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It's a Bird. It's a Plane. No, It's a Drone! State Statutes Now in Place

Hedda Litwin, NAAG Cybercrime Counsel
Two airline pilots preparing to land their jumbo jets on the same day last May, one at Los Angeles International Airport in California and the other at LaGuardia Airport in New York, radioed their control towers to report rogue drones nearby.[1]  These were not isolated incidents; 15 such incidents of drones flying dangerously close to passenger planes or airports have been reported to the Federal Aviation Administration (FAA). The risk of mid-air collisions is even more alarming, with more than 50 such near misses recorded in a National Aeronautics and Space Administration (NASA) database and reported by The Washington Post.[2]

            There is no doubt that unmanned aircraft systems (UAS), commonly known as drones, hold vast potential for both commercial and law enforcement use. In 2012 Congress passed the Federal Aviation Administration and Reform Act requiring the FAA to integrate UAS into the national airspace by September 2015.  In November 2013, the FAA released its first annual roadmap for doing so, and in July of last year, the FAA consolidated all current regulations in preparation for a final integration.  Meanwhile, the rise of drone incidents still poses an increasing threat to the flying public.

            In the absence of federal regulation, 35 states considered UAS legislation in 2014, and 20 states to date have enacted new statutes. Issues addressed by the legislatures include the definition of a drone; how they can be used by law enforcement or other state entities; how they can be used by the general public; privacy concerns; and the potential economic impact. This article, then, will examine some of these legislative efforts.    

            Many of the state UAS laws have focused on privacy, proscribing who, when and where drones can photograph or film.  For example, the Texas Privacy Act (HB 912), which became effective on Sept. 1, 2013, established two new crimes: the illegal use of an unmanned aircraft to capture images and the possession or distribution of those images as class C misdemeanors. The law defines image as any sound wave; thermal, ultraviolet, visible light or other electromagnetic waves; odor or other conditions existing on property or an individual located on property. The law also designates 19 lawful uses for unmanned aircraft, including their use in connection with a valid search warrant.

            Likewise, Tennessee enacted two laws last year following the same model. SB 1892 made it a Class C misdemeanor to use UAS to intentionally conduct surveillance of an individual or their property, or to possess those images. The law also makes it a Class B misdemeanor if those images are distributed or otherwise used.  As does the Texas law, the Tennessee legislation established lawful uses of drones, including their use in professional or scholarly research. The second law, SB 1777, makes it a separate Class C misdemeanor to conduct surveillance of people hunting or fishing without their consent.

            Idaho's law (SB 1134) goes a step further. In addition to prohibiting the photographing or recording of an individual, it provides for a civil cause of action against the person, entity or state agency conducting such surveillance, allowing recovery of either $1,000 in statutory damages or actual damages, whichever is greater, in addition to costs and attorney's fees.

            Other state legislatures have focused on regulating where drones are permitted to operate. For example, Oregon enacted a law (HB 2710) providing for injunctive relief for a property owner if a drone operator flies the drone less than 400 feet above the owner's property, has been told the owner does not consent to flying over the property and the drone flies again less than 400 feet above the property. The law also allows the attorney general to bring an action for relief alleging nuisance or trespass arising from the operation of a drone in the airspace over the state. Further, the law places limits on a law enforcement agency's operation of a drone, authorizing use only if 1) a warrant proscribing drone use is issued; 2) the agency has probable cause to believe a crime will be committed before an agency can obtain such a warrant; or 3) the drone will be used to track an individual fleeing the scene of a crime.                          

            Other states enacting legislation regulating UAS are Alaska, Florida, Illinois, Indiana, Iowa, Louisiana, Montana, North Carolina, Utah and Wisconsin.  In addition, states enacting legislation appropriating funds or establishing committees in furtherance of drone programs are Hawaii, Maryland, North Dakota and Ohio.

            As the UAS industry continues to advance, we also note very few courts have grappled with drone technology. One notable issue still left dangling, for example, is the application of the Fourth Amendment to UAS technology. Perhaps the closest case would be Florida v. Riley, 488 U.S. 445 (1989), in which the U.S. Supreme Court concluded that the Fourth Amendment does not require police traveling in the public airways at an altitude of 400 feet to obtain a warrant to observe what is visible to the naked eye.

We shall await further word from both the FAA and the courts.

[1] "Close Encounters with Small Drones on Rise," Washington Post Investigative Report, June 23, 2014.

[2] Ibid.



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