Public Policy

While FAA Regulations Stay Grounded, State Drone Laws Take Flight

Indiana is one of at least twelve states that enacted laws this past year limiting use of "unmanned aerial vehicles" (UAVs) or "drones." The Federal Aviation Administration (FAA) has known about the coming wave of drones for years, but as 2014 ended, the FAA still had no regulation on the books. Driven by fears that unregulated drone flights will lead to accidents and the invasion of privacy, many states have filled a perceived regulatory gap with their own anti-drone legislation.

Indiana is a good example. In 2014, the Indiana legislature passed HB1009, [enhanced version available to lexis.com subscribers], which requires a law enforcement officer to obtain a warrant to use a UAV for police purposes. The bill also contains a number of exceptions, such as for "search and rescue" or a "natural disaster," or for "exigent circumstances." But absent one of these exceptions, law enforcement in Indiana cannot fly drones to look for or gather evidence of criminal activity. I.C. 35-33-5-9, [enhanced version available to lexis.com subscribers].

Indiana's law also includes a provision that potentially criminalizes drone usage if the pilot takes video or pictures of another person or property without their consent. I.C. 35-46-8.5-1, [enhanced version available to lexis.com subscribers], states:

A person who knowingly or intentionally places a camera or electronic surveillance equipment that records images or data of any kind while unattended on the private property of another person without the consent of the owner or tenant of the private property commits a Class A misdemeanor.

Although this statute does not require the electronic surveillance to be done by a drone, considering it was lumped in with the rest of the drone bill I think the legislative intent is pretty clear. Use a drone to take pictures or video of a neighbor's property and you risk a misdemeanor charge.

Other states have passed similar statutes. Raymond L. Mariani wrote in The Brief, an American Bar Association (ABA) journal, that as of the summer of 2014, "thirteen states have already passed law that place restrictions on UAS usage." These include Florida, Idaho, Illinois, Indiana, Iowa, Montana, North Carolina, Oregon, Tennessee, Texas, Utah, Virginian and Wisconsin.

These regulations are diverse, but some themes have emerged. Idaho, for example, forbids surveillance of a "specifically targeted" person. Tennessee takes this a step further and criminalizes "surreptitious commercial surveillance." In other words, the state is worried not just about protecting personal privacy, but stopping possible industrial espionage. Texas' drone law doesn't forbid certain uses, but establishes 19 different lawful uses for UAVs. Then there are other states that are worried about activists using drones to spy on hunters and fisherman. Oregon and Tennessee are two examples where it is unlawful to use drones to interfere with hunting and fishing.

These laws are evolving and changing, so please do not assume my summary here is the current state of the law. Do your own research before flying in your state to make sure you aren't committing a crime when taking to the skies.

When the FAA eventually does introduce UAV regulations, the United States will have a real legal mess since there will already be multiple state laws on the books. What happens when the FAA says a certain use is legal, but a state criminalizes it? That will be a new issue for aviation law, as far as I can tell, since regulation of aircraft has primarily been left to the FAA and states have, for the most part, not interjected themselves into aircraft regulation.

Raymond L. Marianai's article, "Rise of Drones," is featured in the ABA's The Brief, Summer 2014. This article is not available online.

    By Todd J. Janzen, Partner, Plews Shadley Racher & Braun LLP

Read more at Janzen Ag Law Blog by Todd Janzen, Partner, Plews Shadley Racher & Braun LLP.

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