249 Grams—the Magic Number?

DJI’s newest drone, the Mavic Mini, weighs in at 249 grams. It fits in the palm of your hand and is not much bigger than a cell phone.  Despite its size, it is no toy, but has remarkably high-quality video capability.  DJI is marketing its weight prominently, even featuring the number on the drone body itself.  So what’s the big deal with 249 grams?

Well, it turns out that the FAA only requires users to register drones that weigh more than 250 grams—see 14 CFR 48.15.  So technically, a recreational user of a Mavic Mini does not need to comply with the FAA’s drone registration requirements.  Of course, any commercial use needs to comply with Part 107 regardless of drone weight.  But if drone technology develops such that sophisticated drones like the Mavic Mini are marketed as ways to avoid regulatory compliance, that would not be a helpful development.   

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Update on the (Slowly) Developing Preemption Landscape

As we have discussed in previous posts (Local Drone Regulations and Possible Federal Preemption and Federal Case Declared Local Ordinance Illegal), the law is unclear as to the line which local government may not cross in regulating drone use before being preempted by federal authority. The legal landscape of preemption issues related to local drone regulations continues to slowly expand with a new unreported case from California’s First District Court of Appeal, Foletta v. Ellis

This case arises from a dispute between neighbors and only briefly touches on the issue of preemption. After Foletta reported Ellis to county authorities for engaging in unlicensed commercial activity, it is alleged that Ellis began a series of harassing behaviors including, playing loud music on a daily basis, lurking around the edges of his neighbor’s property, firing an orchard cannon, and flying a drone at Foletta approximately 6-10 feet over his head. Foletta obtained a restraining order against Ellis which, in part, prohibited Ellis from flying drones over Foletta’s property. 

Ellis challenged the order, arguing that it was “invalid to the extent it prohibits him from flying drones . . . over the Foletta property because airspace use is governed by the FAA.”  The court evaluated “whether the federal government’s regulation of airspace generally is intended to preempt the authority of states to regulate harassment that involves airspace” and found that it did not. 

While Foletta v. Ellis is an unreported case and certainly not the end of the preemption question, it is the second case that aligns with FAA guidance that state and local actions related to police power generally are not preempted by federal regulations. 

We will continue to watch this issue as more state and local governments adopt drone regulations, and those regulations are challenged.

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Further Delay of the FAA’s Remote Identification Rulemaking

A fundamental and practical problem in regulating drone use is that the operator is remote from the drone. If a drone operator is violating Federal regulations, it is difficult if not impossible to locate the person flying the drone and hold them accountable. One potential solution is to require a drone to broadcast its identifying information to assist law enforcement and the FAA in enforcement activities. This is known as “remote identification.” 

In its August 2019 Significant Rulemakings Report, the FAA indicated that it will further delay its long-awaited Remote Identification of Unmanned Aircraft Systems Rulemaking to December of 2019. 

According to the FAA, the rulemaking “would implement system(s) for the remote identification of certain unmanned aircraft systems. The remote identification of unmanned aircraft systems in the national airspace system would further address security and law enforcement concerns regarding the further integration of these aircraft into the national airspace while also enabling greater operational capabilities by these same aircraft.”

This delay may also implicate other important FAA rulemakings.  In the February 13, 2019 Notice of Proposed Rulemaking regarding the Operation of Small Unmanned Aircraft Systems Over People, the FAA noted that it intended to finalize its policy regarding remote identification of small UAS before finalizing the rulemaking addressing flight over people.

This news is also bound to irk Washington lawmakers who, in July of 2019, wrote a letter to Secretary Chao, Acting Administrator Elwell, and Acting Director Vought register their concern at the delay in issuing the remote identification rulemaking. Lawmakers noted the “failure to complete this effort poses serious risks to the National Airspace System, its users, and the Nation’s most critical and sensitive facilities and assets.” 

