330570, Unmanned Aircraft Systems: Current Jurisdictional, Property, and Privacy Legal Issues Regarding the Commercial and Recreational Use of Drones

441 G St. N.W.

Washington, DC 20548

Unmanned Aircraft Systems:

Current Jurisdictional, Property, and Privacy Legal Issues

Regarding the Commercial and Recreational Use of Drones

APPENDICES I-VI

B-330570 September 2020

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The FAA Reauthorization Act of 2018, Public Law No. 115-524, provided for GAO to study and

report on a number of key legal issues relating to the ongoing integration of unmanned aircraft

systems (UAS)—commonly known as drones—into the national airspace system. Section 373

of the 2018 Reauthorization Act provided for us to study the relative roles and authorities of the

federal, state, local, and tribal governments in the regulation and oversight of low-altitude UAS

operations (referred to in this report as “UAS jurisdiction” or “UAS federalism” issues). Section

358 of the 2018 Reauthorization Act provided for us to study UAS-related personal privacy

issues and the federal, state, and local laws that currently address them (referred to in this

report as “UAS privacy” issues).

Our report responding to these mandates is presented in multiple parts: a correspondence

summarizing key aspects of our analysis and six appendices providing more detailed analysis.

This document contains the appendices; our correspondence is presented in an accompanying

document.

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TABLE OF CONTENTS - APPENDICES

APPENDIX I - FEDERAL, STATE, LOCAL, AND TRIBAL JURISDICTION AND REGULATION

OF LOW-ALTITUDE UAS OPERATIONS, INCLUDING THE POTENTIAL IMPACT OF

PROPERTY RIGHTS IN AIRSPACE

A. Constitutional Framework of Federal, State, Local, and Tribal Authorities to Regulate

UAS Operations ....................................................................................................................... 2

B. Federal UAS Regulation and Enforcement ............................................................................. 5

1. Congress’s Enactment of Aviation Legislation under the Commerce Clause ....................... 5

2. FAA’s Regulation of UAS Operations .................................................................................. 6

a. Operational Requirements ................................................................................................ 6

b. Federal Preemption of State, Local, and Tribal Laws and Regulations ............................ 9

c. Enforcement and Compliance Assurance Regarding UAS Operations .......................... 14

d. FAA Actions to Address UAS-Related Privacy Concerns .............................................. 15

C. State, Local, and Tribal UAS Regulation and Enforcement .................................................. 16

1. State and Local General Laws ........................................................................................... 16

2. State and Local UAS-Specific Laws .................................................................................. 18

D. Stakeholder Issues and Positions ........................................................................................ 19

1. Stakeholder Positions on the Scope of Federal, State, Local, and Tribal Authority

to Regulate UAS Operations in Low-Altitude Airspace ..................................................... 19

a. Stakeholder Positions on the Scope of FAA’s Authority and the Impact of Possible

Property Rights in Airspace .......................................................................................... 23

(i) Stakeholder Positions on the Scope of Congress’s and FAA’s Commerce

Clause Authority over Low-Altitude UAS Operations .............................................. 23

(ii) Stakeholder Positions on Property Rights in Airspace, the Fifth Amendment’s

Takings Clause, and United States v. Causby ....................................................... 28

b. Stakeholder Positions on the Scope of Federal Preemption of State, Local, and

Tribal UAS Regulations ............................................................................................... 36

2. Stakeholder Questions and Concerns about UAS Enforcement Authority ..................... 39

a. Whether States, Localities, and Tribes Have Authority to Enforce Their Own

Laws or Federal Laws to Respond to UAS Incidents .................................................. 39

b. What Enforcement Measures States, Localities, and Tribes Have Authority

to Use ........................................................................................................................ 41

(i) Requesting UAS Registration ............................................................................ 41

(ii) Ordering UAS Operators to Land ....................................................................... 42

(iii) Using Counter-UAS (C-UAS) Measures ............................................................ 42

c. Stakeholder-Identified Need for Requirement to Identify UAS in Flight

(Remote ID) ............................................................................................................. 45

APPENDIX II – ADDITIONAL CONSIDERATIONS INVOLVING UAS-RELATED PROPERTY

RIGHTS IN AIRSPACE: POTENTIAL CLAIMS UNDER STATE AND FEDERAL LAW

A. Stakeholder Positions on Potential Landowner UAS-Related Aerial Trespass Claims

under State Law ...................................................................................................................... 1

1. Trespass by “Aircraft” (Restatement (Second) of Torts § 159) ........................................... 1

a. Traditional Trespass and Development of Special Rules for Trespass by Aircraft ......... 1

b. Current Elements of Trespass by Aircraft ....................................................................... 3

2. Trespass by Drones (Uniform Law Commission Draft Model Act) ...................................... 6

a. Altitude-Based Bright Line Approach ............................................................................. 7

b. Multi-Factor Substantial Interference Approach ............................................................. 9

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B. Stakeholder Positions on Landowner UAS-Related Takings Claims under

the Constitution .................................................................................................................... 12

1. Potential Claims Based on Federal, State, Local, and Tribal Government

Direct Actions .................................................................................................................... 12

2. Potential Claims Based on Federal, State, Local, and Tribal Government

Regulatory Actions (Regulatory Takings) ......................................................................... 13

APPENDIX III - CONSIDERATIONS INVOLVING UAS-RELATED PERSONAL PRIVACY

RIGHTS UNDER FEDERAL AND STATE LAW

A. The Right to Be Let Alone (Beginnings of the Right to Privacy) .............................................. .3

B. The Potential Impact of the First Amendment on Legal Rights to Privacy ................................ 6

C. Federal Laws That May Protect UAS-Related Personal Privacy ............................................. 8

1. Limited Federal Laws Applicable to UAS-Related Personal Privacy and Administration

Approaches to Protecting Consumer Data Privacy ............................................................... 8

2. FAA Authority and Actions to Date .................................................................................... 10

3. FTC Authority and Actions to Date .................................................................................... 13

D. State and Local Laws That May Protect UAS-Related Personal Privacy ............................... 14

1. State and Local General Privacy Laws .............................................................................. 15

a. Criminal “Peeping Tom” Laws ........................................................................................ 15

b. State Common Law Privacy Torts ................................................................................ 16

(i) Intrusion upon Seclusion (Restatement (Second) of Torts § 652B) ....................... 16

(ii) Public Disclosure of Private Facts (Restatement (Second) of Torts § 652D) .......... 20

c. State Statutory Personal Privacy Laws (California Anti-Paparazzi Law)........................ 22

d. State Statutory Personal Information Privacy Laws (California Consumer

Privacy Act) .................................................................................................................. 23

2. State and Local UAS-Specific Privacy Laws .................................................................... 23

a. Enacted State and Local UAS-Specific Privacy Laws.................................................. 23

b. Uniform Law Commission Draft Model Drone Privacy Act ........................................... 24

E. “Voluntary Best Practices” Protecting UAS-Collected Personal Information

(NTIA-Convened Multi-Stakeholder Process) ..................................................................... 25

F. Stakeholder Issues and Positions ......................................................................................... 28

1. Stakeholder Positions on Whether UAS Raise Novel Privacy Concerns ........................... 28

a. Federal Agency Statements .......................................................................................... 28

b. Other Stakeholder Positions .......................................................................................... 29

2. Stakeholder Positions on Whether UAS Privacy Concerns Are Adequately Addressed

Under Existing Law ........................................................................................................... 33

3. Stakeholder Positions on Potential Additional Measures to Protect UAS Privacy ............ 35

a. Federal and State Legal Authority to Protect UAS Privacy ........................................... 35

b. Federal versus State Regulatory Roles ........................................................................ 38

c. Considerations in Enacting Additional Measures .......................................................... 41

(i) Timing .................................................................................................................... 41

(ii) Technology-Neutral versus UAS-Specific Measures ............................................. 41

(iii) Stakeholder-Based Examples of Potential UAS Privacy, Transparency, and

Accountability Measures ........................................................................................ 43

APPENDIX IV - State UAS-Specific Laws, Resolutions, and Executive Orders

APPENDIX V - Evolution of Property Rights in Airspace

APPENDIX VI - List of Interviewees

APPENDIX I:

FEDERAL, STATE, LOCAL, AND TRIBAL JURISIDICTION AND

REGULATION OF LOW-ALTITUDE UAS OPERATIONS, INCLUDING

THE POTENTIAL IMPACT OF PROPERTY RIGHTS IN AIRSPACE

Before addressing the legal authority of the federal, state, local, and tribal governments to

regulate the operation of civil (non-government) unmanned aircraft systems (UAS)

—more

commonly known as drones—we begin with a brief summary of the current use of drones.

As we have previously reported, the federal government currently uses UAS for purposes such

as military and national security activities, law enforcement, disaster response, and scientific

research.

State and local governments use UAS for some of these same purposes.

At the

same time, the commercial and recreational use of drones by non-government entities has

grown substantially in recent years and is expected to increase as technology improves and

legal and policy issues are resolved. According to the Federal Aviation Administration (FAA), in

2019, about 77 percent of the approximately 1.7 million “small” UAS (less than 55 pounds)

used in non-government operations were used for recreational purposes, while about 23

percent were in commercial use.

By 2024, FAA predicts the total non-government use fleet

likely will increase to approximately 2.3 million small UAS, with the proportions shifting to about

64 percent recreational use and 36 percent commercial use—although the fleet might increase

to as many as 2.8 million small UAS by that date (about 57 percent recreational use and 43

percent commercial use).

As of 2018, according to FAA, the predominant commercial UAS uses in the U.S. were

industrial inspection, event photography, real estate, and research and development/training.

For purposes of regulating aviation safety and the efficient management of airspace, Congress has defined “aircraft”

as “any contrivance invented, used, or designed to navigate, or fly in, the air.” 49 U.S.C. § 40102(a)(6). An

“unmanned aircraft” is defined as “an aircraft that is operated without the possibility of direct human intervention from

within or on the aircraft.” 49 U.S.C. § 44801(11). An “unmanned aircraft system” is defined as “an unmanned aircraft

and associated elements (including communication links and the components that control the unmanned aircraft) that

are required for the operator to operate safely and efficiently in the national airspace system.” 49 U.S.C. § 44801(12).

See, e.g., GAO, Small Unmanned Aircraft Systems: FAA Should Improve Its Management of Safety Risks, GAO-

18-110 (Washington, DC: May 24, 2018); Unmanned Aerial Systems: FAA Continues Progress toward Integration

into the National Airspace, GAO-15-610 (Washington, DC: July 16, 2015); Unmanned Aircraft Systems: Measuring

Progress and Addressing Potential Privacy Concerns Would Facilitate Integration into the National Airspace System,

GAO-12-981 (Washington, DC: Sept.14, 2012); Unmanned Aircraft Systems: Federal Actions Needed to Ensure

Safety and Expand Their Potential Uses within the National Airspace System, GAO-08-511 (Washington, DC: May

15, 2008).

See GAO-18-110, GAO-15-610, GAO-12-981, GAO-08-511, supra note 2.

A “small” UAS is defined as one that weighs less than 55 pounds, including the weight of anything attached to or

carried by the aircraft. 49 U.S.C. § 44801(9).

FAA, FAA Aerospace Forecast, Fiscal Years 2020-2040 (March 26, 2020), at 48, 52, available at

https://www.faa.gov/data_research/aviation/aerospace_forecasts/media/FY2020-40_faa_aerospace_forecast.pdf

(last visited Sept. 1, 2020).

Id.

Commercial operators used UAS for the following purposes: research and development/training (21%), event

photography (personal events, entertainment, sports) (21%), industrial inspections (16%), real estate (13%),

construction and agriculture (about 8% each), press and media (5%), and other uses (9%). See FAA, FAA Aerospace

Forecast, Fiscal Years 2019-2039 (April 30, 2019), at 48, available at

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Routine, for-hire UAS package delivery may be on the horizon, however, and FAA predicts that

growth in the UAS small-package delivery sector could be “phenomenal.”

Under FAA’s

general operating rules for commercial UAS operations, deliveries made beyond a UAS

operator’s visual line of sight currently are allowed only by FAA waiver. Over the last year,

however, initially in connection with the Department of Transportation’s (DOT) UAS Integrated

Pilot Program and more recently under FAA’s traditional air carrier regulations, FAA has

approved drone deliveries on a broader basis by several commercial ventures.

FAA also has

announced its intention to issue “type certificates” for package-delivery drones, to ensure their

safety and airworthiness, once certification standards evolve for this special class of UAS.

a potentially broader scale, the U.S. Postal Service has explored the possibility of UAS

package and mail delivery.

A. Constitutional Framework of Federal, State, Local, and Tribal Authorities to Regulate

UAS Operations

The fundamental balance of power between the federal government and the state, local, and

tribal governments is established by the U.S. Constitution and governing case law. As the

Supreme Court has explained, “[i]n our federal system, the National Government possesses

only limited powers; the States and the people retain the remainder. The States have broad

authority to enact legislation for the public good—what we have often called a ‘police power.’ . . .

The Federal Government, by contrast, has no such authority and ‘can only exercise the powers

granted to it . . . .’”

www.faa.gov/data_research/aviation/aerospace_forecasts/media/fy2019-39_faa_aerospace_forecast.pdf (last visited

Sept. 1, 2020).

FAA Aerospace Forecast, Fiscal Years 2020-2040, supra note 5, at 53.

For example, In March 2019, FAA approved the first revenue-generating UAS package deliveries in the U.S. in

connection with DOT’s Integration Pilot Program (IPP) (discussed in Part B.2.b. below). Under this FAA approval,

United Parcel Service (UPS), in partnership with drone manufacturer and operator Matternet, delivered medical

samples for laboratory testing to a hospital campus in Raleigh, North Carolina.

In April 2019, again in connection with the IPP, FAA issued its first Single Pilot air carrier certificate for drone

operations to Wing Aviation, LLC, for delivery of food and over-the-counter pharmaceuticals to homes in

Christiansburg, VA. FAA certified Wing under its 14 C.F.R. Part 135 air carrier regulations rather than its 14 C.F.R.

Part 107 UAS regulations (exempting the operations from inapplicable Part 135 provisions), because the Part 107

rules currently prohibit routine flights beyond a pilot’s visual line of sight absent a waiver.

In September 2019, FAA issued its first Standard Operator Part 135 certificate for drone delivery operations to UPS

Flight Forward, Inc., with no weight or time-of-day restrictions or limits. FAA issued its second Standard Operator

Part 135 air carrier certificate for drone delivery operations in October 2019 to Wing Aviation. In August 2020, FAA

issued temporary exemptions and an operating certificate to Amazon Prime Air to conduct drone delivery operations

within a “UAS test range.” As of May 2020, FAA said it is working on Part 135 air certificate applications for several

additional UAS operators involved in the IPP.

85 Fed. Reg. 5905 (Feb. 3, 2020).

In 2016, the Postal Service’s Office of Inspector General conducted a nationwide public opinion survey about the

appeal of drone technology and its perceived risks and benefits. U.S. Postal Service Office of Inspector General,

Public Perception of Drone Delivery in the United States, Report No. RARC-WP-17-001 (Oct. 11, 2016).

Bond v. United States, 572 U.S. 844, 854 (2014) (citations omitted).

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One of the enumerated powers the Constitution grants to Congress is the Commerce Clause

power. The Commerce Clause, which has been Congress’s principal source of authority in

enacting aviation safety and airspace management legislation, authorizes Congress:

“[t]o regulate Commerce with foreign Nations, and among the Several States,

and with the Indian Tribes.”

The powers of the states and the people are addressed by the Tenth Amendment, part of the

Bill of Rights. The Tenth Amendment provides that:

“[t]he powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively, or

to the people.”

These reserved state powers include traditional police powers to protect public health, safety,

and welfare on matters such as property rights, privacy, land use and zoning, and law

enforcement.

Congress’s authority with respect to Indian tribes derives from what is referred to as the Indian

Commerce Clause, part of the Commerce Clause quoted above—the power “[t]o regulate

Commerce . . . with the Indian Tribes.” Congress’s authority also derives from the Senate’s

right to approve treaties made by the President, which comes from the Constitution’s Treaty

Clause. The Treaty Clause provides that:

“[t]he President shall have Power, by and with the Advice and Consent of

the Senate, to make Treaties, provided two thirds of the Senators present

concur . . . .”

Treaties between the United States and Indian tribes grant certain rights to the United States

and reserve other rights not explicitly granted to the United States to the tribes.

Together, the

Commerce Clause and the Treaty Clause provide Congress with broad, general powers to

legislate with respect to Indian tribes.

Finally, the Constitution provides that federal law is “supreme” and that when the federal

U.S. Const. Art. I, sec. 8, cl. 3.

U.S. Const. Amend. X.

U.S. Const. Art. II, § 2, cl. 2.

United States v. Winans, 198 U.S. 371, 381 (1905). Although the federal government’s treaty-making with Indian

tribes ceased in 1871, treaties remain in force as the supreme law of the land under the Constitution’s Supremacy

Clause (discussed below) unless and until abrogated by a later enacted statute. See 25 U.S.C. § 71; The Cherokee

Tobacco Case, 78 U.S. 616, 621 (1870).

See United States v. Lara, 541 U.S. 193, 200 (2004), citing Morton v. Mancari, 417 U.S. 535 (1974); McClanahan

v. Arizona Tax Comm'n, 411 U.S. 164 (1973).

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government acts within its enumerated powers, federal law prevails over state law. Otherwise,

the powers remain with the states and the people. This doctrine, known as the preemption

doctrine, is based on the Supremacy Clause, which provides that:

“[t]his Constitution and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or which shall be made,

under the Authority of the United States, shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the Contrary notwithstanding.”

Federal preemption by “Laws of the United States” can occur in three basic ways: “express

preemption,” “conflict preemption,” and “field preemption.”

The Supreme Court has made

clear, however, that particularly in areas of traditional state concern, one must “start with the

assumption that the historic police powers of the States [are] not to be superseded by . . .

Federal Act[s] unless that [is] the clear and manifest purpose of Congress.”

This assumption

is based on the status of states as “independent sovereigns in our federal system . . . .”

The

Supreme Court also has required clear congressional intent to preempt because “the state is

powerless to remove the ill effects of [federal preemption], while the national government, which

has the ultimate power, remains free to remove the burden.”

Whether federal law prevails over laws promulgated by Indian tribes under their inherent

sovereign powers is not governed by the Supremacy Clause, which applies only to states and

does not address the unique historical origins of tribal sovereignty.

Rather, federal laws of

U.S. Const. Art. VI, cl. 2. See, e.g., Gustafson v. City of Lake Angelus, 76 F.3d 778, 782 (6th Cir. 1996), cert.

denied, 519 U.S. 823 (1996) (citation omitted) (preemption doctrine “springs from the Supremacy Clause of the

Constitution”).

Express preemption occurs when the language of the statute expressly indicates it preempts state law. Conflict

preemption occurs either when compliance with both federal and state law is impossible or when compliance with

both laws is possible but state law stands as an obstacle to the full accomplishment of the purposes and objectives of

Congress. Field preemption occurs when federal law so thoroughly occupies a legislative field, or federal regulation

is so pervasive, that courts can reasonably infer Congress intended to leave no room for state action. See, e.g.,

Cipollene v. Ligget Group, Inc., 505 U.S. 504 (1992); Rice v. Santa Fe Elevator Corp. 331 U.S. 218 (1947); Hines v.

Davidowitz, 312 U.S. 52 (1941).

Cipollene, supra note 19, 505 U.S. at 516, citing Rice, supra note 19, 331 U.S. at 230 (emphasis added).

“Preemption is predicated on congressional intent.” Gustafson, supra note 18, 76 F. 3d at 782.

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (“[B]ecause the states are independent sovereigns in our federal

system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action. . . .

particularly in those [cases] in which Congress has ‘legislated . . . in a field which the States have traditionally

occupied . . . .’”) (citations omitted). See also San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243

(1959) (assumption that state police power laws are not to be preempted absent clear congressional intent derives

from “due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power

not as a matter of doctrinaire localism but as a promoter democracy . . . .”).

Penn. Dairies, Inc. v. Milk Control Comm’n, 318 U.S. 261, 275 (1943).

As the Supreme Court has explained, Indian tribes are neither states, nor part of the federal government, nor

subdivisions of either, but instead are “domestic dependent nations.” Cherokee Nation v. Georgia, 30 U.S. 1, 17

(1831). Indian tribes pre-date the establishment of the United States and have inherent powers of limited sovereignty

which have never been extinguished. United States v. Wheeler, 435 U.S. 313, 322-23 (1978), quoting Cohen’s

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general applicability apply to Indian tribes if the laws neither explicitly include nor exclude tribes,

unless there is evidence of congressional intent to the contrary or the law’s application would

adversely affect treaty rights or the tribe’s inherent right of self-government.

Depending upon

the text of the generally applicable law, its application to Indian tribes may then preempt or

permit tribal regulation.

B. Federal UAS Regulation and Enforcement

1. Congress’s Enactment of Aviation Legislation under the Commerce Clause

Pursuant to this Constitutional framework and relying on its Commerce Clause power,

Congress has enacted a series of aviation laws beginning with the Air Commerce Act of 1926.

Over time, Congress expanded and amended the 1926 Act through numerous authorization

acts, including substantial legislation in 1938

and the landmark Federal Aviation Act of 1958,

FAA’s organic statute.

The Federal Aviation Act was passed following a series of fatal

collisions between civil and military aircraft operating under separate flight rules, to which

Congress responded by creating and providing for enforcement of one unified system of flight

rules under the control of the Federal Aviation Agency, renamed as the Federal Aviation

Administration in 1966.

Today, the Federal Aviation Act, as amended, provides in part that every “citizen of the United

States has a public right of transit through the navigable airspace” and that FAA shall regulate

the use of this airspace “to ensure the safety of aircraft and the efficient use of airspace.”

Congress originally defined “navigable airspace” in 1926 as “airspace above the minimum safe

altitudes of flight prescribed by the Secretary of Commerce . . . .”

It expanded this definition in

Handbook of Federal Indian Law at 122 (1945). See generally Reich v. Mashantucket Sand & Gravel, 95 F.3d 174,

181 (2d Cir. 1996) (because tribes are not states, federal Occupational Safety and Health Act does not preempt tribal

safety regulations in the same manner as it preempts state laws).

The Supreme Court also has explained that “the unique historical origins of tribal sovereignty make it generally

unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in

other areas of the law. Tribal reservations are not States, and the differences in the form and nature of their

sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other.” White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980).

See Cohen’s Handbook of Federal Indian Law § 2.03 at 124-27 (Nell Jessup Newton ed., 2012).

Cf. NLRB v. Little River Band of Ottawa Indians Tribal Gov’t, 788 F. 3d 537 (6

Cir. 2015) (federal National Labor

Relations Act applies to tribe’s operation of casino resort; tribe’s conflicting employment and labor-organizing

ordinances are not enforceable, but court does not explicitly address preemption).

Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568 (1926).

Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973 (1938).

Federal Aviation Act of 1958, Pub. L. No. 85-726,72 Stat. 731 (1958), as amended and recodified, 49 U.S.C. §§

40101 et seq.

49 U.S.C §§ 40103(a)(2), (b)(1).

Air Commerce Act of 1926, supra note 26, § 10, 44 Stat. at 574.

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1958 to add airspace needed for safe takeoffs and landings in addition to flight

and today, the

definition is codified as “airspace above the minimum altitudes of flight prescribed by regulations

. . ., including airspace needed to ensure safety in the takeoff and landing of aircraft.”

Congress took explicit action to regulate civil (non-government) UAS operations starting in

2012. In the FAA Modernization and Reform Act of 2012 (FMRA)

and subsequent acts,

Congress directed FAA to determine whether civil UAS may operate safely in the “national

airspace system” and if it so determines, to establish requirements for safe operation in and

integration into that system.

Congress has not defined “national airspace system”; FAA has

defined this term in its Pilot/Controller Glossary as a “network” consisting of “U.S. airspace” (an

undefined term)

together with aviation-related facilities, rules, technical information,

manpower, and material.

DOT officials told us that as so defined, “national airspace system”

is “a broader concept than the ‘navigable airspace.’”

2. FAA’s Regulation of UAS Operations

a. Operational Requirements

Based on its reading of these statutory authorities, FAA and its predecessor agencies

have

Federal Aviation Act of 1958, supra note 28, § 101(24), 72 Stat. at 739.

49 U.S.C. § 40102(a)(32).

FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 332, 126 Stat. 11 (2012).

See, e.g., FAA Extension, Safety, and Security Act of 2016, Pub. L. No. 114-190, 130 Stat. 615 (2016); FAA

Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186 (2018 FAA Reauthorization Act). See also

National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1092(d), 131 Stat. 1283, 1610-1611

(2017).

See 49 U.S.C. §§ 44802, 44807.

Congress declared in the 1926 Air Commerce Act that “the Government of the United States has, to the exclusion

of all foreign nations, complete sovereignty of the airspace over the lands and waters of the United States, including

the Canal Zone.” Air Commerce Act of 1926, supra note 26, § 6(a), 72 Stat. at 572 (emphasis added). Today, the

Federal Aviation Act similarly provides that “the United States Government has exclusive sovereignty of airspace of

the United States.” 49 U.S.C. § 40103(a)(1) (emphasis added). Congress has not defined either of these “U.S.

airspace”-related terms, with respect to altitude or any other characteristic.

See FAA Order JO 7110.65Y, Air Traffic Control, Appendix - Pilot/Controller Glossary at p. PCG N-1, available at

https://www.faa.gov/documentLibrary/media/Order/7110.65Y_ATC_Bsc_w_Chg_1_2_dtd_7-16-20.pdf (last visited

Sept. 1, 2020) (defining “national airspace system” as the “common network of U.S. airspace; air navigation facilities,

equipment and services, airports, or landing areas; aeronautical charts, information and services; rules, regulations

and procedures, technical information, and manpower and material. Included are system components shared jointly

with the military.”). See also Presidential Memorandum to Heads of Executive Departments and Agencies, Promoting

Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of

Unmanned Aircraft Systems, 80 Fed. Reg. 9355, 9355 (Feb. 20, 2015) (same except last sentence states, “Included

in this definition are system components shared jointly by the Departments of Defense, Transportation, and

Homeland Security.”).

Starting with the 1926 Air Commerce Act, Congress has assigned responsibility for regulating aviation safety,

airspace management, and related matters to a number of federal agencies as follows:

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developed a comprehensive regulatory system governing the safe operation of aircraft and the

efficient use of the airspace.

Among other things, FAA’s regulations govern air traffic control

and prevention of collisions between aircraft, including establishment of minimum safe flight

altitudes—generally 500 feet above the ground in most non-congested areas and 1,000 feet

above the highest structure in congested areas, except that certain aircraft or aircraft operating

under certain circumstances may fly below these altitudes pursuant to FAA-prescribed

regulations, routes, or altitudes.

Over time, FAA has integrated UAS operations into this existing regulatory system originally

developed in the context of manned aircraft.

Prior to enactment of FMRA in 2012, FAA

addressed UAS operations through agency guidance and policy statements

as well as through

• 1926 – a new Aeronautics Branch was established within the Department of Commerce; its functions included

testing and licensing of pilots, certification of aircraft, and accident investigations.

•

1934 - the Aeronautics Branch was renamed the Bureau of Air Commerce.

•

1938 – an independent Civil Aeronautics Authority was created; its responsibilities included non-military aviation,

air traffic control, and regulation of airline fares and routes.

•

1940 – the Civil Aeronautics Authority was split into the Civil Aeronautics Administration—which was returned to

the Department of Commerce and which was responsible for air traffic control, airman and aircraft certification,

safety enforcement, and airway development—and the Civil Aeronautics Board (CAB)—which was responsible

for safety rulemaking, accident investigation, and economic regulation of airlines.

•

1958 – the independent Federal Aviation Agency was created and became responsible for civil aviation safety,

receiving the CAA’s responsibilities and certain of the CAB’s responsibilities. The CAB retained responsibility for

commercial airline practices, fares, and accident investigations.

•

1966/1967 – the Federal Aviation Agency was renamed the Federal Aviation Administration as part of the

creation of the Department of Transportation. The CAB’s accident investigation function was transferred to the

newly created National Transportation Safety Board. CAB was sunsetted in 1984.

See generally FAA, A Brief History of the FAA, available at https://www.faa.gov/about/history/brief_history/ (last

visited Sept. 1, 2020).

See 14 C.F.R. Parts 21-193.

14 C.F.R. §§ 91.119(b), (c). Helicopters may be operated below these minimum altitudes in accordance with FAA-

prescribed routes and altitudes. Other aircraft may operate below these minimum altitudes in other than congested

areas if they are flying over open water or a sparsely populated area (but in that case, not closer than 500 feet from

any person, vessel, vehicle, or structure). Id., §§ 91.119(c), (d). Agricultural aircraft (e.g., crop dusters) may operate

below 500 feet in certain limited circumstances. 14 C.F.R. §§ 137.49, 137.51.

In addition to FAA, other federal agencies have or have had certain UAS-related responsibilities. These include the

National Aeronautics and Space Administration, the Federal Communications Commission, the Departments of

Justice, Defense, Homeland Security, and Energy, the Federal Trade Commission (FTC), and the Department of

Commerce’s National Telecommunications and Information Administration (NTIA). We discuss the UAS-related roles

and responsibilities of FTC and NTIA in Appendix III.

In 1981, FAA issued Advisory Circular 91-57, Model Aircraft Operating Standards (AC- 91-57, June 9, 1981) (now

superseded), which set forth general “safety standards” for model aircraft operations. In 2007, FAA issued a policy

statement, Unmanned Aircraft Operations in the National Airspace System, Notice 07-01, 72 Fed. Reg. 6689 (Feb.

13, 2007), acknowledging that “[r]egulatory standards need to be developed to enable current technology for

unmanned aircraft to comply with Title 14 Code of Federal Regulations (CFR)”; clarifying its current requirements for

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enforcement of general aircraft safety regulations.

In response to Congress’s directives in

FMRA and subsequent legislation directing FAA to plan and carry out the safe integration of civil

UAS into the national airspace system as noted above, FAA has developed regulations tailored

to the unique flight characteristics and capabilities of UAS, such as their small size and low-

altitude flight capabilities.

FAA’s UAS-specific rulemaking began in 2015 and is ongoing. In 2015, FAA required

registration of all UAS weighing more than 0.55 pounds and display of the registration number

on the UAS.

In 2016, FAA promulgated what are known as the Part 107 regulations, which

are now the default operating rules for small UAS and mandatory for all commercial UAS

operations.

Prior to promulgation of Part 107, commercial UAS operators were required to

obtain a traditional pilot’s license and FAA permission for each flight. Part 107 allows UAS

operators to obtain a Remote Pilot Certificate so that FAA per-flight permission is unnecessary.

Absent an FAA waiver, the Part 107 rules currently impose a number of restrictions on how and

where small UAS may fly. These include a maximum flight altitude of 400 feet above ground

level, flights only within the operator’s visual line of sight and during daylight hours, and no

flights over persons not participating in the UAS operation (known as “flights over people”).

While as noted above, FAA has prescribed explicit regulatory minimum flight altitudes in the

context of manned aircraft, it has prescribed no explicit regulatory minimum flight altitude for

UAS. DOT officials nevertheless told us “it is the Department’s stance that, for purposes of the

definition of the term navigable airspace, zero feet (‘the blades of grass’) is the minimum altitude

of flight for UAS.”

UAS recreational fliers—that is, operators of small UAS that are flown strictly for “recreational

purposes” and meet other criteria (previously known as hobbyist or model aircraft UAS

operators)—can but are not required to follow the Part 107 requirements. Instead, they may

operate without specific FAA certification or authorization if the operation adheres to statutory

requirements for UAS “limited recreational operations.” These include that the UAS is flown in

accordance with community-based organization safety guidelines developed in coordination

government, commercial, and recreational UAS use; and noting current FAA policy that “no person may operate a

UAS in the National Airspace System without specific authority.” Id. at 6689-90.

In Huerta v. Pirker, 2014 WL 8095629 (NTSB 2014), for example, an enforcement action filed before promulgation

of FAA’s UAS regulations, FAA assessed a $10,000 civil penalty against a model airplane operator for operating his

“aircraft” in a “careless or reckless manner so as to endanger the life or property of another,” in violation of 14 C.F.R.

§ 91.13(a). The National Transportation Safety Board rejected the operator’s challenge that his model airplane was

not an “aircraft” and upheld FAA’s penalty. Ultimately, Mr. Pirker agreed to pay a $1,100 penalty without admitting

liability.

80 Fed. Reg. 78594 (Dec. 16, 2015).

81 Fed. Reg. 42063 (June 28, 2016), codified at 14 C.F.R. Part 107.

14 C.F.R. §§ 107.29, 107.31, 107.39, 107.51. According to a recent analysis by a UAS trade association, as of the

first quarter of 2020, FAA had granted more than 4,000 waivers. The analysis concluded that almost 95% percent of

the 4,153 currently active waivers authorize UAS operations at night, with the remaining 5% authorizing flights over

people, higher than 400 feet above ground level, beyond the operator’s visual line of sight, in excess of 100 miles per

hour, and in other advanced scenarios. See Association for Unmanned Vehicle Systems International, New Part 107

Waiver Report—Analysis of Advanced Operations Granted by the FAA (May 2020).

