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To Ban or Not to Ban

Posted by David Frankel, Drone Lawyer // December 29th, 2014

David Frankel, Drone LawyerFacebooktwittergoogle_pluspinterestlinkedinmail

Drone Ban vs Drone Regulation

In Spring 2013, our pro bono attorney working group concluded its work on “Model Legislation: Drones,” the annotated version of which can be found at DronesAnnotated.pdf.   The working group was organized and facilitated by The Bill of Rights Defense Committee (known as BORDC).  BORDC focuses on promoting the Bill of Rights and activities that resist abusive domestic surveillance.  See this link.  As a result, the primary focus of the working group was to ban the domestic use of drones by assisting state, tribal and local governments in passing legislation to do so.

My purpose in joining the working group was to contribute to the Model Legislation from the standpoint of a business lawyer looking to start a discussion on appropriate regulation of the private and public use of drones.

As a result, the working group took an initial draft ‘ban’ version of the legislation and we adapted it to reflect some possible state, tribal and/or local regulation of the private and public use of drones.

The ‘Regulated Use of Drones’ section commences on page 10 of the Model Legislation.  The working group started with the premise that the FAA does not have statutory authority below 400 feet and even though the FAA has asserted jurisdiction over the use of drones below 400 feet but its jurisdiction is still being litigated in both the Court of Public Opinion and the federal courts.  As a result, there is a gap in applicable laws – i.e., the ‘Wild West’ in the context of increasing private and public use of drones in the U.S.

This gap is expected to be short-lived.  The Federal Aviation Administration Modernization and Reform Act of 2012 directs the FAA to create regulations that will enable drones to fly throughout U.S. airspace by September, 2015, so here we go.  In the meantime, many states have adopted some form of legislation concerning drones/UAS/UAVs.  See http://www.ncsl.org/research/civil-and-criminal-justice/current-uas-state-law-landscape.aspx.

And, there are rumblings of legislative action at the federal level as Senator Rockefeller has proposed a “UAS Privacy Act” which would involve a more comprehensive regulation of drones/UAS/UAV by FAA, FTC, DOT, and the National Institute of Standards and Technology.  The FCC also has jurisdiction over the kinds of communications that commercial drones/UAS/UAVs require.  Further, if such technologies include encryption, there may be export controls issues if any use or testing is to be done outside the U.S.

If you have a drone, you need a lawyer!

Alaska adopted restrictions on the warrantless use of drones/UAS/UAV by law enforcement as well as specific requirements for training, record keeping and records retention.

California now has Section 1708.8 of the California Civil Code (often referred to as an ‘anti-paparazzi’ law) which makes it clear that an invasion of privacy committed using a drone/UAS/UAV creates a civil action for actual and punitive damages as well as a civil fine of up to $50,000 and forfeiture of profits if done for commercial gain.   Connecticut has a drone law in the works based on legislative recommendations that include prohibitions on weaponization of drones/UAS/UAV (already illegal under federal law and FAA regulations), and limitations on the law enforcement use of drones/UAS/UAV in terms of duration unless there is a warrant.  Further, Connecticut’s recommendations include a public registry of government owned drones/UAS/UAVs.

Florida, Illinois and Montana restrict some public and private use of drones including warrantless use of drones by law enforcement.   Hawaii’s drone law appropriates $100,000 to create advanced aviation training programs through the University of Hawaii.  Indiana’s drone law restricts warrantless use of drones by law enforcement and creates a new misdemeanor crime if any person knowingly and intentionally electronically surveys the private property of another without permission.

Idaho restricts private use of drones to photograph or otherwise record an individual, without such individual’s written consent, for the purpose of publishing or otherwise publicly disseminating such photograph or recording.  The law provides for the greater of $1,000 in statutory damages or actual and general damages plus attorney fees and litigation costs.  Iowa’s restricts warrantless use of drones/UAS/UAV by law enforcement and makes it a misdemeanor to use a drone/UAS/UAV to conduct surveillance of a targeted facility without the owner’s prior written consent.

North Carolina’s drone law is a comprehensive law regulating private, public and commercial use of drones/UAS/UAV.    It includes a private right of action for violations of the right to privacy using a drone/UAS/UAV, regulation and training for law enforcement, restrictions on warrantless use, authorization for use of technology for crops, mapping, scientific research and forest management, and creates several new drone/UAS/UAV related crimes.

Maryland, Nevada and North Dakota adopted laws to support their UAS test sites.  Oregon allows a private right of action by property owners a drone/UAS/UAV operator for injunctive relief, treble damages, and attorney fees.   Ohio created an aviation technology committee.

Tennessee law makes it a criminal trespass for drones to fly over private property below navigable airspace without the property owner’s consent.  Like Illinois, Tennessee law protects hunters and fishermen from being surveilled by drones/UAS/UAVs while hunting and/or fishing.   Tennessee also identifies 18 lawful uses of UAS, including the commercial use of UAS under FAA regulations, professional or scholarly research and for use in oil pipeline and well safety.

Texas, by contrast, authorizes drone/UAS/UAV use by law enforcement but bans private use of drones/UAS/UAVs subject to 38 stated exceptions, including of use on private property with the consent of the landowner.  Obviously, if you live in Texas and have a drone, you need a lawyer!™   Utah’s drone law restricts warrantless use by law enforcement and creates standards for handling and retention of information gathered by drones/UAS/UAV.

Virginia’s drone law bans use by law enforcement or public agencies entirely until July 1, 2015.  Wisconsin’s drone law makes it a criminal misdemeanor to invade someone’s privacy using a drone/UAS/UAV (misdemeanor) or to weaponize a drone/UAS/UAV (felony).

Each of these jurisdictions had to consider the same kinds of issues as our Model Drone Legislation Working Group:  privacy, 4th Amendment, safety & public policy issues; the debate over ban vs. regulation (my cat out of the bag argument); and codification of personal and professional responsibility, accountability and disclosure, as well as personal and private property rights and promoting positive growth in a new hi-tech industry.

Some legal scholars have challenged the need for federal regulation at all suggesting that the state ‘laboratories’ should be left to do the experimentation under the principles of federalism.  See, e.g., M. Kaminski, Drone Federalism: Civilian Drones and the Things They Carry, 4 Cal. Law. Rev. 57 (2013) for a thoughtful analysis that argues for leaving privacy matters to the states.  In the meantime, the federal government has signaled its intention to move forward with drone/UAS/UAV regulation in 2015.  We’ll see what happens.

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