Did you get a drone for Christmas this year? Perhaps you have been considering getting a drone to assist you in your roofing business or your tree-trimming business? Or maybe you are just an amateur nature photographer who wants to get one? Before you do though, you will have to learn how to navigate the various confusing and overlapping restrictions in place for the use of drones. Between the FAA, state regulations, city regulations, and numerous other laws that impact drone use in the United States, it may not be wise to soar into the drone world just yet.
Benefits and Concerns:
There seems to be an unlimited number of possible uses for drones outside military operations. A roofer can use a drone to fly over a home and provide pictures without putting individuals at risk when determining problem areas needing repair. Both scientists and search and rescue teams can utilize a drone to navigate caves, forests, and many other hazardous areas. The media can have drones fly over protests areas, accident scenes, and numerous other areas for video coverage of developing major stories. And the average person now has access to aerial photography for numerous random purposes, including websites, hobby photography, etc. Amazon and other companies have even considered using drones to deliver packages.
However, there are many major concerns that are associated with the rise in drone use. To begin, Americans are simply uncomfortable with drones. Between the use of these devices for controversial military bombing campaigns and the notorious domestic spying programs, Americans have developed a profound feeling of discomfort when it comes to these devices. And Americans may be right to feel uneasy, considering that drones can be used to seriously invade our privacy. Now Americans have to worry about “peeping drones” and “peeping toms.” Moreover, there are serious safety concerns associated with flying drones.
Although small, low-altitude, consumer drones have become lightweight and cheaper to the American public, they are still capable of causing serious damage. Consider the Australian runner who was hospitalized after being hit by a drone; or the New York teenager who killed by his drone’s propellers; and the unfortunate death of a teenage girl as a result of a drone hitting her head.
Because of these serious concerns, drone regulations are being developed. However, the path to developing these new regulations has been extremely turbulent so far.
The Confusing State of Drone Law
Currently, state and federal governments have not developed a reasonable and consistent way to regulate the use of drones. Starting from the beginning, the FAA initially provided an advisory for drone use under an early 1980s guideline, which was actually based on simple model airplanes and helicopters used by the average hobbyist. According to this voluntary guideline, the models should stay under 400 feet and avoid flightpaths near airports. Then, three decades later, the FAA issued a statement in 2007 which prohibited the commercial use of drones entirely (i.e., the use of drones to make money). This was likely an initial prohibition to allow the agency time to develop a workable permanent set of rules and regulations for the use of drones. While the FAA has released an initial set of rules governing the use of small commercial drones, these rules are still very restrictive and do not govern the use of drones for recreational purposes. Thus, because the FAA has failed to provide guidance, communities across the country are beginning to grapple with the increased use of drones, and with this increase, communities are being forced to address safety and privacy concerns, along with difficult legal questions that accompany these concerns.
Cities and towns are beginning to bar drones completely, especially ahead of big events, such as the Masters in Augusta-Richmond County, Georgia, and after a drone crashed into San Francisco’s Golden Gate Bridge, the manager of the landmark asked lawmakers to put restrictions on the use of private drones. Additionally, since 2012 at least 15 states have passed laws restricting the use of drones. For example, Texas, North Carolina, and Idaho have restrictions prohibiting filming bystanders with drones without permission, while Illinois has banned drones from interfering with hunting. Additionally, Texas has outlawed the publication of drone photography. Thus, snapping a picture when standing atop a building in Texas, and placing it online is, of course, legal; however, flying a drone to that exact same spot and snapping a picture to place online would be breaking the Texas law (and also may be breaking the FAA regulation listed above). But can states even regulate the use of drones when federal regulators seem to have taken the stance that they alone have the authority to regulate the U.S. skies?
Federal or State Regulation?
According to the FAA, drones have increased the navigable airspace down to the ground, and thus extended the FAA’s authority to all airspace from the ground up. If this tautology is true, then the FAA’s drone rules could arguably make the devices protected, in that the drones could be legally considered aircraft comparable to a passenger jet. As such, if police, or other law enforcement agencies, were to simply decide to shoot down the devices, they could face serious consequences for the interference and destruction of a “civil aircraft.” However, there is a 1946 Supreme Court case looming in the background.
According to U.S. v. Causby, landowners have “exclusive control over the immediate reaches” above their land. Thus, the Supreme Court’s reasoning in this case seems to challenge the FAA’s control by forcing regulators to ask where a property owner’s control ends and the FAA’s “navigable airspace” begins? This is the strange state of drone law in the United States. It is a crazy patchwork of restrictions.
However, despite these legal uncertainties, authorities have begun charging drone users for various infractions involving the devices. Consider, for example, the man who is facing charges for interfering with agency functions and operating an aircraft on undesignated land for flying a drone in Hawai’i Volcanoes National Park (the man was also tasered by a park ranger). Whether cases and charges like this will hold up remains to be seen.