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with FAA, is flown below 400 feet and within the visual line of sight of the operator or a co-

located observer, and is flown by an operator who passes an aeronautical knowledge and

safety test.

FAA has proposed to amend the Part 107 rules to authorize routine UAS “flights over people”

and at night.

The agency has indicated that because such operations could pose a risk to

public safety and national security, it does not intend to finalize these proposed changes until it

also finalizes requirements for a Remote Identification (Remote ID) system.

According to

FAA, the general purpose of a Remote ID system—which would assign what many have called

a “digital license plate” to each UAS device—would be to make certain location and

identification information remotely available in real time to other airspace users and persons on

the ground. FAA issued a proposed Remote ID rule on December 31, 2019;

DOT officials told

us FAA plans to complete its analysis of public comments on the proposal by December 2020

and FAA officials have recently said the agency plans to issue the final rule by that time. (We

discuss issues regarding Remote ID in Part D.2.c. below.) Finally, FAA has sought public

comment on whether and in what circumstances it should impose additional UAS operating and

performance restrictions, implement a UAS Traffic Management (UTM) system (there is

currently no nationwide drone traffic management system), and other matters.

b. Federal Preemption of State, Local, and Tribal Laws and Regulations

Congress and the courts have made clear that most, but not all, state and local laws and

regulation relating to aviation safety and airspace management are preempted. Congress has

expressly preempted states from regulating the prices, routes, and services of air carriers with

economic authority from the DOT Office of the Secretary.

In addition, the courts have ruled

that the federal government occupies the field of aviation safety and the efficient use of the

national airspace, and thus have generally struck down state and local aviation laws as “field-

preempted.”

In City of Burbank v. Lockheed Air Terminal Inc., for example, even though noise

49 U.S.C. § 44809. As promulgated, FAA’s 2015 UAS registration rule applied to UAS used for both recreational

and commercial purposes. The U.S. Court of Appeals for the D.C. Circuit struck down the rule as applied to

recreational fliers, however, holding that FAA lacked authority to require registration of model aircraft under FMRA

§ 336(a), which provided that FAA “may not promulgate any rule or regulation regarding a model aircraft.” Taylor v.

Huerta, 856 F.3d 1089, 1092 (D.C. Cir. 2017) (“Statutory interpretation does not get much simpler. The Registration

Rule is unlawful as applied to model aircraft.”). Congress then amended the law to restore application of the 2015

registration rule to recreational fliers. National Defense Authorization Act for Fiscal Year 2018, supra note 34,

§ 1092(d).

84 Fed. Reg. 3856 (Feb. 13, 2019).

See 84 Fed. Reg. 72438, 72450, 72495 (Dec. 31, 2019).

See supra note 49.

84 Fed. Reg. 3732 (Feb. 13, 2019). Pursuant to section 373(b)(6) of the 2018 FAA Reauthorization Act, we will be

issuing an audit report later this year on infrastructure requirements necessary for monitoring low-altitude UAS

operations, including UTM.

49 U.S.C. § 41713.

See, e.g., City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973); Abdullah v. American Airlines, Inc.,

181 F.3d 363, 371 (3

Cir. 1999) (“it follows from the evident intent of Congress that there be federal supervision of

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regulation was a traditional area of local rather than federal control, the Supreme Court struck

down a local noise-based ordinance restricting airport takeoff and landing hours. The Court

found that the Federal Aviation Act “requires a delicate balance between safety and efficiency . .

. and the protection of persons on the ground . . . The interdependence of these factors requires

a uniform and exclusive system of federal regulation if congressional objectives underlying the .

. . Act are to be fulfilled.”

Further, with respect to UAS-specific laws, the court in Singer v.

Newton found that local ordinances effectively banning all UAS operations within city limits were

“conflict-preempted” because they conflicted with FAA’s rules authorizing such flights.

Nevertheless, state

and federal

courts have upheld certain state and local laws affecting, but

air safety and from the decisions in which courts have found federal preemption of discrete, safety related matters,

that federal law preempts the general field of aviation safety.”); Montalvo v. Spirit Airlines, 508 F. 3d 464 (9

Cir.

2007); French v. Pan Am Express, Inc., 869 F2d. 1 (1

Cir. 1989); British Airways Board v. Port Authority of New

York and New Jersey, 564 F.2d 1002 (2

Cir. 1977). See also Flores v. Texas, 2017 WL 1397126 (S.D. Tex. 2017)

(suit alleging federal field preemption of Texas Privacy Act’s original “border exception,” allowing unrestricted drone

photography of persons and property within 25 miles of the U.S. border, dismissed on technical grounds).

City of Burbank, supra note 53, 411 U.S. at 638-39. Justice Rehnquist, dissenting with three other Justices in City

of Burbank, acknowledged that “[t]he paramount substantive concerns of Congress [in enacting the Federal Aviation

Act] were to regulate federally all aspects of air safety . . . and, once aircraft were in ‘flight,’ airspace management . . .

.” Id., 411 U.S. at 644 (Rehnquist, J., dissenting). However, the dissenting Justices found this did not mean

Congress had preempted states from regulating aircraft noise.

Singer v. Newton, 284 F. Supp. 3d 125 (D. Mass.), appeal dismissed on other grounds, 2017 WL 8942575 (1

Cir.

2017). Singer found to be preempted the city’s prohibitions on: (1) UAS flight below an altitude of 400 feet over any

private property without the express permission of the property owner; (2) UAS flight over public property without prior

permission of the city; and (3) UAS flight at a distance beyond the visual line of sight of the operator. The court also

found the city’s law imposing certain registration requirements on UAS owners to be preempted as conflicting with

FAA’s registration rules. Cf. Pan American Properties Corp. v. Municipality of San Juan, 2018 WL 6503215 (D.P.R.

2018) (declining to rule on claim that local ordinance banning non-government authorized drone flights during festival

was federally preempted because drone operator was authorized by FAA).

Another federal court is currently considering drone-related federal preemption, privacy, and First Amendment issues

in a suit seeking to strike down the so-called surveillance and no-fly provisions of the Texas Privacy Act. See Nat’l

Press Photographers Ass’n v. McCraw, No. 1:19-cv-00946-RP (W.D. Tex., filed Sept. 26, 2019).

A number of states have enacted either general criminal reckless endangerment laws or criminal laws specifically

prohibiting reckless operation of aircraft, and some courts have found these laws not to be preempted by FAA’s

aviation safety regulations. See, e.g., North Dakota v. Turgeon, No. 30-2016-CR-1373 (Morton County, N.D. South

Central Jud. Dist.), Order, May 17, 2017, and Transcript of Proceedings, May 17, 2017, at 7-9 (discussed below;

court ruled reckless endangerment charges against UAS operator were not preempted by FAA’s UAS safety

regulations); Ward v. State, 374 A.2d 1118, 1123-24 (Md. 1977) (upholding Maryland law criminalizing “operat[ion of ]

an aircraft . . . in a careless or reckless manner so as to endanger the life or property of another” and declaring “[w]e

have no difficulty whatever in deciding that Congress has not occupied the entire field of aeronautics by the Federal

Aviation Act of 1958.”).

Federal Courts of Appeals and the U.S. Supreme Court have upheld certain state and local laws that affected

aircraft flight but did not regulate aviation safety or efficient airspace management. In Skysign International, Inc. v.

City and County of Honolulu, 276 F.3d 1109 (9th Cir. 2002), the Ninth Circuit upheld a county ordinance banning

aerial advertising. The court found Congress did not intend to preempt state regulation of all activity within navigable

airspace and ruled the advertising ban did not conflict with any actual FAA regulation. In Goodspeed Airport, LLC v.

East Haddam Inland Wetland & Watercourses Comm’n, 634 F.3d 206 (2d Cir. 2011), the Second Circuit upheld state

and local requirements for a local airport to obtain a permit to remove trees it claimed were “obstructions to air

navigation” under FAA regulations. Although the court held that “Congress has established its intent to occupy the

entire field of air safety, thereby preempting state regulation of that field,” it found the local requirement to obtain a

permit did not “sufficiently intrude upon the field of air safety to be preempted.” 634 F.2d at 208. See also id. at 212

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not regulating, aviation and airspace management, including at least one state-level court that

ruled that state criminal laws may be used to address unsafe acts by UAS operators and are not

federally preempted. It appears courts have not yet ruled on whether federal UAS laws, or

aviation laws in general, apply to Indian tribes or preempt them from regulating UAS

operations.

FAA’s Part 107 rules do not indicate whether the agency believes the Federal Aviation Act or

the agency’s implementing regulations preempt state, local, or tribal laws or regulations

affecting UAS. In issuing Part 107, FAA explained that federal preemption “necessitate[s] a

case-specific analysis that is not appropriate in a rule of general applicability” and

acknowledged that “certain legal aspects concerning small UAS may be best addressed at the

State or local level.”

Similarly, FAA stated in issuing the Part 107 rules that it will address the

applicability of its regulations to Indian tribes on a case-by-case basis, in accordance with

Executive Orders and FAA implementing guidance.

(“Although we hold that Congress has indicated its intent to occupy the entire field of aviation safety, the generally

applicable state laws and regulations imposing permit requirements on land use challenged here do not, on the facts

before us, invade that preempted field.”). DOT officials told us that the courts in Skysign and Goodspeed Airport

sought the federal government’s views and that in both cases, the government agreed there was no preemption.

Finally, in Braniff v. Nebraska State Bd. of Equalization and Assessment, 347 U.S. 590 (1954), the Supreme Court

upheld a state’s assessment of an ad valorem personal property tax on an interstate air carrier’s flight equipment.

Although Congress had given the Civil Aeronautics Authority broad authority to regulate the safe and efficient use of

the navigable airspace, the Court found this did not preempt states from imposing certain property-related

requirements, such as taxes, on interstate air carriers.

In a closely watched case, the Supreme Court earlier this year declined to review a federal appeals court decision

that the Federal Aviation Act does not preempt state-law negligence and strict liability claims against an airplane

engine manufacturer under either field-preemption or conflict-preemption principles. See Slikkelee v. Precision

Airmotive Corp., 907 F.3d 701 (3d Cir.), cert. denied sub nom. Avco Corp. v. Sikkelee, 140 S. Ct. 860 (2020). If the

Supreme Court had agreed to hear the case, its ruling may have had implications for Federal Aviation Act preemption

more broadly, including preemption of state and local regulations affecting UAS operations.

81 Fed. Reg. at 42194. FAA’s views on the preemptive effect of federal UAS laws would not be dispositive;

ultimately this would be for a court to decide. As the Supreme Court has made clear, while courts defer to agency

interpretations of their implementing statutes in certain circumstances, courts do not defer “to an agency’s conclusion

that state law is pre-empted. Rather, we have attended to an agency’s explanation of how state law affects the

regulatory scheme. . . .The weight we accord the agency’s explanation of state law’s impact on the federal scheme

depends on its thoroughness, consistency, and persuasiveness.” Wyeth v. Levine, 555 U.S. 555, 576-77 (2009)

(emphasis in original) (citations omitted).

81 Fed. Reg. at 42079, 42189; see also 84 Fed. Reg. 3856, 3902 (Feb. 13, 2019) (discussing its proposed “flights

over people” rule, FAA stated it will “engage in government-to-government consultations with tribes as appropriate in

accordance with Executive orders and FAA guidance”). Section 5(c) of Executive Order 13175, Consultation and

Coordination with Indian Tribal Governments, 65 Fed. Reg. 67249 (Nov. 6, 2000), directs federal agencies to consult

with tribes when developing regulatory policies that have tribal implications. These include regulations that have

substantial direct effects on either one or more Indian tribes, on the relationship between the federal government and

Indian tribes, and on the distribution of power and responsibilities between the federal government and Indian tribes.

Section 5(c) also states that “[t]o the extent practicable and permitted by law, no agency shall promulgate any

regulation that has tribal implications and that preempts tribal law” unless the agency has taken certain steps.

In turn, FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures (Jan. 28,

2004), directs FAA to follow the requirements of Executive Order 13175. Although FAA has determined that its Part

107 UAS regulations do not have unique tribal implications, it has stated that it is outreaching to tribes in response to

their inquiries about their UAS regulatory authority, to explore how tribes’ concerns can be addressed within FAA’s

broader UAS integration effort. See 81 Fed. Reg. at 42079, 42189.

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While emphasizing that preemption is a case-specific determination, FAA has issued and

continues to reference several guidance documents setting forth its general legal position on

these matters, and DOT officials reiterated the general principles in these guidance documents

during our work on this report. In December 2015, the FAA Chief Counsel’s Office issued a fact

sheet for states and localities, State and Local Regulation of Unmanned Aircraft Systems (2015

FAA UAS Fact Sheet).

The 2015 FAA UAS Fact Sheet describes the “extensive federal

statutory and regulatory framework pertaining to control of the airspace, flight management and

efficiency, air traffic control, aviation safety, navigational facilities, and the regulation of aircraft

noise at its source,” citing 49 U.S.C. §§ 40103, 44502, and 44701-44735 (the Federal Aviation

Act as amended and recodified). The 2015 Fact Sheet then states that “[s]tate and local

restrictions affecting UAS operations should be consistent with” this framework and cautions

that “[s]ubstantial air safety issues are raised when state or local governments attempt to

regulate the operation or flight of aircraft,” citing several of the federal court decisions noted

above.

As DOT officials explained to us, however, while the federal preemption doctrine “invalidates

State and local laws that interfere with or are contrary to the laws of Congress,” and which

courts “have confirmed [provides FAA with] exclusive authority over aviation safety, efficient use

of the navigable airspace, and air traffic control . . ., non-Federal government actors may still

issue ordinances affecting UAS [as long as they] do not touch the federally preempted field” of

aviation safety and the efficient management of airspace. The 2015 Fact Sheet provides

examples of the types of state and local laws that generally would and would not be

preempted—“[o]perational UAS restrictions on flight altitude, flight paths; operational bans; any

regulation of navigable airspace”; and “[m]andating equipment or training for UAS related to

aviation safety,” such as geo-fencing, likely would be preempted and police power laws such as

“land use, zoning, privacy, trespass, and law enforcement operations” likely would not be

preempted.

FAA supplemented this list of likely non-preempted state and local laws in a

2018 press release, Federal vs. Local Drone Authority (2018 FAA UAS Press Release), which

added land use laws and zoning laws that regulate where UAS landing sites may be located as

examples.

In addition to these 2015 and 2018 guidance documents, another tool FAA is using to identify

and address UAS-related preemption issues, as well as to accomplish a number of other UAS

integration goals, is DOT’s UAS Integration Pilot Program (IPP). DOT, in consultation with FAA,

FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet

(Dec. 17, 2015) (2015 FAA UAS Fact Sheet), available at

https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf (last visited Sept. 1, 2020).

More specifically, the 2015 Fact Sheet lists the following examples of police power laws that likely would not be

preempted: (1) requiring police to obtain a warrant before using UAS for surveillance; (2) prohibiting voyeurism by

UAS; (3) prohibiting use of UAS for hunting or fishing or for harassment of hunters or fishermen; and (4) prohibiting

attachment of firearms or other weapons to UAS.

FAA, Federal vs. Local Drone Authority (July 20, 2018) (2018 FAA UAS Press Release), available at

https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938&omniRss=press_releasesAoc&cid=102_P

_RPress (last visited Sept. 1, 2020). The 2018 FAA UAS Press Release did not include “trespass” as an example of

a state law that likely would not be preempted, in contrast to the 2015 UAS Fact Sheet’s inclusion of that example.

DOT officials told us this change was inadvertent and not intended to serve as a change in FAA policy.

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established the IPP in 2017 as directed by a Presidential Memorandum,

and the program was

codified by section 351 of the 2018 FAA Reauthorization Act.

Section 351 provides that the

IPP as established under the statute is to be concluded by October 2020.

As required by

section 351 and according to DOT, the IPP is bringing state, local, and tribal governments

together with private sector entities, such as UAS operators and manufacturers, to accelerate

safe drone integration by helping these parties and DOT and FAA to:

• identify the most effective models of balancing local and national interests in UAS

integration (including preemption issues);

• improve communications with state, local, and tribal jurisdictions;

• address competing interests regarding UAS operational expansion, safety, security, roles

and responsibilities of non-federal government entities, and privacy risks; and

• accelerate FAA’s approval of UAS operations that currently require special authorizations.

There are currently nine IPP Lead Participants, selected by FAA from a variety of state, local,

and tribal governments and private sector entities.

The Lead Participants are testing and

evaluating a variety of operational concepts such as flights over people, at night, and beyond

the operator’s visual line of sight, as well as UAS package delivery.

In soliciting applicants for

the IPP, FAA provided the opportunity for governments to request temporary so-called

reasonable time, place, and manner limitations on low-altitude UAS operations within their

jurisdictions, in order to facilitate the proposed development and testing of new and innovative

UAS concepts of operations.

See Presidential Memorandum for the Secretary of Transportation, Subject: Unmanned Aircraft Systems

Integration Pilot Program (Oct. 25, 2017), available at https://www.whitehouse.gov/presidential-actions/presidential-

memorandum-secretary-transportation/ (last visited Sept. 1, 2020). Section 1 of the Memorandum references the

need for input from state, local, tribal, and private-sector stakeholders “to craft an optimal strategy for the national

management of UAS operations” and states that “[a] coordinated effort between the private sector and among these

governments will provide certainty and stability to UAS owners and operators, maximize the benefits of UAS

technologies for the public, and mitigate risks to public safety and security.”

132 Stat. at 3301-3304.

See § 351(i), 132 Stat. at 3304.

See generally FAA, UAS Integration Program: Program Overview, available at

https://www.faa.gov/uas/programs_partnerships/integration_pilot_program/ (last visited Sept. 1, 2020).

82 Fed. Reg. 51903 (Nov. 8, 2017) (FAA announcement of IPP application process). FAA originally selected 10

IPP Lead Participants. The 9 current Lead Participants are the Choctaw Nation of Oklahoma (Durant, OK); the City

of San Diego, CA; the Kansas Department of Transportation (Topeka, KS); the North Carolina Department of

Transportation (Raleigh, NC); the Innovation and Entrepreneurship Investment Authority (Herndon, VA); the

Memphis-Shelby County Airport Authority (Memphis, TN); the North Dakota Department of Transportation (Bismarck,

ND); the City of Reno, NV; and the University of Alaska-Fairbanks (Fairbanks, AK). We interviewed representatives

from the first four Lead Participants.

As noted, see supra note 9 and accompanying text, FAA has approved several UAS package delivery ventures as

part of the IPP.

See 82 Fed. Reg. 51903, 51905 (Nov. 8, 2017). FAA’s examples of time/place/manner limitations it would consider

as part of the IPP included imposing bans on UAS flights during specified hours; designating UAS takeoff and landing

zones; restricting UAS flights over public roads and parks, sidewalks, or private property based on zoning density or

other land use considerations; requiring prior notice of UAS flights to public safety or zoning/land use authorities;

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Importantly, however, FAA’s legal position regarding federal preemption of state and local laws

and other UAS-jurisdiction related issues is currently under an in-depth review by attorneys at

FAA and DOT’s Office of the Secretary. According to DOT officials, the rapid technical

advancement of UAS has brought significant preemption issues to the forefront. In addition, the

unique operating characteristics of UAS continue to raise the issue of whether the existing

framework of federal regulation of low-altitude UAS operations should be modified in response

to this new technology. Given these issues and continuing questions from states, localities, and

others concerning the breadth of federal preemption with respect to UAS operations, in late

2017, the DOT General Counsel convened a “preemption task force” to consider these issues,

comprised of attorneys from DOT and FAA. DOT officials told us the mission of this group,

known as the Joint Lawyers Working Group on Federal Preemption and the Regulation of

Unmanned Aircraft Systems (DOT Preemption Working Group), is to develop a “unified legal

position” on the application of federal preemption and related principles to the regulation of

UAS. The Working Group’s purposes, the officials said, are to establish a strong legal

foundation not only for ensuring the safety of the national airspace system but also to

encourage innovation in UAS technology and enable widespread commercial use of drones for

the benefit of the American people.

In describing the efforts of the Preemption Working Group, DOT officials told us they recognize

state and local governments have legitimate interests in protecting the property rights, privacy,

and security of their citizens. Nevertheless, the officials also expressed concern that some

jurisdictions are seeking to ban or significantly limit UAS operations. Such restrictions, the

officials said, are presenting UAS operators with what they characterized as a “daunting

regulatory patchwork” of differing restrictions, many of which the Department believes will

conflict either with current law or regulatory policies it may wish to develop in the future. Further,

the DOT officials told us, the Department believes the regulatory uncertainty created by what

they referred to as a “hodge-podge of differing federal and state regimes” threatens to dampen

innovation and investment in commercial drone use and impede progress toward the federal

goal of UAS integration. Clearly defining what DOT believes is the scope of its regulatory

authority, and thus the boundaries of its authority to preempt states and localities, will enable

policymakers to proceed with greater clarity as they develop additional UAS regulations,

according to the DOT officials.

The officials told us the DOT Preemption Working Group expects to provide its analysis and

recommendations to senior DOT leadership in the coming months, following review and

concurrence by the Department of Justice (DOJ). Public announcement of DOT’s legal position

is expected sometime thereafter. The DOT officials said they expect that the results of the IPP

will inform the Working Group’s analysis and that while the Working Group’s efforts are focused

on FAA’s authority to regulate UAS operations, the conclusions reached could apply to FAA’s

regulation of manned aircraft as well. We discuss stakeholder positions about UAS preemption

issues in Part D.1.b. below.

c. Enforcement and Compliance Assurance Regarding UAS Operations

FAA’s primary approach to promoting compliance with its UAS requirements is to educate UAS

imposing limits on UAS operations below designated altitudes; imposing maximum flight speeds over specified areas;

and imposing flight bans over transitory community events such as parades.

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operators about how they can operate safely under the law. The agency also uses compliance

tools such as counseling, warning notices, and letters of correction, and it has used its formal

civil administrative enforcement authority (non-criminal certificate actions) as well.

In Huerta

v. Haughwout, for example, FAA issued an investigative subpoena to a father and son regarding

their use of a drone-mounted firearm and flame thrower a few feet above their private

property.

When the Haughwouts challenged FAA’s authority to issue the subpoena, FAA

explained to the court that it was investigating a possible violation of 14 C.F.R. § 91.13(a), which

prohibits operation of an aircraft in a careless or reckless manner. The court enforced the

subpoena but with considerable skepticism about FAA’s authority to regulate UAS operations in

low-altitude airspace over private property. (We discuss the Haughwout case and these

jurisdictional issues in Part D.1.a. below.) Another example of FAA’s use of its civil enforcement

authority is its $200,000 settlement with SkyPan International, Inc. in 2017, resolving FAA’s

proposed $1.9 million civil penalty for dozens of allegedly unauthorized UAS flights in congested

airspace over New York City and Chicago. DOT officials told us, however, that this enforcement

action pre-dated the Part 107 rules and does not reflect current case types.

Finally, although FAA itself has no criminal enforcement authority, it may request DOJ to file

charges for criminal violations. For example, DOJ has filed criminal charges against an

individual for flying a UAS over two sports stadiums during professional football games, in

alleged violation of FAA Temporary Flight Restrictions issued under 49 U.S.C. § 40103(b)(3)

and FAA’s classification of that airspace as National Defense Airspace.

DOJ alleges that this

conduct violated 49 U.S.C. § 46307, which prohibits knowing or willful violation of such

restrictions. While some state prosecutors have filed state criminal charges against individuals

for shooting down a drone, as discussed in Part C.1. below, FAA and DOJ officials told us that

as of August 1, 2020, they have not taken enforcement action or filed criminal charges in such

cases.

d. FAA Actions to Address UAS-Related Privacy Concerns

One aspect of UAS operations that FAA has not addressed in its regulations is the impact of

UAS on personal privacy. FAA officials told us the agency lacks authority to regulate UAS

operations to address privacy concerns, noting that Congress has not directed it to do so as part

of FAA’s work to integrate UAS into the national airspace system and that this would be beyond

See generally FAA, Law Enforcement Guidance for Suspected Unauthorized UAS Operations, Version 5 (Aug. 14,

2018) (2018 FAA Law Enforcement Guidance) at 1, 6; GAO, Unmanned Aircraft Systems: FAA’s Compliance and

Enforcement Approach for Drones Could Benefit from Improved Communication and Data, GAO-20-29 (Washington,

DC: Oct. 17, 2019).

Huerta v. Haughwout, 2016 WL 3919799 (D. Conn. 2016).

See United States v. Mapes, 2020 WL 759541 (N. D. Cal. Feb. 14, 2020).

See generally Joseph Suh, Drones: How They Work, Applications, and Legal Issues, 3 Geo. Tech. Rev. 502, 514

(Spring 2019); William J. Black III, A No-Drones Home: Solving the Home Airspace Dilemma, 11 J. Marshall L.J. 1,

27 (2017-2018). FAA’s UAS-related enforcement actions between 2011 and 2015 reportedly consisted of incidents

involving stadium/sporting events, mid-air or landing collisions, airspace violations (including a UAS operator who

crashed a drone into a tree on the White House lawn), aircraft interference, hobbyist use, and unlicensed commercial

use. Black, 11 J. Marshall L.J., at 16-20.

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FAA’s traditional mission to ensure aviation safety and the efficient use of the airspace.

The

officials also said FAA’s rulemaking authority neither mandates nor permits it to issue or enforce

regulations specifically aimed at protection privacy interests between private parties.

FAA nonetheless acknowledges the public’s concerns about the use of small UAS to collect

information about individuals and it has addressed these concerns by engaging and

collaborating with the public, stakeholders, and other agencies that have authority and expertise

in privacy law and policy. FAA also has noted that state and local governments may address

UAS privacy concerns involving private parties using their police power authorities.

discuss UAS privacy issues and the actions FAA and other government entities have taken to

address these concerns in Appendix III.

C. State, Local, and Tribal UAS Regulation and Enforcement

Pursuant to their traditional police powers, some states and localities have relied on their

general laws to address UAS operations, while almost all states and some localities also have

enacted UAS-specific laws. We describe these laws below and provide examples of how they

have been applied.

We begin with a note regarding UAS regulation and enforcement by Indian tribes. We spoke

with tribal stakeholders to identify any unique interests tribal governments believe they may

have regarding UAS operations. One stakeholder emphasized that there are 573 federally

recognized tribes, each with a different view.

Another tribal stakeholder told us that while their

interests are similar to those of local governments, tribes are sovereign nations with separate

treaties and described them as a “patchwork nation.” A third tribal stakeholder we spoke to

indicated tribes have interests similar to states and localities, and want to be able to control their

own property and airspace. This stakeholder emphasized a desire to promote UAS operations

rather than restrict them, but wanted the ability to accept and manage that risk. In this section

and throughout this report, we have noted any specific tribal stakeholder positions we obtained.

1. State and Local General Laws

Perhaps the most widely reported incident to date involving state and local efforts to address

concerns about drone is known as the “Drone Slayer” case. This case, cited to us by a number

of stakeholders, illustrates how states and localities have sought to use their non-UAS specific

See also 81 Fed. Reg. 42064, 42190-92 (June 28, 2016) (final Part 107 rules).

Id., 81 Fed. Reg. at 42192.

In addition to these state and local laws and actions taken to protect the public interest, individuals also may have

legal rights to seek redress for what they believe are UAS-related harms particularized to them. We discuss possible

individual claims under state and federal law for UAS-related interference with airspace property interests in Appendix

II. We discuss possible individual claims under state and federal law for UAS-related interference with personal

privacy rights in Appendix III.

Since we spoke with this stakeholder, another Indian tribe has been federally recognized, bringing the total to 574

federally recognized tribes. Section 2870 of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. No.

116-92 (Dec. 20, 2019), added the Little Shell Tribe of Chippewa Indians of Montana as a federally recognized Indian

tribe. The Bureau of Indian Affairs’ updated listing of these 574 tribal entities appears at 85 Fed. Reg. 5462 (Jan. 30,

2020).

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laws to address such concerns. According to court filings and press reports, in 2015, a

Kentucky landowner shot down a drone he said was hovering at a low altitude over his property,

possibly taking video or photographs of his daughter, who was sunbathing. The state charged

him with felony wanton endangerment and criminal mischief, but the landowner asserted he was

justified under Kentucky’s “stand your ground” law authorizing physical force to prevent an act of

criminal trespass. The landowner also said he perceived the drone’s presence as an invasion

of his personal privacy. The state district court judge dismissed the charges, reportedly finding

that because the drone was flying “below the tree line” and had violated the landowner’s

privacy, he had acted “within his rights” and “had a right to shoot” down the drone.

Some state and local government stakeholders cited the North Dakota v. Turgeon case to us as

another example of a state or locality’s efforts to use its general laws to address UAS

concerns.

In connection with a public protest over construction of the North Dakota Access

Pipeline, the state charged a UAS operator with criminal reckless endangerment for allegedly

flying his UAS close to a plane in flight and over protestors, law enforcement officials, and

moving vehicles. The operator sought to have the charges dismissed on the ground that as

applied to UAS safety, the state criminal laws were preempted.

According to court filings, although local law enforcement told the UAS operator at the scene

that he had violated various FAA UAS regulations, the operator was prosecuted under state

criminal laws. The UAS operator argued that because the federal government has exclusive

sovereignty of U.S. airspace and FAA has issued comprehensive regulations governing aircraft

safety including UAS safety, the federal government has occupied this field and left the states

without power to regulate or take enforcement action to address unsafe UAS operations. The

court disagreed and ruled the criminal charges were not preempted, explaining that while the

UAS operator’s conduct might violate FAA regulations and the state would be preempted from

regulating in that area, the state could still criminally prosecute the same conduct using its

After the criminal charges were dropped, the UAS operator filed suit in federal court. He sought reimbursement for

the cost of his destroyed drone and the court’s declaration that he had a right to fly in federal “navigable airspace”

within the federal government’s exclusive jurisdiction, which he argued was not subject to private ownership or state

tort claims. We discuss this federal suit, Boggs v. Merideth—which the court dismissed without reaching the merits of

these jurisdictional arguments—in Part D.1.below.

In 2014, prior to the Drone Slayer incident, in what was said to be the first case brought against a civilian shooting

down a drone, a Cape May, New Jersey landowner reportedly shot down a drone that was hovering over his family

sitting by their backyard pool. The landowner said the drone was trespassing and invading his family’s privacy. Local

law enforcement charged him with possession of a firearm for an unlawful purpose and criminal mischief, and he

ultimately pled guilty to criminal mischief.

According to press reports, state criminal charges also have been filed in connection with drone shootings in May

2020 (criminal damage to property and reckless discharge of a weapon within city limits charges filed against an

individual who allegedly shot down a drone taking photographs over a Butterfield, Minnesota meat processing plant);

February 2019 (third degree criminal mischief and prohibited use of a weapon charges filed against a Long Island,

N.Y. landowner who allegedly shot down a missing-pet-rescue drone flying over or near his home); and November

2018 (criminal mischief charges filed against an Austin, Texas landowner who allegedly shot down a neighbor’s

drone flying over his home).

North Dakota v. Turgeon, supra note 56.

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traditional police powers.

Following a trial, the court found the UAS operator not guilty.

Another local government stakeholder we spoke to cited a longstanding ordinance of that

locality—New York City—as an example of a general law being applied to UAS operations. The

ordinance, enacted in 1948, prohibits takeoff and landing of “aircraft” within city limits except at

locations designated by the local department of transportation or port authority.

As a result of

this restriction and with the exception of designated areas in specified local parks,

it appears

UAS operations are currently prohibited throughout the entire city.

Finally, state and local stakeholders provided us with examples of their general laws being used

to address UAS-related invasions of privacy. We discuss these examples in Appendix III.

2. State and Local UAS-Specific Laws

According to our analysis of information compiled by the National Conference of State

Legislatures, 46 states had enacted some type of UAS-specific legislation or had issued UAS-

specific resolutions or executive orders as of 2019, the most recent compilation available. As

detailed in Appendix IV, these state laws and resolutions have addressed a wide variety of

issues, including:

• protecting personal privacy against intrusion both by private individuals

and by law

enforcement

(at least 26 states had passed personal privacy-related UAS laws or

resolutions)

• prohibiting UAS operations above certain locations, such as prisons;

• prohibiting the use of UAS for hunting;

and

Order, May 17, 2017, and Transcript of Proceedings - Motion Hearing, May 17, 2017, at 7-9, North Dakota v.

Turgeon, supra note 56.

N.Y.C. Admin. Code § 10-126(c).

New York City local rules allow designation of park areas for flying of “toy or model aviation” devices. See N.Y.C.

Dept. of Parks and Recreation Rules and Regulations § 1-05(r)(2) (“No person shall engage in any toy or model

aviation, model boating, model automobiling, or activity involving other similar devices except at such times and at

such places designated or maintained for such purposes. Violation of this paragraph constitutes a misdemeanor.”).

See, e.g., Del. Code tit. 11, § 1334 (making it a crime to use a UAS to invade the privacy of another person on

private property in a manner that violates the state’s existing invasion of privacy statute).