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Anti-Drone Technologies

A drone flies over a water tank (or a bridge,  a power plant, a baseball stadium, an airport…the possibilities are endless). Even assuming that the local government agency with jurisdiction over the water tank has restricted drone flight, how is it to enforce such a restriction? An agency seeking to enforce its drone restrictions could shoot down the drone—or employ a technological solution to capture, disable, or destroy the drone.  But otherwise, it is close to helpless if it cannot locate the operator of a drone.  Anti-drone detection technologies offer a possible solution to this enforcement problem. Like so many legal issues regarding drone technologies, the legal landscape is unclear as to what anti-drone solutions are legal. 

Airspace is a company selling interesting anti-drone technologies—including the two main methods of enforcing drone regulations—Detection and “Mitigation,” meaning capture and removal of drones. These technologies raise interesting legal issues. There are both federal and state laws on the books that, while not originally intended to apply to drones, create a difficult set of obstacles for any agency seeking to implement an anti-drone strategy.

On one end of the spectrum are mitigation methods by which a drone is controlled, disabled, or destroyed. See 1:47-2:02 of this video for a tried-and-true mitigation method involving raptors. Airspace is marketing a higher-tech mitigation technology—see this video for Airspace’s simulation. The problem with mitigation techniques is that they are almost certainly illegal. 

Drones are considered a type of aircraft. Title 18 of the United States Code provides that “[w]hoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft . . . shall be fined under this title or imprisoned not more than twenty years, or both. (18 U.S.C. § 32). 18 USC 32 is not the only potential federal statutory impediment to anti-drone mitigation efforts—all of the federal prohibitions discussed below with regard to active detection, also would prohibit mitigating drone flight. Mitigation methods also present legal risks under State law, for conversion or other tort theories, that could open the door to a civil action by the drone owner whose drone was captured. 

At the other end of the spectrum are detection methods.  These methods, when completely passive, likely do not implicate any of the legal issues applicable to mitigation methods. For example, Airspace offers a solution that it claims integrates “sensor correlation, targeted visual display, and communication alerts” to detect drone activity. It is hard to tell from its video whether Airspace’s technology is truly passive. As soon as a detection technique involves more active efforts, legal issues start to appear. For example, pinging a drone to determine its location may be an illegal interference with satellite GPS systems in violation of 18 U.S.C. § 1367.  Federal law also generally prohibits computer hacking, including intentionally accessing a computer without authorization if, by doing so, an individual obtains information from any protected computer. (see 18 U.S.C. § 1030(a)(2)(C))

Just as with the development of drones a few years ago, anti-drone technology is also developing faster than the law can keep up. Those interested in this evolving area should check out a recent FAQ from the Federal Aviation Administration concerning drone detection systems—in particular #s 5 and 6.  The FAA emphasizes the risks of drones—in particular at airports. But it cautiously emphasizes that only statutorily permitted federal agencies may implement most anti-drone technologies.  Local agencies are still waiting.

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Hoverlaw Returns—Update from Marin County

It has been over a year since we posted to this blog.  We are still here, hovering above quite a bit of legal action in the drone-space.  We are re-engaging in our blogging activities and plan on posting updates in the coming days on legal issues concerning drone use in California, particularly at the local level. 

We inaugurate our return with an interesting story from the town of Tiburon, just north of San Francisco. In July of this year, the Tiburon City Council adopted an ordinance regulating the operation of drones.  The ordinance included a number of non-controversial provisions, and also prohibited drone operation (1) directly above or on the grounds of local public schools without permission, (2) within 400 feet of any “publicly permitted event,” and (3) in a manner that interferes with emergency response activity, in particular within 400 feet of any emergency vehicle that is operating with lights and/or sirens. A few days later, the National Press Photographers Association threatened a lawsuit, claiming that the ordinance’s restrictions concerning publicly permitted events and emergency response activities could not be enforced under principles of federal preemption because only the Federal Aviation Administration (FAA) may regulate the drone airspace. In response, the City has amended the ordinance to remove the prohibition against operating near permitted events, emergency vehicles in operation, or in a manner that interferes with emergency response. In the staff report accompanying the amended ordinance, the City asserted that the original ordinance would not have implicated any preemption issues, but amended the ordinance anyway in order to reduce the likelihood of legal challenge.

