On the Horizon: Domestic Drone Use and the Implications of FAA and State Regulation

Meredith Berge,[i] KLJ Staff Editor

Over the last few decades, the use of unmanned aerial vehicles, commonly referred to as “drones,” has exploded.[ii] The increase in private and commercial drone use presents significant legal implications. This post explores issues surrounding civilian drone use, Federal Aviation Administration (FAA) regulations, and state legislation in lieu of agency action, all of which are (literally) on the horizon.

For those who are less familiar with domestic drone use, here are some key facts. These unmanned, remotely operated devices can be as small as an insect[iii] and can often be controlled by a smart phone.[iv] They can also contain advanced technological systems including high-powered cameras, thermal imaging technology, and facial recognition software.[v] With such a wide range of technological options, the potential application of these devices is extremely broad.[vi] The possibilities here include mapping, agricultural practices and research, home delivery of packages, photography, journalism, real estate marketing, and hobby interests.[vii] However, the use of drones brings unique problems including collision with other objects, flying in dangerous proximity to other aircraft, and invasion into other people’s private spaces.[viii] These possibilities and complications bring legal concerns including individual privacy rights,[ix] property rights,[x] and FAA authority to govern all drone flight.[xi] With these issues in mind, lawmakers are poised to enact laws and regulations to better control these scenarios.

As a reaction to the increase in drone use, Congress passed the Federal Aviation Administration Modernization and Reform Act in 2012, ordering the FAA to promulgate rules for the domestic operation of drones.[xii] After much anticipation, the FAA released its proposed rule on February 15, 2015.[xiii] The proposed rule governs the “non-recreational” use of small drones and requires operator certification, operation only in daylight, and prohibits operations that are out of the operator’s sight.[xiv] Notably, this prohibition on out-of-sight operations halts Amazon’s highly publicized plan for drone home delivery of packages.[xv] Additionally, concern exists that the FAA, charged with safety and efficiency in the national airspace, does not have the proper expertise to deal with Fourth Amendment protections like individual privacy.[xvi]

Rather than waiting for the FAA’s rule proposal, some states have opted to pass legislation. At this point, at least nine states have passed and the vast majority of states have considered passing laws regulating the use of drones.[xvii] These laws vary widely among the states and tend to cover law enforcement use of drones, commercial uses, property rights, public safety, or some combination of these issues.[xviii] For example, Kentucky legislators have proposed a law that prohibits law enforcement drone surveillance without a warrant but allows drone use for search and rescue and for research and business purposes.[xix] While these state laws are proposed and enacted to protect citizens, there are concerns that adoption of the FAA’s proposed rule would cause preemption problems for the states that have drone laws on the books.[xx] FAA officials have “discouraged” states from continuing to pass laws on the subject so as to not upset the agency’s “unified regulatory structure.”[xxi] While the FAA stresses “virtually all drone activities affect the national airspace” and would be subject to FAA authority,[xxii] the statement begs the question: what activities are not covered and how should those flights be handled?

The comment period for this proposed rule closes April 23 and the FAA expects comments in record numbers.[xxiii] Until a time when a final rule from the FAA is promulgated or more clarity on state authority is given, practitioners and lawmakers should be cautious when approaching these issues that may be truly right outside your window

[i] University of Kentucky College of Law, J.D. Candidate 2016.

[ii] Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. Rev. 155, 157 (2015).

[iii] Hillary B. Farber, Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment, 64 Syracuse L. Rev. 1, 13 (2014)

[iv] Rule, supra note 2.

[v] Taly Matiteyahu, Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy, 48 Colum. J.L. & Soc. Probs. 265, 266-67 (2014).

[vi] Id. at 267.

[vii] Id.; Rule, supra note 2.

[viii] See Rule, supra note 2.

[ix] Matiteyahu, supra note 5, at 267.

[x] Rule, supra note 2, at 163-64.

[xi] Id. at 164-65 (questioning FAA authority to govern potentially dangerous but low-altitude drone flight).

[xii] Farber, supra note 3, at 1-2.

[xiii] Scott Shane, F.A.A. Rules Would Limit Commercial Drone Use, The New York Times (February 15, 2015), http://www.nytimes.com/2015/02/16/us/faa-rules-would-limit-commercial-drone-use.html?_r=0.

[xiv] Id.

[xv] Id.; Jimmy Hoover, FAA Official Knocks State Drone Initiatives, Law360 (Feb. 24, 2015, 2:09 PM), http://www.law360.com.ezproxy.law.uky.edu/articles/624628/faa-official-knocks-state-drone-initiatives.

[xvi] Matiteyahu, supra note 5, at 268.

[xvii] Hoover, supra note 15.

[xviii] William O’Connor, May State and Local Gov’ts Control Low-Flying Drones?, Law360 (Dec. 04, 2015, 11:33 AM), http://www.law360.com.ezproxy.law.uky.edu/articles/601469/may-state-and-local-gov-ts-control-low-flying-drones-?article_related_content=1.

[xix] Scott Wartman, Ky. Lawmakers look to limit drone surveillance, USA Today (June 18, 2014, 8:33 PM), http://www.usatoday.com/story/news/nation/2014/06/18/ky-lawmakers-look-to-limit-drone-surveillance/10817479/.

[xx] O’Connor, supra note 17.

[xxi] Hoover, supra note 15.

[xxii] Id.

[xxiii] Id.