See, e.g., Alaska Stat. §§ 14.40.082, 18.65.900-03, 09, 29.10.200, 29.35.146 (allowing police to use a UAS only

pursuant to a search warrant or a judicially recognized exception to the warrant requirement).

According to our analysis of the NCSL information, the 26 states were Alaska, Arkansas, California, Colorado,

Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Mississippi,

Montana, North Carolina, Oregon, New Jersey, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.

See, e.g., Cal. Penal Code § 4577 and Cal. Food and Agric. Code § 11901 (prohibiting the knowing and intentional

operation of a UAS on or above the grounds of a state prison or jail or above a juvenile hall, camp, or ranch).

See, e.g., Idaho Code § 36-1101 (prohibiting the use of UAS for hunting, molesting, or locating game animals,

game birds, or fur-bearing animals).

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• preempting the regulation of UAS by localities.

In addition to these laws enacted at the state level, some localities also have enacted UAS-

specific laws. For example, Stone Harbor, New Jersey officials told us they enacted UAS

restrictions following consultation with FAA attorneys. As revised, the ordinances now prohibit

operating a UAS in a careless or reckless manner; stalking or harassing with a UAS; taking

photographs, video, or audio with a UAS where persons have “a reasonable expectation of

privacy”; using a UAS to interfere with emergency responders, parades, and wildlife; and

attaching weapons to a UAS.

By contrast, the city of Newton, Massachusetts had enacted

ordinances that, among other things, banned UAS flights below 400 feet absent the underlying

landowner’s consent and beyond the UAS operator’s line of sight. As noted above, however, the

court in Singer v. Newton found that those ordinances conflicted with FAA’s UAS rules and

struck them down as preempted.

D. Stakeholder Issues and Positions

1. Stakeholder Positions on the Scope of Federal, State, Local, and Tribal Authority to

Regulate UAS Operations in Low-Altitude Airspace

A threshold issue in deciding how to integrate small-UAS operations into the national airspace

system is determining who—the federal government or the state, local, and tribal governments,

or all of them—has the legal authority to make these decisions. The same question was raised

a century ago when the federal government first began considering the need for aviation

legislation.

On the one hand, as noted above and discussed in Part D.1.a. below, FAA states that it has

authority to create a comprehensive regulatory system governing the safe and efficient

management of all UAS operations—including non-commercial UAS operations at ground-level

altitudes, over private property, and solely within state boundaries—pursuant to laws Congress

has enacted under its constitutional Commerce Clause power. In addition, as noted above and

discussed in Part D.1.b. below, FAA states that under the Constitution’s Supremacy Clause,

state and local laws affecting aviation safety and the efficient management of airspace are

federally preempted, although states and localities may still issue laws affecting UAS that do

touch this federally preempted field. UAS industry stakeholders generally agree with FAA’s

views of its UAS regulatory authority and the preemptive effect of its regulations.

On the other hand, as discussed in Part D.1.a. below, some state and local stakeholders and

See, e.g., N.J. Stat. Ann. § 2C:40-29 (preempting any county or locality from enacting any laws, ordinances,

resolutions, or regulations regarding private UAS use in a manner inconsistent with state UAS requirements).

See STONE HARBOR, N.J., CODE § 405-15 (2019).

See Singer v. Newton, supra note 55.

See Elza C. Johnson, Legal Questions Affecting Federal Control of the Air, U.S. Army Air Service (Washington,

DC: Government Printing Office, 1921) at 3 (“The development of air navigation by reason of increased use of aircraft

of all kinds in commercial and private enterprise and for pleasure presents the old and interesting problem of control

for the protection and safety of the public. . . . ‘What shall be done?’ and ‘How shall we do it?’ and ‘Who has authority

to do it?’”).

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legal commentators have questioned whether Congress’s Commerce Clause power extends to

non-commercial, non-interstate, low-altitude UAS operations over private property and if it does,

whether Congress has authorized FAA to regulate such operations. In addition, as discussed in

Part D.1.b. below, many states and localities believe they are not wholly preempted from

regulating in this area and, relying on their Tenth Amendment-reserved police powers to protect

persons and property, seek to regulate and enforce with respect to at least some aspects of

UAS operations in the same low-altitude airspace where FAA has asserted its regulatory

authority. For example, some states and localities wish to place so-called “reasonable time,

place, and manner” restrictions on drone operations, while others assert they have, or want to

obtain, authority to use so-called “counter”-UAS measures to respond to “rogue” drones that are

either flying in an unsafe manner or where drones are not permitted to fly. By contrast, other

states seek to encourage and promote UAS operations within their borders, particularly for

commercial purposes.

Part of what states and localities are seeking to protect are property rights, which have long

been governed by state rather than federal law. As discussed below and in Appendices II and

V, property rights are significant in the UAS context because states, localities, and courts have

recognized such rights in the low-altitude airspace above private property, in the context of both

unconstitutional takings of property and state-law aerial trespass claims. States and localities

also want to protect their citizens’ privacy rights, which likewise have long been governed by

state law.

To date, there have been few federal court cases in which these UAS jurisdiction and federalism

issues have been raised and even fewer in which they have been decided. The one case

where the merits of a UAS jurisdiction issue have been decided is the Singer v. Newton case

noted above, where the court ruled that city ordinances effectively banning UAS operations

within city limits were preempted as conflicting with FAA regulations.

Even more fundamental

UAS jurisdiction issues were raised (but not decided) in Boggs v. Merideth,

the federal case

that followed dismissal of state criminal charges against the landowner in the so-called Drone

Slayer case discussed above.

The Boggs court recited the drone operator’s argument that the

landowner who shot down his drone must reimburse him for the drone’s cost in part because

under federal law, the drone was an “aircraft” legally operating in federal “navigable airspace”

within the United States’ exclusive jurisdiction, not in the landowner’s privately owned airspace

subject to state law claims of aerial trespass or invasion of privacy. The Boggs court dismissed

the suit without ruling on these arguments, however, finding that it lacked jurisdiction to hear

what it said were fundamentally state law claims.

The decision in which a federal court has discussed (but not decided) UAS jurisdiction and

federalism issues most extensively is Huerta v. Haughwout.

Although as noted above, the

court in that case held that FAA had authority to issue an investigative subpoena to obtain

information about a father and son operating a drone a few feet above their private property, the

See Singer v. Newton, supra note 55.

Boggs v. Merideth, 2017 WL 1088093 (W.D. Ky. 2017).

See supra note 79 and accompanying text.

See Haughwout, supra note 72.

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court expressed considerable skepticism that Congress had authorized FAA to regulate UAS

operations in such airspace. The court noted “substantial questions” about FAA’s position that,

in the court’s words, the agency “has regulatory sovereignty over every cubic inch of outdoor air

in the United States (or at least over any airborne objects therein)”—including “what people do

in their own backyards”—based on its 49 U.S.C. § 40103 “navigable airspace” regulatory

authority.

The Haughwout court also questioned whether FAA’s assertion in its fact sheet

Busting Myths about the FAA and Unmanned Aircraft—Update—that “[t]he FAA is responsible

for air safety from the ground up”

—can be reconciled with the terms of FAA’s “navigable

airspace” authority. That authority, the court said, “might sensibly and plausibly be understood

to condition the exercise of the FAA’s authority on either the protection of or regulation of

activities related in some manner to navigable airspace and related equipment and facilities.”

Further, the Haughwout court said, even assuming Congress intended to give FAA such broad

authority to regulate activities in the “navigable airspace,” it is not clear Congress itself has such

authority under the Commerce Clause. Acknowledging the Commerce Clause has been

broadly interpreted to authorize congressional action regarding not just business activity that

crosses state lines but also “the channels of interstate commerce, the instrumentalities of

interstate commerce, and other activities that substantially affect interstate commerce,”

100

the

court declared:

“Congress surely understands that state and local authorities are (usually) well

positioned to regulate what people do in their own backyards. The Constitution

creates a limited national government in recognition of the traditional police

power of state and local governments. No clause in the Constitution vests the

federal government with a general police power over all of the air or all objects

that leave the ground. Although the Commerce Clause allows for broad federal

authority over interstate and foreign commerce, it is far from clear that Congress

intends—or could constitutionally intend—to regulate all that is airborne on

one’s own property and that poses no plausible threat to or substantial effect

on air transport or interstate commerce in general.”

101

Finally, explaining its doubt that FAA has a right to regulate “all that is airborne on one’s own

property,” the Haughwout court said this would seem to conflict with the Supreme Court’s

recognition in United States v. Causby,

102

in the context of deciding whether airspace property

rights had been unconstitutionally taken by the federal government, that landowners have

property rights in the “immediate reaches” of the airspace overlying their land. Given the

Haughwout, supra note 72, 2016 WL 391799 at *4.

Busting Myths about the FAA and Unmanned Aircraft—Update, available at

https://www.faa.gov/news/updates/?newsId=76381 (last visited Sept. 1, 2020).

Haughwout, supra note 72, 2016 WL 391799 at *4.

100

Haughwout, supra note 72, 2016 WL 391799 at *4, citing United States v. Lopez, 514 U.S. 549, 558-59 (1995).

101

Haughwout, supra note 72, 2016 WL 391799 at *4.

102

United States v. Causby, 328 U.S. 256 (1946), discussed below.

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Supreme Court’s recognition of such property rights in Causby, the court asked, “does it follow

that this foundational principle [of property rights in immediate reaches airspace] must vanish or

yield to FAA dictate the moment that a person sets any object aloft (i.e., an ‘aircraft’) no matter

how high in the airspace above one’s home?”

103

These UAS legal jurisdiction questions remain unresolved by the courts. Consensus among

federal, state, local and industry stakeholders and other interested parties on these matters also

has been elusive to date. For example, in early 2017, FAA convened a Drone Advisory

Committee “Roles and Responsibilities” task group of industry, academic, and state and local

stakeholders to provide recommendations on issues related to federal, state, and local

jurisdiction over low-altitude airspace, including property rights in airspace. In a number of key

areas, the group was not able to reach consensus on common principles or to make

recommendations by the group’s mid-2018 endpoint.

104

Similarly, as discussed in Appendix II,

the Uniform Law Commission’s Uniform Tort Law Relating to Drones Act Drafting Committee,

which began work in late 2017 to draft state model legislation on drone aerial trespass,

suspended its work in January 2020 reportedly due in part to disagreement over property rights

in airspace. Federal legislation addressing some of these UAS jurisdiction issues has been

introduced, but not yet enacted, in several recent Congresses.

105

We discuss below the differing positions on these federal-state jurisdiction matters that we

obtained from stakeholders or that have been identified by legal commentators. As detailed

below, a common theme among many stakeholders and legal commentators was the need for

additional clarity from FAA, Congress, or the courts.

103

Haughwout, supra note 72, 2016 WL 391799 at *5.

104

FAA asked the task group to provide consensus recommendations about the federal, state, and local government

roles and responsibilities for regulating UAS operations in low-altitude airspace. FAA, Drone Advisory Committee

(DAC) – Task Group (TG) 1, Recommended Tasking on Roles and Responsibilities, January 31, 2017 (Feb. 10,

2017). Among the issues on which FAA specifically sought recommendations were: (a) the possibility of “Defining

Low-Altitude UAS Navigable Airspace Susceptible to State/Local Governmental interests” (“perhaps [using] a type of

boundary line”) and the relevance to UAS operations of altitude-based definitions of “immediate reaches” airspace

from manned aircraft aerial trespass case law [referencing the Supreme Court’s Causby decision]; (b) whether FAA’s

exclusive authority over low-altitude UAS operations “should be reconsidered in light of state and local government

interests”; and (c) whether states and localities should be given responsibilities for enforcement of federal statutes or

regulations governing low-altitude UAS operations. Id. at 5-6.

The Task Group took on what it called this “big, audacious, transformative” task in part by seeking to develop nine

“Common Ground Principles” on which it would make recommendations; three of the principles specifically pertained

to airspace and property issues (principle 2 – “UAS Operations Impact on Private Property and Interests;” principle 4

– “Takeoff and Landing;” and principle 6 – “Altitude Estimation Challenges”). Ultimately, according to public records of

the Task Group’s meetings, it could not reach agreement on these three principles (and one additional principle) and

made no consensus recommendations to FAA about them. See Drone Advisory Committee Meeting # 5, Nov. 8,

2017, Materials; Drone Advisory Committee Meeting, Nov. 8, 2017, Meeting Minutes and attachments.

105

See, e.g., Advanced Unmanned Delivery Services Act, H.R. 6943, 116

Cong. (2020); Drone Integration and

Zoning Act of 2019, S. 2607, 116

Cong. (2019); Drone Federalism Act of 2017, S. 1272, 115

Cong. (2017); Drone

Innovation Act, H.R. 2930, 115

Cong. (2017).

As discussed in Appendix III, questions about protection of personal privacy from surveillance by UAS also remain

unresolved by the courts; efforts by the Uniform Law Commission’s Uniform Tort Law Relating to Drones Act Drafting

Committee to draft a UAS privacy model law were suspended in January 2020; and federal legislation regarding UAS

personal privacy matters has been introduced but not enacted in recent Congresses.

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a. Stakeholder Positions on the Scope of FAA’s Authority and the Impact of

Possible Property Rights in Airspace

(i) Stakeholder Positions on the Scope of Congress’s and FAA’s Commerce

Clause Authority over Low-Altitude UAS Operations

Like the Haughwout court, some state and local stakeholders and legal commentators have

questioned whether Congress’s Commerce Clause power authorizes it to regulate all low-

altitude UAS operations. A state-member organization stakeholder we spoke to noted, for

example, that UAS rarely fly across state lines due to technical limitations such as short battery

life. Stakeholders and commentators also have questioned whether recreational UAS

operations are truly “commerce” and if low-altitude UAS operations are commerce, whether they

meaningfully affect interstate commerce.

106

FAA has strongly disagreed that its low-altitude regulation of UAS operations exceeds

Congress’s Commerce Clause authority. In issuing the Part 107 rules and in speaking with us

for this report, FAA officials noted that 49 U.S.C.§ 44701 authorizes FAA to prescribe

“regulations and minimum standards for . . . practices, methods, and procedures the

Administrator finds necessary for safety in air commerce and national security.”

107

“Air

commerce,” in turn, is defined to include “the operation of aircraft that directly affects, or may

endanger safety in . . . interstate air commerce,” and “interstate commerce” is defined to include

“the operation of aircraft [between two states] in furthering a business or vocation . . . .”

108

FAA noted in its final Part 107 rule preamble, the courts have interpreted this statutory “air

commerce” definition as including both commercial and non-commercial flights and both

interstate and intrastate flights.

109

106

See, e.g., Stephen J. Migala, UAS: Understanding the Airspace of States, 82 J. Air. & Com. 3 (Winter 2017). See

also Maxwell Mensinger, Remodeling “Model Aircraft”: Why Restrictive Language That Grounded Unmanned Industry

Should Cease to Govern It, 100 Minn. L. Rev. 405, 420 (Nov. 2015).

107

49 U.S.C. § 44701(a)(5) (emphasis added). FAA also cited us to 49 U.S.C. § 40101 (“Policy”), which similarly

provides that in carrying out its statutory air safety and enforcement responsibilities, the Administrator shall consider

as being in the public interest “regulating air commerce in a way that best promotes safety and fulfills national

defense requirements.” Id., § 40101(d)(2) (emphasis added).

108

49 U.S.C. §§ 40102(a)(3), (a)(24).

109

FAA explained in the Part 107 preamble:

“Because of this broad definition [of “air commerce”], the NTSB has held that ‘any use of an aircraft, for purpose of

flight, constitutes air commerce.’ Administrator v. Barrows, 7 N.T.S.B. 5, 8-9 (1990). Courts that have considered this

issue have reached similar conclusions that ‘air commerce’ . . . encompasses a broad range of commercial and non-

commercial aircraft operations. See, e.g., United States v. Healy, 376 U.S. 75, 84 (1964) . . .; Hill v. NTSB, 886 F.2d

1275, 1280 (10th Cir. 1989) (“[t]he statutory definition of ‘air commerce’ is therefore clearly not restricted to interstate

flights occurring in controlled or navigable airspace”); United States v. Drumm, 55 F. Supp. 151, 155 (D. Nev. 1944)

(upholding amendments of Civil Air Regulations, which among other things prohibited any person from piloting a civil

aircraft unless the person held a valid pilot certificate and the aircraft possessed an airworthiness certificate, on the

grounds that the regulatory action was within the scope of powers conferred by Congress).”

81 Fed. Reg. at 42069.

In additional support of FAA’s position that it has authority to regulate non-commercial air operations at low altitudes,

FAA officials cited to us United States v. McHenry, 97 F.3d 125, 127 (6th Cir. 1996) (“airplanes . . . retain the inherent

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The Supreme Court has recognized boundaries on Congress’s Commerce Clause power,

however, as the Haughwout court noted in questioning its reach to all low-altitude, non-

commercial drone flights and citing United States v. Lopez. In Lopez, the Supreme Court

cautioned that the Commerce Clause cannot be read to “obliterate the distinction between what

is national and what is local and create a completely centralized government” or “to convert

congressional authority under the Commerce Clause to a general police power of the sort

retained by the States.”

110

The Supreme Court has found Congress exceeded its Commerce

Clause authority in other circumstances in recent times.

111

In the absence of any federal

precedent on this issue in the context of UAS operations, it appears unclear whether the courts

would find that Congress’s Commerce Clause power extends to all low-altitude, non-interstate,

non-commercial UAS operations.

Assuming Congress has such Commerce Clause power, however, some state and local

stakeholders and legal commentators also have questioned whether Congress in fact intended

to authorize FAA to regulate UAS flight operations (versus takeoffs and landings) “from the

ground up.”

112

An agency “literally has no power to act, let alone pre-empt [state law] . . .,

unless and until Congress confers power upon it.”

113

As noted, the Haughwout court found it

“far from clear that Congress intends [FAA] . . . to regulate all that is airborne on one’s property.

. . .”

114

Similarly, one commentator has asked, “was the intent of Congress [in FMRA] to extend

the full protections of ‘aircraft’ to small drones? . . . [A]nd since [FAA’s] Part 107 Rule did not

specify a minimum safe altitude, does that mean every cubic inch of airspace outdoors is now

considered ‘navigable airspace’? If so, does this mean that the FAA, rather than a property

potential to affect commerce . . . at some future point in time”); United States v. Red Frame Parasail, 160 F. Supp. 2d

1048, 1056 (D. Ariz. 2001) (parachutes operating only in ultra-low airspace subject to FAA regulation because “[w]ith

prior authorization, they may fly in other classes of airspace” and they “also have the mechanical ability to fly in other

classes of airspace.”); and Throckmorton v. NTSB, 963 F.2d 441 (D.C. Cir. 1992) (upholding NTSB and FAA

suspension of helicopter pilot’s certificate for making unauthorized “low pass” over airport 10-20 feet above ground

level). These cases are additional authority supporting a broad reading of “air commerce,” the officials said. See

also United States v. Hume, 453 F.2d 339 (5th Cir. 1971) (crop-dusting aircraft shot at in Texas was found to be used

in “interstate commerce” because it had been dusting crops in New Mexico the previous day).

110

Lopez, supra note 100, 514 U.S. at 557, 567 (quotations and citations omitted). The Court therefore struck down a

federal statute criminalizing gun possession in local schools, finding this was not an economic activity substantially

affecting interstate commerce.

111

See, e.g., Nat’l Fed’n of Indep. Bus.v. Sebelius, 567 U.S. 519 (2012) (Affordable Care Act’s individual health

insurance mandate exceeded Congress’s Commerce Clause power; mandate upheld under the Taxing Power);

United States v. Morrison, 529 U.S. 598 (2000) (Violence Against Women Act’s criminalizing of gender-motivated

violence exceeded Commerce Clause power due to lack of interstate commerce nexus).

112

See, e.g., Migala, supra note 106, at 77, 80; Robert A. Heverly, The State of Drones: State Authority to Regulate

Drones, 8 Albany Gov’t L. Rev. 29, 38-39 (2015) (“That the federal government has the authority to regulate

navigable airspace is not seriously in dispute . . . How far the federal government can go, or, more precisely, how low

the federal government can go for purposes of aviation regulation, remains a highly contested question.”).

113

Louisiana Public Service Com’n v. FCC, 476 U.S. 355, 374 (1986). See Michigan v. EPA, 268 F.3d 1075, 1081

(D.C. Cir. 2001) (a federal agency is “a creature of statute” and “has no constitutional or common law . . . authority,

but only those authorities conferred upon it by Congress”).

114

Haughwout, supra note 72, 2016 WL 391799 at *4.

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owner, controls every cubic inch of airspace? Is this what Congress really intended?”

115

Likewise, another legal commentator, while stating that “navigable airspace” needs to include

some altitudes below 500 feet (the general minimum flight altitude for manned aircraft), has

testified to Congress that “just as clearly, it shouldn’t include the airspace two inches above the

ground in a person’s backyard.”

116

Other legal commentators, supporting their position that Congress did not intend to authorize

routine flight operations down to the ground, have noted that Congress has taken care to

distinguish between “navigable airspace” and what some have referred to as “non-navigable

airspace.” For example, when Congress enacted the 1926 Air Commerce Act and each

subsequent aviation statute, it declared the United States’ exclusive sovereignty over “airspace

of the United States” but authorized federal regulation only within “navigable airspace.”

117

Further, legal commentators have noted, Congress has limited “navigable airspace” to the

airspace above minimum safe altitudes of flight (later flight plus takeoff and landing), where

Congress understood air commerce would occur and—at least in 1926—where it understood

flight operations would not interfere with underlying landowners’ property use.

118

Congress has

made the same navigable/non-navigable airspace distinction by declaring a public right of transit

in the 1926 Air Commerce Act and each subsequent aviation statute only within “navigable

airspace,” not all airspace, the commentators also observed.

In addition, at least one legal commentator

119

has questioned FAA’s reliance for its low-altitude

airspace authority on 49 U.S.C. § 40103(b)(2)(B), which the agency cited as support for its

proposed and final Part 107 rules.

120

This provision is part of FAA’s 49 U.S.C. § 40103(b)

general authority to regulate the use of “navigable airspace” to ensure the safety of aircraft and

115

Testimony of James Grimsley to the Oklahoma House of Representatives on Drone Issues (Sept. 18, 2017),

available at https://www.linkedin.com/pulse/my-written-statement-oklahoma-house-representatives-drone-grimsley/

(last visited Sept. 1, 2020). This commentator also said that “if we place every cubic inch of airspace above the

surface under the strict control of the federal government, and eliminate the authority of private landowners and state

governments to control private property at the lowest altitudes, then we may eviscerate federalism as we know it, but

possibly more importantly, we may eviscerate property rights as we know them. We run the risk of fundamentally

altering what it means to own, control, and possess property in the United States.” Id. See also James Grimsley,

Singer v. City of Newton: When a win is not completely a win . . . (Sept. 30, 2017), available at

https://www.linkedin.com/pulse/singer-vs-city-newton-when-win-completely-james-grimsley/ (last visited Sept. 1,

2020) (“[T]here has never been an intent of either Congress or the courts to recognize FAA authority over every cubic

inch of airspace that exists in the nation.”).

116

Testimony of John Villasenor before the Senate Committee on Commerce, Science, and Transportation,

Subcommittee on Aviation Operations, Safety, and Security, March 24, 2015.

117

See, e.g., Migala, supra note 106, at 33-34.

118

Migala, supra note 106, at 36 (quoting House report accompanying 1926 Air Commerce Act: “It is not urged that

flights should be permitted below certain altitude or in such manner as to deprive the owner of the submerged land of

the normal use and enjoyment of his land. But it is submitted that Congress may provide for minimum safe altitudes

of flight which are analogous to harbor lines or the navigable channel of a stream.”).

119

Migala, supra note 106, at 52-54.

120

See 80 Fed. Reg. 9543, 9544 (Feb. 23, 2015); 81 Fed. Reg. 42063, 42067-68 (June 28, 2016). FAA also cited

this provision as “consistent with” its regulation of UAS and all aircraft “irrespective of the altitude at which the aircraft

is operating” in its Busting Myths about the FAA and Unmanned Aircraft—Update fact sheet cited by the court in

Haughwout. See Haughwout, supra note 72, 2016 WL 3919799 at *4.

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efficient use of airspace, with § 40103(b)(2)(B) directing FAA to prescribe flight “air traffic

regulations” for the purpose of “protecting individuals and property on the ground.” However,

according to this commentator, the provision is not a separate “stand alone power that could be

used as a catch-all reason to regulate, including within non-navigable airspace,” but instead

applies only to aircraft in or authorized to enter navigable airspace, as confirmed by the

legislative history of the 1958 Federal Aviation Act where it was added. Because small UAS are

prohibited by FAA and Congress from flying above 400 feet absent a waiver, and thus are

prohibited from entering navigable airspace, § 40103(b)(2)(B) does not authorize FAA to

regulate their operations below navigable airspace and down to the ground, the commentator

reasoned.

FAA and DOT officials we spoke with strongly disagreed that FAA lacks authority to regulate

UAS operations down to the ground. FAA is “responsible for air safety from the ground up,”

121

including with respect to unmanned aircraft operations, they said, and stated it is the agency’s

“long-held position that . . . [FAA] has the responsibility to regulate aviation safety and the

efficiency of the airspace within the navigable airspace, which may extend down to the ground.”

In support, FAA officials cited a number of FAA’s general aviation regulatory authorities

including 49 U.S.C. § 40103(b)(1), directing FAA to regulate the use of the “navigable airspace .

. . to ensure the safety of aircraft and the efficient use of [that] airspace,” and 49 U.S.C.

§ 40103(b)(2)(A), (B), and (D), directing FAA to prescribe “air traffic regulations” for “navigating,

protecting, and identifying aircraft,” “protecting individuals and property on the ground,” and

“preventing collisions between aircraft, between aircraft and land or water vehicles, and

between aircraft and airborne objects, respectively. The officials also cited 49 U.S.C.

§ 44701(a)(5), directing FAA to issue regulations and standards necessary for safety in “air

commerce and national security.” The statutory definition of “air commerce” (quoted above),

they noted, unlike the definition of “navigable airspace” (quoted above), is not explicitly tied to

any particular altitude. Therefore, according to the officials, if UAS operating below 500 feet are

in the stream of interstate air commerce, FAA can regulate their operations,

122

even if the

aircraft is on the ground.

123

DOT officials noted that consistent with its interpretation of these statutory authorities as

authorizing aircraft operations at ground level, FAA has promulgated rules that apply to all

“aircraft” (manned and unmanned) irrespective of the altitude at which the aircraft is operating.

For example, the officials noted that 14 C.F.R. § 91.13 prohibits any person from operating an

aircraft “in a careless or reckless manner so as to endanger the life or property of another”; 14

C.F.R. Parts 91 and 137 authorize operation below FAA’s general 500- and 1,000-foot minimum

altitudes of certain aircraft (e.g., helicopters and agricultural aircraft) or aircraft operating under

certain conditions; and 14 C.F.R. § 71.1 incorporates FAA Order JO 7400.11D, which extends

Class B airspace “from the surface” to various designated altitudes in locations across the

121

Busting Myths about the FAA and Unmanned Aircraft—Update, supra note 98.

122

FAA cited Hill v. NTSB, United States v. McHenry, United States v. Red Frame Parasail, and Throckmorton v.

NTSB, all supra note 109, as support for this point.

123

As an example, the FAA officials cited Miranda v. NTSB, 866 F.2d 805 (5

Cir. 1989), where the court upheld

suspension of airline pilots’ certificates because they had carelessly and recklessly operated their plane while taxiing

on an airport runway, in violation of FAA rules.

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country.

In addition to these general aviation authorities, FAA officials told us Congress specifically

intended to authorize regulation of low-altitude UAS operations even if they occur below

“navigable airspace.” In support, they noted that FMRA in 2012 and the 2018 FAA

Reauthorization Act directed DOT to determine whether UAS may operate safely in the “national

airspace system” and if it so determines, to “establish requirements for the safe operation of

[UAS] in the national airspace system . . . .”

124

As noted above, although Congress has not

defined “national airspace system,” FAA has defined this term in its Pilot/Controller Glossary as

a “network” of “U.S. airspace” (an undefined term) and aviation-related facilities, rules, technical

information, manpower, and material. As so defined, DOT officials told us, “national airspace

system” is “a broader concept than the ‘navigable airspace.’”

The officials also noted that 49 U.S.C. § 44809(a)(6), added by section 349 of the 2018 FAA

Reauthorization Act, authorizes recreational UAS operations “from the surface to not more than

400 feet above ground level” in certain airspace, and stated that 49 U.S.C. § 44806(c), added

by section 346(a) of the 2018 Act, affirms navigable airspace includes airspace below 150 feet

(that provision directs FAA to permit the use of actively tethered public UAS below an altitude of

150 feet under certain circumstances).

Beyond these “navigable airspace,” “air commerce,” and “national airspace system” provisions

cited by FAA, FAA refers throughout the preamble of one of its most recently proposed UAS

rules to regulation of UAS operations in the “airspace of the United States.”

125

Congress has

used the same undefined term in declaring in 49 U.S.C. § 40103(a)(1) that the United States

Government has exclusive sovereignty of “airspace of the United States.” DOT officials told us,

however, that it is not the Department’s position that this “sovereignty” statute provides

additional authority to regulate UAS operations down to ground level. Nor does it reflect

“national ownership” of the airspace or expressly exclude the sovereign powers of the states,

the officials said. Rather, they explained, it is DOT’s and DOJ’s longstanding position that this

provision simply excludes the exercise of sovereignty by foreign nations.

To the extent FAA relies on its jurisdiction over “navigable airspace” as authority to regulate low-

altitude UAS operations, there may be some question whether FAA has implemented this

authority pursuant to statutory requirements. As noted, the definition of “navigable airspace” in

49 U.S.C. § 40102(a)(32) contemplates issuance of regulations prescribing minimum flight

altitudes for the relevant aircraft (“airspace above the minimum altitudes of flight prescribed by

regulations”) (emphasis added). While FAA has issued regulations prescribing explicit minimum

flight altitudes for manned aircraft and an explicit maximum flight altitude for UAS, it has issued

no regulation prescribing an explicit minimum flight altitude for UAS. FAA officials declined to

indicate to us whether the agency has prescribed a regulatory minimum flight altitude for UAS in

accordance with the requirements of 49 U.S.C. § 40102(a)(32); they told us it would be

inappropriate to take a position on this until the DOT Preemption Working Group has completed

its analysis for DOT policymakers on UAS jurisdiction and related matters. As noted above,

however, DOT officials also told us “it is the Department’s stance that, for purposes of the

124

49 U.S.C. § 44807; see also id. § 44802.

125

See 84 Fed. Reg. 72438 (Dec. 31, 2019) (proposed Remote Identification rule) (emphasis added).

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definition of the term navigable airspace, zero feet (‘the blades of grass’) is the minimum altitude

of flight for UAS.”

126

(ii) Stakeholder Positions on Property Rights in Airspace, the Fifth Amendment’s

Takings Clause, and United States v. Causby

In addition to these questions about the scope of Congress’s Commerce Clause power over

low-altitude UAS operations and how much of that power Congress intended to assign to FAA,

there is another important factor that may affect FAA’s authority to regulate low-altitude UAS

operations—whether landowners continue to have property rights in the airspace above their

land. The different legal positions about airspace property rights in the UAS context largely

reflect different interpretations of the U.S. Supreme Court’s 1946 landmark decision in United

States v. Causby

127

and Causby’s statements that a landowner “owns” and has “exclusive

control” of his “immediate reaches” airspace. Some consider the decision to be the foundational

case confirming the modern scope of landowner airspace property rights, which they believe

create a constitutional hurdle to the exercise of Congress’s Commerce Clause power, while

others consider the case’s holding to be limited to property rights in land.

As one law firm stakeholder we spoke to has said, however, Causby is a “touchstone” that “you

can’t get around” in the debate over federal versus state authority over low-altitude airspace;

“you can’t pretend Causby doesn’t exist.” FAA officials also told us the DOT Preemption

Working Group is considering the impact of Causby on the scope of the agency’s authority to

regulate low-altitude UAS operations. Because of the central importance of Causby and

possible airspace property rights to analysis of FAA’s jurisdiction over low-altitude UAS

operations, we summarize Causby and the development of these rights below and provide

additional detail in Appendices II and V.

As detailed in those appendices, private property rights in airspace were recognized under

Anglo-American common law for centuries. For centuries, disputes over activities occurring in

the airspace were generally resolved by reference to the legal doctrine of cujus est solum, ejus

est usque ad coelum et ad inferos—he who owns the soil, owns upwards unto the heavens and

down to the depths.

128

In the United States, states adopted the doctrine as part of their

common law police powers. Airspace property rights enabled landowners to compel

neighboring entities to remove “trespassing” structures or tree branches overhanging their

property, for example—rights landowners continue to exercise today.

While American courts initially continued to apply the ad coelum legal doctrine as technology

advanced—for example, ordering the “ejectment” of a telephone wire strung across private

126

Similarly, an attorney stakeholder we spoke to said FAA has “implicitly” set a UAS minimum fight altitude of zero

by setting a 400-foot maximum flight altitude with no prescribed minimum. Another attorney stakeholder we spoke to

said that while FAA has not prescribed a UAS minimum flight altitude, because this “can’t mean that no airspace is

navigable” for UAS, this simply means FAA has not “prescribed a minimum different than zero.”

