Regulating Drones: An Analysis of State-Level Legislation in 2013

Jesse Longbrake, NAGTRI Visiting Counsel

Jesse Longbrake, NAGTRI  Visiting Counsel

Typically known for their role in combat operations in Iraq and Afghanistan, unmanned aircraft or “drones” are increasingly being considered for use in a variety of roles in the domestic sphere. Advances in data collection and analysis technology have equipped drones with a unique ability to search and survey large areas. Drones are also valuable resources for law enforcement, search and rescue efforts, and natural disaster monitoring and mitigation. Attempts by the U.S. Congress to accelerate integration of drones into the nation’s airspace, along with continuing technological advances in the industry, have made it clear that Americans can expect to see unmanned aircraft flying overhead in the near future. Although rare at the moment, the Federal Aviation Administration (FAA) predicts that over 30,000 drones will fill the nation’s skies by the year 2033.

Despite the potential benefits, increased domestic drone use does not come without its fair share of concerns. Proliferation of drone use by both public and private entities can raise privacy concerns. Further, the prospect of unmanned drones filling the skies raises safety issues. In fact, safety issues have historically prevented drones from seeing widespread use within the United States. Indeed, due to their very nature as unmanned aircraft, drones are incapable of complying with FAA flight regulations. As such, drone flight has historically required approval from the FAA on a case-by-case basis.

Recognizing the potential benefits of domestic drone use and the inefficiencies of case-by-case flight approval, Congress passed the FAA Modernization and Reform Act of 2012. This legislation requires the FAA to undertake a variety of initiatives aimed at integrating drones into the nation’s airspace by the year 2015.

The FAA Modernization Act sparked a substantial movement among state legislatures to begin addressing the issues presented by drone use in the domestic sphere. The year following the enactment of the FAA Modernization Act saw 43 state legislatures enact or propose legislation related to domestic drone use. Most of the legislation was restrictive in nature, focusing primarily on limiting private and especially governmental actors’ ability to use drones to conduct surveillance and collect data. While the operation of these data collection prohibitions will vary from state-to-state, much of the legislation included exceptions for drones to be used pursuant to a warrant and under exigent circumstances. Further, some legislation included allowances for drones to be used for data collection with the consent of the target or for purposes including counter-terrorism, search and rescue, research and development, public safety, border monitoring, and crime scene investigation. Much of the restrictive legislation also preemptively addressed the possibility of domestic use of weaponized drones by banning their creation and/or deployment.

While restrictive drone legislation was the norm in 2013, several states passed laws or resolutions aimed at enabling some aspect of domestic drone integration or proliferation. A few states created exploratory committees to study the use of drones and work toward developing state policy for drone use. Some states went a bit father and appropriated funds for state-run drone programs. Additionally, a substantial movement in enabling drone use was the competition among the states for designation as an FAA drone integration test site. Twenty-four states filed applications with the FAA to be chosen as a location for one of the FAA’s six drone integration test sites. Ultimately, the FAA chose locations in Alaska, Nevada, New York, North Dakota, Texas, and Virginia.

All told, nine states passed restrictive drone legislation in the first year after the enactment of the FAA Modernization Act. Eight states enacted enabling legislation during the same time period. But perhaps most tellingly, 33 states proposed restrictive legislation that may still work its way through the legislative process. Clearly, domestic drone regulation is a rapidly-developing area of law. As the FAA continues to develop and implement regulations aimed at integrating drones into the domestic airspace, state legislatures will continue to direct attention to their use. Further, the legislation discussed throughout the full 25-page report available here may serve as a model for jurisdictions which have not yet addressed the issue or seek to amend established legislation.

The full report provides an in-depth look at this first wave of state-level drone legislation. It begins by providing background on drones in general, the federal regulations governing drones, and the developments which have placed the United States on the verge of a major proliferation in domestic drone use. The report then summarizes the drone laws that were introduced and passed in 2013 and identifies trends among those laws.

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