Drone laws and regulations in the USA
Before exploring the specific topics states have legislated, it is important to consider the issue of preemption. If a state or local law directly conflicts with federal laws or regulations, the state or local law is likely to be invalidated. Because the FAA is the designated authority to regulate U.S. airspace, any state or local law that conflicts with FAA regulations or attempts to regulate in an area that is within the purview of the FAA may be preempted.
Examples of laws for which consultation with the FAA is recommended:
- “Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example – a city ordinance banning anyone from operating UAS with State UAS Legislative Action in the city limits, within the airspace of the city, or within certain distances of landmarks.”
- “Mandating equipment or training for UAS related to aviation safety such as geo-fencing would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework.”
Examples of laws within state and local government police power:
- “Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation.”
- Requirement for police to obtain a warrant prior to using a UAS for surveillance.
- Specifying that UAS may not be used for voyeurism.
- Prohibitions on using UAS for hunting or fishing, or to interfere with or harass someone who is hunting or fishing.
- Prohibitions on attaching firearms or similar weapons to UAS.
Privacy
One of the most significant areas of UAS legislation across the country has been related to privacy implications. The mission of the FAA is “to provide the safest, most efficient aerospace system in the world.” This mission does not include regulating privacy-related issues. As a result, many states have considered and passed legislation dealing with privacy and drones.
Privacy law concerning drones generally fall into two categories:
- Laws that require law enforcement to obtain a warrant prior to using a drone to perform a search of or surveillance on a suspect, and
- Laws that prohibit private citizens (non-governmental actors) from using drones to do various activities that would invade someone else's privacy. These laws vary considerably by state with regard to exactly what types of activities are prohibited, including: flying over private property (trespassing), filming over private property, photographing in a place where a person has a reasonable expectation of privacy, height restrictions for flying over private property, consent restrictions, restrictions on publishing images taken without consent, and other rules that specifically make it an offense to use a drone for harassment or voyeurism.
Since 2013, 24 states (Alaska, Arkansas, California, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Mississippi, Montana, Nevada, North Carolina, North Dakota, Oregon, Pennsylvania, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, and Wisconsin) have passed legislation that falls within the broad category of privacy. This includes legislation related to warrant requirements for UAS use by law enforcement agencies and protection from privacy violations committed by non-government operators, including peeping toms.
Warrant Requirements
One of the first UAS uses that captured the attention of legislatures was the use of UAS by law enforcement agencies for surveillance. 18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin— have passed legislation requiring law enforcement agencies to obtain a search warrant to use UAS for surveillance or to conduct a search.
As is the case generally with search warrants, certain exceptions to the warrant requirement are included in the legislation, such as when exigent circ*mstances justify a search without a warrant.
Protection from Non-Government Operators
In addition to concerns regarding Fourth Amendment violations by law enforcement agencies, states have also addressed the potential for privacy violations committed by non-government operators.
At least 15 states—Arkansas, California, Florida, Idaho, Indiana, Kansas, Mississippi, Nevada, North Carolina, Oregon, Tennessee, Texas, Utah, Virginia, and Wisconsin—have passed legislation providing privacy protections from other citizens that are specific to drones. Some states have indicated they believe current privacy laws that do not specifically address the use of UAS but, rather, provide general privacy protections, can provide the same protections in regard to UAS use.
Security Concerns
While there are obvious commercial applications for UAS in the monitoring and maintenance of critical infrastructure, there are also concerns about the dangers that could come with the unrestricted use of drones near these facilities. These problems revolve primarily around issues of security.
UAS can pose a potential danger to critical infrastructure and, therefore, public safety. The FAA has reported a substantial rise in the number of pilots reporting drone sightings near other aircrafts and airports. Correctional facilities across the United States are battling the problem of drones being used to deliver contraband. Security experts have warned that drones could be used by terrorists to surveil or assist in attacking critical infrastructure and critical facilities.
Prisons
States also have expressed concern about UAS operation near and over prisons. Currently, 22 states (Arizona, Arkansas, California, Delaware, Florida, Georgia, Iowa, Kentucky, Louisiana, Minnesota, Missouri, Nevada, New Jersey, North Carolina, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin) prohibit drones from operating near or over prisons.
States have taken various approaches in legislation, with some addressing where a drone can be operated and others specifically addressing the crime of introducing contraband into a correctional facility using a drone.
Critical Infrastructure
Legislation also has been enacted to protect critical infrastructure from rogue drone operators. The classification of critical infrastructure varies by state, but generally includes facilities such as petroleum refineries, chemical manufacturing facilities, pipelines, wastewater treatment facilities, power generating stations, electric utilities, chemical or rubber manufacturing facilities, and other similar facilities.
10 states specifically restrict drone access near critical facilities and infrastructures.
These states include Arkansas, Arizona, Delaware, Florida, Louisiana, Nevada, Oklahoma, Oregon, Tennessee, and Texas.
Stadiums
FAA regulations prohibit drones flying within three miles of stadiums one hour before and one hour after the schedules time of any of the following events:
- Major League Baseball
- National Football League
- NCAA Division One Football
- NASCAR Sprint Cup, Indy Car, and Champ Series races
Five states - Delaware, Minnesota, Missouri, Tennessee, and Texas - have state laws prohibiting drones near stadiums or open-air events.. Delaware prohibits drones over any sporting event, concert, automobile race, festival, or other event at which more than 1500 people are in attendance. Texas specifically prohibits drones flying over “sports venues” with seating capacity of at least 30,000. Tennessee law regulates flying drones over stadiums and made it illegal to use a drone to drop objects into an open-air event venue where more than 100 persons are gathered for a ticketed event.
Airports
Under the Special Rule for model aircraft, the FAA requires hobby drone operators to notify the airport operator and air traffic control tower if they will be flying within 5 miles of an airport. The FAA also prohibits model aircraft from ever flying near other aircraft or near emergency response efforts.
Nevada legislation specifies that “A person may operate an unmanned aerial vehicle within 5 miles of an airport only if the person obtains the consent of the airport authority or the operator of the airport, or if the person has otherwise obtained a waiver, exemption or other authorization for such operation…” Anyone who violates this requirement is guilty of a misdemeanor.
Committees, Studies and Task Forces
Several states have convened committees, task forces, advisory boards, or requested studies on the use and implications of unmanned aircraft systems. 20 states - Alaska, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maryland, Michigan, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Wisconsin - have assembled committees, task forces, advisory boards or requested studies.
DISCLAIMER: This is for informational purposes only. The information does not constitute legal advice. You should seek out an attorney licensed in your state if you are in need of legal assistance.
