The existing legal landscape for drone use reflects a crazy quilt of regulations, policy pronouncements and state laws, with many significant pieces missing. To introduce some structure into the conversation and explain the current state of the law, we’ll lay out each of the three sources of existing domestic drone regulation in this post and in our forthcoming posts:
- Federal policy, including FAA regulations, federal legislation, and recent litigation;
- State legislation focused on private drone use; and
- Laws of general applicability that affect private drone use.
Any summary of drone regulation must begin with the Federal Aviation Administration. Safety is central to the FAA’s existence. The agency was established in 1958 when Congress enacted the Federal Aviation Act, which tasked the agency with “develop[ing] plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” The 1958 Act was passed in the aftermath of a tragic midair collision between a Trans World Airlines Super Constellation and a United Air Lines DC-7 over the Grand Canyon, which killed all 128 people on board the planes.
In keeping with its mandate, the FAA began implementing rules to help aircraft safely navigate the skies. Simultaneously, people began to build and use model airplanes as a hobby. With this hobby literally taking off, in 1981 the FAA issued Advisory Circular 91-57 to promote the safe use of model airplanes. That Advisory Circular asks hobbyists to avoid flying their model airplanes above 400 feet; within three miles of airports; and near full-scale aircraft, populated areas, or noise-sensitive places such as parks, schools, hospitals, and churches. Importantly, the Advisory Circular called for hobbyists’ voluntary compliance. It was not promulgated as a formal FAA rule — and for nearly a quarter century, it stood as the FAA’s only guidance on small unmanned aircraft.
In 2005, as drone technology began to enter the domestic marketplace, the FAA issued a memorandum outlining an interim policy for approving drones for domestic use. That memorandum stated that drone operators would “be held accountable for controlling [their] aircraft to the same responsible standard as the pilot of a manned aircraft” and explained that the FAA’s regulation concerning careless and reckless operation of an aircraft applied to drones.
Two years later, the FAA issued a new policy statement. That statement provided that “no person may operate a UAS [Unmanned Aircraft System] in the National Airspace without specific authority.” The FAA explained that the 1981 Advisory Circular allowed drones to be flown by hobbyists. But, the FAA warned, that Circular “only applies to modelers and thus specifically excludes its use by persons or companies for business purposes.” Should private companies wish to fly in domestic airspace, they must seek a “special airworthiness certificate.”Likewise, if public entities, including government agencies and public universities, would like to use drones, they must obtain a “certificate of authorization.”
In the ensuring years, very few special airworthiness certificates have been issued to private companies, with most being given to defense contractors. Obtaining a certificate requires a rigorous showing of how the drone system is designed and constructed, including software development, control, and quality-assurance procedures. In general, neither the certificates of authorization nor the special airworthiness certificates are broad grants of permission: almost all are granted narrowly for specific times, locations, and operations.
Although the 2007 policy statement indicated that the FAA would undertake a safety review of drones and provide new rules as a result, no rules were ever proposed.
Frustrated by the FAA’s delay in promulgating comprehensive regulations, and recognizing the growing demand to use this technology, in 2012, Congress enacted the FAA Modernization and Reform Act (“FMRA”). The Act requires the FAA to devise a “comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace” by September 2015. This plan must address public, civil, and commercial use of drones of all sizes, including those drones that are of the greatest interest to most people, including journalists — “small” drones, a category that encompasses any drone under 55 pounds. The Act mandates a series of deadlines to be met by the FAA.
The agency has missed many of FMRA’s key deadlines. Last fall, the FAA belatedly issued a “Roadmap” for future regulations and a “Comprehensive Plan” for integrating drones into the national airspace. The FAA also named six drone test sites, which will serve as laboratories to assist in developing drone policies and technologies. At those sites, people will have the opportunity to conduct regional, weather, and purpose-specific research into how drones operate, with each site having a slightly different focus. Each of those sites is now operational.
When the FAA announced the six test sites, it also issued privacy requirements for the sites. These requirements offered the FAA its first opportunity to wade into the privacy issues raised by drones. Many people submitted comments in anticipation of this development, with the comments ranging from calls for strict privacy regulations to contentions that nothing was needed because existing privacy laws were sufficient. At the end of the day, the FAA said its mission was safety and that it would not be “taking specific views on whether or how the federal government should regulate privacy or the scope of data that can be collected by” drones. Instead, the agency said that each site should issue its own policies and that operators must comply with local privacy laws. The FAA also said that if drone operations at the test sites “raise privacy concerns that are not adequately addressed by the Test Site’s privacy policies, elected officials can weigh the benefits and costs of additional privacy laws or regulations.”
Privacy concerns have, unsurprisingly, captured the eye of elected federal officials. Several drone-related bills are pending in Congress. For example, the Preserving American Privacy Act would prohibit private drone operators from capturing data in “highly offensive” ways that would violate a reasonable expectation of privacy. Similarly, the Drone Aircraft Privacy and Transparency Act would require operators to submit a “data collection statement” to the FAA, delineating, among other things, what data will be collected, how the data will be used and retained, and whether the data would be sold to third parties. There also have been reports of plans to issue an executive order regarding privacy that would task the National Telecommunications and Information Administration with creating privacy guidelines for commercial drones.
To date, the FAA still has not promulgated proposed rules on small drones. Originally slated for release in March 2011, a series of “unanticipated issues requiring further analysis” have pushed out the release date to Dec. 22, 2014.
In the absence of formal rules, FAA enforcement has largely relied on the Advisory Circular on model aircraft, the 2005 memorandum, and the 2007 policy statement for its authority. For years, it has issued cease-and-desist letters to people and entities using drones domestically. Those letters reflect the FAA’s position that drones cannot be used for commercial purposes and that domestic drone operators must have one of the two certificates to fly. In issuing the letters, the FAA has grounded a wide array of drone operations, ranging from dry cleaners in Philadelphia to the Washington Nationals baseball team, and from journalism schools to an agricultural school. Interestingly, the FAA has construed news gathering to be a “commercial use,” sending cease-and-desist letters to media companies that have used drones in their reporting.
The gaps and delays in regulation have not gone unnoticed, nor have the FAA’s cease-and-desist letters and its other enforcement efforts. Rather, each has precipitated lawsuits. We will review those lawsuits and other recent developments at the federal level in our next post.