Home – States Cracking Down on Unmanned Aircraft

States Cracking Down on Unmanned Aircraft

 On the morning of Aug. 16 an unmanned aerial vehicle, more commonly known as a drone, startled the pilot of a JetBlue airliner as it was landing at Los Angeles International Airport. The same day, the U.S. military had to scramble fighter jets after a Cessna pilot reported a drone flying in restricted airspace over Washington, D.C. Those were just two of the 12 such incidents nationwide the Federal Aviation Administration fielded that day, making it one of the busiest ever for dangerous drone activity - but not entirely unique.


So far this year, according to FAA documents leaked to The Washington Post and widely covered elsewhere last month, pilots have reported nearly 700 drone incidents to the FAA, about triple the number reported all of last year. More than 70 incidents were reported last month alone.


The surge in dangerous drone incidents hasn’t gone unnoticed in the nation’s capital. In February, the FAA proposed a “framework of regulations” for drone operation, in accordance with the Federal Aviation Administration Modernization and Reform Act of 2012, requiring the FAA to integrate unmanned aerial vehicles into civilian airspace by September 2015, and informed by research being conducted at drone test sites in six states. The regulations include prohibitions against operating drones weighing more than 55 pounds, operating them after dark and flying higher than 500 feet. The Christian Science Monitor reported that those regulations “almost certainly” won’t be ready until 2017. But a federal ban on the commercial use of drones remains in effect, although the FAA grants exemptions on a case-by-case basis and has done so for over 1,350 operators engaged in businesses including film production and real estate photography, as well as to mega-retailer Amazon, for the development of its future drone-based package delivery system. President Obama has also directed the U.S. Department of Commerce and the National Telecommunications and Information Administration to develop “a framework for privacy, accountability and transparency issues concerning the commercial and private use of UAS.”


Despite the federal government’s lead role on drone regulation, states have also been very active on the issue. According to the National Conference of State Legislatures, in 2013 43 states considered 130 drone bills and resolutions, enacting 16 of the bills and adopting 11 of the resolutions. In 2014 35 states considered such measures, with 10 states enacting laws. And so far this year, 45 states have considered 156 drone bills, enacting 19. Another four states have adopted resolutions. The enacted measures commonly address privacy concerns, such as the use of drones for voyeurism or surveillance, or the use of drones in hunting game.


The negative headlines drones have been drawing lately have only fueled the state action. In July the sighting of at least five drones over a wildfire along a stretch of highway in Southern California temporarily grounded air firefighting units trying to contain the blaze. That incident and others prompted California Sen. Ted Gaines (R) and Assemblyman Mike Gatto (D) to author two bills: SB 167, which would make interfering with a firefighting effort by flying a drone a misdemeanor crime punishable by up to a $5,000 fine or six months in jail; and SB 168, which would grant firefighters immunity for disabling drones flying over wildfires. The latter bill has passed the Senate and is now in the Assembly, according to LexisNexis State Net’s legislative tracking database.


Gaines has also authored SB 271, which would make it an infraction to intentionally fly a drone over a public school during school hours, and SB 170, which would make it a felony to intentionally fly a drone over the grounds of a state prison or a jail. Both bills are now with Gov. Edmund “Jerry” Brown (D).


“The technology has gotten ahead of the law,” said Gaines, according to The Sacramento Bee. “I’m not anti-drone. I just want to make sure people’s privacy is protected, that public safety is protected.”


Several drone bills have also been introduced in the state by other lawmakers, including SB 142, by Sen. Hannah-Beth Jackson (D), which would have made flying a drone less than 350 feet over private property without consent trespassing. But Gov. Brown vetoed that measure last Wednesday.


“When we’re in our backyards, with our families, we have an expectation that we have a right to privacy,” Jackson had said in a press release about the bill.


In Pennsylvania, Sen. Mike Folmer (R) introduced a bill last month (SB 971) that would impose a two-year ban on the use of drones by government agencies, including law enforcement, without a warrant, except in emergencies, like natural disasters or search and rescue operations.


Drone regulation has also been coming at the local level. In February, Charlottesville, Virginia became the first city in the country to formally ban drones, according to U.S. News & World Report. And last month the Huffington Post reported that bans have since been adopted in Seattle, Washington; Evanston, Illinois; Iowa City, Iowa; and St. Bonifacius, Minnesota, and a ban was also in the works in Lawrence, Kansas. Suffolk County, New York has also banned drones from flying over county beaches during the summer.


