This is the first quarterly blog post identifying U.S. drone law developments of interest in the legislative, executive and judicial branches, on both the federal and state levels.
On Feb. 10, 2020, the U.S. House of Representatives passed the Protecting Critical Infrastructure Against Drones and Emerging Threats Act (H.R. 4432). The act would require the Department of Homeland Security (DHS) to establish a mechanism to report unauthorized unmanned aerial systems (UAS) activity over critical infrastructure facilities, and then use that information to develop a threat assessment regarding UAS. The U.S. Senate has referred H.R. 4432 to the Committee on Homeland Security and Governmental Affairs.
On Feb. 10, 2020, the House passed the Drone Origin Security Enhancement Act (H.R. 4753). The Act would prohibit DHS from operating or procuring UAS components manufactured by a “covered foreign country” that has been identified by the Department of Defense as a strategic competitor (including China). The Senate has referred H.R. 4753 to the Committee on Homeland Security and Governmental Affairs.
Federal Aviation Administration (FAA)
FAA NPRM: Remote Identification of Unmanned Aircraft Systems (84 FR 72438 / Docket No. FAA-2019-1100). On Dec. 31, 2019, the FAA issued a long-awaited notice of proposed rulemaking (NPRM) that proposes to add Part 89 to Title 14 of the Code of Federal Regulations. The FAA explained that the Remote ID rule is necessary “to address safety, security, and law enforcement concerns … while enabling greater operational capabilities” including detect-and-avoid technologies, flights beyond visual line of sight (BVLOS) and UAS traffic management (UTM). Remote ID also will allow law enforcement and national security agencies to “distinguish compliant airspace users from those potentially posing a safety or security risk.”
The proposed rule would establish technical requirements for minimum remote ID message elements and create three categories of UAS:
- Standard remote ID UAS will be capable of broadcasting the minimum remote ID message elements at all times, either via the Internet or directly from the unmanned aerial vehicle (UAV) if the Internet is unavailable.
- Limited remote ID UAS will only be able to broadcast the minimum remote ID message elements via the Internet. They will only be permitted to be operated within visual line of sight and within 400 feet of the ground control station.
- UAS that lack remote ID equipment will only be permitted to be flown for aeronautical research or within visual line of sight at FAA-recognized identification areas that are established at the request of community-based organizations.
The proposed rule would require almost all UAS (except those that weigh less than .55 lbs., are amateur-built or are owned by the U.S. Government) to comply with these remote ID requirements within three years of the effective date of the rule. It also would require UAS to be manufactured so as to meet the minimum performance requirements for standard or limited remote ID within two years of the effective date. Comments were due by March 2, 2020. More than 50,000 public comments have been submitted.
Florida H.B. 659. On March 6, 2020, the Florida Legislature passed a bill that would allow non-law enforcement government employees to use UAS to manage and eradicate invasive exotic plants or animals on public lands, and to suppress and mitigate wildfire threats. (Existing Florida law severely restricts the circumstances under which law enforcement and other governmental personnel can use UAS.)
Idaho H.B. 486. On March 24, 2020, Idaho amended its law describing circumstances that permit governmental entities to use UAS. Idaho generally prohibits governmental entities from using UAS to surveil or collect information about individuals, their residences, farms, dairies, or other agricultural, commercial or industrial properties, absent written consent. The amended law clarifies that governmental entities can use UAS: (1) for traffic accident documentation or reconstruction, (2) for crowd or traffic management of a public event, (3) to assess damage due to a natural disaster or fire, (4) to train persons in the operation and use of UAS, (5) to assist in search and rescue operations, crime scene investigations, or emergencies affecting public safety or in which there is an imminent threat to lives or property, and (6) pursuant to a warrant. Aggrieved persons are permitted to sue the offending local, state or federal governmental entity for damages (either $1,000.00 or actual damages, whichever is greater), reasonable attorneys’ fees and costs.
South Dakota H.B. 1065. On March 23, 2020, South Dakota amended its law relating to drone surveillance protections. The prior law made it a misdemeanor to land a UAS on another’s property without consent or to use a UAS to trespass with the intent to conduct surveillance in a private place, or to observe photograph, record or record a person in a private place where that person has a reasonable expectation of privacy. The prior law contained an exception for commercial drones flown in compliance with FAA regulations. The amended law removes the commercial drone exception but clarifies that the prohibitions do not apply to a UAS used for bona fide business or government purposes, where the drone operator unintentionally or incidentally photographs, records or otherwise observes another person in a private place.
Virginia H.B. 742. On March 12, 2020, Virginia amended its law relating to local regulation of UAS. The prior law had preempted local regulation of privately-owned UAS. The amended law permits local governments to regulate the take-off and landing of UAS on public property, provided that such local regulations comply with state regulations promulgated by the Virginia Department of Aviation. The bill provides that local regulations still will not apply to: (1) the take-off or landing of a commercial UAS in compliance with FAA regulations, (2) the take-off or landing of UAS by any entity due to the need for emergency or maintenance, (3) the landing of any UAS in the event of a technical malfunction in compliance with FAA regulations, (4) the take-off or landing of UAS by public safety officers in the performance of their duties, or (5) the take-off or landing of UAS operated by the U.S. Government or federal contractors.
Gerhart v. Energy Transfer Partners, L.P., Case No. 1:17-cv-1726, 2020 U.S. Dist. LEXIS 55107 (M.D. Pa. Mar. 30, 2020). Plaintiff property owners protested the clearing of trees and the construction of a pipeline on an easement located on their property. Defendant energy companies hired another defendant, a private security company, to conduct surveillance of plaintiffs. The security company then flew drones and helicopters at low altitudes over the property. Plaintiffs sued and asserted a claim for nuisance, among other claims. Defendants moved to dismiss the nuisance claim and the Court denied the motion, reasoning that the alleged facts “are sufficient to establish that the alleged invasion caused significant harm to Plaintiffs’ use and enjoyment of the Property.”
U.S. v. Mapes, Case No. 19-cr-286, 2020 U.S. Dist. LEXIS 26268 (N.D. Cal. Feb. 14, 2020). The U.S. Government charged Mapes with misdemeanor violations of 49 U.S.C.
§§ 40103(b) & 46307 and 14 C.F.R. § 99.7 after he flew a drone in restricted airspace over two stadiums during NFL games. Mapes moved to dismiss the charges on the grounds that the conduct occurred before Congress had authorized the FAA to regulate model aircraft. The Court denied the motion because flying in restricted airspace endangers the safety of the national airspace system, and the FAA has always had the authority to regulate dangerous model aircraft operations.