Commentary – It’s getting more and more complicated to figure out how to fly a drone without getting arrested. Connecticut mulls legislation prohibiting drones mounted with flamethrowers, and Utah contemplates allowing officers to shoot down rogue drones. New drone legislation proposals are brought to state houses and city councils every day: and drone operators are left to wonder what may happen when they fly over a state line or into another county. But how many of these proposals actually pass, and what is the real effect on drone operators?
The National Congress of State Legislators (NCSL) says that 45 states considered 168 pieces of drone legislation in 2015. During the 2016 legislative session, at least 35 states have considered drone laws. But of the 45 states that talked about, discussed, reviewed, argued and (sometimes) voted on drone laws in 2015, only 20 states actually passed 26 pieces of drone legislation, and 5 states “adopted resolutions,” which means that the states agreed to form a committee to think about them.
What Do State Drone Laws Do?
The overwhelming majority of state drone laws fall into three categories: protecting the privacy of individuals, prohibiting drone use for hunting, and limiting drone use by law enforcement. Other laws create drone commissions, restrict the use of drones in certain industries, or address common sense misuse such as flying over prisons or fireworks displays – often in laws redundant to existing federal guidelines.
While the laws that have actually passed may seem reasonable – does anyone really need to be told that flying directly over a fireworks display is a bad idea? – those pertaining to privacy could have a big impact on drone operators: if the interpretation of the law is that you are not allowed to fly your drone over private property not belonging to you, your flight options are limited to your own back yard, if you have one, or parks and public places. If the privacy legislation also prevents you from using a camera on your drone and capturing images of any people you don’t know, you’ll have to stay away from parks and public places. If you happen to live on a third floor apartment, that doesn’t leave you many options.
Can the States Enforce Drone Laws?
The argument over whether local governments may pass drone legislation at all is ongoing. In December, the FAA issued a Fact Sheet asserting their ultimate authority over drone regulations. In it, the FAA states that the federal government has granted them the authority to pass laws regulating the national airspace, and emphasizes the safety issues that may arise when state laws come in conflict with federal regulations:
Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.
But state lawmakers have taken exception to the FAA’s claim, and continue to enact laws at a local level – as the FAA continues to lag behind on publishing national regulations.
The New York Times reported at the end of last year on the escalating conflict between state lawmakers and the FAA:
Ted Gaines, a Republican state senator in California who recently announced he would reintroduce drone bills that had been vetoed by the governor in September, said he took issue with the F.A.A.’s message of control. “We are a nation under the threat of terrorism, and the risks to our citizens and to our children are only greater with hundreds of thousands of these drones expected to be sold during the holidays,” Mr. Gaines said.
Federal rules on recreational drone registration, he added, were too weak…“Tell me how a registration system resolves the illegal use of drones? There is such a vacuum on practical ways to address safety.”
On the opposing side of the argument is the drone industry, who fear that as states begin to pass their own laws, a confusing framework will make it more difficult to establish commercial drone applications on a national level. Drone delivery, for example, would be almost impossible if each state had different regulations on appropriate flight paths.
But while the argument remains unresolved, drone operators must beware: local law enforcement can enforce local laws, and knowing the regulations may mean the difference between a fun outing with your drone and a major hassle. An understanding of local laws and a federal registration might save trouble: law enforcement can stop and question operators whose drones are not marked with registration numbers.
Which States Have Drone Laws?
Arkansas, California, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Michigan, Mississippi, Nevada, New Hampshire, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Virginia and West Virginia have passed drone laws; the AUVSI Advocacy group offers an interactive map of state drone laws, detailing each state’s regulatory environment.
Unfortunately, state laws are only the tip of the iceberg: city councils have gotten in on the act also, and are passing localized drone laws as fast as they can. Cities often have restrictions on where you can fly; towns and counties sometimes enact special penalties for “peeping tom” use or trespassing. Tourist destinations tend to prohibit drones over parades and festivals – and then of course, there is Disney, with a whole page of restrictions all its own. (In short, don’t bother. Disney only allows its own drones in the park.)
The conflict between federal and state regulations will continue to rage on until the FAA completes clear drone regulations that serve to soothe the public’s fears over privacy and does sufficient research to bring the reality of drone danger down to size. While the 2016 FAA Reauthorization Act (the AIRR Act) called for an examination of privacy issues surrounding drones, it’s too late to form another committee and wait another year before bringing proposals to the public. Federal drone regulation needs to be clear, concise, and current so that it’s easy to fly a drone without getting arrested.