classes of drones. Small drones with limited range would not be regulated. Larger, ‘prosumer’ drones would be subject to very limited regulation. Very large commercial and industrial drones would be subject to the same regulations as helicopters.
- Set privacy standards. Standards would be set to allow homeowners or property owners to seek a court injunction against anyone who flies a drone in immediate proximity to their residence, on their property, or closely above their property. Anyone who has been a victim of snooping, excessive noise, or harassment from a drone would be able to seek a cease and desist order in civil court. Flying above someone’s property would be punishable only if the drone was close to the ground.
- Establish Local control. This bill would allow state and local authorities to regulate drone use within their jurisdiction. This would involve only the first two classes of drones. They could mandate registration, speed limits, safety, and altitude limits.
Passing the UAS Safety Bill would be the first step in allowing more local control of drone use. It would serve to protect the privacy interests of residents as well as the freedom of drone operators to fly. By overriding the unchecked and excessive executive regulation by the FAA, it would create regulation that is truly of, by, and for the people.