Q. How are states regulating the use of drones?
Although the FAA regulates what is referred to as the national airspace system, a number of states have stepped up to address what they see as lacunae in the federal regulations. In particular, the use of drones for law enforcement is a matter left up to the states, and some states are deciding that the federal laws on safety and privacy do not go far enough and that they want to augment the national-level regulations.
Much as the federal regulations on drones continue to evolve in response to the emerging technology, so too are states trying to adapt to that changing technological landscape. In 2015, 45 different states debated 156 bills dealing with drone operations. Of these, 19 passed legislation and four passed resolutions, in some cases to require a study that would better understand the safety and security of using drones. Much like cell-phone-while-driving rules, many drone rules are state-specific, some are more restrictive than the federal regulations, and almost all likely to change over time. Generally, the categories of state regulations for the use of drones are as follows: 1) no additional prohibitions beyond the federal (FAA) prohibitions; 2) state laws that ban drones by private citizens;
- 3) state laws that ban the use of drones by law enforcement;
- 4) state laws that ban the use of drones by both private citizens and law enforcement.
Idaho has been the most restrictive state with its drone regulations. It is the only state that has a law restricting use by both private citizens and law enforcement and prohibiting the use of drones "to photograph or otherwise record an individual, without such individual's written consent, for the purpose of publishing or otherwise publicly disseminating such photograph or recording." It is a law that analysts at the influential Volokh Conspiracy legal blog asserted would "undoubtedly face constitutional challenges if enforced."78 Even the ACLU concurred that Idaho's law "may violate the First Amendment by prohibiting photography or recording by drones if an individual will profit from the recording or image."79 The ACLU goes on to say that the law would preclude a local news station to conduct a traffic report via drone "absent written consent of everyone on the road," which obviously is not required of traffic reports involving helicopters, which are frequently used to produce traffic reports.80
A number of states also prohibit drones by law enforcement agencies. Virginia was the first state to pass a moratorium on law enforcement drones in 2013, although by 2015 the two-year moratorium had expired and a law replaced the moratorium, allowing drones for law enforcement but only after police have acquired a warrant. Idaho, Florida, Illinois, Montana, Oregon, and Tennessee lawmakers had followed Virginia's initial antilaw enforcement drone move, with Florida passing a "Freedom from Unwarranted Surveillance Act" as to directly signal their opposition to the use of drones for surveillance.81 The legislation mirrors the United States House of Representatives' bill, "Preserving Freedom from Unwarranted Surveillance Act of 2013," which would protect individuals against "unwarranted governmental intrusion through the use of unmanned aerial vehicles commonly called drones." The only exceptions are for those with permits, although exceptions can also occur if the Department of Homeland Security claims the presence of a terrorist threat or if there are circumstances in which "swift action" must be taken to save a life.
Many of the other states' regulations reflect cultural and political peculiarities. For example, Texas' law "is designed to protect oil pipelines from being photographed by environmentalists while allowing law enforcement agencies to do surveillance of citizens based on a legal standard that's only one step from a hunch." It also allows real estate brokers to use drones for marketing, specifically authorizes the collection of images for scholarly research, and allows surveillance on property within 25 miles of the United States border "with the consent of the individual who owns or lawfully occupies the real property captured in the image."82 Arkansas prohibits the use of drones for voyeurism, and Mississippi designates the use of drones for "peeping Tom" activities as a felony. Arizona's legislation offers protection just for US citizens (as opposed to immigrants) against surveillance. Georgia, which has promoted the aerospace and in particular the drone industry in its state, and hosted the International Conference on Unmanned Aircraft Systems in 2013, has sought to make the state drone-friendly. As a top-five aerospace employer in 2012 eyeing the potential $10 billion drone industry with the burgeoning commercial sector, Georgia has worked to sidestep regulations that might be seen as anything but friendly to drones.83 It passed a resolution in 2015 that established a House committee study on the safe use of drones to better incorporate and encourage drones in the state.
As the American Civil Liberties Union concludes in its analysis of state-1 evel regulations on drones, "the legislative and public debate over drones is just getting started." A number of states currently have proposals in discussion, or have passed initial legislation, and have stopgap measures in place as they come to terms with implications of widespread drone usage and develop longer-term policies.84