[UPDATE: Please note correct coauthors, Michael Berry and Nabiha Syed — I originally erroneously posted this under the wrong name; my apologies.-EV]
Federal, state, and local governments are actively considering how to regulate domestic drone use. We will explore the history of this regulation, the current regulatory landscape, and some of the existing laws enacted by states in future posts. This post describes the philosophical approaches to drone regulation.
As policymakers consider drone regulation – particularly with respect to privacy and safety – the possible fields of regulation fall into five principal realms: operators, flight, purpose, property and surreptitious use. Some of these categories face practical difficulties, while others present constitutional issues. Nevertheless, these five fields offer a framework to help make sense of the legislation and regulation emerging around the use of drones.
Regulating Who Can Fly
Regulators might permit only certain people or entities to fly drones. As is the case with cars, planes, and helicopters, regulations might provide that only people with a valid, government-issued license can fly a drone. For example, North Carolina recently enacted a law mandating a drone-license, and the FAA already has a system for providing certifications and exemptions to authorize government agencies and some private actors to fly drones. More broadly, policies might permit only certain classes of people or entities to fly drones. It is conceivable that some laws might allow private entities to use drones, but not law enforcement entities — or vice versa. For example, Virginia has imposed a moratorium on law enforcement use of drones.
Regulating The Flight Of Drones
Governments might regulate the flight of drones. As First Amendment lawyers, we think of this category as “time, place, and manner” regulations. With respect to “time,” it is possible that regulations will limit drone-flight to certain times of day. For instance the FAA’s Roadmap for integrating drones (a report formally titled “Integration of Civil Unmanned Aircraft Systems in National Airspace System Roadmap”) suggests that its initial proposed regulations of small drones will permit drones to fly only during daylight.
Regulations also will limit where drones fly. Some of those regulations will impose permanent restrictions, while others might be temporary. Like planes and helicopters, drones will not be permitted in restricted airspace. (In fact, the FAA already is informing drone operators that they cannot operate in certain airspace, like this past Saturday’s football game at the University of Michigan.) Historically, the FAA has asked hobbyists to fly model airplanes away from congested areas. Some have suggested that guidance should become the law for drones generally. Some laws already restrict drones from flying over certain kinds of property. For example, an ordinance in Conoy Township, Pa., provides that flying a drone over someone else’s property is a summary offense. Other laws impose restrictions based on how high a drone flies. The FAA asks hobbyists to fly their model airplanes under 400 feet, while Oregon has enacted legislation giving landowners a possible cause of action if someone flies a drone over their property below 400 feet.
The law also might regulate the manner in which drones are flown. Regulators might require small drones to be flown within visual line-of-sight, meaning an operator must be able to physically see her drone as it flies — a position the FAA already has suggested it will implement. And, laws will almost certainly forbid drones from being flown recklessly. Indeed, the FAA has taken the position that it already has the authority to punish reckless drone flight.
Regulating Based On Purpose Of The Flight
Some policies have sought to place limits on drones based on their intended use. For instance, the FAA has long taken the position that drones cannot be used for commercial purposes without specific authorization, but hobbyists are free to use them. State legislatures have debated when government entities can use drones, with some states imposing limits on government agencies’ and law enforcement authorities’ ability to use them. Other states have sought to curtail private use of drones by permitting them to be used only for certain purposes, like selling houses or monitoring utilities. Still others are considering legislation that would prevent drones from being used by hunters or, alternatively by people to interfere with hunting.
Regulating Recording Based On The Property Involved
In considering regulations on drone filming or photography, one approach might be to regulate drones’ ability to record images based on the property involved, treating different kinds of property differently. One possibility – drawing on a well-established body of tort and criminal law – is to restrict drones from recording people in places where they have a reasonable expectation of privacy. Alternatively, they might allow recording in certain areas or certain kinds of property, but not others. Some states have sought to distinguish between recording over public and private property. Or, regulators might protect certain kinds of property. For example, Louisiana restricts the ability to record or photograph “targeted facilities,” such as nuclear power plants and gas refineries. Texas, meanwhile, has adopted a number of limits on where drones can record, but allows them to record anywhere within 25 miles of the Mexican border.
Regulating Surreptitious Use
Policymakers might seek to restrict the surreptitious use of drones. They might try to accomplish this objective by requiring drone operators to obtain consent before flying over private property or filming someone. Alternatively, drone operators might be required to provide advance notice of where they are flying or filming. Or, governments might require drones to be made more visible by requiring them to be certain colors or sizes. In addition, there have been calls for regulation that requires technology or some other system that identifies who owns and is operating a drone.
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Which of these areas policymakers choose to regulate and how they choose to regulate within those areas will have significant ramifications for drone operations and the future of the drone industry. The policy questions are complex. For legislators and regulators, the answers have not come easily. Tomorrow, we will survey the history of the FAA’s piecemeal policy-making on drones, a history that has left many issues unresolved for far too long. We also will explain some of the recent regulatory developments at the FAA and the resulting lawsuits.