The story of Tiburon raises interesting legal issues concerning preemption: 

First, a local agency with police power, like a city, almost assuredly is not preempted when it enacts drone restrictions that implicate areas within its police powers—like zoning, land-use, privacy, and law enforcement operations.  Tiburon’s prohibition of drone use that interfered with emergency response almost certainly was within its police powers, and therefore should raise little risk of preemption. 

Second, prohibitions on drone flight that lie outside traditional police powers may be subject to a preemption challenge. Until there is a larger body of appellate decisions clarifying the preemptive effect of FAA regulations, a city seeking to adopt drone regulations should be prepared for legal challenges. Interestingly, the city did not seek to amend the prohibition on flight over schools—no one threatened litigation. Like the prohibition on flight over permitted events, this prohibition could have been subject to a preemption challenge as being outside a city’s power.  It seems likely that the school district did not issue the restriction itself precisely because it thought the city might have regulatory powers that it (a school district does not have police powers) did not possess—why else would it have asked the city to enact the ordinance instead of doing so itself?  The City could perhaps have established a basis for its regulations by issuing findings that drone flight interfered with the privacy of its residents—in particular students and teachers.  Such a finding would have bolstered the theory that the City was acting within its local powers, not preempted by federal regulations, when it prohibited drone flight over permitted events or schools. 

Third, a local agency that does not have police powers faces potential difficulties in enforcing any drone restrictions.  This is particularly concerning for special districts in California, which do not have police powers but have responsibilities to protect critical infrastructure like water towers, waste processing facilities, and bridges, the safety and security of all of which are threatened by unfettered drone use. 

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An Update on Commercial Drone Law in California (Video)

In 2016, the California legislature sent six bills to the governor, who signed two and vetoed four.

The two bills are:

  1. AB1680 – Makes it a misdemeanor to interfere with first responders or emergency personnel at the scene of an emergency
  2. SB807 –  Protects emergency first responders from liability for damage to a drone that is interfering with the responder’s ability to provide emergency service

Also, the Federal Aviation Administration (FAA) has released its final rule on commercial drone operation, which may affect any state laws and local ordinances.

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California Legislature Sends Six Drone Bills to the Governor’s Desk

With the end of the legislative session, the California legislature sent the following six bills to the Governor’s desk:

Most of these bills criminalize non-compliance with the law and either create a new crime or expand the scope of an existing crime. Interestingly, just last year, the Governor vetoed a number of bills, including three drone related proposals, because the bills created a new crime and, the Governor observed, “[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.” It seems the Legislature is sending the Governor a message that certain drone related conduct requires a criminal penalty and should be proscribed by the State.

Additionally, some of the bills sent to the Governor this year touch on similar concerns addressed by the Legislature last year, including impeding the work of emergency personnel. While it is unclear how the Governor will act on these proposals, it is evident that the Legislature is undeterred by the Governor’s rejection of past drone related legislative proposals.

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Update on California Drone Bills

A large number of drone-related measures are presently working their way through the California legislature. In light of the FAA’s recently published final rule on drone use and operation, many of these measures may be subject to further amendment—up until a deadline of August 19, 2016. But the following is brief summary of the status of all California drone-related bills as of June 22, 2016:

AB 1662 would require a drone operator to follow the same requirements as a vehicle operator following an accident that results in the injury to another. AB 1662 would require that after an accident involving a drone, a drone operator would have to immediately land the drone and provide certain identifying information to the injured individual or the owner of damaged property. This bill passed the Assembly and was referred to committee in the Senate.

AB 1680 would make it a misdemeanor for a person to use a drone to interfere with the duties of law enforcement or other “first responders.” AB 1680 simply adds drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. This bill passed the Assembly and was referred to committee in the Senate.

AB 1724 would require anyone operating a drone to place identifying information or digitally store the information on the drone and would impose a fine of up to $2,500 for failure to so identify the drone. This bill is in committee. Its first hearing was cancelled at the author’s request.

AB 1820 imposes restrictions on a law enforcement agency’s use of drones. Before any use, the law enforcement agency would need to develop and make available to the public a policy on the use of drones, and train its staff on such a policy.   Even with such a policy in place, AB 1820 would require that a law enforcement agency could only use a drone if it obtains a search warrant, absent exigent circumstances. Finally, AB 1820 would require that all images or data obtained by use of a drone be destroyed within one year, with certain exceptions. This bill passed the Assembly and was referred to committee in the Senate.

