States Issue Their Own Drone Rules

by | September 14, 2015

By Sarah Breitenbach

In New Hampshire you can't use a drone to harass a hunter. California lawmakers don't want you to fly an unmanned aircraft near a forest fire. And in Texas you better not pilot one anywhere near the state capitol.

In the absence of federal regulations, states are eager to pass their own policies on unmanned aerial vehicles (UAVs), mandating everything from where drones can be flown to whether law enforcement can use them to gather evidence. But advocates for the technology, which is growing in popularity both commercially and among hobbyists, say legislatures are overstepping their authority and hamstringing an industry ripe for growth.

According to the Association for Unmanned Vehicle Systems International (AUVSI), an industry-supported group, at least six states _ Florida, Minnesota, Nevada, North Dakota, Oregon and Virginia _ have passed legislation restricting the commercial use of drones. Another eight have restrictive legislation pending.

More broadly, 45 states considered at least 156 bills relating to drones this year, according to the National Conference of State Legislatures. Nineteen of those states passed legislation targeting the use of commercial drones as well as the use of devices flown privately or by law enforcement; another four adopted resolutions.

In California, however, Democratic Gov. Jerry Brown vetoed a measure Wednesday that would have made flying a drone less than 350 feet above private property without consent a trespassing violation.

Tom McMahon, a spokesman for AUVSI, said the legislation posed a number of challenges for commercial drone operations such as delivery services that need to fly long distances, likely over private property, to serve customers.

An AUVSI study projected that the first decade of fully integrating drones into California's airspace would bring more than 18,000 jobs and an economic impact of $14 billion to the state. Across the country, AUVSI estimates commercial drone use could create more than 100,000 jobs and $82 billion in economic impact.

Those projections, though, rely on pending Federal Aviation Administration (FAA) regulations to integrate drones into the U.S. airspace, job growth in the industry, the availability of financing and capital for drone purchasers and manufacturers, and other economic conditions.

Laws specifically regulating how drones can be used are largely unnecessary, McMahon said. Existing state-level policies on privacy, trespassing and harassment can be used to address illegal acts committed with drones, he said.

"It's a new technology, but don't restrict the technology," McMahon said. "Instead, prosecute the person who is using the technology maliciously." But existing laws aren't enough to protect people from risks associated with data collection by commercial drones, said Jeramie Scott of the Electronic Privacy Information Center (EPIC), a nonprofit that advocates for privacy regulations.

Without more comprehensive laws, companies could expand surveillance techniques, Scott said. For instance, they could use drones to collect personal or location details from cellphones, via license plate scanners or facial recognition software, and provide or sell that information to law enforcement or to other businesses.

"The current laws might address individual use of drones in terms of the malicious activities somebody might do," Scott said. "But they don't address the bulk collection of information of people in public."

It is illegal to fly commercial drones in the United States, though the FAA is developing rules to regulate commercial flights of small UAVs.

There is little agreement on the ultimate scope of such federal regulations. Industry advocates such as McMahon and Michael Drobac, executive director for the Small UAV Coalition, say only the FAA can regulate the nation's airspace, and they dismiss state efforts to regulate drones as empty attempts to weigh in on a hot topic.

But privacy advocates like Scott say a federal standard would create a baseline that states could supersede if they wanted to create stricter privacy laws.

In the meantime, as the FAA works on drone regulations, the agency has granted more than 1,000 exemptions for businesses to use the aircrafts. But the exempt companies must follow strict rules, McMahon said. The drones can only fly up to 500 feet in altitude and only in daylight. Final FAA rules will, hopefully, expand when and where companies can fly, he said.

Drobac called the California legislation a "diabolically bad bill" and said the law, and others like it, were stifling innovation. "Titillation and hysteria are leading to really bad state laws."

Scott and EPIC said state laws can be a good first step, but they want the FAA to do more. The FAA has said that privacy issues are beyond its purview, leading EPIC to sue the agency in an attempt to force its officials to address privacy concerns raised by the use of drones.

"Companies using drones should be required to inform the public of the information they plan to collect, how that information will be used and the policies regarding retention of the information and the sharing of the information," Scott said.

While already popular among hobbyists and amateur aerial photographers, drones are being used in a rapidly growing number of industries, Drobac said. In 2014, the FAA estimated as many as 7,500 small commercially operated drones could be in use by 2018, if the necessary regulations are put in place. The devices can be used by realtors to showcase properties, by utility companies to safely inspect cellphone towers and high-voltage power lines, and by farmers to monitor crops.

"It's going to save lives; it's going to create efficiencies," Drobac said.

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