Drones Buzz State Capitols With Mixed Results

The word “drone” brings to mind the nearly silent, high-speed pilotless weapon system whose creators know as the MQ-1 Predator and MQ-9 Reaper. These live up to their pugnacious names, as the former can deliver two AGM-114 Hellfire missiles and the latter, 14 Hellfire missiles or four Hellfire missiles and two 500 lb GBU-12 Paveway II laser-guided bombs or one 500 lb GBU-38 Joint Direct Attack Munition. Estimates of the numbers of drone victims in theaters of war such as Pakistan and Yemen in the period from 2004 to 2011 vary widely.

The military drone, presumably disarmed, is rapidly being deployed in the US by the government for surveillance uses such as border enforcement as well as scientific studies and the monitoring of large forest fires. However, even if these aircraft are envisioned simply as flying cameras, the anxiety over their use has caused immense concerns in federal and state law enforcement circles.

The Federal Aviation Administration has control over civilian deployment of drones in the US. Simply put, the FAA has had, since its creation, control of all civilian aircraft. And drones (or unmanned aircraft systems in bureaucratic parlance) have been defined as “aircraft” since 2007. (See “Unmanned Aircraft Operations in the National Airspace System,” Docket 5 o. FAA­2006­25714, 72 Fed. Reg. 29 at 6689 (Feb. 13, 2007))

This total control is illustrated by the strange tale of Raphael Pirker. (Huerta v. Pirker, No. CP­217 (NTSB, 2013)) In 2011, Pirker remotely guided a camera-eqipped Ritewing Zephyr powered glider over the University of Virginia campus. Pirker was under contract to an advertising agency for the provision of campus photos.

The glider was a radio-control model airplane made of styrofoam which weighed four and a half pounds. The glider is available on the internet for $129.99.

More to the point, under FAA regulations,the glider was clearly an unmanned aircraft system being operated for commercial purpose without proper FAA permits.

Pirker allegedly buzzed the campus below tree-top level, flew through a tunnel containing moving cars, within 15 feet of a statute, within 50 feet of railway tracks, within 25 feet of various campus buildings, and straight at one building, narrowly avoiding a collision by pulling up abruptly.

Pirker was busted for a violation of a FAA statute and regulation which requires safe operation of an commercial aircraft. (49 U.S.C. § 44701(a)(5); 14 C.F.R. § 91.13) He could take little consolation in the fact that these laws do not apply to properly licensed moored balloons, kites, unmanned rockets, unmanned free balloons, and ultralight vehicles, whose operation is governed by other FAA provisions. At the present time, absent Pirker’s tenuous arguments about Congressional intent regarding the scope of the term “aircraft”, his Ritewing Zephyr will remain grounded for the indefinite future.

What’s true for the Ritewing Zephyr is as true for the Predator and Reaper. Unless the testing of an unmanned aerial vehicle is licensed and approved by the FAA, it is simply prohibited within the US. There will be no legal book, pizza, or beer deliveries by air in the near future.

In view of the seemingly exclusive domination of drone control by the FAA, it is somewhat surprising to learn that nine states have enacted drone legislation. This excludes forms of legislative inaction, such as Alaska’ formation of a task force on the issue or North Carolina’s or Virginia’s modest legislation requireing a moratorium on state and local use of unmanned aircraft systems until July 1, 2015.

Florida’s statute, the “Freedom from Unwarranted Surveillance Act”, requires a warrant or emergency for such surveillance, as do the laws of Idaho, Tennessee, Illinois, Montana and Oregon. Similar legislation in Maine and New Jersey was vetoed.

Generally, state drone legislation is restricted to usage of drones for law enforcement and requires a warrant or an emergency for legal surveillance. An outlier approach was the rejected Montana bill barring law enforcement agencies from arming drones with antipersonnel weapons

A more serious expansion of legislation on the topic was Texas legislation to authorize civilian uses for enterprises such as academic research and utilities. The other extreme is represented by Idaho’s requirement of permission to photograph land or individuals without consent.

A California bill for 2014, AB 1327, points the way for the future, although it begins with the now-standard warrant requirement. It includes a ban on weapons carried by law enforcement drones. Images validly obtained are public records, but are to be destroyed unless retained for criminal investigation or civil litigation.

The California bill explicitly recognizes the primacy of Federal law in the area and yet provides that a local legislative body may adopt more restrictive policies on the acquisition or use of unmanned aircraft systems. Thus, even the city of Berkeley will have policy responsibility for drones.

In a reversal of the standard dictum, Federal drone policy is general, and state and local law is interstitial. However, the principal theme in state legislation, the warrant requirement, is in fact no more variant from federal law than the whole field of search and seizure. The area of civilian use of drones and concomitant individual rights of those being watched which will ultimately be the most fertile area of state legislation.

AFTERWORD:
In a stunning defeat for FAA regulation, an administrative judge ruled on March 6, 2014, that Pirker’s drone was a “model aircraft” which was subject only to voluntary compliance with FAA rules and regulations. Therefore, the FAA cannot regulate drones through mandatory compliance measures, including fines. Heurta v. Pirker, NTSB Docket No. CP-217. Thus, unless overturned, the FAA must obtain Congressional approval of its jurisdiction over drones. The ruling would not affect state attempts to regulate drones.

More by | James Ching James Ching , Law.com Contributor
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