AB 2148 would require the Department of Fish and Wildlife and the Department of Parks and Recreation to develop regulations for the use of drones over the lands managed by each department in order to protect wildlife and sensitive species. This bill passed the Assembly and is currently in committee in the Senate.

AB 2320 was a twin to SB 808 before it was amended. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). AB 2320 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. The bill also permits a judge to prohibit a person required to register as a sex offender from operating a drone if the judge finds it is in the public interest to do so. Lastly, this bill contains non-binding language of legislative intent to prohibit a person from flying a drone within 250 feet of any critical infrastructure in order to gather information or photographs of the facility. This bill passed the Assembly and is in committee in the Senate.

AB 2724 would amend the Civil Code to include the requirement that drones sold in California include a copy of FAA safety regulations, as well as a notice of the requirement to register the drone with the FAA. AB 2724 would also require that any drone with gps capability also be equipped with geofencing software that would prohibit the drone from flying within 5 miles of an airport. Finally, AB 2724 would require owners of drones to buy liability insurance. This bill passed the Assembly and was referred to committee in the Senate.

SB 807 would limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services.   The bill broadly applies to public and private entities, and to persons regardless of whether they are paid or volunteer.   This bill passed the Senate and the Assembly Committee on Privacy and Consumer Protection. The bill is currently in the Assembly Judiciary Committee.

SB 808 was a twin to the original draft of AB 2320. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). SB 808 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. This bill was referred to committee in the Senate.

SB 809 would prohibit the operation of a drone in the airspace over a public school (K-12) without the written permission of the school principal. This bill was referred to committee in the Senate.

SB 810 would make it a misdemeanor, punishable by up to 6 months in jail and/or $5,000, to operate a drone in a manner that interferes with efforts of firefights to control, contain, or extinguish a fire. This bill was referred to committee in the Senate.

SB 811 would make it a misdemeanor to operate a drone on or above the grounds of a state prison or a jail without prior permission from the Department of Corrections and Rehabilitation or the county sheriff. This bill was referred to committee in the Senate.

SB 868 would prohibit the operation of a drone within 500 feet of “critical infrastructure” designated by the Office of Emergency Services. It would also prohibit operation of a drone within the airspace above most state offices in Sacramento, above a state park, or above any airspace over land or water managed by the Department of Fish and Wildlife, with limited exceptions. This bill passed the Senate and was referred to committee in the Assembly.

SB 1246 would require pest control businesses and government agencies conducting pest control activities, to notify the public at least 7 days before administering pesticides by drone over a residential area. This bill is in committee in the Senate.

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Micro-Drone Report Released

On April 1, 2016, the FAA’s Micro UAS Aviation Rulemaking Committee (ARC) released its recommendations on a framework to regulate small consumer drones. The ARC was composed of a group of stakeholders, largely from the drone industry, and was tasked with developing performance and operational regulations for drones engaging in flight over people.

The FAA will use the information and guidance provided by the ARC to create “a flexible, performance-based proposed rule.” Until the issuance of such a rule, there remain many questions as to how the FAA will regulate consumer drone use. But, it appears that the ARC report points to a possible, or even probable, relaxing of earlier statements by the FAA indicating the likelihood of very restrictive regulation of even the smallest drones. This report may be the first signal that the FAA is willing to permit certain drones, in select circumstances, to operate outside the general regulations.

The report recommends dividing small consumer drones into four categories, depending on the level of risk of injury posed as a result of flight over people. For each category, the report recommends a risk threshold based either on the drone’s weight or “impact energy equivalent” and corresponding operational limitations. The ARC’s report can be read here.

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California Legislative Update

It appears that members of the California Legislature are undeterred by the Governor’s decision to veto all drone related bills but one at the end of last year. In the first few weeks of January, members of the Legislature have introduced, reintroduced, and amended a number of drone related bills. Interestingly, in what appears to be an effort to address federal preemption concerns, most of the bills include a provision specifying that the bill does not apply to drone use authorized by the FAA or does not conflict with federal law. Below is a summary of the bills that have recently been introduced.

