As everybody knows, the commercial drone world is practically brand new. Nobody was born in it or grew up in it, and everyone comes to it with their own set of experiences and point of view. I compare it to the elephant being examined by blind men in the old Hindu parable. Their description of the elephant depends on what part of the beast they touch and how it compares with their past experiences.
So let me put my prejudices on the table. I come to the commercial drone world from more than two decades of being a communications lawyer. To me, the importance of commercial drones is largely as mobile data acquisition nodes on communications networks. The value is really in the data. Getting that data back to the cloud and turning it into actionable information is the most important function of an unmanned aircraft system. Sure, there are standalone commercial drone functions that are socially valuable – search and rescue, real estate photos, wedding videos – but they are limited in commercial value compared to the networked opportunities.
The data is the key, and in order to be efficiently actionable it must be transmitted to and stored on private servers or in the cloud. So you have all the same issues that you have with any other data created, transmitted and stored on a communications network. Paramount among those is privacy.
The privacy issues raised by commercial use of drones are complex and multi-faceted. The privacy issues raised by stationary data acquisition nodes – think about security cameras and license plate readers – are multiplied by the drone’s mobility and the drone operator’s immediate view of the data transmission.
There is an ongoing tension between the “cool” and “creepy” factors of drone use. The cool factor is shorthand for the beneficial and innovative uses of drones that are being developed across the country every day. The creepy factor is shorthand for the various privacy and First Amendment concerns that drones raise.
The cool factor has been driving regulation at the federal level, subject of course to the overriding FAA concern for airspace safety. The FAA in its part 107 rulemaking specifically declined to address privacy issues, and it didn’t even mention data security issues. The only federal drone privacy initiative has been the NTIA multistakeholder process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private drone use. But if you read those best practices carefully, you’ll see that they focus on companies with integrated, internal drone activities. See http://www.ntia.doc.gov/files/ntia/publications/uas_privacy_best_practices_6-21-16.pdf. They don’t address the activities of drone services companies – which to date seem to be the most common actors creating data through drone operations.
On the other hand, the creepy factor has been the driver for much of the regulation at the state and local level. ALEC just published this week a good short summary of the state drone laws enacted in the last few years. The report pointed out that the second biggest category of state drone laws are those involving privacy. A number of the laws expand existing penal definitions of stalking or Peeping Tom prohibitions to include following or surveilling people via drones, or acquiring “lewd or licentious” photographs using drone technology. These laws tend to be broadly worded, and many appear inconsistent with private and commercial drone operators’ First Amendment rights. In addition to laws specifically addressing privacy, the trespass laws of California, Louisiana, Nevada and Oregon now permit a person in possession of real property to sue drone operators if their drone enters airspace above the property.
There is some hope that the creepy factor, at least at the state level, is losing some of its power as people become more aware of the potential beneficial uses of drones. For example, Maryland and Virginia both have state laws that removed the ability of local jurisdictions to enact ordinances limiting the use of drones, and the Maryland law set up a state commission to consider drone-related issues and make recommendations on what state legislation might be needed. A 2016 Oklahoma law created a similar moratorium on state law making on drones and again set up a commission to consider what, if any, regulation might be appropriate. In California, which has passed numerous drone bills in the last few years, including a famous anti-paparazzi law, California Gov. Jerry Brown just recently vetoed four of the six bills concerning UAS that were passed by the state’s legislature this session. In doing so, Brown said it would be “more prudent to explore a more comprehensive approach” to the regulation of UAS in the state, and that “piecemeal is not the way to go.”
On the other hand, S.B.1323, a bill pending in Pennsylvania (http://openstates.org/pa/bills/2015-2016/SB1323/) conflicts with FAA rules and the Constitution. It prohibits anyone from operating an unmanned aircraft “in dangerous proximity to another person or another person’s property, unless the other person consents to the operation” even when flights are authorized by federal law. It violates the First Amendment by criminalizing amateur and commercial photography and videography. The bill recently passed out of the Judiciary Committee and will be considered by the full Pennsylvania Senate.
In general, it is fair to say that the lower the level of government at which drone regulation is considered, the more weight is given to the potential creepy factors and the less is given to the cool. This is probably just a natural reaction of municipal and county elected officials, who are much closer to their constituents and more likely to react to the constituents’ fears and complaints. These local regulations are much more likely to be driven by privacy concerns and to place limitations on the data acquisition capabilities of drone flights.
The situation may get worse before it gets better. Soon after Part 107 went into effect, the National League of Cities released a report called Cities and Drones, which is designed to give local governments “insight” on FAA regulations. See http://www.nlc.org/find-city-solutions/city-solutions-and-applied-research/governance/cities-and-drones. The NLC also provided suggestions (and even templates) for local drone ordinances. The NLC report naturally takes an expansive view of cities’ authority to pass laws that may touch upon drone operations, particularly noting the FAA’s statement that “laws traditionally related to state and local police power—including land use, zoning, privacy, trespass, and law enforcement operations—generally are not subject to Federal regulation.” The report goes on to state that even when it the comes to regulating core airspace functions such as “flight altitude, flight paths; operational bans; or any regulation of the navigable airspace,” the FAA did not indicate local laws are preempted, but only that “consultation with FAA is recommended.”
The NLC report is likely to exacerbate the trend among local officials to react to constituent concerns by enacting poorly thought through ordinances. It seems like this trend will continue for the foreseeable future. Unfortunately, many of these local ordinances are either violations of the First Amendment or almost certainly preempted by federal law. I think over the next few years we will see a plethora of lawsuits challenging these local regulations. I think most of them will succeed, but there is a problem. The rolling back of these ordinances will be a piecemeal process taking years.
Again though, I see some rays of hope through the clouds. There are signs that some of the municipalities and counties that enacted these fear-driven laws are beginning to reconsider. For example, Antonelli Law, the Chicago firm that I work with on most of my drone work, was able to convince the town of Elgin, Illinois to withdraw a citation issued to a hobbyist for flying his drone over a town park. Elgin acknowledged the need to rewrite their statute so that it was consistent with federal law and with the Constitution. Similarly, in September the town council in Palm Beach, Florida publicly acknowledged that the law that they had passed was inconsistent with federal law and would not be enforced. http://www.palmbeachdailynews.com/news/business/drone-ordinance-violates-faa-authority-needs-revis/nsWLZ/. But these are outliers right now. As with much else in the UAS world, stay tuned for the inevitable future developments.