127

See Causby, supra note 102.

128

See Causby, supra note 102, 328 U.S. at 260-61, n. 5, 264, n. 9 (1946), citing 1 Coke, Institutes of the Laws of

England (19

ed. 1832) ch. 1, § 1 (4a); 2 Blackstone, Commentaries on the Laws of England (Lewis ed. 1902) at 18;

3 Kent, Commentaries on American Law (Gould ed. 1896) at 621; Baten’s Case, 77 Eng. Rep. 810 (1610).

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property through the overlying airspace “owned” by the landowner

129

—the advent of manned

aviation—first by hot-air balloons and dirigibles in the 1800s, then by traditional aircraft in the

early 1900s—began to change how the law viewed activities in the airspace. Some aviation

proponents suggested resolving the resulting conflicts by enacting federal or state legislation

declaring a public right of flight at some minimum altitude, without liability to underlying

landowners. Some government attorneys raised concerns that such legislation would be an

unconstitutional “taking” of landowners’ property rights in the airspace without “just

compensation,” in violation of the Fifth Amendment’s Takings Clause or its state equivalents.

130

Congress addressed these issues to some extent in 1926 when it enacted the Air Commerce

Act. Among other things, the Air Commerce Act authorized the Secretary of Commerce to

establish “civil airways” (commercial air routes) within “navigable airspace” and as noted above,

declared a “public right of freedom of . . . air navigation” through that space. Also as noted

above, Congress defined “navigable airspace” at that time as the airspace above federally

prescribed minimum safe flight altitudes.

131

Concerns were again raised that this declaration of

a public airspace “easement” might be an unconstitutional taking of underlying landowners’

property rights, and also left unclear what landowners and state and local governments could do

about flights below navigable airspace.

These issues reached the Supreme Court in 1946 in Causby. The Court began its opinion by

stating that the ad coelum doctrine “has no place in the modern world,” noting that airspace

ownership up to the heavens would subject every pilot to aerial trespass suits and “seriously

interfere with” the public interest in manned flight.

132

Nevertheless, the Court said that even

though Congress had assigned control of navigable airspace activity to the federal government,

private landowners still retained their constitutionally protected property interests in the

“immediate reaches of the enveloping atmosphere” above their land, where the landowner

“must have exclusive control” if he is to have full enjoyment of the land. The Court stated that

“[t]he landowner owns at least as much of the space above the ground as he can occupy or use

in connection with the land. . . . The superadjacent airspace at this low altitude is so close to the

land that continuous invasions of it affect the use of the surface of the land itself. We think that

the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in

the same category as invasions of the surface.”

133

Recognizing the continued vitality of low-altitude airspace property rights, the Causby Court held

that U.S. military flights continuously taking off and landing at very low altitudes above a family-

owned commercial chicken farm and residence, which destroyed the business and adversely

affected the landowners’ health, was an unconstitutional taking of an interest in the landowners’

129

Butler v. Frontier Telephone Co., 79 N.E. 716 (N.Y. 1906).

130

The Takings Clause of Fifth Amendment authorizes the federal government to take private property for a public

use, provided that it pays just compensation. U.S. Const. Amend. V. These restrictions are imposed on the states

through the Fourteenth Amendment. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001), citing Chicago

B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897).

131

Air Commerce Act of 1926, supra note 26, §§ 5, 10, 44 Stat. at 571, 574.

132

Causby, 328 U.S. at 261.

133

Causby, 328 U.S. at 264-65 (emphasis added).

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property—specifically, an “easement of flight”—which required payment of just compensation by

the federal government. As the Court explained, “[f]lights over private land are . . . a taking . . .

[if] they are so low and so frequent as to be a direct and immediate interference with the

enjoyment and use of the land.”

134

What the “precise limits” of this protected airspace are, “[w]e

not determine at this time,” the Court concluded.

135

The Court rejected the government’s

argument that it was not liable because Congress had authorized flight in the landowner’s

overlying airspace.

136

In 1962, the Supreme Court again found an unconstitutional taking of airspace property rights in

Griggs v. Allegheny County.

137

Relying on Causby, Griggs held that the county owner/operator

of an airport had—by not acquiring what it called “air easements” and “navigation easements” in

neighboring landowners’ overlying airspace and paying them just compensation, resulting in

low-flying planes interfering with the use and enjoyment of their land—unconstitutionally taken

the landowners’ “private property” in violation of the Fifth Amendment.

138

As detailed in Appendices II and V, since Causby and Griggs, the Supreme Court and other

courts have continued to recognize airspace property rights at low altitudes, in both the manned

aviation context and otherwise and in both the government takings and private aerial trespass

contexts. Airspace flight easements, now known as “avigation easements,” continue to be

widely recognized in the manned aviation context as a property interest with market value.

139

The extent to which “immediate reaches” airspace property rights and avigation easements are

recognized in the UAS context today and what, if any, impact they have on FAA’s authority to

regulate low-altitude UAS operations are subjects of considerable debate.

134

Causby, 328 U.S. at 266.

135

Id.

136

The Court disagreed with the government’s assertion that its flights had occurred within “navigable airspace”

where flight was permitted, because at the time, the statute defined this term as above the safe altitudes of flight

(which generally had been set at 500 feet), not the safe altitudes of takeoffs and landings. But even if Congress had

defined the term as including takeoff and landing space (which it later did), and even if the flights were within that

airspace in compliance with federal law, the Court said—and the government agreed—that flights so close to private

land as to make it uninhabitable would still constitute a taking.

137

Griggs v. Allegheny County, 369 U.S. 84 (1962).

138

Griggs, supra note 137, 369 U.S. at 90 (“Respondent in designing [the airport] had to acquire some private

property. Our conclusion is that by constitutional standards it did not acquire enough.”). The dissenting Justices in

Griggs—echoing the criticisms of the 1926 Air Commerce Act as an unconstitutional taking—believed it was the

federal government, not the county, that had committed the taking. Justice Black, dissenting, reasoned that because

a federal agency had approved the county’s airport layout plans and Congress had already appropriated the low-

altitude airspace needed for takeoffs and landings, “[t]here is no . . . duty on the local community to [again] acquire

flight airspace. Having taken the airspace over Griggs’ private property for a public use, it is the United States which

owes just compensation.” Griggs, 369 U.S. at 92-94 (Black, J., dissenting).

139

See, e.g., Wisconsin Dept. of Transportation, Avigation Easements (May 2012), available at

https://wisconsindot.gov/Documents/doing-bus/aeronautics/resources/av-ease.pdf (last visited Sept. 1, 2020); Gary

David Strauss, Valuation of Avigation Easements, Right of Way (March/April 2012); Stephon B. Bagne, Broad Rights

of an Avigation Easement, Right of Way (May/June 2014).

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For FAA’s part, it declined to say, in issuing the final Part 107 rules in 2016, whether it believes

UAS operating below 400 feet pursuant to Part 107 are committing a trespass through airspace

subject to private property rights. Instead, it stated, “[a]djudicating private property rights is

beyond the scope of this rule. . . . With regard to property rights, trespassing on property (as

opposed to flying in the airspace above a piece of property) without the owner’s permission may

be addressed by State and local trespassing law.”

140

FAA officials also declined to provide the

agency’s position on airspace property rights or its interpretation of Causby for this report,

noting these are among the issues being considered by the DOT Preemption Working Group

that is being coordinated with DOJ.

Nonetheless, it appears FAA has recognized constitutionally protected property rights in low-

altitude airspace at least in the context of manned aviation. FAA’s directives governing its

Airport Improvement Program (AIP) have long required airport sponsor-grantees to acquire

“title” to all “real property interests” needed for construction and operation of the grant-assisted

airport. FAA explicitly states that these property interests include airspace easements—now

known as avigation easements—which it defines as “a conveyance of airspace over another

property for use by the airport.” FAA states that sponsors generally must obtain a market value

appraisal of avigation easements and it requires airport sponsors to pay “just compensation” for

this “interest in . . . real property.” FAA also notes that sponsors may need to use their “power

of eminent domain,” and to “institute formal condemnation proceedings” for “the taking of the

real property,” to acquire such property interests.

141

According to FAA,

142

its AIP property acquisition requirements implement 49 U.S.C.

§ 47016(b)(1), which authorizes DOT to approve airport development grants only if the sponsor,

a public agency, or the Government holds or will acquire “good title” to takeoff and landing

areas. The statute does not specify that the property to which title must be acquired includes

airspace, however. That interpretation, of an earlier codification of the statute, is found in

Griggs. Relying on Causby and seemingly consistent with FAA’s present-day AIP requirements,

Griggs found that air easements were constitutionally protected “private property,”

143

as noted

140

81 Fed. Reg. at 42119 (emphasis added). See also id. at 42131 (“Property rights are beyond the scope of this

rule.”).

141

See, e.g., FAA Advisory Circular 150/5100-17, Change 7, Land Acquisition and Relocation Assistance for Airport

Improvement Program (AIP) Assisted Projects (July 10, 2017), available at

http://www.faa.gov/documentLibrary/media/Advisory_Circular/AC-150-5100-17-Change-7-Land-Acquisition.pdf (last

visited Sept. 1, 2020), at pp. 1-9 to 1-10, 2-9 to 2-13, 3-1 to 3-15; FAA Central Region, Airports Division, AIP Sponsor

Guide, Sec. 500 Airport Planning (Sept. 1, 2020), available at

https://www.faa.gov/airports/central/aip/sponsor_guide/media/0500.pdf (last visited Sept. 1, 2020), at pp. 500-16

(Airport Property Interests), 500-17 (Avigation Easements). See also FAA Order 5100.37B, Land Acquisition and

Relocation Assistance for Airport Projects (Aug. 1, 2005), available at

https://www.faa.gov/documentLibrary/media/Order/environmental_5100_37b.pdf (last visited Sept. 1, 2020), sec.

2-27 (Appraisal of Avigation Easements), 3-5 (Acquisition of Easements or Other Partial Interests in Real Property).

142

See FAA Order 5190.6B, Airport Compliance Manual (Sept. 2009), Part IV, Chapter 6.12.a., Title Requirement

(Grant Assurance 4, Good Title), available at http://www.faa.gov/documentLibrary/media/Order/5190_6b.pdf (last

visited Sept. 1, 2020); FAA Order 5100.38D, Change 1, Airport Improvement Program Handbook (Feb. 26, 2019), at

pp. 2-15, 2-16, 6-26, available at https://www.faa.gov/airports/aip/aip_handbook/media/AIP-Handbook-Order-5100-

38D-Chg1.pdf (last visited Sept. 1, 2020).

143

Griggs, supra note 137, 369 U.S. at 90. Griggs was interpreting former 49 U.S.C. § 1108(d), which authorized the

Civil Aeronautics Administration, FAA’s predecessor, to approve federal grants for development of public airports only

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above.

144

DOT officials declined to indicate to us whether they agree with Griggs or to identify

the basis for FAA’s inclusion of airspace easements in its AIP property requirements, again

explaining that the DOT Preemption Working Group is considering such issues.

Other stakeholders had differing views about the continued recognition of airspace property

rights and their impact on FAA’s authority. One law firm stakeholder we spoke with has

suggested superadjacent airspace property rights are an anachronism and should be

reconsidered to allow society to achieve the social and economic benefits of UAS operations.

Using the Boggs v. Merideth/Drone Slayer case discussed above as an example, the

stakeholder said there is an “incompatibility between FAA regulations, which claim jurisdiction

over all U.S. airspace, and longstanding common law property rights which state that

landowners control the rights to the airspace above their land. Sixty years ago, the Supreme

Court established an imprecise definition of the public/private boundary in United States v.

Causby, but the vague framework is ripe to be challenged.. . . . [Boggs v. Merideth highlighted]

whether there is a limit to a landowner’s private interest in airspace, and also whether this

public/private separation is reconcilable with 21

century technology.”

145

The stakeholder cited

the Haughwout case discussed above as another example “where the FAA enforces its control

over the airspace in Americans’ backyards,” which “will likewise test the limits of FAA’s

regulatory regime.”

146

Similarly, in comments filed with the Uniform Law Commission on a draft drone aerial trespass

law (discussed in Appendix II), a group of 17 UAS industry, technology, media, and other firms

(hereafter ULC Industry Commenters Group), including several industry stakeholders we spoke

with, also raised questions about whether Causby in fact recognized airspace property rights.

147

The Group said Causby did not hold that the “immediate reaches” of airspace are subject to a

if a public agency holds or is committed to acquiring “good title” to the airport landing area. See Pub. L. No. 79-377,

sec. 9(d), 60 Stat. 170, 175 (1946), formerly codified at 49 U.S.C. § 1108(d). Because Griggs ruled that the statute,

as so interpreted, imposed responsibility on the county airport sponsor to acquire flight easements in the neighbors’

overlying airspace, it held the county’s failure to do so, resulting in interference with the neighbors’ use and

enjoyment of their land, made the county liable for an unconstitutional taking of the neighbors’ property.

144

FAA’s AIP property acquisition directives also state that they carry out the Uniform Relocation Assistance and

Real Property Acquisition Policies Act, 42 U.S.C. §§ 4601 et seq., and implementing regulations, 49 C.F.R. Part 24.

As relevant here, these requirements apply to any federal project or program that requires acquisition of “real

property.” See FAA Advisory Circular 150/5100-17, supra note 141, at page i; FAA Order 5100.37B, supra note 141,

at page 1. Like the “good title” requirements of 49 U.S.C. § 47016(b)(1), however, these requirements do not specify

that the “real property” to which they apply includes airspace or easements in airspace.

145

Jennifer Trock, Paul Alpern, Christoper Leuchten, Kevin Grover, The Use of Unmanned Aircraft Systems in the

Construction Industry in the United States and Canada: An Overview of the Applicable Frameworks, 12 J. Amer. Coll.

Construction Lawyers (Jan. 2018).

146

Trock, supra note 145.

147

See Letter to Uniform Law Commission from 17 corporations, UAS recreational user and other organizations,

trade associations, manufacturers, mapping, software, and other entities (hereafter ULC Industry Commenters

Group), July 1, 2019. The 17 entities comprising this group were the Alliance for Drone Innovation, Amazon, the

Academy of Model Aeronautics, the Association for Unmanned Vehicle Systems International, BNSF Railway,

Cherokee Nation Technologies, the Commercial Drone Alliance, the Consumer Technology Association, the U.S.

Chamber of Commerce Technology Engagement Center, CTIA, DJI Technology, Kittyhawk, NetChoice,

PrecisionHawk, Skyward, the Small UAV Coalition, and Verizon.

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landowner’s control to the same extent as their land. Those statements were dicta,

148

the

Group said, and the Court’s actual holding was based on damage caused by the overflights to

the landowner’s use of his land, not to the fact that the overflights intruded into airspace close to

the land. A law firm stakeholder we spoke to agreed, noting Causby focused on traditional

property rights in land and interference with the landowner’s use of his land.

The ULC Industry Commenters Group also said states are preempted from recognizing

airspace property rights by establishing an altitude-based ceiling below which drones are

deemed to be trespassing. As discussed in Appendix II, drawing such a “line in the sky” would

create a no-fly zone, the industry group said, in conflict with federal law authorizing only FAA to

establish no-fly zones. States likewise are preempted from authorizing landowners to file aerial

trespass tort suits to exclude UAS flights over their properties below pre-established altitudes,

according to the Industry Commenters Group, because that, too, would have the effect of

creating no-fly zones, which only FAA may establish.

149

To suggestions that Causby has been misread as recognizing continued airspace property

rights, however, an attorney stakeholder we spoke with strongly disagreed. He told us Causby

remains good law, with the very examples the Supreme Court cited in its opinion establishing

that landowners have exclusive control of the “immediate reaches” of the enveloping

atmosphere above their land—an undefined amount of airspace that runs with each parcel of

land. This stakeholder has also said FAA’s Part 107 rules “do not overrule or negate” these

rights by virtue of establishing that drones may operate at altitudes below 400 feet under

specifically enumerated conditions.

By its terms, the stakeholder told us, Part 107 neither

establishes nor purports to establish nationwide drone flight corridors in all airspace below 400

feet, nor to adjudicate private airspace rights.

To assert otherwise—to say FAA’s authorization of specifically enumerated UAS operations

below 400 feet has adjudicated private airspace rights and abrogated every private landowner’s

right to control all or at least part of that airspace—may well constitute “a nationwide ‘taking’ of

private property without just compensation that surely raises significant questions about the

scope of the Federal Government’s authority under the Commerce Clause of the U.S.

Constitution, according to this stakeholder.”

150

More specifically, this stakeholder told us, if Part

107 is understood as authorizing nationwide UAS flight corridors at what he calls “ultra-low

altitudes”

—at least up to 100 or 125 feet (which he believes “surely constitutes ‘immediate

reaches’ airspace under Causby”) and perhaps as high as 250 feet— then there is a “serious

and compelling argument” that Part 107 has effected an unconstitutional regulatory taking (an

148

Dicta are a court’s comments made in a judicial opinion that are not strictly necessary to the decision in the case,

and therefore are not binding legal precedent. Black’s Law Dictionary, 11

ed. (2019) at 569.

149

See Letters to Uniform Law Commission from ULC Industry Commenters Group, July 5, 2018, June 14, 2019, and

July 1, 2019. Allowing states to authorize landowner aerial trespass suits to exclude UAS flights over their private

property would “interfere[] with the plenary authority of [FAA] . . . in order to give property owners a right to establish

no-fly zones prohibiting any unmanned aircraft from flying below 200 feet,” the industry group explained. Id., Letter of

July 5, 2018. (As discussed in Appendix II, the ULC Industry Group was commenting on a draft model UAS aerial

trespass law setting a 200-foot altitude ceiling below which UAS would be trespassing.)

150

Letter to Uniform Law Commission from Reginald C. Govan re Proposed Tort Law Relating to Drones Act, July

24, 2018.

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inverse avigation easement) without just compensation.

151

An academic stakeholder we spoke with has addressed the impact of such preemption of state

and local UAS restrictions more directly. He noted there is a potential for “one of the largest

uncompensated transfers of property interests in United States history” if FAA seeks to preempt

all state and local drone use restrictions and common law tort claims.

152

Other stakeholders we spoke with and legal commentators

153

also believe Causby remains

good law and clearly recognizes airspace property rights, with some believing these rights may

conflict with FAA’s view of its jurisdiction from the ground up. For example, an academic

stakeholder told us these airspace property rights include the right, from the traditional property

“bundle of rights,” to exclude others and thus entitle a landowner to “eject” a trespassing drone

in the same way a landowner may sue to “eject” a trespassing tree branch overhanging his

property.

The American Bar Association’s Real Property, Trust and Estate Law Section recently took the

same position in proposing a resolution, subsequently adopted by the full ABA House of

Delegates in February 2020, that urges the federal, state, and local governments to protect

landowners’ property rights in any UAS statutes or regulations. The Section said “[i]t is an open

question as to whether the FAA’s authority extends to areas such as one foot above the ground”

and whether “FAA preemption authority extends to one (1) foot above the ground.” Citing

Causby, the Section also asserted that landowners and other legal land occupants must have

the right to “prevent UAS from using and crossing airspace over their land in some form or

fashion.”

154

Similarly, as discussed in Appendix II, in 2019, the Section opposed a Uniform Law

Commission draft drone aerial trespass model act because it did not protect landowners’ per se

151

We discuss these and other regulatory takings issues in Appendix II.

152

Troy A. Rule, Drone Zoning, 95 N.C. L.Rev. 133, 171 (2016). In that event, this stakeholder said, “[m]illions of

Americans would lose valuable rights to prevent unwanted devices from physically invading the airspace just above

their backyards and rooftops, receiving almost nothing in return.”

153

See, e.g., Kyle Joseph Farris, Flying Inside America’s Drone Dome and Landing in Aerial Trespass Limbo, 53 Val.

U. L. Rev. 247, 282-83 (Fall 2018) (“The FAA cannot regulate every inch of airspace because reachable air belongs

to the landowner. Above each piece of land sits a block of air for the landowner to use. This block of air, or reachable

air, attaches to the land as part of the whole property and absorbs its protections.”).

Cf. Wendie L. Kellington, Drones, 49 Urb. Law. 667, 669 (2017) (“The power of Congress and the FAA to declare

navigable airspace does not give anyone, including pilots, the right to trespass, create nuisances, unconstitutionally

take private property, invade privacy, commit crimes, or commit state law torts. . . . [T]he location of navigable

airspace for low flying aircraft, like small drones, potentially has great impact on real property rights and personal

rights of privacy.”); Lindsey P. Gustafson, Arkansas Airspace Ownership and the Challenge of Drones, 39 U. Ark.

Little Rock L. Rev. 245, 276 (2017) (“This once latent question about the extent of federal preemption over airspace is

now critically important and still unresolved by a court. That the issue of whether this authority extends the FAA’s

exclusive jurisdiction beyond navigable airspace ‘has remained unaddressed is, presumably, a testament to both its

difficulty and the fact that courts can easily avoid deciding the issue in a world where commercial air safety generally

requires flight . . . [above] 500 feet.’ . . . Despite broad statements from the FAA as to its regulatory authority,

Congress has not indicated that it intends to remove from [states their] broad police powers to regulate lower-altitude

airspace. This power extends beyond the commerce clause, and properly remains with the states.”).

154

ABA Section on Real Property, Trust and Estate Law, Report accompanying Resolution 111 (adopted by ABA

House of Delegates, Feb. 17, 2020), at 3-5.

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right to prohibit drone trespass into the “near reaches” above their property.

155

The above-noted academic stakeholder also told us the use and control of superadjacent

airspace by FAA and other government entities must be viewed through the lens of the Fifth

Amendment, as in Causby and Griggs. The government may decide, for example, that an

avigation easement is needed through superadjacent airspace to provide a corridor for UAS

operations. In that case, he said, the government may use its eminent domain power to take

that private property for a public use but must pay just compensation for it, such as when the

Federal Highway Administration wants to construct a highway across private land and must

condemn the land and pay just compensation. Accommodating airspace property rights in this

way would help states and localities that wish to become early adopters of UAS, the stakeholder

believed, because there would be a clear process (eminent domain and just compensation) for

them to follow.

Finally, some stakeholders we spoke with were unsure about the meaning of Causby and the

current legal status of airspace property rights. They said, however, that with the advent of UAS

operating at far lower altitudes than manned aircraft, society should reconsider concepts of

property rights in airspace as well as the statutory definition of “navigable airspace.” Other

stakeholders and legal commentators believed such rights still exist but need to be better

defined in the UAS context by FAA, the courts, or Congress or the state legislatures.

The above-noted attorney stakeholder, for example, suggested to us that state and local

governments, which have neighborhood-specific information needed to make “micro-decisions”

about when and where drones may safely fly, should be authorized to do so subject to guiding

principles to be created by FAA. If a UAS operator believes particular state or local restrictions

violate those principles, this stakeholder proposed, the operator could appeal to FAA, whose

final determination could then be appealed to a federal court under the Administrative

Procedure Act.

156

By contrast, two legal commentators have recently proposed that states

could create “drone highways” above public rights-of-way that UAS operators could use for

parcel delivery and other services.

157

Finally, still other stakeholders believed FAA clearly has

sole authority to regulate UAS operations from the ground up.

A common theme from a range of stakeholders, including from law firms, academia, tribes, and

states and localities, was that the scope of FAA’s “airspace” authority is uncertain and should be

clarified by FAA, Congress, or the courts. Some believed FAA’s regulatory authority should be

limited to UAS operations above a certain altitude (500 feet, for example, the general minimum

safe altitude for manned aircraft, or perhaps 200 feet or lower), leaving states to regulate UAS

operations below that. In such cases, one stakeholder suggested FAA could still retain authority

155

Memorandum to the Uniform Law Commission from Jo-Ann Marzullo, Chair-Elect, American Bar Association Real

Property, Trust and Estate Law Section, June 25, 2019.

156

The Administrative Procedure Act authorizes a federal court to review “[a]gency action made reviewable by

statute and final agency action for which there is no other adequate remedy . . . .” 5 U.S.C. § 704.

157

Brent Skorup and Connor Haddland, Which States Are Prepared for the Drone Industry? A 50-State Report Card,

Mercatus Center at George Mason University (March 19, 2020), available at

https://www.mercatus.org/publications/technology-and-innovation/which-states-are-prepared-drone-industry (last

visited Sept. 1, 2020).

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to mitigate safety risks, for example by prohibiting UAS operations near airports. Recognizing

states have this authority would compensate for FAA’s lack of information and resources

needed to regulate and enforce UAS requirements in every neighborhood in the country, the

stakeholder said. It also would reflect the reality that states have the best understanding of the

unique needs of their citizens and should be allowed to use their traditional police powers to

regulate what are matters of local public health, safety, and welfare, not interstate commerce,

the stakeholder said.

b. Stakeholder Positions on the Scope of Federal Preemption of State, Local and

Tribal UAS Regulations

In addition to the scope of FAA’s authority to regulate low-altitude UAS operations and the

impact of airspace property rights on that question, the other major UAS-related jurisdictional

issue that raised questions and concerns for both state, local, and tribal government

stakeholders and UAS industry stakeholders we spoke to was federal preemption. As noted,

when the federal government acts within its constitutionally enumerated powers, federal law

prevails over state and local law if that is what Congress clearly intended, and federal law

applies to and may preempt tribal law depending on the text of the federal law. Thus assuming

FAA has authority to regulate UAS operations down to the ground (the question addressed

above), the issue is whether Congress has clearly manifested its intent that FAA’s UAS

regulations should preempt state, local, and tribal UAS regulation in this same low-altitude

airspace.

158

As noted, it appears only one federal court decision, Singer v. Newton, has ruled on federal

preemption of state or local UAS regulations; the court there held that a de facto city-wide ban

on UAS operations was preempted as conflicting with FAA regulations.

159

Also as noted, FAA

has said the courts have recognized it exclusively occupies and preempts the field of aviation

safety and the efficient use of navigable airspace.

160

Nevertheless, because FAA has

acknowledged that states and localities can enact and enforce certain types of general police

power laws regarding UAS, it has invited them to make individual inquiries, as part of a

consultation process, to determine whether FAA believes their specific regulations raise

preemption issues. One local stakeholder who used this consultation process told us it was

extremely helpful in ensuring its UAS-specific ordinances did not conflict or interfere with FAA’s

rules.

It is possible FAA and DOT’s position on the scope of preemption and ways to resolve

preemption-related concerns about UAS integration may change, influenced by the results of

the UAS Integration Pilot Program, as discussed in Part B.2.b. above. Also as noted, the DOT

Preemption Working Group, in coordination with DOJ, is expected to provide its analysis and

recommendations on DOT’s legal position regarding preemption and related UAS jurisdiction

matters to DOT leadership in the coming months, with a public announcement of DOT’s position

158

FAA preemption may affect both enactment and enforcement of state and local laws. Because state and local

stakeholders expressed additional concerns about their UAS enforcement authority beyond preemption, however, we

address all stakeholder enforcement concerns in Part D.2. below.

159

See Singer v. Newton, supra note 55.

160

See 2015 FAA UAS Fact Sheet, supra note 61 and accompanying text.

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to occur sometime thereafter.

In the meantime, stakeholders we spoke with had differing views about the scope of FAA

preemption in the UAS context. Some UAS industry stakeholders told us there is and should be

broad preemption in order to ensure nationwide regulatory consistency and avoid a “patchwork”

of state and local laws they believe will stifle technological innovation and the development of

the UAS industry. While these stakeholders recognized state, local, and tribal governments

have unique needs and concerns, they suggested these concerns can often be addressed using

existing legal frameworks rather than enacting UAS-specific laws that risk conflicting with FAA

regulations. States and localities should focus on solving problems UAS operations may create

in a technology-neutral way rather than addressing UAS as a unique technology, they said. For

example, it is unnecessary to enact a state or local law prohibiting UAS from flying over prisons

in order to prevent delivery of contraband, they said, because delivering contraband already is

illegal.

A UAS industry stakeholder also told us allowing states and localities to enact their own UAS

regulations “solves a problem that does not exist yet” and could result in total operational bans

in some areas, harming the UAS industry in the U.S.. which the stakeholder said is not “at

scale.” In fact, as noted above, according to the

ULC Industry Commenters Group, state and

local altitude-based operational bans already are preempted because they would conflict with

FAA’s exclusive authority to establish no-fly zones. Likewise, the ULC Industry Commenters

Group said, states and localities are preempted from allowing landowner aerial trespass suits

seeking to exclude UAS below a pre-fixed altitude. Additionally, some UAS industry

stakeholders told us that even allowing states and localities to restrict UAS operations in certain

locations would unduly burden UAS operators, because it would require them to know local

rules and requirements in multiple jurisdictions. Having a single regulator—FAA—establishing

flight restrictions will help ensure that UAS operators that fly longer distances will be able to

comply with the rules, these stakeholders said.

161

Nevertheless, some UAS industry stakeholders told us states and localities should be able to

enact reasonable time, place, and manner restrictions, provided the restrictions are technology-

neutral rather than specifically targeting UAS. One stakeholder gave the example of a

restriction imposed by the city Santa Monica, California, which prohibits model aircraft flights

over city beaches. Because the city also prohibits cars and scooters from operating on or near

the beaches, the stakeholder believed the restriction on model aircraft was acceptable. Another

industry stakeholder, however, expressed concern about adopting the term “reasonable time,

place, and manner restrictions” to describe what states and localities may enact with respect to

drone operations. The stakeholder noted this comes from First Amendment case law, where

the courts have ruled states and localities may enact certain restrictions on an individual’s

constitutional right to free speech. But because there is no equivalent compelling constitutional

right to operate a UAS, the stakeholder said, any restriction of UAS operations might be

deemed “reasonable.”

161

As legal commentators representing UAS interests concluded, “state and local authorities should regulate drones

with restraint, recognizing the need to encourage, not suffocate, the burgeoning drone industry and the breadth of

federal regulatory authority over aviation. . . . [S]tate lawmakers must exercise caution to avoid enacting reactionary,

burdensome, and restrictive laws . . . [which] risk alienating the drone industry and impeding economic development.”

Mark J. Connot, Jason J. Zummo, Everybody Wants to Rule the World: Federal vs. State Power to Regulate Drones,

29 No. 3 Air & Space Law. 1 (2016).

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State, local, and tribal stakeholders, on the other hand, emphasized that because drones can—

and, under current federal statute and regulation, must—fly at low altitudes absent a waiver,

they present inherently “local” challenges—“from the ground up” and “down to the blades of

grass.” These challenges are best resolved by the government entities with first-hand

knowledge of their communities who know how to address and balance the needs of their

citizens, the stakeholders said. Other states and localities told us they did not object to FAA’s

role as the primary regulator on safety matters, but were uncertain what matters FAA believes

are within its exclusive jurisdiction and thus preempt state and local regulation.

A number of state and local stakeholders said they believe they should not be preempted from

enacting reasonable time, place, and manner restrictions such as permanent restrictions on

UAS fights over state capitol buildings, tribal burial grounds, and critical physical infrastructure

and temporary restrictions on flights over one-time events such as parades, funerals, and

sporting events. These stakeholders believed the current system, under which they can request

a Temporary Flight Restriction but must rely on FAA to approve their request, is unworkable

because of the time delay. They also noted that while the FAA Extension, Safety, and Security

Act of 2016 required FAA to create a process for requesting permanent flight restrictions over

fixed sites by 2017, FAA has not yet established this process.

162

The stakeholders believed

they should not be preempted from acting directly at least in limited circumstances.

Regarding concerns raised by the UAS industry about the possible impact of a regulatory

patchwork created by different state laws, a number of state and local stakeholders believed this

position is not based on the public interest but rather on the UAS industry’s economic

preference for one-stop approval by a single regulator, FAA. Some state and local stakeholders

acknowledged that differing state and local laws could create something of a regulatory

patchwork, but said they are not “one size fits all” entities and have unique interests and needs

that cannot be adequately addressed by a single regulatory system. Another local stakeholder

said patchwork solutions may be needed because localities “need the patches.”

State and local stakeholders also said state and local autonomy is more important than the

benefits of a single UAS regulatory system. Some jurisdictions want to help this new technology

develop, while others want to substantially limit UAS operations. Jurisdictions at both ends of

the spectrum should be given the freedom to do what is best for their community, the

stakeholders said. Several state and local stakeholders also questioned the “patchwork”

argument by noting that state and local motor vehicle traffic laws have not unduly hindered

commerce and the same would be true for drones. A state organization official said there is no

evidence that today’s differing laws are in fact stifling innovation, and he stated that an industry

capable of developing sophisticated technology to support Remote ID and a UTM traffic control

system also is capable of developing technologies, such as geo-fencing, to enable a drone to

“know” where it is and comply with any local restrictions. The more technology develops, this

official said, the less likely it is that differing state laws will stifle innovation.

Almost all state and local stakeholders we spoke to said there is a need for greater clarity from

FAA about the types of laws it believes are preempted, as well as a need for states and

162

See 2016 FAA Extension, Safety, and Security Act, supra note 34, sec. 2209, 130 Stat. at 634 (setting January

2017 deadline for establishment of process). DOT officials told us that FAA currently estimates proposing a rule to

implement section 2209 in February 2021.