AB 1680, expands the prohibition against a person going to or stopping at the scene of an emergency to watch emergency personnel if it impedes the work of emergency personnel to include people using or operating drones.

SB 811, appears to be an attempt to address the recent use of drones to drop contraband into prisons by prohibiting the knowing or intentional use of a drone on or over the grounds of a state prison or jail. This prohibition would not apply to prison or jail personnel acting in the scope of their employment or to any entity authorized by the FAA.

AB 1662, requires the operator of a drone that is involved in an accident resulting in injury or damage to a person or property to immediately land the drone in the nearest safe place. The operator must then either: 1) present valid ID to the injured person, 2) locate the owner of the damaged property and present valid ID if requested, or 3) leave a note with the name and address of the operator and the circumstances of the incident in a conspicuous place on the damaged property and notify the police. This requirement would not apply to law enforcement personnel acting within the scope of their employment or to anyone authorized by the FAA.

AB 14 was introduced last year but was recently amended to require owners and operators of drones that do not fall under the definition of “model aircraft” to either 1) mark the drone with the owner’s name, address, and telephone number, 2) store the same information on the drone in a digital format, or 3) mark the drone with the address of an website where the same information is listed. The markings may not modify or confuse any marks required by the FAA.

SB 809 is the reintroduction of SB 271 to prohibit the use of drones over school grounds.

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Local Drone Regulations and Possible Federal Preemption

As we have written before, State and local agencies are not waiting for the federal government to address issues of local concern regarding consumer and recreational drone use. For instance, the Golden Gate Bridge, Highway and Transportation District today posted a notice prohibiting operation of drones near the Golden Gate Bridge.

GGB Drone Notice

Such local action raises legal issues concerning preemption by the federal government—specifically the Federal Aviation Administration (FAA). On December 17, 2015, the FAA’s Office of the Chief Counsel released a Fact Sheet addressing issues of Federal preemption of state and local drone regulations.  According to the fact sheet, the FAA is broadly empowered by Congress to regulate “matters pertaining to aviation safety.” More specific to drone use, the FAA Modernization and Reform Act of 2012 directs the FAA to establish  requirements for safe operations of drones posing little or no public risk or threat to the national airspace system.  The FAA has required the registration of drones which it claims is consistent with its authority under the law.  Because the FAA’s registration is required for operating a drone in navigable airspace, “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”

A recent New York Times article suggests that the FAA’s preemption arguments may not deter state legislators, including Senator Gaines (R-El Dorado), from continuing efforts to regulate drones at the state level.

Notwithstanding the FAA’s position, we think that the preemptive effect of federal drone regulation will be limited, especially to the extent that local regulations are directed at issues not within the FAA’s purview, such as privacy, security (including law enforcement), and land use (including trespass and zoning). In any event, it is growing increasingly clear that states and local governments are disinclined to wait for the FAA to regulate drone use.

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FAA Names Members of UAS Registration Task Force and Seeks Public Input on Proposed UAS Registration Framework

The FAA announced the members of its UAS Registration Task Force. The 26 member task force will be chaired by the Director of the FAA’s UAS Integration Office, Earl Lawrence and GoogleX’s, Dave Vos. Members include representatives from industry, law enforcement organizations, consumer groups, aviation officials’ organizations, and pilots’ associations.

The FAA recently announced the formation of the task force to develop recommendations for expanding the registration of drones as part of an effort to ensure that small drones are used safely. In a document titled “Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS,” the FAA noted that pilots have reported twice as many drone sightings in this year as compared to 2014. Pilots report drones as high as 10,000 feet and as close as half a mile from runways. The FAA also observed that drone use near wildfires has interfered with the work of emergency responders.

The FAA anticipates 1 million new drones will be purchased this holiday season and it is concerned that instances of illegal and unsafe drone use will become more and more frequent. While the FAA has exercised discretion related to the registration of drones in the past, it is considering changing course by requiring greater compliance from drone operators with federal law prohibiting the operation of unregistered aircraft.

The taskforce is charged with forming recommendations related to drone registration. The taskforce will also consider whether the FAA should continue to exclude certain drones from registration based on weight and performance limitations.

