The explosive growth in commercial and hobbyist use of drones (a/k/a unmanned aircraft or UAs) is creating fears among citizens and state and local officials about invasions of privacy and possible injuries or property damage. The result is a proliferation of laws and regulations designed to limit or prevent many commercial and personal uses of drones. It is obvious that many of these regulations will be struck down when they are challenged. However, this will be a lengthy, piecemeal process akin to legal whack-a-mole.
For those keeping score at home, or those just looking to predict outcomes, here are the grounds that courts will most likely use to strike down local drone regulations. I’ll address each of them in more detail in future blog posts. Interestingly, the likely grounds for challenge will shift over time, as more comprehensive federal regulations come into effect and improvements in technology enable longer drone flights and greater payload capacity.
For the next few years, conflict preemption will be the most likely basis for striking down state and local drone regulations. Conflict preemption is a doctrine created by courts to sort out conflicts that regularly arise in the U.S. Under our federalist system of government, legislative bodies at different levels of government can enact laws or regulations that address identical or overlapping issues or behavior. When the laws or regulations impose different requirements, or when one law permits and another prohibits certain behavior, a conflict arises. People and companies affected by these discrepancies need to know what they can and cannot do. That’s when they ask courts to step in and clarify their obligations.
The federal regulations governing commercial drone use are in flux right now. The FAA has both a process for obtaining one-off exemptions for commercial use of small UA systems (sAUS) (the 333 exemption process) and an ongoing proceeding to establish comprehensive rules for commercial use of sAUS. It hopes to finalize the rules before the end of 2016.
Once the more comprehensive federal rules are in place, conflicts with new and inconsistent state and local laws while inevitably increase. Look for conflicts preemption challenges to state and local laws to proliferate in the next few years. Examples of state enactments that raise potential conflicts preemption issues are the 2015 Virginia drone law and California’s SB 142, which was recently vetoed by Gov. Jerry Brown. The FAA has specifically permitted hobbyists and holders of commercial Section 333 exemptions to make drone flights at altitudes up to 400 feet above ground level (AGL) for a variety of purposes. SB 142 would have made most such flights illegal if they took place in California and were below 350 feet AGL. The potential conflict was clear – SB 142 would have created civil liability for flights that the FAA has already determined to be legal (and which would continue to be legal once the sUAS rules go into effect). Had Gov. Brown not vetoed the bill, a challenge on conflicts preemption grounds would have been swift and likely successful.
In the ongoing sAUS rulemaking, several parties have asked the FAA to include an express preemption provision in the new rules. Such a provision would affirmatively state that the new federal rules are intended to preempt state laws and regulations applicable to the operation of drones. If the FAA does decide to include a preemption provision – and there is no guarantee that it will – the scope of the preemption language will be crucial. It could range from near-complete preemption to a preemption of just certain types of state regulation, such as flying height restrictions or aircraft marking requirements.
Another possible basis for a court to strike down a state or local drone law is the doctrine of field preemption. This doctrine is applied when a court concludes that (even in the absence of an express preemption provision) the federal regulatory scheme sufficiently pervades a particular subject area that it was the intent of Congress or the implementing agency for federal law to occupy the entire field and to preclude state or local action. In general, the breadth of any field preemption argument depends on the specificity and comprehensiveness of the federal regulatory scheme in question. The more specific and comprehensive the federal law or regulations, the more likely a court is to find field preemption.
Courts have to date found relatively broad, but not total, field preemption in the federal regulation of aviation. They generally acknowledge the pervasive power of the federal government to regulate aircraft safety and crew qualifications, but have recognized a more limited preemptive scope in areas such as products liability actions. It is safe to say that the strength of any field preemption argument will depend on the scope and comprehensiveness of the sUAS regulations whenever they finally go into effect.
First Amendment infringement
Numerous state and local ordinances are being introduced to address citizens’ privacy concerns and to limit private parties’ ability to use drones to capture data (often referred to in the laws as “conducting surveillance”). There is an inherent tension at all levels of government between privacy and various First Amendment freedoms, including freedom of the press and the right of individuals to gather information, as part of speech or a precursor to it. For example, in recent years, numerous courts have recognized First Amendment protection for videotaping and audio-recording police and private individuals in and around public spaces. The logic of these cases theoretically applies to data acquisition that takes place when a drone is in public airspace, even if the activity about which the data is being acquired is taking place on private property.
There are numerous examples of existing or proposed state laws that are potentially vulnerable to First Amendment challenges. One is House Bill 5 introduced in Georgia this year, which provides that “(a) It shall be illegal for a person to use an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on such individual or property.” This provision is almost certainly unconstitutional, because it imposes overly broad restrictions on fundamental First Amendment rights. It makes the violation dependent on the intent of the actor, singles out one type of technology – UAs – while permitting the use of other types of technology (e.g., ladders, manned aircraft and satellites) to “capture an image” or otherwise conduct surveillance, and does not require that the surveilled party have any, much less a reasonable, expectation of privacy.
The potential for conflicting laws and regulations will only increase over the next few years. Within that period, technological developments will enable longer and autonomous flights by sAUS. Many of these, particularly in large metropolitan areas such as New York, Chicago or Washington, D.C. that border more than one state, while be interstate flights. While the pending FAA regulations will not permit autonomous sUAS flights or flights beyond the operator’s line of sight, the FAA will inevitably revise its rules to permit such flights, probably within 3-5 years. Once the FAA rules are revised, other grounds for striking down state and local laws will come into play. For example, a state that prohibited drones with data acquisition capability (which would be all drones) from flying over private property in the state would arguably violate the Interstate Commerce Clause by imposing unjustifiable burdens not only on a wide swath of interstate commerce originating or terminating in the state, but also on substantial amounts of commerce between other states, commerce which would be burdened by not being able to take a direct route and fly over the enacting state.