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localities at least to have a “seat at the table” with FAA in deciding how to approach preemption

issues. While having the 2015 FAA UAS Fact Sheet and being able to make individual inquiries

to FAA are helpful, the stakeholders said, there is still significant uncertainty.

A final cause of confusion about the scope of FAA preemption cited by local stakeholders are

FAA’s statements in its 2015 UAS Fact Sheet and 2018 UAS Press Release that “land use [and]

zoning” laws, including laws regulating the location of UAS takeoff and landing locations, likely

would not be preempted. While this would appear consistent with court rulings upholding local

zoning restrictions on where manned aircraft may land,

163

one stakeholder said that because

UAS can be launched from virtually anywhere, FAA’s guidance might allow localities to use

zoning laws to establish de facto bans throughout a city, including banning backyard “airports.”

The stakeholder was unclear whether that was FAA’s intent, however.

2. Stakeholder Questions and Concerns about UAS Enforcement Authority

State, local, and tribal stakeholders we spoke to identified a number of legal and practical

questions and concerns about whether and how they can enforce federal laws and their own

laws and take other measures to address what they see as threats posed by UAS operations. A

common theme among virtually all state and local stakeholders about these UAS enforcement

issues, as it was among many state and local stakeholders regarding UAS regulation issues as

discussed in the previous section, was the need for additional clarity. As one municipality

stakeholder group told us, in order to guide their enforcement efforts, they need more clarity on

questions such as “when has a UAS committed a trespass through airspace? And were does

land stop and aviation start?” In addition, where states and localities currently lack authority in

certain areas—notably authority to enforce FAA regulations and to use counter-UAS measures

to respond to significant threats—many stakeholders said they wanted to obtain this additional

authority.

a. Whether States, Localities, and Tribes Have Authority to Enforce Their Own Laws or

Federal Laws to Respond to UAS Incidents

Some state, local, and tribal stakeholders were uncertain whether they have authority to take

enforcement action addressing UAS concerns using their own laws. Because FAA has

asserted exclusive control over aviation safety and the efficient use of airspace, they told us, it is

unclear whether their only option in the event of an incident is to contact FAA. This lack of

clarity can put law enforcement in harm’s way, some suggested. For example, if a report is

made to police about a UAS flying over critical infrastructure and police go to the scene to

investigate, their uncertainty about what if anything they can do (assuming they can locate the

UAS operator) could create a dangerous situation, a stakeholder told us. Some stakeholders

163

See, e.g., Hoagland v. Town of Clear Lake, 415 F.3d 693, 697 (7

Cir. 2005), cert. denied, 547 U.S. 1004 (2006)

(town ordinance requiring Zoning Board approval of aircraft landing strips and helicopter landing pads not explicitly

preempted by Federal Aviation Act provision preempting air carrier routes; court holds the ordinance “is a land use, or

zoning, ordinance, not a flight pattern regulation” and notes distinction between local control of flight routes and local

control of airport location); Gustafson v. City of Lake Angelus, supra note 18, 76 F.3d at 783, 789 (city ordinance

prohibiting seaplanes from landing on local lake not preempted by broad federal aviation regulatory scheme; although

49 U.S.C. § 40103 authorizes FAA to regulate the “navigable airspace” and the “flight of aircraft” as needed to ensure

aircraft safety and efficient use of the airspace, “there is a distinction between the regulation of the navigable airspace

and the regulation of ground space to be used for aircraft landing sites.”).

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also told us more clarity is required about whether states and localities can use their general

laws to address concerns about UAS operations or instead must enact UAS-specific laws.

Some state and local stakeholders also were uncertain whether they have authority to enforce

FAA’s UAS regulations. Such uncertainty may explain why at least some law enforcement

officials appear to have informed UAS operators they are in violation of federal law, as in the

North Dakota v. Turgeon case noted above.

164

FAA officials told us the agency is making significant efforts to educate states and localities that

they may respond to UAS incidents using either their own general laws or UAS-specific laws,

but that they may not enforce federal UAS regulations because in FAA’s view, it lacks authority

to delegate its UAS enforcement powers.

165

FAA has conveyed this message through issuance

of guidance to state and local law enforcement agencies, for example,

166

as well as through

interactive webinars.

167

In a March 2019 webinar, for instance, FAA stressed that states and

localities retain their traditional police powers including law enforcement powers,

168

and noted

the same conduct may violate both FAA’s statute and regulations as well as state and local

law.

169

A number of state and local stakeholders told us they would like a change in the law to enable

FAA to delegate its enforcement authority to them. This stems in part from concern about what

these stakeholder’s view as FAA’s limited resources to take UAS enforcement action across the

country. One stakeholder told us it is difficult to see how FAA will be able to “micro-regulate”

164

See Turgeon, supra note 56.

165

As FAA officials explained to us, Congress directed that FAA “shall” promote safe flight of civil aircraft and

develop plans, policy, regulations, and orders for the use of navigable airspace necessary to ensure the safety of

aircraft and the efficient use of airspace, see 49 U.S.C. §§  44701, 40103, and provided no express discretion to FAA

to delegate its overall regulation of aviation safety and efficiency in the navigable airspace to state or local

governments. FAA officials also noted courts have validated the principle that specific grants of authority, absent

express authorization permitting delegation of such authority, are not delegable. Cf. 49 U.S.C. § 44702(d)

(authorizing FAA to delegate its authority to conduct aviation-related testing and inspections to issue airworthiness

and production certificates, among other things); 49 U.S.C. § 60106(b)(1) (authorizing DOT to allow state participation

in general oversight of interstate pipeline transportation).

166

See, e.g., 2018 FAA Law Enforcement Guidance, supra note 71.

167

FAA Webinar, Drone Safety: It’s the Law—What Public Safety Officials Need to Know about Drones (March 6,

2019), available at https://www.youtube.com/watch?v=zezbqGiSP5c (last visited Sept. 1, 2020).

168

As noted above, for example, in the Drone Slayer case, see supra note 79 and accompanying text, the state of

Kentucky (unsuccessfully) charged the landowner who shot down the drone with felony wanton endangerment and

criminal mischief. In the New York v. Beesmer case, New York authorities (unsuccessfully) brought state

misdemeanor attempted unlawful surveillance charges against a UAS videographer, and in the Utah v. Foote case,

Utah authorities (successfully) charged a UAS operator under the state’s “voyeurism by electronic equipment

concealed or disguised” law. We discuss the Beesmer and Foote cases in Appendix III.

169

For example, it would appear that a UAS being operated recklessly might violate both 14 C.F.R. § 91.13(a) (FAA’s

regulation prohibiting operation of an aircraft in a “careless or reckless manner so as to endanger the life or property

of another,” which FAA cited in Huerta v. Pirker (supra note 43) and Huerta v. Haughwout (supra note 72)), as well as

a state or locality’s reckless endangerment law (such as the local law cited in North Dakota v. Turgeon (supra note

56).

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and “micro-enforce” UAS regulations in every neighborhood in the country as UAS proliferate;

another stakeholder said there isn’t an “FAA patrol car” to ensure UAS requirements are locally

enforced.

FAA has recognized that state and local law enforcement agencies “are often in the best

position to deter, detect, immediately investigate, and, as appropriate [under state or local law],

pursue enforcement actions in response to unauthorized or unsafe UAS operations.”

170

FAA

therefore has established a Law Enforcement Assistance Program (LEAP) to ensure

communication and coordination between federal, state, and local law enforcement agencies on

a variety of public safety issues, including those related to UAS. FAA’s LEAP agents may obtain

evidence from state and local law enforcement agencies to support federal enforcement actions

and FAA has developed resources and information for law enforcement agencies about FAA’s

UAS regulations and advises how they can help FAA deter, detect, investigate, and enforce its

UAS regulations.

171

A number of state, local, and tribal government stakeholders told us,

however, that they view this approach as both costly—they compared it to an unfunded

mandate—and frustrating—because FAA is seeking their assistance in enforcing FAA’s UAS

rules at the same time FAA is preempting them from enacting their own UAS rules and not

delegating federal enforcement authority to them.

b. What Enforcement Measures States, Localities, and Tribes Have Authority to Use

As discussed below, state, local, and tribal stakeholders expressed uncertainty about whether

they have authority to take three particular types of actions in responding to UAS concerns: (i)

requesting a UAS operator to produce their federal registration; (ii) ordering a UAS operator to

land their drone; and (iii) using “counter”-UAS (C-UAS) measures to divert or take down a drone

such as shooting it down or jamming its radio signals. If they lack such authority under current

law, stakeholders generally wanted to obtain it.

(i) Requesting UAS Registration

FAA regulations require all UAS weighing more than 0.55 pounds to be registered and the

registration number to be marked on the device.

172

Several state and local stakeholders told us

they are uncertain whether law enforcement may ask a UAS operator to show their registration.

This is, in fact, required by law: UAS operators must have their FAA registration certificate in

their possession when flying the UAS and both recreational and commercial UAS operators

must show their certificate to federal, state, or local law enforcement upon request.

173

FAA

officials told us they are making efforts to educate state and local law enforcement officials

about this requirement.

170

2018 FAA Law Enforcement Guidance, supra note 71, at 1.

171

See generally GAO-20-29, supra note 71. GAO recommended in this recent report that FAA develop an

approach to more effectively communicate key information to local law enforcement agencies regarding their

expected role in oversight and investigations regarding small-UAS safety.

172

14 C.F.R. § 48.15.

173

See 49 U.S.C. §§ 44103, 44809(a)(8).

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(ii) Ordering UAS Operators to Land

According to FAA, state and local law enforcement officials do not have authority to order a UAS

to land pursuant to FAA’s regulations or authority. As noted above, FAA believes it may not

delegate its UAS enforcement powers. By contrast, FAA officials told us they have explained to

public audiences that depending on the facts and circumstances, state and local law

enforcement may be able to order a UAS operator to land their device pursuant to their own

authority.

A single citizen complaint about a drone simply flying in the area likely will not support a

directive to land, the FAA officials told us; because drones are still a relatively new and

potentially confusing technology, law enforcement may receive more complaints “than are

warranted,” they said. If, however, a drone is posing a threat to public safety in some way, they

said, law enforcement can reasonably respond as they normally would to any public safety

threat, for example by using the state or locality’s imminent harm or reckless endangerment

powers. The fact that the threat is being created by a drone generally would not limit the

locality’s authority to order the drone to land. The officials told us how state and local officials

use their own authorities is not within FAA’s purview, unless enforcement of those laws creates

preemption issues.

Whether such state or local authority extends to the use of force to shoot down or take other

active measures regarding the drone is a different question, however, FAA officials told us.

Those actions might constitute a federal crime or violate other federal law. Whether such

actions would be authorized would be a determination for DOJ, not FAA, the officials told us; as

discussed in the next section, DOJ officials told us there are very few circumstances at this time

in which state or local law enforcement might be authorized to take down or disrupt a drone.

(iii) Using Counter-UAS (C-UAS) Measures

One of the most technically and legally complex UAS enforcement issues is whether state,

local, and tribal governments have or should have authority to shoot down, disable, or take

other measures to “counter” a UAS that poses a threat to individuals or infrastructure (referred

to as “C-UAS” measures).

174

A number of local government stakeholders told us they believed

they have at least some inherent authority under their traditional police powers to counter a

drone posing an imminent risk of harm to public health or safety. If a locality were faced with a

UAS-related safety emergency, some stakeholders also said they likely would take an “act first,

ask forgiveness later” approach. Other local government stakeholders who were unclear clear

about their authority, however, did not want to use it even assuming they had such authority,

because of the dangers that downing or disabling a drone could pose to individuals on the

ground.

One law firm stakeholder we spoke to has suggested there are two legal reasons why states

and localities might be precluded from exercising their police powers to use C-UAS measures:

(1) preemption, based on a conflict between federal criminal laws or other laws prohibiting such

actions, on the one hand, and local police power laws allowing them, on the other hand; and

174

See generally Cybersecurity & Infrastructure Security Agency, Unmanned Aircraft Systems (UAS)—Critical

Infrastructure, available at https://www.cisa.gov/uas-critical-infrastructure (last visited Sept. 1, 2020); Congressional

Research Service, In Focus: Protecting Against Rogue Drones, IF 11550 (May 14, 2020).

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(2) the fact that such actions might themselves violate these federal laws absent a legal “safe

harbor” or exemption to take such measures.

175

FAA officials told us they believe the governing

legal principle is not preemption but rather the fact that C-UAS actions may violate federal

criminal or other law.

DOJ officials told us that in determining whether state and local law enforcement, airports, or

other entities not explicitly exempted from liability may use C-UAS measures, there are two

basic types of measures to consider: UAS “detection” and UAS “mitigation.”

176

UAS detection is

accomplished either by radio frequency (RF)-based or non-RF based technologies. According

to these officials, use of some detection technologies may violate the Pen/Trap Act,

177

the

Wiretap Act,

178

or the Communications Act of 1934.

179

UAS mitigation measures also may

violate various laws, according to these officials. Shooting down a drone may violate the

Aircraft Sabotage Act, for example,

180

and jamming the UAS’s RF spectrum or hacking its

computer (UAS are considered “computers in the sky”) may violate the Wiretap Act, Federal

Communications Commission regulations,

181

or the Computer Fraud and Abuse Act.

182

According to the DOJ officials, there are some UAS detection methods using technology that

does not involve RF-interception or over-the-air collection of data to or from UAS (e.g., radars,

electro-optical/infrared cameras, and acoustic sensors) that likely do not violate these laws. The

officials emphasized, however, that a state or local government (or other entity) should consult a

skilled C-UAS operator and a lawyer experienced in both federal and state electronic

surveillance laws to ensure that the technology being used does not violate any of these laws.

175

See, e.g., Trock, supra note 145 (suggesting Utah statute authorizing law enforcement to shoot down or jam

signals of UAS operating near wildfires may be preempted by the Aircraft Sabotage Act).

176

According to FAA, C-UAS technically refers only to systems used to disrupt, disable, take control of, or destroy a

UAS (versus to detect a UAS). Letter from John R. Dermody, FAA Director, Office of Airport Safety and Standards,

to Airport Sponsors (May 7, 2019), Attachment 2 (Frequently Asked Questions, Question 5), available at

https://www.faa.gov/airports/airport_safety/media/Attachment-2-FAQS-UAS-Detection-Systems.pdf ( last visited Sept.

1, 2020).

177

18 U.S.C. §§ 3121-3127 (prohibiting the use of "a pen register or a trap and trace device” to collect routing,

addressing, signaling and other information for wire and electronic communications).

178

18 U.S.C. §§ 2510-2522 (prohibiting an individual from "intentionally intercept[ing], endeavor[ing] to intercept, or

procur[ing] any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication").

179

47 U.S.C. § 333 (prohibiting willful interference, including RF interference, with radio communications of any FCC-

licensed or authorized radio station or U.S. Government operated station).

180

18 U.S.C. § 32(a) (prohibiting setting fire to, damaging, destroying, disabling, or wrecking "aircraft” used,

operated, or employed interstate, overseas, or foreign air commerce). DOJ officials declined to say whether the

landowner who shot down the drone in the Drone Slayer case noted above would be in violation of this or any of the

other statutes they discussed. They observed, however, that because DOJ itself believed it was subject to these

restrictions, it spent enormous resources over 3 years to obtain legislative relief in 2018 (see infra note 185). DOJ

officials also told us that as of August 1, 2020, DOJ had not filed criminal charges against individuals who had shot

down drones.

181

47 C.F.R. § 2.803 (prohibiting manufacture, import, marketing, sale or operation of jamming devices).

182

18 U.S.C. § 1030 (prohibiting unauthorized access to and use of certain computers).

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FAA has similarly said most UAS mitigation methods are prohibited or subject to compliance

with Communications Act requirements.

183

Currently only four government entities (and no private entities) have received statutory

exemptions from these prohibitions and thus may use C-UAS detection and mitigation

measures under certain circumstances: the Departments of Defense and Energy, which

received statutory exemptions in 2016 (in what DOJ officials referred to as the Phase I

exemptions),

184

and the Departments of Justice and Homeland Security, which received

statutory exemptions in 2018 (in what DOJ referred to as the Phase II exemptions).

185

As FAA

has explained, this authority was granted with strict requirements for testing and use in

protection of specific missions, facilities, and assets and only after close coordination with FAA,

reflecting the potential for C-UAS measures to cause unintended and significant impacts on the

safety and efficiency of the national airspace system.

186

DOJ officials told us they expect Congress may ultimately grant what they termed “Phase III”

exemptions, possibly on a trial basis. These might include, for example, exemptions for other

federal agencies, state and local governments, and/or operators of airports and other critical

infrastructure. Yet the officials stressed C-UAS mitigation measures must always supplement,

not supplant, other means of UAS control such as education, FAA regulatory or civil

enforcement (including mitigation), and criminal prosecution where merited. They also stressed

that C-UAS detection is an essential part of any comprehensive C-UAS system because “you

cannot stop what you cannot see,” they said. Once a UAS is detected, they explained, the

operator can be approached to seek voluntary compliance. In the same vein, the DOJ officials

said intercepting the UAS operator after detection should always, if possible, be the first

183

2018 FAA Law Enforcement Guidance, supra note 71, at 5-6. In August 2020, DOJ, FAA, FCC, and DHS issued

a comprehensive advisory guidance document describing C-UAS detection and mitigation technologies and the

federal civil and criminal laws and regulations that may restrict or prohibit their use. DOJ, FAA, FCC, and DHS,

Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate

Unmanned Aircraft Systems, 9.95.300-UAS (Aug. 17, 2020), available at

https://www.justice.gov/file/1304841/download (last visited Sept. 1, 2020). DHS has issued guidance detailing

C-UAS detection and mitigation technologies. DHS, Counter-Unmanned Aircraft Systems, Technology Guide, CUAS-

T-G-1 (Sept. 2019), available at https://www.dhs.gov/sites/default/files/publications/c-uas-tech-

guide_final_28feb2020.pdf (last visited Sept. 1, 2020).

184

National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, §§ 1697, 3112,130 Stat. 2000,

2639, 2756 (2016).

185

2018 FAA Reauthorization Act § 1602(a), 132 Stat. at 3522.

186

Dermody Letter, supra note 176. In April 2020, DOJ issued guidance to its various law enforcement agencies,

prepared in coordination with DOT and FAA, outlining the process for these agencies to seek approval to use C-UAS

technologies and to request designation of high-risk facilities or other assets for protection. The guidance also

stresses the need to coordinate with FAA when any C-UAS action might affect aviation safety, operations, aircraft air-

worthiness, or use of the national airspace system. See Memorandum from the Attorney General, Guidance

Regarding Department Activities to Protect Certain Facilities or Assets from Unmanned Aircraft and Unmanned

Aircraft Systems (April 13, 2020), available at https://www.justice.gov/ag/page/file/1268401/download (last visited

Sept. 1, 2020). In July 2020, DHS issued a Privacy Impact Assessment discussing measures taken by the

Department to mitigate privacy risks and protect personally identifiable information during its use of C-UAS measures.

DHS, Privacy Impact Assessment for the Counter-Unmanned Aircraft Systems (C-UAS), DHS/ALL/PIA-085 (July 15,

2020), available at https://www.dhs.gov/sites/default/files/publications/privacy-pia-dhsall085-c-uas-

july2020_updated.pdf (last visited Sept. 1, 2020).

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mitigation step, which is why development of Remote ID capability (discussed in Part D.2.c.

below) will, in their view, be “foundational”—provided that measures recommended by the

defense, public safety, and law enforcement sectors are incorporated.

Local government stakeholders we spoke with from large cities told us they believe they require

some type of C-UAS authority because of their dense urban environment and, in the case of

New York City, a high threat of terrorism. While states and localities receive the benefit of some

C-UAS protection because the above-noted authorized federal agencies can—and have—

provided protection at certain large gatherings such as two Super Bowls, a World Series, and

the New York City Marathon rated under DHS’s Special Event Assessment Rating system,

some said this framework is unworkable because federal agencies do not have the resources to

safeguard every mass gathering that merits protection. Those stakeholders favored delegating

C-UAS authority to state entities with appropriate responsibilities and expertise.

Nevertheless, even local government stakeholders who wanted C-UAS authority recognize that

C-UAS measures can create risks to individuals on the ground—for example, if the drones

crash—and can, depending on the technology used, disrupt nearby RF signals such as those

used by cell phones. Given that C-UAS technologies may require extensive training and are in

the early stages of development, some of these stakeholders believed legal authority to use

them should be delegated to state and local governments carefully and only after further study

and experience at the federal level.

187

DOJ officials told us they share this concern about the

need for extensive training, including training on operational, legal, and privacy and civil liberties

issues. The officials strongly recommended that prior to any such delegation, state and local

partners be required to complete a DOJ certification course, and also be required to operate

consistent with best practices developed on federal study and experience.

A congressionally mandated study about C-UAS legal authorities, currently being conducted by

DHS, should further inform lawmakers about key issues in this fast-changing area. Section 1602

of the 2018 FAA Reauthorization Act provides for DHS, in coordination with DOJ and DOT, to

evaluate current federal, state, local, territorial, and tribal enforcement authorities to counter

UAS threats to U.S. critical infrastructure and domestic large hub airports, and to recommend

possible changes to those authorities needed to assist federal law enforcement to counter such

threats. DHS officials told us they expect to report to Congress on the results of their evaluation

in the coming months.

c. Stakeholder-Identified Need for Requirement to Identify UAS in Flight (Remote ID)

The final questions and concerns state and local stakeholders identified to us regarding UAS

enforcement matters involved the current lack of a legal requirement to install and use

technology that provides real-time access to information identifying and tracking a UAS while it

is in flight, as well as information identifying the UAS operator and owner. These stakeholders

explained that such technology is needed because even if a UAS incident is immediately

reported to law enforcement, by the time officers arrive, the UAS likely will be out of view and

187

In October 2019, a task force of U.S. and Canadian airport authority officials, former U.S. federal aviation safety

officials, and others made similar recommendations. See Blue Ribbon Task Force on UAS Mitigation at Airports,

Final Report (Oct. 2019), available at https://uasmitigationatairports.org/ (last visited Sept. 1, 2020). Among other

things, the task force recommended that Congress authorize state and local law enforcement agencies to take down

drones that intrude into commercial airspace and establish a training program for airports and local law enforcement.

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the operator may have left the scene. Being unable to identify the UAS operator also can create

difficulties for private citizens, who may wish to seek legal redress for UAS privacy, trespass, or

other concerns, these stakeholders told us.

Congress has mandated development of such remote identification requirements

188

and as

noted above, FAA has now issued a proposed Remote Identification (Remote ID) rule to

address these and other issues,

189

receiving over 53,000 public comments. In addition to

assisting with law enforcement, public safety, and national security efforts, FAA expects that a

Remote ID system will advance UAS integration into the national airspace system by supporting

authorization of routine flights beyond the operator’s visual line of sight and over people. This,

in turn, is expected to support expanded commercial UAS uses and to lay the groundwork for a

future UAS traffic management system (UTM).

190

Because increased flights over people and at

night may pose risks to public safety and national security, however, FAA has said it will not

finalize its proposed rules regarding these subjects until it finalizes the Remote ID rule.

191

From a federal law enforcement perspective, DOJ officials told us they are extremely supportive

of the basic concept of a Remote ID system, provided that measures recommended by the

defense, public safety, and law enforcement communities are incorporated. They told us “it is

impossible to overstate the importance of Remote ID” as part of what DOJ refers to as “the 3 A’s

of sustainable UAS security”: Airspace awareness (Remote ID), Authority to counter malicious

UAS operators (counter-UAS), and Airspace and operational limitations (including possible

additional restrictions FAA announced in February 2019).

192

The DOJ officials explained that

even if bad actors disable their UAS Remote ID systems, they will stand out from other UAS as

188

Section 2202 of the FAA Extension, Safety, and Security Act of 2016, supra note 34, directed FAA, in consultation

with DOT, the National Institute of Standards and Technology, and others to convene industry stakeholders to

facilitate development of UAS Remote ID consensus standards and then to issue regulations or guidance based on

such standards. Section 349 of the 2018 FAA Reauthorization Act, codified in relevant part at 49 U.S.C. § 44809(f),

authorized FAA to require remote identification for drones used for recreational purposes.

189

84 Fed. Reg. 72438 (Dec. 31, 2019). The proposed rule would create requirements for both UAS operators and

manufacturers and would require virtually all UAS to transmit location and identification information. The proposal

establishes design and production requirements for “standard Remote ID” and “limited remote ID.” UAS equipped

with standard Remote ID capability would be required to broadcast identification and location information directly from

the device and to transmit that same information through an Internet network connection. UAS equipped with limited

Remote ID capability, by contrast, would only have to transmit information through the Internet. UAS without any

Remote ID capability could operate, but only within FAA-Recognized Identification Areas, and only amateur-built

devices or devices manufactured before the compliance dates could use this option. Finally, manufacturers would be

required to equip each UAS with Remote ID capability, issue a serial number to each UAS, and label the device with

its Remote ID capability.

190

Id., 84 Fed. Reg. at 72488. Although UTM is sometimes referred to as “air traffic control for drones,” FAA has

clarified that UTM is a “’traffic management’ ecosystem for uncontrolled operations that is separate from, but

complementary to, the FAA’s Air Traffic Management (ATM) system. . . . UTM is how airspace will be managed to

enable multiple drone operations conducted beyond visual line-of-sight (BVLOS), where air traffic services are not

provided. . . . The FAA will provide real-time constraints to the UAS operators, who are responsible for managing their

operations safely within these constraints without receiving positive air traffic control services from the FAA.” FAA,

Unmanned Aircraft System Traffic Management (UTM), available at

https://www.faa.gov/uas/research_development/traffic_management/ (last visited Sept. 1, 2020).

191

Id., 84 Fed. Reg. at 72450, 72495.

192

See 84 Fed. Reg. 3732 (Feb. 13, 2019).

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non-compliant.

Virtually all stakeholders we spoke with, including those from state, local, and tribal

governments as well as from industry, law firms, the public safety community, privacy groups,

and UAS user groups, also favored some type of Remote ID system. Entities who filed public

comments on FAA’s specific proposed rule expressed a range of views, however. For example,

some commenters said the proposal will facilitate expanded commercial UAS operations (e.g.,

allowing flights beyond visual line of sight); some said it will provide a means to quickly identify

“rogue” UAS; some said it is overly prescriptive and costly, particularly for recreational UAS

operators; some believed it may compromise the privacy and security of UAS operators; and

some believed the rule’s implementation timeline is too long.

DOT officials told us FAA plans to complete its analysis of public comments on the proposed

Remote ID rule by December 2020 and FAA officials have recently said the agency plans to

issue the final rule by that time. Until the final rule’s compliance date (which, under the

proposed rule, is three years after the final rule’s effective date), FAA is considering ways to

incentivize UAS manufacturers and users to install and use Remote ID systems voluntarily.

APPENDIX II:

ADDITIONAL CONSIDERATIONS INVOLVING UAS-RELATED PROPERTY RIGHTS

IN AIRSPACE: POTENTIAL CLAIMS UNDER STATE AND FEDERAL LAW

As discussed in Appendix I, the federal, state, local, and tribal governments have regulated or

are seeking to regulate UAS operations in low-altitude airspace in order to protect the public

interest. Private individuals also may have legal rights to seek redress for what they believe are

UAS-related harms particularized to them. This appendix discusses one category of these

potential private causes of action, to the extent they have been recognized under state or

federal law: claims involving UAS-related interference with property rights in airspace.

Just as

property rights in airspace—assuming they continue to be recognized—could have a significant

impact on federal and state authority over low-altitude airspace as discussed in Appendix I,

these rights also could have a significant impact on private property claims.

As discussed below, current law, developed in the context of manned aircraft, recognizes two

basic types of private “airspace rights” claims: state tort law claims for traditional and “aerial

trespass” and federal constitutional law claims for a government taking of private property (the

claim upheld by the Supreme Court in United States v. Causby as discussed in Appendix I).

Whether and how the elements of these claims will apply in the context of low-altitude UAS

operations remains to seen.

Some UAS industry stakeholders have challenged the continued recognition of airspace

property rights, as discussed in Appendix I, and even if they still exist, the stakeholders have

said at least some types of UAS aerial trespass claims would be federally preempted. By

contrast, a number of state government stakeholders and others have said such airspace

property rights remain in full force, as discussed in Appendix I, and some stakeholders and legal

commentators have said preemption of state laws and private causes of action based on those

rights would itself be an unconstitutional taking. The law in this area, now in considerable flux,

is expected to continue to develop as UAS operations continue to be integrated into the national

airspace system.

A. Stakeholder Positions on Potential Landowner UAS-Related Aerial Trespass Claims

under State Law

1. Trespass by “Aircraft” (Restatement (Second) of Torts § 159)

a. Traditional Trespass and Development of Special Rules for Trespass by Aircraft

Under traditional common law tort rules, a trespass occurs when a person or object physically

enters either onto land owned or possessed by another person or entity or into the airspace

above that land.

Objects such as tree branches, telephone wires, or gunshots, for example,

that enter into a landowner’s overlying airspace are considered to be a trespass, consistent with

the historic ad coelum doctrine discussed in Appendix I that recognizes a landowner’s property

rights in that airspace. Regardless of whether the trespass is onto land or into the overlying

Appendix III discusses a second category of these potential private causes of action, again, to the extent they have

been recognized under state or federal law: claims involving UAS-related interference with personal privacy rights.

See Appendix I, Part D.1.a., for a discussion of United States v. Causby, 328 U.S. 256 (1946).

Restatement (Second) of Torts §§ 158, 159(1).

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airspace, there is no requirement that harm or damage must have occurred; the mere intrusion

is considered to be a “trespass per se” unless there is an applicable privilege or exception. The

common law tort of nuisance, by contrast, which can be brought by anyone lawfully occupying

property, not just the landowner, requires that there be substantial interference with the land

occupant’s use and enjoyment of the property—for example, from noise, odors, light, vibration,

dust or, in some cases, disturbing “peace of mind.”

Just as the advent of manned aviation narrowed the scope of airspace property rights in the

context of what constituted a taking of property by the government—as discussed in Appendix I,

the Supreme Court in Causby stated that landowners no longer own the airspace up to the

heavens under the ad coelum doctrine but only up to their “immediate reaches” airspace—

manned aviation also narrowed airspace property rights in the context of what constituted a

common law trespass by private actors. The first civil trespass-by-airplane lawsuit in the United

States appears to be Johnson v. Curtiss Northwest Airplane Co., decided in 1923.

The court in

Curtiss Northwest determined whether planes had committed a trespass through a landowner’s

overlying airspace by using an altitude-based “line in the sky.” Relying on a state statute setting

a 2,000-foot minimum flight altitude in the area where the landowner lived, the court prohibited

planes from flying below that altitude as would-be trespassers. The court explained that

although “[t]he air, so far as it has any direct relation to the comfort and enjoyment of the land, is

appurtenant to the land, and [is] no less the subject of protection than the land itself,” “[t]he

upper air is a natural heritage common to all of the people, and its reasonable use out not to be

hampered by an ancient artificial maxim of law.”

A different approach to analyzing airplane trespass was developed at about the same time by

the National Conference of Commissioners on Uniform State Laws, known then and today as

the Uniform Law Commission, now a leading state-law drafting advisory organization.

In an

effort to achieve uniformity in state aviation laws nationwide, the Uniform Law Commission

approved a model law in 1922 known as the Uniform Aeronautics Act. The model law explicitly

recognized that landowners “own” the airspace above their land. For there to a trespass in the

case of an “aircraft,” however, the model law required not only that the aircraft physically intrude

into the airspace but also that there be “interference” with the landowner’s use of his land. The

model act stated in part:

“Section 3. Ownership of Space—The ownership of the space above the lands and

waters of this State is declared to be vested in the several owners of the surface

beneath, subject to the right of flight described in Section 4.

“Section 4. Lawfulness of Flight—Flight in aircraft over the lands and waters of this

State is lawful, unless at such a low altitude as to interfere with the then existing use

to which the land or water, or the space over the land or water, is put by the owner,

or unless so conducted as to be imminently dangerous to persons or property lawfully

Restatement (Second) of Torts §§ 821D, 827, 828.

Johnson v. Curtiss Northwest Airplane Co. (Minn. Dist. Ct. 1923), reprinted in Current Topics and Notes, 57 Am. L.

Rev. 905, 908-911 (1923).

The American Bar Association established the Uniform Law Commission in the late 1800s. Today, Uniform Law

Commissioners, who are private and government lawyers, judges, law professors, and legislators, are appointed by

their states to draft and promote model laws that state legislatures are then urged to enact.

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on the land or water beneath.”

Twenty-three states ultimately enacted the model Uniform Aeronautics Act

and as of 2017, the

law’s declaration that landowners own the airspace above their property was still in force in at

least 22 states.

There have been two other “codifications” of trespass by aircraft, both “restatements” of the

common law (law as found by courts) issued by the American Law Institute (ALI).