In keeping with the creation of the rapid-response task force to develop a process for registration of UAS, the FAA asked for public input regarding relevant rulemaking.  The FAA would like all input by November 6, 2015.  Interested persons may comment online or via traditional methods.

In its request, the FAA identified 10 questions for which it seeks public comment:

  1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?
  2. At what point should registration occur (e.g. point-of-sale or prior-to-operation)? How should transfers of ownership be addressed in registration?
  3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?
  4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.
  5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?
  6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?
  7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?
  8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?
  9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (e.g. PayPal)?
  10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?

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Legislative Update: California Drone Legislation

This year, California legislators have introduced a number of bills related to drone use. The following is a brief update on legislative action taken on these proposals.

SB 142, introduced by Senator Jackson, would prohibit the use of drones over private property without permission. The proposal passed out of the Senate Committee on Judiciary with amendments to clarify that the bill applies to flying drones over real property. The bill moved to the Senate Floor for a third reading which precedes a floor vote.

SB 262, introduced by Senators Galgiani and Anderson, would condition law enforcement use of drones on compliance with State and Federal Constitutional protections against unreasonable searches and seizures and with California law related to the use of surveillance technology. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Judiciary.

SB 271, introduced by Senator Gaines, would prohibit the use of drones over school grounds. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Appropriations. Before passage, the bill was amended to provide an exception for drones used after school hours and with the permission of the school principal or other relevant authority. Additionally, the amended proposal provides that it is an infraction to use a drone to take photographs or other images of public school grounds during school hours and without the permission of the school principal. The bill was also amended to reduce the punishment for an infraction.

AB 14, introduced by Assembly Members Waldron, Brown, and Maienschein, and Senator Nielsen, would create a task force to advise the Governor in the creation of a comprehensive state policy related to drone use. The bill failed to pass out of the Assembly Committee on Transportation but the Committee granted reconsideration of the action. A number of amendments were made to the bill including the addition of provisions highlighting California’s unique position and need for drone use related to aviation, aerospace, high technology, agriculture, and public safety. The protection of privacy was also stricken from the specific objectives of a comprehensive state policy.

AB 56, introduced by Assembly Members Quirk and Campos, would limit the use of drones by law enforcement and public agencies. The proposal passed out of the Assembly Committee on Public Safety and was re-referred to the Committee on Privacy and Consumer Protection. This bill is very similar to AB 1327 which was passed by the Legislature and vetoed by the Governor in the last legislative session. AB 56 was amended to require that notice or guidelines must be made available to the public prior to the use of drones by law enforcement agencies. The amended bill also provides that police are permitted to use drones over public lands, highways, and open spaces without first obtaining a warrant.

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FAA Sued Over Failure to Propose Privacy Rules Related to Commercial Drone Use

On Tuesday, March 31, 2015, the Electronic Privacy Information Center (“EPIC”) filed a petition for review of the FAA’s decision not to address privacy issues in their proposed regulation on commercial drone use.

In 2012, EPIC sent a letter to the FAA highlighting the threat posed to privacy and civil liberties by both commercial and government use of drones. The letter discussed use of drones by the Bureau of Customs and Border Protection and local law enforcement agencies. EPIC also suggested that privacy is threatened by commercial use of drones. EPIC observed the development of “paparazzi drones” as well as increased drone use by private detectives. In part, EPIC requested that the FAA “examine and report on the impact on privacy to individuals within the scope of their comprehensive plan to safely integrate civil drones into the national airspace.”

Under the criteria laid out in 14 CFR § 11.73 for consideration of a petition for rulemaking, the FAA denied EPIC’s request because the issue was not “an immediate safety concern.” Additionally, the FAA noted that it “has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system” and EPIC’s comments would be considered in that effort. As noted in our February 17, 2015 post, the proposed rule is silent on the issue of privacy but, on the same day the proposed rule was released, the President issued a memorandum which requires the National Telecommunications & Information Administration to create voluntary rules for privacy, accountability, and transparency in commercial drone use.

