The Crazy Quilt of Drone Laws and the Impending Constitutional Showdown

Posted On September 14, 2015

The Crazy Quilt of Drone Laws and the Impending Constitutional Showdown

With each passing day, it seems that we are confronted with yet another story of a drone (or “Unmanned Aircraft System” as the pros call them) being used for something amazing and something frightening. Be it constructing buildings through 3D-printing drones or spying on sunbathing beauties, the use of drones appears to be limited only by the imagination. However, there is another limiting force on the horizon—state and federal regulations.

Although privacy and law-enforcement abuses were the original impetus for many of the drone statutes enacted by the states, the regulation of drones has expanded over the past few years. The various, and often creative, regulatory efforts by the states are often surprising, and they represent the unique concerns of their citizens.

For example, Texas law makes it illegal for a person to use a drone to intentionally conduct “surveillance” of a person or property without consent. What surveillance means in this statute is unclear. However, Texas law specifically allows such surveillance within 25 miles of the Mexican border. North Dakota has a similar provision aimed at the Canadians. In Tennessee, it is illegal to use a drone to interfere with lawful hunting (i.e., disturbing hunted animals, harassing hunters, and videoing hunters and fishermen without consent). Apparently, animal-rights activists were finding drones useful for more than just spying on their neighbors, and the good people of Tennessee took action to protect what is important to them—the hunters. In North Dakota, law enforcement agencies are allowed to use drone’s equipped with nonlethal weapons. Early versions of that law prohibited both lethal and nonlethal weapons, including firearms, pepper spray, bean bag guns, and sound-based weapons. However, those provisions were not in the final version of the law. Thus, being pepper-sprayed or even “tased from above” may be in the future for some unruly North Dakotans. (Can lethal weapons be too far away? Although California was the home base of “Cyberdyne Systems” in the Terminator movies, perhaps they should be rewritten with a focus on North Dakota—scary.)

Some states have even jumped directly into the Federal Aviation Administration’s traditional role. North Carolina law prohibits operation of a drone for commercial purposes unless the operator has a license issued by the North Carolina Division of Aviation. To get a license, North Carolina requires the operator to be 18 years of age, to pass a knowledge and skills test, and to have a valid driver’s license. North Carolina even attempts to regulate the marking of drones operated in the State and the area in which a drone may be flown.

Despite the many state efforts to control drones, these efforts may eventually meet their match—the U.S. Constitution. Controls on “surveillance” of persons or property and restrictions on the distribution of such images to third parties may violate First-Amendment protections regarding freedom of speech and freedom of the press. Additionally, state efforts to control pilot qualifications, limits on access to the airspace above the states, and regulation of aircraft characteristics implicate lesser-appreciated Constitutional limits on state powers. Article 6 of the Constitution establishes that “This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This means that federal law reigns supreme regarding certain subjects, and state laws directed at those subjects are barred. This is known as the doctrine of “federal preemption.”

Pursuant to the Federal Aviation Act of 1958, Congress announced that “the United States Government has exclusive sovereignty of airspace of the United States.” And, the Federal Aviation Administration was established to create a unified system of regulations governing aviation. The fear was that a “crazy quilt” of state laws would hamper the development of the industry. In the years that followed, the FAA fulfilled its charge, creating a comprehensive system of regulations focused on the safe operation of traditional aircraft. However, the times are changing. Most recently, the FAA Modernization and Reform Act of 2012 inserted drones into the equation, requiring the FAA to “develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.” That effort is currently underway. But like most bureaucratic processes, it takes time. During that time, the states have jumped in and tried to fill the gap with their own laws. The result has been a new, crazy quilt of drone laws.

The FAA’s currently-proposed regulations explicitly cover a number of areas that some states have already tried to address including pilot/operator certification, airspace/geographic operating areas, and aircraft equipment and markings. It remains to be seen whether state laws on those subjects and the other, less-conventional subjects, will stand up to Constitutional challenge. It is likely that many will fall. And the crazy quilt of state drone laws will start to unravel. As it currently stands, most drone flights do not cross state borders and few commercial-off-the-shelf civilian drones are capable flying for extended periods of time. However, as the industry progresses, this will change, and a cohesive, nationwide system of drone regulations will be key to taking this important technology to the next level.   It may be in everyone’s best interests for the states to slow down to avoid unnecessary Constitutional battles and to prevent the crazy quilt from smothering the industry.

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