Both

restatements have included an interference requirement—not just “interference” as in the 1922

model Uniform Aeronautics Act but “unreasonable” and then “substantial” interference. ALI’s

first Restatement, issued in 1934, recognized a land possessor’s airspace property rights but

said aircraft pilots had a “privilege” to travel through that airspace if the flight was conducted “in

a reasonable manner,” “at such a height as not to interfere unreasonably” with the possessor’s

enjoyment of his land “and the air space above it,” and was in compliance with state and federal

aviation regulations.

ALI’s second aerial trespass Restatement, Restatement (Second) of

Torts § 159, was issued in 1965 and took a slightly different approach. We discuss the

elements of this 1965 restatement, still in use today, in the following section.

b. Current Elements of Trespass by Aircraft

Restatement (Second) of Torts § 159, issued in 1965 following the Supreme Court’s 1946

decision in United States v. Causby discussed in Appendix I, is said to be based on Causby.

Section 159 begins with the traditional common law rule of trespass per se and then states the

exception for trespass by “aircraft” (which is not defined):

“(1) Except as stated in Subsection (2), a trespass may be committed on, beneath, or above

the surface of the earth.

“(2) Flight by aircraft in the air space above the land of another is a trespass if, but only if,

(a) it enters into the immediate reaches of the air space next to the land, and

(b) it interferes substantially with the other’s use and enjoyment of his land.”

(Emphasis added.) The Restatement’s commentary explains that § 159(1)—the general rule

that trespass may be committed “on, beneath, or above the surface of the earth”—refers back to

See Braniff v. Nebraska State Bd. of Equalization and Assessment, 347 U.S. 590, 595, n. 11 (1954).

Braniff, supra note 7, 347 U.S. at 595; Stuart Banner, Who Owns the Sky? The Struggle to Control Airspace from

the Wright Brothers On (Harvard Univ. Press 2008) at 127-30.

Braniff, supra note 7, 347 U.S. at 596; Stephen J. Migala, UAS: Understanding the Airspace of States, 82 J. Air. &

Com. 3, 60-61 (Winter 2017).

ALI’s restatements of the law are considered syntheses of the common law in various subject areas and are relied

upon as authoritative by many courts and practitioners. Restatements are not the law, however, and have no

independent legal effect.

Restatement (First) of Torts § 194 (1934).

Restatement (Second) of Torts § 159, cmts. i-k; Reporter’s Notes (“Subsection (2) is based primarily on United

States v. Causby . . . .”) (citations omitted).

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Restatement § 158, the traditional trespass per se rule. Section 159(2), applicable to trespass

by “aircraft,” is the exception to the general rule in § 159(1).

How Restatement § 159 may apply in determining whether a drone—versus a manned

aircraft—has trespassed through a landowner’s airspace is subject to considerable debate. The

threshold question is whether drone trespass is governed by §§ 158 and 159(1)—the traditional

trespass per se test for persons or airborne objects—or instead by § 159(2)—the aircraft

trespass test. UAS industry stakeholders have taken the position that § 159(2) is the relevant

provision because Congress has defined UAS as “aircraft” for purposes of federal aviation

safety regulation.

Under the § 159(2) test, a landowner would have to show a drone both

entered the landowner’s “immediate reaches” airspace and caused “substantial interference.”

As discussed in Appendix I, Causby left open the “precise limits” of immediate reaches

airspace—the particular flights in Causby caused interference at 83 feet above the ground, for

example. As Comment “l” to § 159(2) explains, “immediate reaches” is a case-by-case

determination and courts have reached different conclusions in different cases: “[i]n the ordinary

case, flight at 500 feet or more above the surface is not within the ‘immediate reaches,’ while

flight within 50 feet, which interferes with actual use, clearly is, and flight within 150 feet, which

also interferes, may present a question of fact.”

As to how § 159(2)’s substantial interference requirement would apply to drones, some

stakeholders we spoke with believed this could be difficult to demonstrate because drones are

relatively small and quiet. The Congressional Research Service has suggested that if drones

ultimately take off and land primarily from drone “airports,” for example, such centralized activity

might create substantial interference for nearby landowners, although they noted this might be

mitigated because of drones’ vertical launch and landing capabilities.

Other stakeholders we spoke with, however, and a number of legal commentators have taken

the position that drone trespass should be governed by the traditional trespass per se test for

airborne objects in §§ 158 and 159(1). For example, we spoke with a Uniform Law

Commissioner who was a member of a Uniform Law Commission Drafting Committee tasked

with developing a model drone aerial trespass law (as discussed below). He stated that using §

159(2), said to be based on Causby, to determine whether a drone has committed a trespass is

a misreading of Causby. Causby involved the government’s unconstitutional taking of private

property, he noted, which requires direct and immediate harm to the landowner’s use of his

land, not trespass, which traditionally requires no harm at all.

Similarly, legal commentators have said that using the § 159(2) aircraft trespass test to

determine drone trespass would both inappropriately incorporate the Causby

takings/interference requirement into a trespass tort and conflate trespass with nuisance—

See Restatement (Second) of Torts § 159, cmt. a.

See 49 U.S.C. §§ 44801(11), (12) (defining “unmanned aircraft” and “unmanned aircraft system” as “aircraft”).

Congressional Research Service, Integration of Drones into Domestic Airspace: Selected Legal Issues, CRS

Report 42940 by Alissa Dolan and Richard M. Thompson II (April 4, 2013) (2013 CRS Drones Report) at 9-12.

Letter to Uniform Law Commission from Commissioner D. Joe Willis, Schwabe Williamson & Wyatt, July 10, 2019

(“[I]mporting a takings standard into a trespass statute dealing with drones in the immediate reaches of airspace is

the wrong thing to do.”).

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effectively creating a new tort of “aerial nuisance.”

One commentator observed that “[d]rones

do not fit into the aircraft trespass test because the test derives from a takings test that was first

applied to a manned aircraft. Thus, [under § 159(2)] aircraft trespass requires a taking. [But a]

trespass is not a taking. Property owners should not lose the right to keep drones off their

property merely because a drone has not seriously and frequently invaded the property to the

point that the invasion rises to a constitutional taking. . . . [In addition,] substantial interference

blends nuisance with trespass—two claims that protect completely different property rights.”

Other commentators have explained why they believe the §§ 158/159(1) traditional trespass per

se test is the suitable test for drones. One commentator cited § 158’s commentary which

explains that the test it is intended to cover “causing the entry of a thing” into the airspace above

another person’s land, with “things” consisting of such objects as projectiles, advertising kites,

and balloons.

Small drones flying at low altitudes are far closer to these low-flying small

“things” than to the manned “aircraft” for which § 159 was developed based on Causby, the

commentator said.

The Reporter for an ongoing effort to issue the Restatement (Fourth) of Property likewise has

said drone trespass should be governed by §§ 158 and 159(1). This commentator emphasized

that § 159(2) was developed to address concerns raised by high-flying fixed-wing manned

aircraft that require contiguous flight routes and an airspace “highway,” not low-flying, potentially

stationary (hovering) drones.

An attorney stakeholder we spoke to also has stated that using

the § 159(1) trespass per se rule for drone intrusions through immediate reaches airspace will

ensure that FAA requires drones to be equipped with appropriate navigation technology and

encourage UAS operators to respect private property rights. “[T]he property owner should not

have to also establish that the drone is noisy, has toxic emissions or appears to be out of the

operator’s control,” the stakeholder said.

We note another aspect of the § 159(2) aircraft trespass rule, which the Restatement indicates

is based on Causby as noted above, that may be important in the drone context. Although it is

commonly said—and comment “k” to § 159(2) states

—that Causby held there is a taking when

See, e.g., A. Michael Froomkin and P. Zak Colangelo, Self-Defense Against Robots and Drones, 48 Conn. L. Rev.

1, 28 and n. 129 (2015) (Restatement § 159(2) “superimposes a requirement of actual harm, thus conflating the

normal strict-liability rule of trespass with the rule of nuisance” and “effectively swallow[ing] the aerial trespass

action.”).

Kyle Joseph Farris, Flying Inside America’s Drone Dome and Landing in Aerial Trespass Limbo, 53 Val. U. L. Rev.

247, 273-74 (Fall 2018) (citation omitted).

Restatement (Second) of Torts § 158, cmt. i.

Testimony of James Grimsley to the Oklahoma House of Representatives on Drone Issues, Sept. 18, 2017.

Memorandum to Uniform Law Commission from Henry E. Smith, Fessenden Professor of Law, Harvard Law

School, and Reporter for the Restatement (Fourth) of Property, June 20, 2019.

Letter to Uniform Law Commission from Reginald C. Govan re Proposed Tort Law Relating to Drones Act, July 24,

2018.

Comment “k” states: “The actual holding in the Causby Case was that the rights of the landowner were invaded,

and there was a wrongful ‘taking’ of his property, when the flights into the ‘immediate reaches’ of the air space

substantially interfered with his use of the land.” (Emphasis added.)

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an aircraft causes “substantial” interference, this was not the actual language of the Supreme

Court’s holding regarding aircraft. The opinion’s only use of the word “substantial” was in

quoting an earlier Supreme Court takings decision involving “substantial” physical damage

caused by government construction-induced flooding.

On the facts of Causby, however,

which involved aircraft overflights, the Court said there is a taking when flights “are so low and

so frequent as to be a direct and immediate interference”—not “substantial interference”—“with

the enjoyment and use of the land.”

This language mirrored the state aerial trespass statute

then in effect for the plaintiff’s property in North Carolina, and that aerial trespass statute, in

turn, was a verbatim enactment of the Uniform Law Commission’s 1922 model act. As noted

above, the model act only required “interference.” The Causby Court also noted its holding was

“not inconsistent with” that North Carolina statute.

A requirement that drone flights must

cause substantial rather than some interference to constitute aerial trespass might prove

significant in practice, because of the operational and size differences between drones and

airplanes.

Whether courts will analyze drone intrusions into a landowner’s overlying airspace using the

§ 159(1) traditional trespass per se test or the § 159(2) aircraft trespass test remains to be seen.

It is also possible that both tests could be superseded by an alternative legal framework to be

developed specifically for drones. A drone-specific trespass test could be created by courts, as

a matter of common law, or by state legislatures. A major effort to facilitate the state legislation

approach has been undertaken by the Uniform Law Commission, although that effort has been

suspended as of January 2020. We discuss this initiative in the following section.

2. Trespass by Drones (Uniform Law Commission Draft Model Act)

With increased integration of UAS into the national airspace system and the corresponding

increased possibility that states may take differing approaches to UAS-related concerns, a

Uniform Tort Law Relating to Drones Act Drafting Committee of the Uniform Law Commission

(ULC) began work in late 2017 to draft a model act

specifically addressing aerial trespass by

Causby, 328 U.S. at 266, quoting United States v. Cress, 243 U.S. 316, 328 (1917).

Causby, 328 U.S. at 266-67. In finding “interference” sufficient to cause a taking, the Court noted the planes had

“frequently” flown over the property and came “close enough at times to appear to barely miss the tops of the trees.”

The overflights also “frequently deprived [the landowners] of their sleep” and caused “destruction of the use of the

property” for its existing commercial use. Id. at 259.

Causby, 328 U.S. at 266.

Although some post-Causby takings cases have added the judicial gloss of a “substantial” interference

requirement, many of those cases cite Causby (which did not explicitly state such a requirement) and other cases

that in turn cite Causby. See, e.g., Brown v. United States, 73 F.3d 1100, 1102 (Fed. Cir. 1996), citing A.J. Hodges

Indus., Inc. v. United States, 355 F.2d 592 and Speir v. United States, 485 F.2d 643 (Ct. Cl. 1973). Hodges and

Speir, in turn, cite Causby and other cases citing Causby.

The Uniform Law Commission describes a uniform act as one that seeks to establish the same law on a subject

among the various jurisdictions. The Commission designates an act as “uniform” Act if there is substantial reason to

anticipate enactment in a large number of jurisdictions, and uniformity of the provisions of the act among the various

jurisdictions is a principal objective. It designates an act as a “model” act if uniformity may be a desirable objective but

is not a principal objective, and a significant number of jurisdictions may not adopt the act in its entirety. Although the

Commission designated its draft drone aerial trespass act as a “uniform” act, we use the term “model” act in this

report as a less technical, more encompassing term.

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drones.

The Drafting Committee issued nine public drafts between March 2018 and June

2019, with the June 2019 draft originally scheduled to be voted on by state representatives at

the ULC’s July 2019 annual meeting. The draft act was withdrawn, however, reportedly due to

disagreements over the status of property rights in airspace and other matters, and ULC

leadership, in consultation with Drafting Committee and outside participants, decided to

suspend this effort in January 2020.

Although the future of the ULC’s drone tort law drafting efforts is uncertain at this time, we

describe below some of the key legal issues and positions the Drafting Committee and outside

participants debated for over two years. A number of these issues are also being debated in

discussions regarding federal versus state authority over low-altitude UAS operations, as

described in Appendix I. Challenges in resolving these issues—such as the relevance of

Causby, the preemptive effect of federal law, and the government’s potential liability for

regulatory takings, all discussed below—illustrate some of the complexities and challenges of

integrating UAS into the national airspace system.

a. Altitude-Based Bright Line Approach

The first four of the Drafting Committee’s nine drafts had similarities to the traditional trespass

per se test for airborne objects in Restatement §§ 158 and 159(1) and rejected the “substantial

interference” approach for aircraft in Restatement § 159(2). The Committee rejected the

“substantial interference” approach essentially for the reasons noted above: that § 159(2)

reflects a mis-application of Causby’s more stringent constitutional takings test to trespass and

that it is a conflation of nuisance and takings with trespass. Instead, the initial drafts established

a tort of drone aerial trespass per se based intrusion into a landowner’s “immediate reaches”

airspace, defined in different drafts as either 100 feet or 200 feet above the land and any

surface improvements. Consistent with the traditional trespass rule, UAS flights over private

property below those altitudes generally would constitute trespass without a showing of

interference or other harm.

As the commentary to the Drafting Committee’s March 2018 draft explained, the altitude-based

bright line approach “clarif[ied] the unresolved question [left open by Causby] regarding at what

altitude private property rights and the established yet undefined ‘public highway’ in the sky

begins.”

The commentary also noted the approach protects “property interests, a right of quiet

solitude, and a right to be left alone. [Although p]rivacy interests are not directly addressed . . . a

collateral benefit of a right to exclude nonconsensual entry . . . may be some incremental gains

to privacy.”

Finally, the commentary noted, while Restatement § 159(2)’s aerial trespass

elements “made sense in an era when aircraft were rarely operating close to the ground,

As discussed in Appendix III, the Drafting Committee also worked to draft UAS privacy provisions as part of the

model act.

The commentary to the drafts setting a 200-foot threshold noted some states already have enacted even higher

limits, citing Oregon (Or. Rev. Stat. § 837.380, setting 400-foot threshold) and Nevada (Nev. Rev. Stat. § 493.103,

setting 250-foot threshold).

National Conference of Commissioners on Uniform State Laws, Tort Law Relating to Drones Act, Discussion Draft

for March 9-11, 2018 Meeting.

ULC Discussion Draft for March 9-11, 2018 Meeting, supra note 31.

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people, and structures,” “that doctrine no longer makes sense in an era in which drones already

number in the millions and operate closer to the ground than manned aircraft . . . .”

Several stakeholders we spoke to believed the general approach of the altitude-based bright

line approach was conceptually sound but thought the altitude should be well below 200 feet.

One academic stakeholder, for example, suggested the line should be somewhere “below the

treetops” of a landowner’s property. An attorney stakeholder we spoke to agreed and said

that—in the interest of compromise and final resolution of an issue which, if unresolved, will

significantly impede realization of the full potential of the drone economy through regulatory

authorization of robust drone operations—the line should be something “significantly more

modest,” in the vicinity of 150 feet.

Other commenters supported use of a bright line approach as serving the interests of both the

UAS industry—which would gain clarity and acceptance from a skeptical public—and

landowners—whose traditional right to exclude others from their property would be protected.

According to one commenter, not having such protections in the law “may well transform

backyard airspace into the type of public highway described in Causby, which any drone

operator has a legal right to enter.” That such an outcome could actually occur, the commenter

said, was illustrated by an industry representative’s response to what altitude they believed

would be acceptable to define a landowner’s right to exclude a drone: reportedly the response

was “zero.”

The altitude-based bright line approach was sharply criticized by UAS industry stakeholders,

however, who participated in the process as observers (as any member of the public could do).

For example, as stated in comments submitted by the

ULC Industry Commenters Group

described in Appendix I,

the bright line approach “fail[ed] both to adequately account for the

exclusive role of the federal government in safeguarding aviation safety and air navigation and

to strike the proper balance between innovation and personal privacy, and accordingly may

stifle the development of this nascent industry across the United States and undermine the

[Uniform Law Commission’s] core objective of promoting legislative uniformity.”

The Industry Group also said the approach reflected a misreading of Causby because in their

view, the Supreme Court’s statement that “immediate reaches” airspace is subject to a

landowner’s exclusive control was not part of the Court’s actual holding that there had been a

taking of property. Rather, they said, the Court held there was a taking based on harm to use of

the land.

The Industry Group also criticized establishment of an altitude-based “line in the

sky” because as noted in Appendix I, it believed this would be federally preempted as conflicting

National Conference of Commissioners on Uniform State Laws, Tort Law Relating to Drones Act, Discussion Draft

for April 20, 2018 Conference Call and accompanying memorandum from Gregory S. McNeal, Reporter. See also

id., Discussion Draft for July 20-26, 2018 Annual Meeting and accompanying memorandum from Paul Kurtz, Chair,

and Gregory S. McNeal, Reporter.

Letter to Uniform Law Commission from Jason Snead, Senior Policy Analyst, The Heritage Foundation, July 18,

2018.

See Appendix I, Part D.1.a.(ii).

Letter to Uniform Law Commission from ULC UAS Industry Commenters Group), July 5, 2018.

Letter to Uniform Law Commission from ULC UAS Industry Commenters Group), July 1, 2019.

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with FAA’s exclusive authority to approve no-fly zones. Finally, a UAS industry stakeholder we

spoke to said the altitude-based approach would be impractical because it is difficult to judge a

drone’s altitude by sight, especially over varying terrain—they asked if anyone can really tell the

difference between 200 feet (flight permissible under the Drafting Committee’s later drafts) and

100 feet (impermissible under those drafts), for example.

FAA did not take an official position on the altitude-based bright line approach or any of the

Drafting Committee’s other approaches, nor did it indicate whether it agreed with the ULC

Industry Commenters Group that the agency’s no-fly zone authority would preempt any state

altitude-based bright line. The DOT General Counsel and FAA Chief Counsel did, however,

respond to the Drafting Committee’s suggestion that FAA had agreed with creation of what

those counsel called a 200-foot altitude “exclusion zone.” The DOT General Counsel and FAA

Chief Counsel stated that neither FAA’s 2015UAS Fact Sheet nor any other official DOT or FAA

position supports “the novel premise of the draft statute that a State or municipality may

establish by law a per se exclusion zone of up to 200 feet, below which UAS operations would

constitute a trespass upon land . . . Such a rule would be in tension with decades of established

precedent in the Federal courts, which have rejected the notion of applying the traditional

elements of basic trespass law to aircraft overflight of private property.”

In response to these criticisms, the Drafting Committee Chair proposed other alternatives that

also included an altitude-based bright line,

but these, too, received sharp criticism. The

Committee then changed course.

b. Multi-Factor Substantial Interference Approach

Starting in early 2019, the Drafting Committee produced a series of drafts that returned to the

basic aerial trespass approach taken by Restatement § 159(2) developed for manned aircraft.

Like § 159(2), these ULC drafts all required “substantial interference,” which the Committee

stated follows Causby. The June 2019 draft, the last draft issued before the Committee’s work

was suspended in 2020, would make a UAS operator liable for trespass if he intentionally flies

into airspace above a land possessor’s property and causes substantial interference with the

use and enjoyment of the property. “Substantial interference” is to be determined based on the

totality of the circumstances using a list of 12 factors and “any other factor relevant to the

determination of substantial interference with the use and enjoyment of land.”

Letter to Uniform Law Commission from Steven G. Bradbury, DOT General Counsel, and Charles M. Trippe, Jr.,

FAA Chief Counsel, re Tort Law Relating to Drones Act – Comments Section, July 11, 2018.

One alternative was a rebuttable presumption that UAS operations below the altitude-based ceiling constitute

trespass. A second alternative was to allow each state to set its own altitude-based ceiling(s) based on state law

principles and practices. The Drafting Committee Chair acknowledged the second alternative could, if the ceiling

were set “too low,” create FAA, state, or local government takings liability to landowners. See Memorandum to

Uniform Law Commission Drafting Committee from Paul Kurtz, Chair, and Robert Heverly, Associate Reporter, Oct.

19, 2018. We discuss such potential “regulatory takings” liability in Part B. below.

National Conference of Commissioners on Uniform State Laws, Uniform Tort Law Relating to Drones Act, Draft for

Approval at Annual Meeting, July 12-28, 2019, and accompanying memorandum to Uniform Law Commission from

Paul M. Kurtz, Chair, Mark Glaser, Vice Chair, and Robert A. Heverly, Reporter. The 12 factors included how the

property is being used and enjoyed; whether individuals on the property saw or heard the drone; the purpose,

altitude, duration, time of day, and frequency of the flights; and whether the flights caused physical or emotional

injury, direct economic damage, or harassment of persons, livestock, or wildlife.

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The Drafting Committee explained this approach would help eliminate a “patchwork quilt of

regulatory and legal requirements” developing among the states, which “promises to inhibit the

appropriate and beneficial development of [UAS] for the variety of uses to which such

technologies are suited.” Overall, the Drafting Committee said, this draft “provides a uniform

state-level response to the development and utilization of unmanned aircraft in a variety of

circumstances within the context of federal control over aviation as well as the important

advances promised by unmanned aircraft use.”

The ULC Industry Commenters Group also

supported this approach, explaining that it represents a “thoughtful, reasoned set of

compromises” in balancing the “serious and legitimate concerns with UAS overflights” and the

“legitimate, beneficial drone flights that do not substantially interfere with the use of private

property.”

The multi-factor substantial interference approach, like the altitude-based bright line approach,

also was sharply criticized. One stakeholder we spoke to, a ULC Commissioner and member of

the Drafting Committee, said requiring evidence of substantial interference would mean

landowners will be forced to file suit because of the complexity of the substantial interference

test; they will then have to demonstrate to a court precisely how the flights interfered with the

use and enjoyment of their property based on the 12 identified factors and any additional factor

the court believes relevant. Landowners also will have to file suit because otherwise, their

failure to object could be deemed as implicit consent to future overflights, according to this

stakeholder.

The multi-factor approach also received extremely strong criticism from three national bar

organizations specializing in property law and real estate matters and from the Reporter for the

pending Restatement (Fourth) of Property. Several of these organizations said that if a model

act were approved by the Uniform Law Commission and recommended to the states for

enactment, they would actively oppose it. Their comments included the following:

•

The American Bar Association’s (ABA) Real Property, Trust and Estate Law Section stated

the multi-factor approach is contrary to current real estate law and landowners’

expectations; does not protect personal privacy; and applies an “unworkable balancing test”

to determine a drone operator’s trespass liability, even though landowners should be able to

prohibit a trespass onto their land and the near reaches above it. A law professor’s analysis

enclosed with the Section’s comments stated the draft’s approach relegates airspace

property rights largely to nuisance remedies and “justifies denial of property owners per se

dominion over any airspace” by providing “additional clarity” through a non-exclusive list of

potential factors for courts to consider.

(In February 2020, the ABA House of Delegates adopted a related resolution that had been

proposed by the Real Property, Trust and Estate Law Section, urging federal, state, local,

and tribal governments to protect real property interests, including common law trespass

ULC Draft for July 2018 Annual Meeting, supra note 40.

Memorandum to the Uniform Law Commission from Jo-Ann Marzullo, Chair-Elect of the American Bar

Association’s Real Property, Trust and Estate Law Section, June 25, 2019, enclosing Memorandum from Steven J.

Eagle, Professor Emeritus of Law, Antonin Scalia Law School at George Mason University, June 6, 2019.

Appendix II: Additional Considerations Involving UAS-Related Property

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and privacy rights, in any statutes or regulations addressing UAS operations over private

property.

)

• The Joint Editorial Board for Uniform Real Property Acts stated the multi-factor approach

should be changed either to treat drone overflights below a certain altitude as a per se

trespass or to create a rebuttable presumption of substantial interference below a certain

altitude. The draft substantially restricts a landowner’s control of the airspace above his

property in a manner inconsistent with law and landowners’ expectations of safety and

privacy, the Board said.

The American College of Real Estate Lawyers made similar

comments.

• The Reporter for the pending Restatement (Fourth) of Property stated the multi-factor

approach is a “radical departure from existing law [which] is being justified as applying, or at

most extending, the ‘aerial trespass’ doctrine to drones . . .[but] the Draft winds up replacing

trespass doctrine with a regime denominated ‘trespass’ that bears no resemblance to any

existing law . . . [and invites] courts to balance away owners’ rights. . . . The idea that one

inch above the land would not count as part of the ‘land’ rather than the ‘air space’ and that

a flight by any object would not count as a regular trespass at an altitude of one inch are

absurdities . . . [The multi-factor test] in effect extends the navigable airspace down to the

grass tops of land across the entirety of any state that enacts it. In effect it imposes a

presumptive navigation servitude on every cubic centimeter of space above the surface of

the land . . . .”

(A recent draft of the Restatement (Fourth) of Property includes a new provision, “Trespass

by Overflight,” which would apply to intrusions by drones, manned aircraft, and other “aerial

objects” into a landowner’s overlying airspace.

)

As noted, the multi-factor substantial interference approach was withdrawn from consideration

in July 2019 and the ULC has suspended the Drafting Committee’s work as of January 2020.

See ABA Resolution 111, adopted Feb. 17, 2020. The report accompanying the resolution stated there was no

minority view or opposition within the ABA. Citing Causby, the report declared that landowners and other legal land

occupants must have the right to “prevent UAS from using and crossing airspace over their land in some form or

fashion. The degree to which a landowner or legal occupant can prevent UAS from using the airspace over their land

is the issue.” ABA Section on Real Property, Trust and Estate Law, Report accompanying Resolution 111 at 4.

Memorandum to Uniform Law Commission from the Joint Editorial Board for Uniform Real Property Acts, June 5,

2019.

Memorandum to Uniform Law Commission from the American College of Real Estate Lawyers, July 3, 2019.

Memorandum to Uniform Law Commission from Professor Henry E. Smith, supra note 21.

Under § 1.2A of the draft Restatement (Fourth) of Property, intentional intrusions into a landowner’s “actually

possessed” overlying airspace would be subject to the traditional land trespass per se rule, while intentional

intrusions into overlying airspace the landowner only has the “right to possess” would be deemed a trespass only if

the flight “interferes substantially with the [landowner’s] use and enjoyment of the land.” As the Reporter’s Note to

this draft provision explains, the provision relies on Causby to the extent that it affirms a landowner’s continued

property interests in his overlying airspace, but does not adopt Causby’s “immediate reaches” formulation because it

is unduly vague and insufficiently protective of landowner rights.

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B. Stakeholder Positions on Landowner UAS-Related Takings Claims under the

Constitution

Several stakeholders we spoke to, the Chair of the ULC Drone Aerial Trespass Model Act

Drafting Committee, and legal commentators have identified several types of potential UAS-

related constitutional takings claims by private landowners against the government. Although

these claims are based on established Supreme Court constitutional takings precedents,

including some involving takings caused by manned aircraft, it appears no court has yet ruled

on how these precedents and principles would apply to UAS operations.

1. Potential Claims Based on Federal, State, Local, and Tribal Government Direct

Actions

As described by the Congressional Research Service and legal commentators,

there are two

sets of circumstances in which UAS-related direct government actions (versus regulatory

actions discussed in the next section) might give rise to takings liability to landowners. These

are where the government conducts UAS operations itself and where the government

affirmatively authorizes or approves specific UAS operations.

A UAS-related claim of the first type might arise, one legal commentator said, if, for example,

the U.S. Postal Service began drone delivery of mail and packages and this caused interference

with a landowner’s use and enjoyment of his land. This might resemble Causby, where the

Supreme Court held the federal government liable for a taking when U.S. military planes

conducted continuous low-altitude flights above a landowner’s farm. A UAS-related claim of the

second type might arise, another legal commentator said, if, for example, a county “drone

airport” owner/operator approves low-altitude flight paths without acquiring neighboring air

easements and thereby causes such interference. This might resemble Griggs v. Allegheny

County,

where the Supreme Court, relying on Causby, held a county airport owner/operator

liable for a taking when planes continuously flew directly over private residences and the county

had not paid just compensation for air easements through their overlying airspace.

Courts since Causby have determined manned aircraft-related takings liability by applying three

factors: (1) whether the planes flew directly over the claimant’s land; (2) whether the planes flew

frequently and at low altitudes; and (3) whether the flights directly and immediately interfered

with the claimant’s use an enjoyment of the land.

In addition, even though Causby required

“interference” rather than “substantial interference” as discussed above, some courts have

required the interference to be “substantial.”

Assuming the same factors would be applied to

See, e.g., 2013 CRS Drones Report, supra note 15, at 8-9; Wendie L. Kellington, Federal Laws, Regulations, and

Programs Affecting Local Land Use Decision-Making: Drones, American Bar Association Annual Meeting (July 30,

2015) at 8 (governmental entities that establish drone airports “may well have exposure for ‘taking’ private property in

the context of repeated nuisance activities allowed by the location of such ‘airports’ under local regulations.”), 11

(localities that designate downtown areas as UAS air routes without acquiring avigation easements would raise “the

taking question” as might designating UAS air routes that foreclose vertical additions to buildings); Troy A. Rule,

Airspace in an Age of Drones, 95 B. U. L. Rev. 155, 171-72 (2015).

Griggs v. Allegheny County, 369 U.S. 84 (1962).

See, e.g., Andrews v. United States, 108 Fed. Cl. 150, 155-56 (2012); Adaman Mutual Water Co. v. United States,

181 F. Supp. 658 (Ct. Cl. 1958).

See cases cited supra note 27.

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determine government takings liability related to UAS operations, the Congressional Research

Service and legal commentators have said a landowner likely would need to show there were

frequent government or government-directed UAS flights above the landowner’s property within

their particular low-altitude “immediate reaches” airspace and that the flights caused direct and

immediate—possibly “substantial”—interference with the use and enjoyment of their land.

Regarding what constitutes “immediate reaches” airspace, Causby and subsequent cases

suggest the landowner should not need to show he was literally using or occupying the

airspace. Rather, in Causby’s words, the landowner may prove “use” of the airspace “in

somewhat the same sense that space left between buildings for the purpose of light and air is

used.”

Griggs and subsequent cases also have made clear a landowner’s immediate reaches

airspace may include space FAA has declared as “navigable airspace.”

This is important in

the UAS context because as discussed in Appendix I, FAA has said “navigable airspace” may

extend from the ground up. If a landowner’s immediate reaches airspace excluded all navigable

airspace, this would mean the landowner would have no immediate-reaches airspace at all.

Finally, regarding the harm or “interference” a landowner would need to demonstrate from the

UAS operations, Causby and Griggs suggest that impairment of the landowner’s business or

livelihood, rendering the property unsuitable for residential use likely would be sufficient, or

physical damage should be sufficient.

Griggs also suggests UAS operations that render the

land surface impractical for its intended use by the current landowner also may suffice. Courts

in manned aviation takings cases also have recognized a reduction in a property’s fair market

value as “interference,”

but limitations imposed on a property’s use by future owners that does

not affect its fair market value may not.

2. Potential Claims Based on Federal, State, Local, and Tribal Government Regulatory

Actions (Regulatory Takings)

In addition to government actions that directly take private property, the Supreme Court has

long recognized that the government’s exercise of its regulatory authority in a way that

diminishes or eliminates private property rights may constitute a taking. This is commonly

known as a “regulatory taking.”

According to stakeholders we spoke to and a number of legal

Causby, 328 U.S. at 264-65.

See, e.g., Branning v. United States, 654 F.2d 88, 99 (1986) (government may be liable for taking even if its

aircraft were within “what Congress has declared to be navigable airspace and subject to its regulation”); Palisades

Citizens Ass’n Inc. v. CAB, 420 F.2d 188, 192 (D.C. Cir. 1969) (same).

See generally 2013 CRS Drones Report, supra note 15, at 8-10.

See Brown, supra note 27; Branning, supra note 53.

Stephens v. United States, 11 Cl. Ct. 352 (1986).

See generally GAO, Regulatory Takings: Implementation of Executive Order on Government Actions Affecting

Private Property Use, GAO-03-1015 (Washington, DC: Sept. 19, 2003). As explained in our 2003 report, Executive

Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, 53 Fed. Reg.

8859 (March 18, 1988), requires executive branch agencies to consider the potential regulatory takings implications

of their proposed actions and to document significant implications in notices of proposed and final rulemaking, among

other things. In response to our question to FAA officials whether the agency has reviewed any of its proposed or

final UAS regulations or other UAS-related actions in accordance with Executive Order 12630, the officials stated that

they consider the issues raised in the Executive Order in all of their rulemakings.

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commentators, possible UAS-related regulatory action by FAA and by state or local

governments in the future—and perhaps even actions taken to date—might constitute a

regulatory taking under these regulatory takings precedents. We summarize the case law cited

by these stakeholders and commentators below, followed by their analyses about how this case

law might apply in the UAS context.