EPIC’s petition asks the court to review the FAA’s denial of the request for rulemaking. EPIC also requests the court set aside the FAA’s proposed rule on commercial drone use for its failure to propose drone privacy rules and remand to the agency.

 

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Progress Toward A “Highway in the Sky”

Here is a link to a Fortune article about products that are being developed by Exelis Inc. as part of a partnership between NASA and private companies to create technologies that could be used in an unmanned aircraft traffic system. While the recently released FAA proposed rule on commercial drone use requires that flights must take place within the visual line of sight of the operator, this article suggests that the development of the aircraft traffic system “could persuade the FAA to allow flights beyond the line of sight, provided the operator is using such a tracking system.”

See the full article here.

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Legislators Ask, Is California Law Ready for Drones?

Two days after the FAA released its proposed rule to regulate commercial drone use in the United States, the California Senate Judiciary Committee held an oversight hearing to examine the potential benefits and risks associated with the expansion of drone technology. The hearing was entitled, “Drones: Is California Law Ready? The Potential, the Perils, and the Impact to Our Privacy Rights.”

Senator Hannah-Beth Jackson (D-Santa Barbara), the Senate Judiciary Committee Chairwoman, suggested the expansion of drone technology presents difficult public policy questions including, “how to welcome these new technologies into our lives without surrendering our right to privacy?” Senator Jackson inquired into existing state-level regulation of commercial drone use across the nation, how unauthorized drones might impact fire-fighting efforts, and whether the leaders in drone technology innovation are considering issues of safety and privacy. Senator Jackson suggested that, in considering the regulation of drone use, critical questions might be, where are drones benefiting society and where are they not? Additionally, Senator Jackson stated that she believes the express right to privacy in the California Constitution gives California the authority to go beyond any steps taken by the federal government to protect privacy rights as implicated by expanding drone use.

Senator Joel Anderson (R-San Diego) submitted that, in regulating drone use, care should be taken in achieving the right balance in order to ensure that technology is not being unreasonably restricted. The Senator drew a comparison between emerging drone technologies and street mapping, as both encountered a tension between privacy concerns and commercial benefits. Senator Anderson asked the witness from the Motion Picture Association about the cost, quality, and safety of using manned versus unmanned aerial vehicles in the film industry. Lastly, the Senator asked about the use of drones in quantifying the effects of global warming and in the exploration of active volcanoes. During his time, Senator Bill Monning (D-Carmel) asked whether drones could be used for dropping fire retardant and whether drones are being used to apply pesticides.

The direction of legislators’ comments and questions highlights the potential risks and benefits of drone use in California and emphasizes the great uncertainty that exists in the landscape of drone regulation today. Watch the full Senate Judiciary Committee hearing here.

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New FAA Proposed Rule Does Not Slow California Lawmakers’ Efforts to Regulate Drone Use

On February 15, 2015, the FAA released its proposed regulations on commercial drone use entitled, “Operation and Certification of Small Unmanned Aircraft Systems.” Just days following the release of the proposed rule, two new bills were introduced in the California Legislature related to drone use and the California Senate Judiciary Committee held an oversight hearing related to the benefits and risks of drone use in California.

During the committee hearing, Senate Judiciary Chairwoman Hannah-Beth Jackson (D-Santa Barbara) stated that she was pleased the FAA has issued its much delayed proposed regulation but noted that State lawmakers should not wait for Washington to act. Rather, the emergence of drone technology raises important issues of state law including questions of property law and privacy rights. See Senator Jackson’s entire opening statement.

Four days after the FAA issued its proposed rule, Senator Gaines (R-Roseville) introduced SB 271 which would make it an infraction to operate a drone on or above a school with K-12 students. The bill provides for fines of up to $150 for the first infraction and up to $500 for subsequent infractions.

On February 18, 2015, Senators Galgiani (D-Sacramento) and Anderson (R-San Diego) introduced SB 262 which specifically authorizes law enforcement use of drones so long as the use complies with Constitutional protections against unreasonable searches and California law regarding law enforcement use of surveillance technology.

While it is still unclear what preemptive effect the FAA’s rulemaking will have, it appears that California lawmakers are not waiting to find out and are moving ahead to address  issues raised by the expansion of drone technology.

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