Bloomberg Law
July 30, 2015, 7:28 PM UTC

Drone Regulations Take Off in U.S.

Joshua Dalrymple

Editor’s Note: The author of this post is a faculty member of Kaplan University’s Department of Legal Studies in the College of Social and Behavioral Sciences.

By Joshua Dalrymple, Professor, Kaplan University

Unmanned Aerial Vehicles, more commonly called drones, are becoming increasingly popular with both law enforcement and the general public.

Advances in technology have allowed exciting new applications for drone use, and the cost to purchase a very capable drone is well within the reach of most interested consumers.

New technological advancements tend to cause a scramble as legislators attempt to figure out how to regulate them, and drones are no exception. Legislators at both the state and federal level have been exploring how to create laws that allow for technological advancement while ensuring safety and protecting privacy.

Most of the federal law related to drones falls under the Federal Aviation Administration (FAA). In 2012, Congress specifically required the FAA to integrate drones into the national airspace system by September 30, 2015. That date is rapidly approaching, and the FAA has struggled to figure out how to achieve integration. It appears that the FAA has ignored recreational drone use as long as the flights are not very high. However, the FAA has all but eliminated commercial use of drones, except for rare circumstances that allow limited testing and experimentation. Many would argue that the FAA’s position is unnecessarily harsh and may result in pushing the U.S. out of the lead in this rapidly changing development field.

States have focused on regulation of law enforcement in an attempt to assure the voters that their privacy will not be violated. It is a complicated issue. For instance, in 2012, the governor of Virginia stated that police use of drones would be “great” and “absolutely the right thing to do.” Then in 2013, Virginia became the first state to pass drone regulations when they chose to ban drone use by the police until 2015.

Though Virginia was first, Florida has now passed the most comprehensive drone regulations. Florida’s law limits police use of drones, and it even establishes a civil cause of action for intentional violations of privacy by private parties using drones.

Florida law will likely be used as a model for other states as they struggle to find some balance that allows the most efficient use of technology without creating an unsafe environment that aggravates privacy concerns. I expect that most states will start from a position that includes strong privacy protections, but law enforcement will continue to press its case for increased drone use. As states try to assure people that they are serious about crime prevention, we are likely to see privacy protections constrict as accepted drone use by law enforcement expands.

The FAA will continue to explore drone safety issues. I anticipate that the inconsistent policy between commercial use and recreational use will destabilize its current guidelines. Furthermore, as demand for commercial drone use gains traction in the market, federal legislators will compel the FAA to establish more reasonable terms for commercial use. For instance, the current requirement that only a licensed pilot of a manned aircraft can operate a commercial use drone will likely be discarded, as long as the drone is operated in a safe manner by a capable operator.

In any case, the civil court system is currently very capable of handling issues of safety, trespassing, or any other dispute about drones between private parties. There is very little need for the FAA to create an entirely new set of standards for drone operation as long as drones stay out of the current commercial airspace to avoid interfering with manned flights. Short of a disastrous collision with a manned flight, the potential for a commercial or recreational drone to create serious harm is limited.

It will be very interesting to see how the law supports, limits, or ignores new drone technology. Now that the technology has gained momentum, advances will continue to march on in spite of regulatory constraints. Companies will find ways of pushing for development within the confines of the law, as they will work to soften legislative restrictions.

We may yet see widespread commercial use of drones, as long as companies can show that such use will not violate standards of safety and privacy. Innovation and legislation do not need to be mutually exclusive.

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