As Justice Holmes declared in the often-cited maxim from the Supreme Court’s first regulatory

takings decision, Pennsylvania Coal Co. v. Mahon, “while property may be regulated to a certain

extent, if regulation goes too far it will be recognized as a taking.”

Although the Supreme

Court has acknowledged there is “no ‘set formula’” to determine when a regulation “goes too

far,”

the Court’s analysis has focused on the economic impact of a regulation as well as on the

“character” of the governmental action. As the Court explained in its seminal decision in Penn

Central Transp. Co. v. City of New York,

“[a] taking may more readily be found when the

interference with property can be characterized as a physical invasion by government, than

when interference arises from some public program adjusting the benefits and burdens of

economic life to promote the common good.”

As examples of government “physical

invasions” that constituted takings, the Penn Central Court cited its previous aircraft takings

decisions in Causby and Griggs.

Another example of a government-related physical invasion of property that was held to

constitute a regulatory taking is the Supreme Court’s decision in Loretto v. Teleprompter

Manhattan CATV Corp.

Loretto involved the “extreme” case of a government regulation that

compelled the permanent physical occupation of private property. The Court said this was

“determinative” of a taking regardless of other impact on the landowner.

But the Court

recognized that even a “more temporary invasion”—“a direct invasion of [a landowner’s]

domain” such as planes flying through overlying airspace as in Causby and Griggs—could (and

did) constitute a taking.

Finally, as the Supreme Court recognized in Loretto and Lucas v. South Carolina Coastal

Council,

the federal government may commit a regulatory taking by imposing a “navigational

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-15 (1992).

Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). Penn Central involved whether a New York

City landmark designation ordinance constituted a regulatory taking of a landowner’s airspace property rights.

Penn Central, supra note 60, 438 U.S. at 124. We discuss Penn Central’s recognition of landowner airspace

property rights in Appendix V.

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

Loretto held that a New York City regulation requiring landlords to allow installation of a 1-1/2 cubic foot cable TV

box on the rooftops of their buildings was a taking. We discuss Loretto’s recognition of landowner airspace property

rights in Appendix V.

Loretto, 458 U.S. at 426, 430-31.

Lucas v. South Carolina Coastal Council, supra note 59.

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servitude” on private property as in Kaiser Aetna v. United States.

In Kaiser Aetna, the Army

Corps of Engineers asserted that a privately owned marina, connected through a channel to a

bay leading to the Pacific Ocean, was part of the “navigable waters of the United States” subject

to a navigational servitude imposed pursuant to the Rivers and Harbors Appropriation Act. As a

result, the Corps argued, the public must be given access to the private marina.

The Supreme

Court agreed the Corps was authorized to impose the servitude under the statute, which the

Court found to be a valid exercise of Congress’s Commerce Clause power to promote

navigation. However, citing Causby, the Court ruled the servitude on the private marina was a

taking of that private property requiring just compensation. The Court emphasized that the

servitude took away the landowner’s right to exclude, which is “one of the most essential sticks

in the bundle of rights that are commonly characterized as property.”

The Court explained:

“[T]his Court has never held that the navigational servitude creates a blanket exception

to the Takings Clause whenever Congress exercises its Commerce Clause authority

to promote navigation. . . . [W]e hold that the ‘right to exclude,’ so universally held to

be a fundamental element of the property right, falls within this category of interests

that the Government cannot take without compensation. . . . And even if the

Government physically invades only an easement in property, it must nonetheless pay

compensation. See United States v. Causby . . . .”

As the Kaiser Aetna Court recognized, however, in many cases, exercise of the public right of

navigation over interstate waters “that constitute highways for commerce,” and the federal

navigational servitude, does not constitute a taking requiring compensation.

Relying on the foregoing case law, the Chair of the Uniform Law Commission’s Uniform Drone

Tort Law Act Drafting Committee, a member of the Drafting Committee we spoke to, another

attorney stakeholder we spoke to, and other legal commentators have stated that FAA and state

or local governments might be liable for a regulatory taking in connection with their actions

regarding UAS operations. With respect to FAA’s potential liability, as discussed in Appendix I

and noted above, the ULC Industry Commenters Group asserted that FAA’s exclusive right to

create Temporary Flight Restrictions barring flights in certain circumstances would preempt

state-law altitude-based limits imposing a ceiling below which UAS flights would be deemed to

be trespassing. State-law landowner trespass suits to exclude drone flights below such pre-

established altitudes within the landowner’s immediate reaches airspace also would be federally

preempted, according to the ULC Industry Group.

See Loretto, 458 U.S. at 433, and Lucas, 505 U.S. at 1015, citing Kaiser Aetna v. United States 444 U.S. 164

(1979).

The Corps had consented to the owner converting his previously land-locked private fishing pond into a marina

and constructing the channel out to the bay.

Kaiser Aetna, 444 U.S. at 176.

Kaiser Aetna, 444 U.S. at 172, 180. See also Nollan v. California Coastal Comm’n, 83 U.S. 825, 831 (1987)

(finding a taking based on a “permanent physical invasion” where an easement was imposed giving the public “a

permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even

though no particular individual is permitted to station himself permanently upon the premises.”).

Kaiser Aetna, 444 U.S. at 175, citing United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913).

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Yet federal preemption in that context might itself constitute a nationwide taking of private

property without just compensation. According to an attorney stakeholder we spoke to, FAA’s

Part 107 rules authorizing UAS operations below 400 feet do not constitute a taking because

they do not abrogate private landowners’ rights to control the low-altitude airspace above their

land, are not an adjudication of private airspace property rights, and do not establish nationwide

low-altitude flight corridors for drones. Rather, Part 107 represents FAA’s determination that

drones may be safely operated below 400 feet. If, however, Part 107 is understood as FAA’s

authorization of nationwide UAS flight paths and corridors below 400 feet—more specifically,

below what the stakeholder calls “ultra-low altitudes,” which are certainly up to 125 or 150 feet

(this “surely constitutes ‘immediate reaches’ airspace under Causby,” the stakeholder told us)

and perhaps as high as 250 feet—then there is a “serious and compelling argument” that Part

107 has effected an unconstitutional taking (an inverse avigation easement) without just

compensation, according to this stakeholder.

An academic stakeholder we spoke with has addressed the impact of preempting state and

local UAS restrictions more directly. He has noted the potential for “one of the largest

uncompensated transfers of property interests in United States history” if FAA seeks to preempt

all state and local drone use restrictions and common law tort claims.

Even more broadly,

another legal commentator has said authorization by FAA or a state or local government of UAS

flights at very low altitudes, such as a “non-invitee hovering drone,” could be an unconstitutional

taking regardless of whether the activity occurs within navigable airspace.

Takings liability for

a state would be even more likely, according to this commentator, if it authorized such flights

and precluded the landowner from suing the drone operator for trespass.

The Uniform Law

Commissioner stakeholder we spoke to agreed that states could have takings liability in these

circumstances.

The ULC Drafting Committee Chair outlined similar arguments regarding potential UAS-related

federal, state, and local government regulatory takings liability. One of the drone aerial trespass

model law alternatives proposed in a 2018 memorandum from the Chair was that each state

would establish its own altitude-based “trespass” limits pursuant to state law property principles

and practices. If a state were to set its ceiling “too low,” however—that is, within landowners’

constitutionally recognized immediate-reaches airspace—it “risks a finding that a taking has

Troy A. Rule, Drone Zoning, 95 N.C. L.Rev. 133, 171 (2016). In that event, this stakeholder said, “[m]illions of

Americans would lose valuable rights to prevent unwanted devices from physically invading the airspace just above

their backyards and rooftops, receiving almost nothing in return.”

Wendie L. Kellington, Drones, 49 Urb. Law. 667, 676 (2017).

Kellington, ABA materials, supra note 48, at 13.

Willis Letter, supra note 16 (“What right does a land owner retain to protect the right of exclusive possession to

their property [under the 12-factor substantial interference test for drone aerial trespass]? Almost nothing and as a

practical matter nothing. All those problems increase the probability of bringing an inverse condemnation [takings]

case against the State. It is the State that expressly allows all the drone operators to do this with impunity.”). The

same stakeholder said the Supreme Court’s June 2019 decision in Knick Twp. of Scott, Pennsylvania, 139 S.Ct. 2162

(U.S. June 21, 2019), underscores states’ potential takings liability because in the Court’s words, it “restor[es] takings

claims to the full-fledged constitutional status the Framers envisioned when they included the other protections in the

Bill of Rights.” 139 S.Ct. at 2170.

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occurred, while it risks having the state recognized height abrogated by federal use if it sets the

limit too high,” the Chair explained.

In addition to this potential state takings liability, the Chair described FAA’s potential takings

liability:

“It is important to recognize . . . that the federal government would likewise be

bound by a well-founded and defended state determination of landowner rights. If the

United States granted rights to drone operators to operate within the airspace that a

state has recognized as belonging to the landowner, such a grant would be a taking of

property under the Fifth Amendment. Thus, the federal government could, in effect,

preempt the state determination, but in doing so would authorize a physical intrusion

that would violate the Fifth Amendment and that would thus trigger the duty to pay for

that intrusion. . . . Any federal attempts to preempt [a state’s] lower limit, even though

they may fall within the federal government’s Commerce Clause power, would violate

the Takings Clause, requiring payment to landowners of just compensation.”

In support of his analysis of FAA’s and states’ potential takings liability, the Chair cited the

Supreme Court’s rulings in Penn Central, Loretto, and Lucas, discussed above.

Finally, another legal commenter on the ULC multi-factor substantial interference drone aerial

trespass model act, relying on Kaiser Aetna and Nollan, indicated that states adopting such a

law could be liable for a taking.

And as noted above, the Reporter for the pending

Restatement (Fourth) of Property concluded the multi-factor substantial interference test “in

effect extends the navigable airspace down to the grass tops of land across the entirety of any

state that enacts it. In effect it imposes a presumptive navigation servitude on every cubic

centimeter of space above the surface of the land,” in his view.

As discussed in Appendix I,

FAA’s position—based on its authority and responsibility under the Federal Aviation Act and the

Commerce Clause to regulate aviation safety and the efficient use of airspace within that

navigable airspace—is that “navigable airspace” may extend down to the ground,

Whether such UAS-related constitutional takings claims against FAA or state or local

governments would succeed remains to be seen. The arguments for such claims are based on

established Supreme Court case takings jurisprudence, but courts have not yet ruled on how

the principles established by these cases apply in the context of UAS operations and the UAS

regulatory framework.

2018 Kurtz and Heverly Memorandum, supra note 39. See also Robert A. Heverly, The State of Drones: State

Authority to Regulate Drones, 8 Albany Gov’t L. Rev. 29, 46 (2015) (“Causby may . . . be read to allow states to step

in and set navigable airspace for drones below that limit set by the FAA for other aircraft, though if such a

determination ends with drones interfering with the use and enjoyment of land it would likely be held to constitute a

taking of property under the Fifth Amendment.”).

2018 Kurtz and Heverly Memorandum, supra note 39.

Letter to Uniform Law Commission from Daniel Ortner, Pacific Legal Foundation, July 10, 2019.

Memorandum to Uniform Law Commission from Professor Henry E. Smith, supra note 21 (emphasis added).

APPENDIX III:

CONSIDERATIONS INVOLVING UAS-RELATED PERSONAL

PRIVACY RIGHTS UNDER FEDERAL AND STATE LAW

In the FAA Reauthorization Act of 2018, Congress declared that “the operation of any

unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects

and protects personal privacy consistent with the United States Constitution and Federal, State,

and local law.”

As discussed below, concerns about what is commonly referred to as “UAS

privacy”—protecting the physical privacy of individuals on the ground from surveillance by UAS,

and protecting data that UAS collect about those individuals—stem from a combination of

drones’ small size, their virtually universal use of cameras and other sensors, their ability to fly

at ground level and hover in place, and their ability to be remotely piloted.

Pursuant to our 2018 FAA Reauthorization Act mandates, our focus in this Appendix is on

privacy concerns arising from commercial and recreational UAS use rather than government

UAS use, which raises somewhat different legal issues such as the Fourth Amendment’s

protection against unreasonable searches and seizures by the government.

But while Fourth

FAA Reauthorization Act of 2018, Pub. L. No. 115-254, § 357, 132 Stat. 3186, 3305 (2018 FAA Reauthorization

Act).

See generally GAO, FAA Should Improve Its Management of Safety Risks, GAO-18-110 (Washington, DC: May 24,

2018) at 10, 14; Unmanned Aerial Systems: FAA Continues Progress toward Integration into the National Airspace,

GAO-15-610 (Washington, DC: July 16, 2015) at 19; Unmanned Aircraft Systems: Measuring Progress and

Addressing Potential Privacy Concerns Would Facilitate Integration into the National Airspace System, GAO-12-981

(Washington, DC: Sept.14, 2012) at 32-36; Unmanned Aircraft Systems: Federal Actions Needed to Ensure Safety

and Expand Their Potential Uses within the National Airspace System, GAO-08-511 (Washington, DC: May 15, 2008)

at 24. See also GAO, Unmanned Aerial Systems: Department of Homeland Security’s Review of U.S. Customs and

Border Protection’s Use and Compliance with Privacy and Civil Liberty Laws and Standards, GAO-14-849R

(Washington, DC: Sept. 30, 2014).

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const., Amend. IV.

The Congressional Research Service, privacy and civil liberties groups, and legal commentators have described

how Fourth Amendment protections may apply to the government’s use of drones for surveillance, law enforcement,

and other purposes. See, e.g., CRS, Drones in Domestic Surveillance Operations: Fourth Amendment Implications

and Legislative Responses, CRS Report 24701, by Richard M. Thompson II (April 3, 2013); CRS, Integration of

Drones into Domestic Airspace: Selected Legal Issues, CRS Report 42940, by Alissa Dolan and Richard M.

Thompson II (April 4, 2013) (2013 CRS Drones Report) at 12; CRS, Domestic Drones and Privacy: A Primer, CRS

Report 43965, by Richard M. Thompson II (March 30, 2015) (2015 CRS Drones Privacy Report) at 11-14; Jay

Stanley and Catherine Crump, Protecting Privacy From Aerial Surveillance: Recommendations for Government Use

of Drone Aircraft (American Civil Liberties Union, Dec. 2011) at 15; M. Ryan Calo, The Drone as Privacy Catalyst, 64

Stan. L. Rev. Online 29 (Dec. 12, 2011).

As these analyses have explained, the following key Supreme Court Fourth Amendment cases involving the use of

manned aircraft and new technologies provide insights into how the courts may address the government’s use of

drones: California v. Ciraolo, 476 U.S. 207 (1986) (no reasonable expectation of privacy and thus no Fourth

Amendment “search” where police flying in private plane saw activity in defendant’s backyard); Florida v. Riley, 488

U.S. 445 (1989)(same; no “search” where police flying in helicopter saw evidence through missing greenhouse roof

panels); Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (same; no “search” where EPA contractor flying in

plane within “navigable airspace” took photos of open areas of chemical manufacturing complex using precision

aerial mapping camera); Kyllo v. United States, 533 U.S. 27 (2001) (reasonable expectation of privacy in interior of

the home; government’s use of sense-enhancing thermal imaging device not in general public use to detect interior

heat images was a “search”); and United States v. Jones, 565 U.S. 400 (2012) (reasonable expectation of privacy in

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Personal Privacy Rights under Federal and State Law

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Amendment protections apply only to government UAS operations, the Fourth Amendment

principle of an individual having a “reasonable expectation of privacy” is relevant to non-

government UAS operations as well. This is because, as discussed below, a number of states

and localities have incorporated the same “reasonable expectation of privacy” language into

their privacy laws applicable to private actors.

It is also because the common law privacy tort

most likely to apply in the UAS context—intrusion upon seclusion—requires the surveilled

person to show they had an objectively reasonable expectation of seclusion or solitude,

sometimes phrased as a “reasonable expectation of privacy” even though that tort addresses

different harms caused by different actors than the Fourth Amendment.

In addition to the potential impact of Fourth Amendment principles on protecting the privacy of

individuals on the ground, First Amendment protections may be relevant as well—to protect the

rights of UAS operators. As discussed below, the First Amendment protects certain rights to

gather and publicize information about others, thus creating a potential conflict between news

organizations and information gatherers who take photographs and collect other personal

information using a drone, on the one hand, and those whose personal information is collected

and may believe these activities violate their personal privacy rights, on the other.

As one legal

commentator has observed, “[t]he potential for [UAS] functionality to run afoul of speech, search

and seizure, and privacy rights loom[s] as the greatest impediment to [national airspace]

integration and commercial operations.”

We begin this discussion of UAS privacy with a note about the terminology we use and the UAS

privacy interests we address. We address both the privacy of an individual in their person

(sometimes referred to as “physical privacy” or “personal privacy”) and the privacy of UAS-

collected data about a person, e.g., photographs, videos, sound recordings, thermal images,

and other data (sometimes referred to as “data privacy”). We use the broad term “personal

privacy” to encompass both concepts

and use the more specific terms “physical privacy” and

“personal data privacy,” respectively, to refer to these concepts individually.

In practice, however, there is not a sharp dividing line between UAS physical and personal data

privacy because today, many drones of all sizes can both view individuals in real time (e.g., by

personal vehicle; government’s attachment of a GPS device to vehicle and extended monitoring of vehicle’s

movements was a “search”).

See Parts D.1.a. and c. and D.2. below.

See Part D.1.b. below.

See Part B. below.

Timothy M. Ravich, Commercial Drones and the Phantom Menace, 5 J. Int’l Media & Ent. L. 175, 196 (2015).

FAA has sometimes used these terms differently. In the preambles to its final Part 107 rule and proposed flights-

over-people and nighttime flights rules, for instance, FAA appears to have used the terms “personal privacy” and

“individual privacy,’ respectively, to mean both UAS real-time viewing of persons and UAS collection of information

about persons. See 81 Fed. Reg. 42063, 42190, 42192 (June 28, 2016) (final Part 107 rule); 84 Fed. Reg. 3856,

3893 (Feb. 13, 2019) (proposed “flights over people” and nighttime flight rules). By contrast, FAA appears to have

used the term “data privacy” in the final Part 107 rule preamble to mean UAS collection of business intellectual

property information or proprietary data. See 81 Fed. Reg. at 42190, 42192. By whatever name, business-data

privacy issues are beyond the scope of this report, as are personal privacy issues related to UAS operators’ or

manufacturers’ submission of personally identifiable information to FAA, also discussed in the final Part 107 rule

preamble. Rather, our focus is on the privacy of persons not involved in the UAS operation and the UAS-collected

information about them.

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Personal Privacy Rights under Federal and State Law

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using a camera) and collect data about those individuals (e.g., by recording or transmitting

images of what the camera views). Indeed, collecting data is one of drones’ most common

purposes and may be necessary for navigational purposes. As one legal commentator has

observed, “[t]he innovation of . . . [UAS] is not flight but information. . . . [UAS] represent data in

action.”

UAS operations therefore may be subject both to physical privacy laws, such as so-

called “Peeping Tom” laws discussed in Part D.1.a. below (some of which also prohibit the

recording of photographs or other personal data), and personal data privacy laws, such as those

restricting the recording of photographs or other data about a person. The subsequent use,

retention, and dissemination of UAS-collected personal data also may be seen as an aspect of

both physical privacy and personal data privacy.

In short, physical and personal data privacy interests in the UAS context are intertwined and on

a continuum—from the “pure” invasion of a person’s physical privacy (without collection of

personal data), to invasion of their physical privacy combined with collection of personal data, to

post-collection activities such as the use, retention, and dissemination of personal data. Most of

the public debate to date about UAS privacy has focused on protecting personal data privacy

rather than “pure” physical privacy.

A. The Right to Be Let Alone (Beginnings of the Right to Privacy)

To understand what UAS privacy rights the law may protect today and what factors Congress

may wish to consider if it decides to enact additional protections, it is necessary to understand

the origins of the legal right to privacy. For centuries, protection of personal privacy was not

recognized as an independent legal right but rather was an aspect of property rights. As Lord

Coke famously declared in 17

century England, “the house of everyone is to him as his castle

and fortress, as well for his defence against injury and violence, as for his repose[.]”

The expectation of privacy in one’s home carried over into early American case law, both

through prohibitions against physical trespass into the home and then prohibitions against

eavesdropping on private conversations in the home. As one Pennsylvania court explained in

an 1831 case holding that eavesdropping was an indictable offense, “[e]very man’s home is his

castle, where no man has a right to intrude for any purpose whatever.”

The protection of

privacy as a corollary of property rights also was reflected in the text of the Fourth Amendment,

ratified in 1791, and in how the Supreme Court interpreted Fourth Amendment protections until

Timothy M. Ravich, Courts in the Drone Age, 42 N. Ky. L. Rev. 161, 162 (2015). The commentator further stated,

“[f]undamentally, then, [UAS] are aerial platforms on which to deploy the latest and most sophisticated hardware and

software information-gathering gadgets.” Id.

See, e.g., 2015 CRS Drones Privacy Report, supra note 4, at 1, 6-11 (“what the chameleon phrase ‘privacy’ means

in the context of aerial surveillance” is a combination of the initial UAS collection of personal information and the

subsequent aggregation, use, and retention of that UAS-collected information, omitting mention of protecting an

individual’s “pure” physical privacy without collection of data); Presidential Memorandum to Heads of Executive

Departments and Agencies, Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and

Civil Liberties in Domestic Use of Unmanned Aircraft Systems, 80 Fed. Reg. 9355, 9355 (Feb. 20, 2015) (2015 UAS

Privacy Presidential Memorandum) (directing NTIA to convene multi-stakeholder UAS privacy process limited to

UAS data privacy). We discuss this NTIA multi-stakeholder UAS privacy process in Part E. below.

2013 CRS Drones Report, supra note 4, at 13, quoting Semayne’s Case, 5 Co. Rep. 91 (K.B. 1604).

2013 CRS Drones Report, supra note 4, at 13, quoting Commonwealth v. Lovett, 4 Pa. L.J. Rpts. (Clark) 226, 226

(Pa. 1831).

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the latter half of the 20

century.

Privacy rights independent of property began to evolve in the late 19

and early 20

centuries.

In 1890, advances in technology and an inquisitive press led to the writing of a groundbreaking

law review article, The Right to Privacy, by then private lawyer, later U.S. Supreme Court

Justice Louis Brandeis and his former law partner Samuel Warren.

Brandeis and Warren’s

article, widely cited as the beginning of the legal right to privacy,

was a response to the fast-

paced “Yellow Press” newspaper coverage of society figures of the day, which included intimate

personal details and photographs made possible by the invention of portable cameras and so-

called “instantaneous photography.”

Reacting to what they saw as the negative personal and

societal impacts of such coverage, Brandeis and Warren declared that “[t]he intensity and

complexity of life . . . have rendered necessary some retreat from the world . . . solitude and

privacy have become more essential to the individual.”

Noting the law already had evolved from protecting against physical harm and harm to property

to recognizing the “legal value of sensations,”

Brandeis and Warren concluded that “[r]ecent

inventions and business methods call attention to the next step which must be taken for the

protection of the person and for securing to the individual what Judge Cooley calls the right ‘to

be let alone.’”

That next step was recognition of a “right to privacy, as part of the more general

right to the immunity of the person, the right to one’s personality”—“a general right of the

individual to be let alone.”

Such a right would be violated by publication of a private

individual’s photograph, for example, as well as by publication of one’s private affairs, with

details about how to balance “the dignity and convenience of the individual” against “the

See United States v. Jones, supra note 4, 565 U.S. at 405 (“The text of the Fourth Amendment reflects its close

connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against

unreasonable searches and seizures’; the phrase ‘in their persons, houses, papers, and effects’ would have been

superfluous. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law

trespass, at least until the latter half of the 20

century.”).

Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

See, e.g., William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Dorothy J. Glancy, The Invention of the Right to

Privacy, 21 Ariz. L. Rev. 1 (1979); Benjamin E. Bratman, Brandeis and Warren's The Right to Privacy and the Birth of

the Right to Privacy, 69 Tenn. L. Rev. 623 (2002).

See, e.g., 2013 CRS Drones Report, supra note 4, at 13; Neil M. Richards, The Puzzle of Brandeis, Privacy, and

Speech, 63 Vanderbilt L. Rev. 1295, 1300-302 (2010); Amy Gajda, What if Samuel D. Warren Hadn't Married a

Senator's Daughter?: Uncovering the Press Coverage that Led to the Right to Privacy, 2008 Mich. St. L. Rev. 35

(2008).

Warren and Brandeis, supra note 15, at 196.

Id. at 193. As examples, Brandeis and Warren cited recognized legal causes of action such as assault (putting

someone in fear of physical injury), nuisance (creating offensive noise, odors, vibrations), and libel and slander

(harming someone’s reputation).

For this now-famous phrase, Warren and Brandeis quoted from Judge Thomas M. Cooley’s A Treatise on the Law

of Torts or the Wrongs Which Arise Independent of Contract (Callaghan & Co. 1879), Ch. II. General Classification of

Legal Rights, at 29 (“Personal Immunity. The right to one’s person may be said to be a right of complete immunity: to

be let alone.”).

Warren and Brandeis, supra note 15, at 205-07. See also id. at 211 (“the right to an inviolate personality, affords

alone that broad basis upon which the protection which the individual demands can be rested.”).

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demands of the public welfare” to be determined by the courts.

Brandeis and Warren

concluded by asking whether the law, having protected personal privacy as an aspect of the

property rights inherent in one’s “castle,” should leave the back door of the castle open by failing

to recognize the right to personal privacy as an independent legal right.

Some courts adopted Brandeis and Warren’s concept of an independent right to privacy not

long after their article was published, while other courts rejected it. A number of courts had

adopted a right to privacy in some form by 1939, when the Restatement (First) of Torts

recognized a general right to privacy, and a majority of states had done so by 1960.

In 1960,

noted legal scholar Dean William Prosser published a survey analyzing the more than 300 right

to privacy court cases decided by that time, concluding they fell into four basic categories.

1965, the Restatement (Second) of Torts adopted these four categories as four invasion of

privacy torts, two of which (discussed in Part D.1.b.below) are highlighted by legal

commentators today as being potentially most relevant in addressing UAS-related invasions of

privacy.

In 1967, the Supreme Court recognized the distinction between privacy rights and

property rights in the Fourth Amendment context by expanding its protections to cover “people,

not places”

based on where a person has a “reasonable expectation of privacy.”

Two final points are warranted about this evolution of the legal right to privacy. First, the “right to

be let alone” declared by Brandeis and Warren more than a century ago continues to be

invoked by federal privacy officials today. In remarks at a 2019 Federal Trade Commission

(FTC) public hearing, for example, FTC Commissioner Noah Phillips referenced this “right” as

one of the options that Congress could consider in enacting comprehensive consumer data

privacy legislation. Commissioner Phillips explained:

“Privacy is a nebulous concept, and different people can and do conceive quite

differently how individuals are harmed by a privacy ‘violation.’ They also differ

whether and to what extent they experience a given kind of conduct as a violation . . .

Are consumer data privacy harms limited to physical injury and financial loss? Do

they include emotional distress? Is a sense of surveillance or creepiness characteristic

of an eggshell plaintiff, or something Congress needs to prevent? What about a lack of

Id. at 214.

“The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers

engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and

open wide the back door to idle or prurient curiosity?” Id. at 220.

Prosser, supra note 16, at 384-88, citing cases and Restatement (First) of Torts § 867 (1939).

Prosser, supra note 16, at 389.

These four privacy torts are Restatement (Second) of Torts §§ 652B (intrusion upon seclusion) and 652D (public

disclosure of private facts) (discussed in Part D.1.b. below), and §§ 652C (appropriation of name or likeness) and

652E (publicity placing person in false light).

Katz v. United States, 389 U.S. 347, 351 (1967).

Katz, supra note 27, 389 U.S. at 360 (Harlan, J., concurring). Katz overruled Olmstead v. United States, 277 U.S.

438 (1928), in which Justice Brandeis, dissenting, had declared the Fourth Amendment “conferred, as against the

government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual . . . must be

deemed a violation of the Fourth Amendment.” Olmstead, 277 U.S. at 478.

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empowerment or a loss of control? And how, if at all, do these things take us back to

Brandeis and Warren’s famous ‘right to be let alone’? The decision as to which harms

deserve vindication by Congress is the predicate for deciding how any law should look.

. . . As a practical and legal matter, . . . rights flow either from the Constitution or the laws

Congress makes pursuant to it. . . . Congress needs to make those rights . . . .”

Second, while privacy rights are now recognized as legally independent of property rights, in

practice the two remain closely connected because excluding others from one’s property

increases privacy. Thus as illustrated by the “Drone Slayer” case discussed in Appendix I, UAS

flights in low-altitude airspace over private property have prompted claims of both aerial

trespass and invasion of privacy for the same incident.

Resolving how the Supreme Court’s

decision in United States v. Causby and possible airspace property rights apply to UAS

operations, as discussed in Appendices I and II, therefore could also affect UAS privacy—

potentially increasing or decreasing privacy rights along with property rights.

B. The Potential Impact of the First Amendment on Legal Rights to Privacy

The First Amendment provides in relevant part that “

Congress shall make no law . . . abridging

the freedom of speech, or of the press . . . .”

Federal and state protections of UAS physical

and personal data privacy of individuals on the ground must be balanced against the First

Amendment rights of UAS operators. One legal commentator has described this balance in the

context of UAS operations as what occurs “when privacy law . . . collides with the First

Amendment.”

More broadly, the late U.S. Supreme Court Justice Stevens has described the

balance of privacy and First Amendment interests as a “conflict between interests of the highest

order—on the one hand, the interest in the full and free dissemination of information concerning

public issues, and, on the other hand, the interest in individual privacy . . . .”

The courts have interpreted the First Amendment as creating certain rights to gather news and

information as well as to publish it.

With respect to gathering news and information—the right

most directly implicated by UAS because of their common usage in taking photos and collecting

other information—in Branzburg v. Hayes, the Supreme Court stated in dicta

that “[n]ews

Prepared Remarks of FTC Commissioner Noah Joshua Phillips, FTC Hearing # 12: The FTC’s Approach to

Consumer Privacy, April 9, 2019, at 2-5.

See Appendix I, Part C.1.

U.S. Const., Amend. I. The First Amendment’s protections have been extended to the states through the

Fourteenth Amendment. See, e.g., Spence v. State of Washington, 418 U.S. 405 (1974).

Margot Kaminski, Drone Federalism: Civilian Drones and the Things They Carry, 4 Cal. L. Rev. Circuit 57, 66 (May

2013).

Bartnicki v. Vopper, 532 U.S. 514, 518 (2001). See also Shulman v. Group W Productions, Inc., 955 P.2d 469,

474 (Cal. 1998), quoting Time, Inc. v. Hill, 385 U.S. 374, 388 (1967) (“‘Exposure of the self to others in varying

degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a

society which places a primary value on freedom of speech and of press.’”).

The Supreme Court has also long recognized the First Amendment’s freedom of speech and of the press include a

right to receive information and ideas. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969); Kleindienst v. Mandel,

408 U.S. 753, 762-63 (1972) (citation omitted).

Dicta are a court’s comments made in a judicial opinion that are not strictly necessary to the decision in the case,

and therefore are not binding legal precedent. Black’s Law Dictionary, 11th ed. (2019) at 569.

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gathering is not without its First Amendment protections” and that “without some protection for

seeking out the news, freedom of the press could be eviscerated.”

Lower courts also have

held there is a right to gather news and information by taking photographs in certain

circumstances, based on Supreme Court precedent that freedom of speech includes a right to

carry out certain “communicative” conduct, that is, conduct intended to communicate a

particularized message or idea for which there is an intended audience.

A number of courts

have held this includes “communicative photography” both by the press and the public,

such

as filming intended for television or print news

and filming of police and other public officials on

public property.

The Supreme Court has made clear, however, that there is no First Amendment right to gather

news and information in a way that violates generally applicable civil or criminal laws. In

Branzburg, for example, the Court ruled that “[n]ewsmen have no constitutional right of access

to the scenes of crime or disaster when the general public is excluded,” nor do rights of the

press and other information gatherers “reach so far as to override the interest of the public in

ensuring [the news gatherers are not] . . . invading the rights of other citizens through

reprehensible conduct forbidden to all other persons.

Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972). The Branzburg Court did not elaborate on what these news-

gathering protections are.

See, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995); Texas v.

Johnson, 491 U.S. 397 (1989).

See, e.g., Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996); Porat v. Lincoln Towers Community Ass’n, 2005

WL 646093 (S.D.N.Y. 2005), aff’d per curiam, 464 F.3d 274 (2d Cir. 2006); Krukowski v. Swords, 15 F. Supp.2d 188

(D. Conn. 1998); Lambert v. Polk County, 723 F. Supp. 128 (S.D. Iowa 1989). See generally Bill Kenworthy,

Photography & First Amendment (Freedom Forum Institute April 2012) and cases cited therein, available at

https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-the-press/photography-first-

amendment/ (last visited Sept. 1, 2020); 2013 CRS Drones Report, supra note 4, at 17-19 and cases cited therein;

Kaminski, supra note 32, at 61-64 and cases cited therein; Marc Jonathan Blitz, James Grimsley, Stephen E.