“People have a certain expectation of enjoyment when they go [to beaches],” said Suffolk County Legislator Al Krupski (D), according to The Suffolk Times. “I would think it’d be very intrusive if people are flying drones on public beaches with cameras.”


Some drone supporters acknowledge they’re facing a headwind right now. An upcoming drone-aerial film festival in San Francisco, the Flying Robert International Film Festival, will feature a category called “Drones for Good,” showing humanitarian purposes unmanned aircraft are used for, including delivering medical supplies to war zones and monitoring endangered species


“These stories of good don’t get much attention,” festival organizer Eddie Codel told Wired. “So many people just assume the worst. With Drones for Good, I hope to offer another narrative as to why we should carefully consider drones as lawmakers start banning them everywhere.”


Even California Sens. Gaines and Jackson, while insistent that drone regulation is needed, acknowledge there are many ways drones could be used for public benefit. At a legislative hearing last month, Jackson said they could even be used for firefighting.


“If they’re working in a coordinated fashion, there is tremendous opportunity with drones to really be part of the solution,” she said, according to The Sacramento Bee.


As for the cause of the current drone problem, the consensus seems to be that it’s not commercial drone operators. Commercial operators have to notify the FAA of their operations in advance, have significant investment in their aircraft and are generally well-informed about drone regulations.


Consequently such operators have opposed some of the proposed drone regulation. The National Press Photographers Association, for instance, sent a letter to California’s Gov. Brown urging him to veto SB 142. The letter stated that the bill could open news photographers using drones up to lawsuits for straying into the airspace over a real property while “gathering newsworthy information of a different nearby location,” according to the Los Angeles Times.


Technet, a business association that advocates for technological innovation, raised a similar concern about SB 142.


“[The bill says] if you fly below 350 feet you’ve broken the law,” said John Doherty, vice president of state policy and general counsel for the association, as reported by The Sacramento Bee. “There’s no exemption for incidental or nominal or accidental drops below that.”


Gov. Brown seemed inclined to agree with those arguments, stating in his veto message for SB 142 that it could “expose the occasional hobbyist and FAA-approved commercial user alike to burdensome litigation and new causes of action.”


The bans and other restrictions also appear to overlook the fact that the surge in drone transgressions has coincided with a boom in the popularity of smaller hobbyist drones that can be operated with little to no training, are generally too small to be detected by radar, have no identifying markings like planes and are not required to be registered.


“It’s the Wild, Wild West right now,” Michael Toscano, president of the Association for Unmanned Vehicle Systems International told the Huffington Post last year. “You could go right now and buy one of these things and start flying it without having any proper training or know what’s legal or not legal.”


The Consumer Electronics Association has projected that unit sales of drones will approach 700,000 this year, up 63 percent from last year. That influx of inexperienced operators would seem to limit the effectiveness of bans and other regulations, even as more of those operators were fined or jailed for violations.


Consequently, some industry insiders, like Bruce Parks of the Silicon Valley branch of the Association of Unmanned Vehicle Systems International, advocate instead for the programming of “geo-fences” into drones, preventing them from being flown near airports or over schools, prisons and wildfires, as the Bee reported. DJI, the world leader in consumer drones, started programming that technology into all of its models sold in the United States last year. The company’s vice president of policy and legal affairs, Brendan Schulman, said the software upgrade and a public education effort had been effective.


“The vast, vast majority of drone users are flying safely and responsibly,” he said, according to The Washington Post.


A Post editorial pointed out that “such safeguards could be deactivated.”


“But most users would not do so, and those who did fiddle with the safety equipment would be knowing law-breakers,” the editorial said, adding that technologies to help locate and disable errant drones were being developed.


Whatever the solution, it needs to come soon, given the serious threat drones pose to manned aircraft.


“Going into an engine can destroy an engine,” Phil Derner of NYCAviation told CNN. “Going into the cockpit window can injure a pilot or even kill a pilot.”


CNN analyst Bob Baer suggested another disturbing scenario.


“You can take these drones and, with a 3D printer, make them out of explosives,” he said. “They’re very dangerous and they’re advancing pretty quickly.”


U.S. officials have become increasingly concerned about the prospect of such an attack by terrorists, according to the Post.


And while there haven’t been any reported accidents involving drones and manned aircraft, U.S. Sen. Charles Schumer (D-New York), who has pledged to introduce legislation mandating geo-fencing technology to keep drones from flying over 500 feet or into protected airspace, said that “the number of near misses is astounding,” according to the Post. He added that it’s “only a matter of time” before such a crash occurs.