Henderson, Joseph Thai, Regulating Drones Under the First and Fourth Amendments, 57 Wm. & Mary L. Rev. 49,

80-109 (2015) and cases cited therein.

See, e.g., Demarest v. Athol/Orange Community Television, 188 F.Supp.2d 82 (D. Mass. 2002); Lambert v. Polk

County, supra note 38.

See, e.g., Smith v. City of Cumming, 212 F.3d 1332 (11

Cir. 2000); Fordyce v. City of Seattle, 55. F.3d 436 (9

Cir. 1995). The federal appeals courts are not entirely in agreement regarding the right to film police activity, however.

See cases cited in Kaminski, supra note 32; Kenworthy, supra note 38; and Blitz et al., supra note 38.

Some courts have ruled that recreational photography conducted solely for one’s personal use is not constitutionally

protected “communicative photography,” however, because there is no intent to communicate a message and no

identified audience. See, e.g., Porat, supra note 38; Larsen v. Fort Wayne Police Dept., 825 F.Supp.2d 965 (N.D.

Ind. 2010). In addition, as with all constitutionally protected speech, the right to gather news and information by taking

communicative photographs is subject to reasonable restrictions on their time, place, and manner, provided the

restrictions are “justified without reference to the content of the regulated speech, . . . narrowly tailored to serve a

significant governmental interest, and . . . leave open ample alternative channels for communication of the

information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).

Branzburg, supra note 36, 408 U.S at 681, 684 (citing Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“The right to speak

and publish does not carry with it the unrestrained right to gather information.”), 685, 691-92. See also Cohen v.

Cowles Media Co., 501 U.S. 663, 669-70 (1991) (“generally applicable laws do not offend the First Amendment

simply because their enforcement against the press has incidental effects on its ability to gather and report the news.

. . . [The press] ‘has no special immunity from the application of the general laws. [It] has no special privilege to

invade the rights and liberties of others.’”); Dietemann v. Time, Inc., 449 F.2d 245, 249 (9

Cir. 1971) (First

Amendment provides no immunity from “torts or crimes committed during the course of newsgathering”).

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The right to publish or publicize news and information also may limit UAS-related privacy rights.

In fact at least where information is “newsworthy,” the Supreme Court has found the First

Amendment’s rights of freedom of speech and freedom of the press outweigh the right to

privacy and effectively immunize newsmen and other information publishers from liability for,

among other things, the common law tort of public disclosure of private facts (discussed below

in the UAS context).

Based on this case law, the Restatement of Torts explains, “[i]t seems

clear that the common law restrictions on [public disclosure of private facts] will now become

part of the constitutional law of freedom of the press and freedom of speech. To the extent the

constitutional definition of a matter that is of legitimate concern to the public is broader than the

definition [in the public disclosure tort] given in any State, the constitutional definition will of

course control.”

How these First Amendment principles will apply in the UAS context will be highly fact-

dependent, and a complete analysis is beyond the scope of this report. We describe

stakeholder and legal commentator views about how they may apply in Part D.1.b. below.

C. Federal Laws That May Protect UAS-Related Personal Privacy

1. Limited Federal Laws Applicable to UAS-Related Personal Privacy and Administration

Approaches to Protecting Consumer Data Privacy

As one legal commentator has observed, “[t]he federal protections of privacy are

underwhelming to date . . . .”

It appears that just one federal statute, 18 U.S.C. § 1801,

protects against invasion of a person’s physical privacy, and potentially their personal data

privacy, by a private actor. The statute establishes the crime of “video voyeurism” (a common

name for a “Peeping Tom” law), but it is limited to voyeurs located within “the special maritime

and territorial jurisdiction of the United States.”

Thus unless a UAS operator invades a

person’s privacy from this type of specialized location, this law would not appear to protect

against UAS invasions of privacy.

See, e.g., Cox Broadcasting v. Cohn, 420 U.S. 469, 487, 489, 492 (1975) (although “powerful arguments can be

made . . . [that] there is a zone of privacy surrounding every individual,” in the “face-off” between privacy and freedom

of the press, the press has a right to publish true information about “events of legitimate concern to the public” that

appears in public records). See also Shulman v. Group W Productions, supra note 33 (upholding news

organization’s airing of documentary featuring accident victim’s statements and images taken in medical evacuation

helicopter, based on First Amendment privilege to publish truthful, newsworthy material).

Restatement (Second) of Torts § 652D cmt. d.

Wendie L. Kellington, Drones, 49 Urb. Law. 667, 678 (2017).

Video voyeurism is the sole crime listed in the “Privacy” chapter of the federal criminal code. Enacted in 2004, this

law makes it a crime for anyone “in the special maritime and territorial jurisdiction of the United States” to intend “to

capture an image of a private area of an individual without their consent” and “knowingly does so under

circumstances in which the individual has a reasonable expectation of privacy.” We discuss the apparent basis for

this law—the Constitution’s Federal Enclave Clause—in note [189] below. Also as discussed below, it appears that

virtually all states have enacted some type of Peeping Tom or other criminal surveillance law.

There is also a federal anti-stalking/anti-harassment statute, 18 U.S.C. § 2261A, that might potentially apply to the

use of an electronics-bearing drone. The statute makes it a crime to use—with the intent to kill, injure, harass,

intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate—“any interactive computer

service or electronic communication service or electronic system of interstate commerce, or any other facility of

interstate . . . commerce to engage in a course of conduct that (A) places that person in reasonable fear of death or of

serious bodily injury . . . or (B) causes, attempts to cause, or would reasonably be expected to cause substantial

emotional distress.”

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Nor is there a comprehensive federal law protecting the privacy of personal data collected by

private actors, whether collected by drones or otherwise. Rather, as we have reported,

consumer data privacy is currently protected by statutes and rules pertaining to certain types of

entities and certain personal data in certain circumstances (none specific to UAS), and by the

Federal Trade Commission Act, which, as discussed in Part C.3. below, authorizes FTC to

protect the privacy of personal information in the context of prohibiting unfair or deceptive trade

practices.

Finally, as we have reported, there is currently no single federal agency with

statutory responsibility to regulate UAS privacy matters for the entire federal government.

In the absence of comprehensive federal legislation addressing either UAS physical or personal

data privacy in particular or consumer data privacy in general, the previous and current

Administrations have issued statements and taken certain actions with respect to these matters.

During the Obama administration, the President issued a Presidential Memorandum in February

2015 (2015 UAS Privacy Presidential Memorandum) announcing that as UAS are integrated

into the national airspace system, the federal government will take steps to ensure this

integration accounts for “the privacy, civil rights, and civil liberties concerns [UAS] may raise,” as

well as economic competitiveness and public safety.

One of the steps called for by the 2015

UAS Privacy Presidential Memorandum was for the Department of Commerce’s National

Telecommunications and Information Administration (NTIA) to convene a multi-stakeholder

engagement process to develop best practices for protecting the privacy of personal data

collected by non-government UAS operators. We discuss this NTIA effort in Part E. below.

The 2015 UAS Privacy Presidential Memorandum also set forth UAS privacy policies and

procedures to be followed by the federal government itself when it operates UAS, such as for

law enforcement and national security purposes. Those requirements include establishing

policies, available to the public, that minimize unnecessary UAS-collection of personal

information and minimize the subsequent use, retention, and dissemination of that information;

ensuring those activities comply with the U.S. Constitution and applicable laws such as the

Privacy Act;

providing public notice of where each agency is authorized to conduct UAS

operations; and issuing annual summaries, available to the public, of the agency’s UAS

operations.

More recently, the Trump administration has focused on the broader topic of consumer data

privacy, not limited to UAS-collected data. In September 2018, NTIA requested public comment

on ways to advance consumer data privacy while protecting prosperity and innovation.

Depending on the scope of policies and laws that might be developed under the

Administration’s approach, the privacy of UAS-collected personal data may or may not be

GAO, Internet Privacy: Additional Federal Authority Could Enhance Consumer Protection and Provide Flexibility,

GAO-19-52 (Washington, DC: Jan. 15, 2019) (recommending Congress consider developing comprehensive

legislation to protect the privacy of Internet users’ personal information collected online). By contrast, there are

several federal laws protecting personal information collected and used by the federal government, principally the

Privacy Act, 5 U.S.C. § 552a, and the privacy provisions of the E-Government Act of 2002, Pub. L. No. 107-347, 116

Stat. 2899 (2002). See generally GAO-12-981, supra note 2, at 34-35.

See GAO-12-981, supra note 2, at 35.

See 2015 UAS Privacy Presidential Memorandum, supra note 11.

See supra note 47 regarding the Privacy Act.

See NTIA, Developing the Administration’s Approach to Consumer Privacy, 83 Fed. Reg. 48600 (Sept. 26, 2018).

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 10

included. NTIA has stated there is currently a nationally and globally fragmented regulatory

privacy landscape, which it believes disincentivizes innovation by increasing regulatory costs. It

therefore requested comment on, among other things, harmonizing the regulatory landscape to

avoid “a patchwork of competing and contradictory baseline [privacy] laws.” NTIA also sought

comment on whether FTC, given its history of effectiveness in protecting privacy, should be the

agency responsible for enforcing whatever new consumer data privacy protections are

developed.

Over 200 organizations and individuals submitted comments on these questions,

including FTC staff (see Part C.3. below).

2. FAA Authority and Actions to Date

FAA officials told us the agency lacks authority to regulate UAS operations to address privacy

concerns. In issuing the Part 107 rules in 2016, FAA stated that privacy concerns are beyond

the scope of its mission to ensure the safety and efficiency of aviation operations in the

airspace. It explained that because “the use of cameras and other sensors [is] extraneous to

the airworthiness or safe operation of the aircraft . . . ., it would be overreaching for the FAA to

enact regulations concerning privacy rights.”

FAA reiterated this point in its Part 107 “flights

over people” proposed rulemaking last year and also observed that cameras and other sensors

have long been used on manned aircraft such as news helicopters, aerial surveyors, and film

and production crews.

Further, FAA observed in the Part 107 preamble, when Congress enacted the FAA

Modernization and Reform Act (FMRA) in 2012, mandating the safe integration of UAS

operations into the national airspace system,

it did not direct the agency to address privacy

issues. Reading privacy requirements into the FMRA mandate would be a significant expansion

of the agency’s longstanding authority as a safety agency, in FAA’s view. Nor did Congress

require regulation of UAS privacy in its 2016 or 2018 FAA reauthorization acts,

FAA officials

noted to us. Finally, FAA officials told us, the agency’s rulemaking authority neither mandates

nor permits it to issue or enforce regulations specifically aimed at protection privacy interests

between private parties.

A privacy group stakeholder we spoke to has disagreed with FAA’s legal analysis and believes

FAA has authority to regulate UAS privacy,

as does a leading civil liberties organization.

Id., 83 Fed. Reg. at 48602.

The public comments submitted in response to NTIA’s request are available at https://www.ntia.doc.gov/other-

publication/2018/comments-developing-administration-s-approach-consumer-privacy (last visited Sept. 1, 2020).

81 Fed. Reg. 42064, 42190-92 (June 28, 2016) (final Part 107 rules).

84 Fed. Reg. 3856, 3893-94 (Feb. 13, 2019).

FAA Modernization and Reform Act of 2012 (FMRA), Pub. L. No. 112-95, § 332, 126 Stat. 11 (2012).

See 2018 FAA Reauthorization Act, supra note 1; FAA Extension, Safety, and Security Act of 2016, Pub. L. No.

114-190, 130 Stat. 615 (2016).

The Electronic Privacy Information Center (EPIC) sued FAA following issuance of the proposed and final Part 107

regulations, asserting the agency had authority and an obligation to regulate UAS privacy but had not done so. The

court did not reach the merits of either challenge, dismissing both on procedural grounds. See EPIC v. FAA, 821

F.3d 39 (D.C. Cir. 2016); EPIC v. FAA, 892 F.3d 1249 (D.C. Cir. 2018). EPIC has since filed suit against FAA and its

Drone Advisory Committee seeking records related to any Committee deliberations that may relate to UAS privacy;

the suit was largely dismissed on procedural grounds and is currently on appeal. EPIC v. Drone Advisory Committee,

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

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The Congressional Research Service has said it would be reasonable to interpret FAA’s

authority as including UAS privacy matters.

Even though FAA believes it lacks authority to regulate UAS privacy matters, it has recognized

that “unique characteristics and capabilities of UAS may pose uncertainties with regard to

individual privacy” and acknowledged the public’s “concerns regarding the use of small UAS to

collect information about individuals.”

FAA’s Privacy Impact Assessment for its proposed

“flights over people” rule, which also notes public concerns about UAS surveillance and data

collection, provides multiple examples of currently prohibited UAS operations that would now be

permitted under the rule.

FAA has acted to address these concerns “through engagement and collaboration with the

public, stakeholders, and other agencies with authority and subject matter expertise in privacy

law and policy.”

For example, FAA participated as an observer in the 2015-2016 NTIA-

convened multi-stakeholder process to develop UAS privacy voluntary best practices, discussed

in Part E. below. FAA also has emphasized the need for UAS operators to be mindful of privacy

matters in its informational and training materials.

In addition, FAA officials told us that in the context of policies and procedures for the federal

369 F. Supp. 3d 27 (D.D.C. 2019), appeal pending, No. 19-5238 (D.C. Cir.).

The American Civil Liberties Union (ACLU) has stated FAA has authority to regulate UAS privacy pursuant to its

authority under 49 U.S.C. § 40103(b)(2)(B). As discussed in Appendix I, Part D.1.a., that provision directs FAA to

prescribe air traffic regulations for the purpose of “protecting individuals and property on the ground.” The ACLU

believes this FAA obligation “should include protecting the privacy that Americans have traditionally enjoyed and

rightly expect.” Stanley and Crump, supra note 4, at 2.

See 2013 CRS Drones Report, supra note 4, at 22-25 (concluding that if FAA interpreted FMRA as authorizing the

agency to regulate UAS-related privacy issues, a court likely would uphold this interpretation as reasonable and thus

entitled to judicial deference under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)). See also

David E. Schaffer, Is Legislation Needed to Prevent Invasions of Privacy by Unmanned Aircraft? The Law and Some

Modest Legislative Proposals, The Federal Lawyer 53, 55 (July 2015) (“The FAA could issue a safety rule for UAS

that would have the effect of addressing the privacy issue. For example, it could . . . establish minimum safe altitudes

of flight for UAS . . .[which would] have the effect of keeping UAS above a specified level and away from homes and

other congested areas. However, it is unclear whether the FAA would take such action without a clear safety

justification, especially since it is likely to undermine the business case for the small UAS.”).

81 Fed. Reg. at 42190; see also 84 Fed. Reg. 3856, 3893 (Feb. 13, 2019).

FAA’s proposed flights-over-people rule would authorize routine UAS flights over individuals not participating in the

UAS operation. 84 Fed. Reg. 3856 (Feb. 13, 2019). FAA’s Privacy Impact Assessment for the proposal includes a

“not exhaustive” list of 17 UAS uses that “could occur under this proposed framework without first clearing people

from the area.”

DOT and FAA, Privacy Impact Assessment, Small Unmanned Aircraft Systems Over People, Notice

of Proposed Rulemaking, March 2019 (2019 FAA Privacy Impact Assessment) at 2-3, available at

https://www.regulations.gov/document?D=FAA-2018-1087-0068 (last visited Sept. 1, 2020).

81 Fed. Reg. at 42190.

See, e.g., FAA, Getting Started, available at https://www.faa.gov/uas/getting_started/ (last visited Sept. 1, 2020)

(“Drone Safety Tips: . . . Respect privacy”); 2019 FAA Privacy Impact Assessment, supra note 62, at 2 (noting FAA

has added information about the 2016 UAS Privacy Voluntary Best Practices (discussed in Part E. below) to its Part

107 training course and guidance materials for new UAS remote pilots).

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 12

government’s own use of drones,

as well as DOT’s policies for protecting personal information

privacy as required by the Privacy Act and other statutes,

FAA has included privacy-related

terms and conditions in its agreements with Lead Participants in DOT’s UAS Integration Pilot

Program (IPP), discussed in Appendix I, Part B.2.b., and in agreements with Lead Participants

in its UAS Test Site Program.

In issuing the final Part 107 rule, FAA also cited its “broad

contracting authority” in 49 U.S.C. § 106(l)(6), which it said “allows the Administrator to enter

into contracts under ‘such terms and conditions as the Administrator may consider appropriate,’”

as enabling it to require privacy-related terms in its UAS Test Site agreements. This general

contracting authority contrasts with the agency’s rulemaking authority, FAA said, which “is

specifically tied to its critical safety mission.”

Finally, with respect to individuals who believe they have suffered a UAS-related invasion of

their personal privacy, FAA has noted that “certain federal, state, local, and common law

protections of individual privacy . . . exist. Such protections may provide recourse for any

potential invasion of privacy that might result from third party use of a UAS.”

According to

FAA, such state and local privacy protections generally would not be subject to federal

regulation and thus would not be federally preempted.

We discuss federal laws that may

protect personal privacy from civil UAS operations in Part C.1. above and C.3. below, and

discuss examples of such state, local, and common law privacy laws in Part D. below.

Section 1 of the 2015 UAS Privacy Presidential Memorandum, supra note 11, specifies tenets for federal agencies

in protecting the privacy of UAS-collected data, ensuring civil rights and civil liberties protections, and ensuring

accountability and transparency to the public about their UAS operations.

See DOT Order 1351.18, Privacy Risk Management Policy, Sections 18.4.8.5, 18.4.8.6 (Contracts), available at

https://www.transportation.gov/sites/dot.gov/files/docs/DOT%20Order%201351.18%20Privacy%20Risk%20Manage

ment%20Policy.pdf (last visited Sept. 1, 2020).

FMRA section 332(c) directed FAA to establish six UAS test sites to research certification and operational

requirements to integrate UAS into the national airspace system. FAA selected six public-entity test sites in

December 2013, which became operational in 2014. See generally GAO, Unmanned Aircraft Systems: FAA Could

Better Leverage Test Site Program to Advance Drone Integration, GAO-20-97 (Washington, DC: Jan. 9, 2020);

Unmanned Aerial Systems: Status of Test Sites and International Developments, GAO-15-486T (Washington, DC:

March 24, 2015). FAA required test site participants (located in Alaska, Nevada, New York, North Dakota, Texas,

and Virginia) to comply with all federal, state, and other laws protecting an individual’s right to privacy; to have

publicly available privacy policies and a written plan for the use and retention of any UAS-recorded data; and to

conduct annual reviews of their privacy practices including an opportunity for public comment. See FAA, UAS Test

Site Program, Notice of Availability of Final Privacy Requirements for UAS Test Site Program, 78 Fed. Reg. 68360

(Nov. 14, 2013). The privacy policies of a number of the test site participants are available at

https://www.ntia.gov/other-publication/2016/multistakeholder-process-unmanned-aircraft-systems (last visited Sept. 1,

2020). (see “Privacy Policies for FAA Test Sites”).

81 Fed. Reg. at 42191 (Part 107 rule).

2019 FAA Privacy Impact Assessment, supra note 62, at 2; see also 81 Fed. Reg. at 42192 (Part 107 final rule)

(same).

FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet

(Dec. 17, 2015) (2015 FAA UAS Fact Sheet) at 3, available at

https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf (last visited Sept. 1, 2020); FAA,

Federal vs. Local Drone Authority (July 20, 2018) (2018 FAA UAS Press Release), available at

https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938&omniRss=press_releasesAoc&cid=102_P

_RPress (last visited Sept. 1, 2020).

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

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3. FTC Authority and Actions to Date

The Federal Trade Commission is the federal entity primarily responsible for protecting

consumers’ privacy and data security in the United States. In addition to its authorities under

statutes pertaining to specific types of entities and personal data (none specific to UAS), FTC

has broad authority under section 5(a)(1) of the Federal Trade Commission Act

to protect

individuals from “unfair or deceptive acts or practices in or affecting commerce.”

Although the

FTC Act is not a privacy statute per se, the Commission has successfully used its section 5

“unfairness” authority against, for example, companies that enabled exposure of videos or

photographs of consumers taken or made accessible without their knowledge.

FTC officials

told us the Commission could use section 5 in this same way against a business that transmits

photographs or other personal data using a UAS.

FTC also has used its section 5 authority to protect the privacy of individuals’ personal

information where companies commit to following specific data privacy policies but then fail to

abide by those commitments.

Congress confirmed FTC’s authority to use its section 5

authority in this manner with respect to UAS-collected personal information in section 375 of the

2018 FAA Reauthorization Act. Section 375 states that a “violation of a privacy policy by a

person that uses a UAS for compensation or hire, or in furtherance of a business enterprise, in

the national airspace system shall be an unfair and deceptive practice in violation of section 5(a)

of the Federal Trade Commission Act . . . .”

Thus, FTC officials told us, if a UAS operator tells

the public it will protect their UAS-collected personal information (e.g., photographs, video, or

other personal data) in a certain way but then fails to comply with that commitment, this might

violate section 5 as an “unfair” or “deceptive” practice and FTC could take enforcement action.

The FTC officials told us the data privacy policies contained in the UAS Voluntary Best

Practices, discussed in Part E. below, could potentially be used in this way. Even though the

UAS Voluntary Best Practices are not legally binding in themselves, once a commercial UAS

operator or other business announces it is abiding by them, FTC can enforce that promise, the

officials explained. Enforcing a promise to comply with the UAS Voluntary Best Practices might

15 U.S.C. § 45(a)(1).

An act or practice is “unfair” under the FTC Act if it “causes or is likely to cause substantial injury to consumers

which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to

consumers or to competition.” 15 U.S.C. § 45(n). An act or practice is “deceptive,” according to FTC, if there is a

representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to

the consumer's detriment. FTC, Policy Statement on Deception (Oct. 14, 1983), available at

https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf (last visited Sept. 1,

2020). See generally GAO-19-52, supra note 47, at 9-12.

See In the Matter of TRENDnet, Inc., Complaint and Decision and Order, FTC No. C-4426, Jan. 16, 2014

(involving third-party access to live audio and video feeds of private interactions captured through Internet-connected

home security cameras); In the Matter of Designerware, LLC, Complaint and Decision and Order, FTC No. C-4390,

April 11, 2013 (involving third-party access to photographs of private interactions captured through webcams of

leased computers).

See generally FTC, FTC’s Use of Its Authorities to Protect Consumer Privacy and Security, June 19, 2020, at 2-4,

available at https://www.ftc.gov/system/files/documents/reports/reports-response-senate-appropriations-committee-

report-116-111-ftcs-use-its-authorities-resources/p065404reportprivacydatasecurity.pdf (last visited Sept. 1, 2020);

GAO-19-52, supra note 47, at 9-12.

2018 FAA Reauthorization Act, supra note 1, § 375, 132 Stat. at 3314.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 14

be difficult, however, the officials acknowledged, because the Practices include a number of

exceptions and caveats. The officials also told us FTC has not yet filed a UAS data privacy

enforcement action, and one legal commentator has observed that “[m]ost citizens . . . can’t

successfully call the [FTC] and get any help with a problem of a drone collecting personal

data.”

FTC’s ability to protect the privacy of UAS-collected personal data might increase if Congress

enacts comprehensive data privacy legislation. In that event, the FTC Chairman has testified,

the Commission would benefit from receiving traditional “notice-and-comment” rulemaking

authority

to implement the substantive privacy standards that Congress establishes.

Relatedly, in 2018, FTC staff commented that the Commission would be the appropriate agency

to enforce any new consumer data privacy protections. The staff stated that the Commission is

“uniquely situated to balance consumers’ interests in privacy, innovation, and competition” and

noted it has used its existing section 5 authority to enforce against, among others, those who

“intrude on the sanctity of people’s homes . . . by spying on people . . . .”

Until such time as federal data privacy legislation may be enacted, FTC has sought to promote

debate and engagement among stakeholders and the public on UAS privacy matters. In

October 2016, for example, the Commission convened a workshop to explore issues such as

whether drones raise unique privacy concerns and what legal frameworks should be used to

address privacy concerns raised by drones.

We discuss the positions expressed at that

workshop by UAS industry representatives, privacy advocates, and others, several of whom we

spoke with, in Part F. below.

D. State and Local Laws That May Protect UAS-Related Personal Privacy

Some states have used their general privacy laws or common law causes of action not specific

to UAS to protect against UAS-related privacy harms. Other states have enacted UAS-specific

privacy laws. Still other states appear to have no privacy laws that would clearly apply to the

kinds of activities that can be conducted by UAS.

We discuss below examples of general

Kellington, supra note 44, at 678.

Rather than having authority to issue regulations implementing its FTC Act authority using the traditional notice-

and-comment rulemaking process under section 553 of the Administrative Procedure Act, 5 U.S.C. § 553, FTC

generally must use a more elaborate process established by the Magnuson-Moss Warranty Act amendments to the

Act. FTC may use the APA § 553 process only where specifically authorized by Congress, such as by the Children’s

Online Privacy Protection Act (COPPA). See GAO-19-52, supra note 47, at 11-13.

Prepared Remarks of FTC Chairman Joseph J. Simons, Hearing on Oversight of the Federal Trade Commission:

Strengthening Protections for American’s Privacy and Data Security, House Committee on Energy and Commerce,

Subcommittee on Consumer Protection and Commerce, May 8, 2019, at 2-3.

Comments of FTC Staff, In re Developing the Administration’s Approach to Consumer Privacy, NTIA Docket No.

180821780-8780-01 (Nov. 9, 2018), at 9, 11.

See generally Agenda for FTC Fall Technology Series: Drones (Oct. 13, 2016), available at

https://www.ftc.gov/system/files/documents/public_events/942753/falltech-series-drones_agenda.pdf (last visited

Sept. 1, 2020).

See Memorandum to the Uniform Law Commission from Paul M. Kurtz, Chair, Mark Glaser, Vice Chair, Robert A.

Heverly, Reporter, Uniform Tort Law Relating to Drones Act Drafting Committee, June 10, 2019, at 4. See also Wells

C. Bennett, Civilian Drones, Privacy, and the Federal-State Balance (Brookings Inst. Sept. 2014) at 3-7.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 15

state privacy laws and common law private causes of action that have or, according to

stakeholders and legal commentators, may potentially be used to address UAS-related privacy

concerns. We then discuss examples of UAS-specific privacy laws that states and localities

have enacted.

1. State and Local General Privacy Laws

a. Criminal “Peeping Tom” Laws

One type of general privacy law that some states have sought to use to address UAS privacy

concerns is a criminal “Peeping Tom” law. Depending on the specific law, it protects an

individual’s physical privacy and may also protect their personal data privacy. As of 2010 (the

most recent year for which information was available), almost all states had enacted some

version of this type of law, generally prohibiting the intentional viewing and/or recording of

physically private areas of a person under certain circumstances.

Some of these laws are

called “Peeping Tom” laws; others have names such as “video voyeurism,” “unlawful

surveillance,” “indecent viewing,” and “criminal invasion of privacy.” One legal commentator has

noted that because these laws require the defendant to have intended to view or record private

aspects about the surveilled person, it may be difficult to prove a drone operator violated the law

if he could not see what he was viewing or recording until after the flight concluded.

An example of such a practical difficulty is a local New York case, People v. Beesmer.

cited to

us by a UAS industry stakeholder. That case involved an individual who flew his drone close to

the outside windows of a hospital’s examination rooms. In what is said to be the first prosecution

of a drone operator for unlawful surveillance, authorities charged him with misdemeanor

attempted unlawful surveillance in the second degree. The state law under which he was

charged prohibited an individual from “intentionally us[ing] . . . an imaging device to

surreptitiously view, broadcast, or record a person dressing or undressing or the . . . intimate

parts of [a] person at a place and time when such person has a reasonable expectation of

privacy, without such person’s knowledge or consent.”

The UAS operator argued he could not

have intended to view persons inside the building because its windows were treated to prevent

outsiders from looking in, and he was found not guilty.

Different facts produced a different result in another case cited to us by stakeholders, Utah v.

Foote.

In Foote, a UAS operator who flew close to multiple persons’ homes and filmed inside

was apprehended by police. He was charged with two misdemeanors—“voyeurism by

electronic equipment concealed or disguised” and attempts of the same conduct. At the time,

the law prohibited an individual from “intentionally us[ing] a . . . photographic camera of any

type, or other equipment that is concealed or disguised to secretly or surreptitiously videotape,

film, photograph, record, or view by electronic means” any part of a person’s body as to which

See Nat’l Dist. Attorneys Ass’n, NDAA Voyeurism Compilation (July 2010), available at https://ndaa.org/wp-

content/uploads/Voyeurism-2010.pdf (last visited Sept. 1, 2020).

Hillary B. Farber, Keep Out! The Efficacy of Trespass, Nuisance, and Privacy Torts as Applied to Drones, 33 Ga. L.

Rev. 359, 373 (2017).

People v. Beesmer, No. 14070635 (Town of Ulster, N.Y. Crim. Dist. Ct. 2015).

New York Penal Law § 110/250.45 (emphasis added).

Utah v. Foote, No. 171300054 (Spanish Fork, UT Crim. Dist. Ct. 2017).

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 16

they have “a reasonable expectation of privacy” without the person’s knowledge or consent.

Stakeholders told us the UAS operator pleaded no contest to one count of attempted voyeurism

and was ordered to pay a $500 fine and serve a one-year term of probation.

b. State Common Law Privacy Torts

A second type of general state law protection that may provide recourse for UAS-related

invasions of privacy are common law privacy torts. As noted, since Brandeis and Warren’s

1890 Right to Privacy article, courts have recognized four basic torts to address different types

of invasion of privacy, now adopted in the Restatement (Second) of Torts. The two torts most

commonly cited by legal commentators as potentially relevant to UAS privacy are intrusion upon

seclusion and public disclosure of private facts, which we discuss below.

As detailed below,

because some elements of these torts may be difficult to prove in the UAS context, some legal

commentators have suggested they may provide little practical relief,

while others are more

optimistic.

(i) Intrusion Upon Seclusion (Restatement (Second) of Torts § 652B)

The basic elements of the tort of intrusion upon seclusion are: (1) a person intentionally

intrudes, physically or otherwise, upon the solitude or seclusion of another person or his private

affairs; and (2) the intrusion would be highly offensive to a reasonable person.

There is no

requirement that the “intruder” take photographs or collect other personal data or that any data

collected be made public. This is a tort that protects a person’s “pure” physical privacy and, if

personal information about them is captured, their personal data privacy as well. As the

California Supreme Court explained in Shulman v. Group W Productions, Inc., this tort “is

perhaps the one that best captures the common understanding of an ‘invasion of privacy.’ . . . It

is . . . that invasion of privacy [that] is most clearly seen as an affront to individual dignity.”

As a practical matter, many intrusion upon seclusion cases turn on where the surveilled person

was located and whether they had a “reasonable expectation of privacy” in that setting.

Courts generally have interpreted the “solitude or seclusion” requirement to mean a person

must be in a private rather than a public setting. Physically intruding into someone’s home,

using binoculars or a camera or peering through a window to see into the home, or using

Utah Code Ann. § 76-9-702.7 (emphasis added). This law has since been amended.

See, e.g., 2013 CRS Drones Report, supra note 4, at 14; Farber, supra note 83, at 396; John Villasenor,

Observations From Above: Unmanned Aircraft Systems and Privacy, 36 Harv. J.L. & Pub. Pol’y 457, 500-01 (2013);

Benjamin D. Mathews, Potential Tort Liability for Personal Use of Drone Aircraft, 46 St. Mary’s L.J. 573, 586-88

(2015); Schaffer, supra note 60, at 55.

See, e.g., Farber, supra note 83, at 402; Calo, supra note 4, at 31.

See, e.g., Villasenor, supra note 88, at 500-03. See also Testimony of John Villasenor before the Senate

Committee on Commerce, Science, and Transportation, Subcommittee on Aviation Operations, Safety, and Security,

March 24, 2015 (same).

Restatement (Second) of Torts § 652B.

Shulman, supra note 33, 955 P.2d at 489.

See 2013 CRS Drones Report, supra note 4, at 15 and cases cited therein; Farber, supra note 83, at 397, 399 and

cases cited therein.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

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mechanical aids or eavesdropping to hear conversations inside a home, typically suffices.

contrast, a person in public is generally not deemed to be in seclusion because his appearance

is “public and open to the public eye.”

Even parts of a person’s private property, including the

outside of the house, may be deemed public if they can be seen from a public vantage point

such as the street or a neighboring property.

Moreover, proving an intrusion in public was intentional rather than inadvertent may be

challenging. The intruder must be shown either to have desired the intrusion to occur or knew

with substantial certainty it would result from his actions.

Even in a public setting, however,

there may be matters about a person that are protected because they are not subject to “the

public gaze,”

and some settings have been deemed secluded from the public at large even

though the person may be seen or heard by others.

Finally, to prove the intrusion would be

“highly offensive to a reasonable person,” courts look to whether the intrusion would offend the

“ordinary reasonable man,” rather than someone with extraordinary sensibilities; whether that

ordinary person would “strongly object”

100

; and whether the intrusive conduct was repugnant or

“outrageously unreasonable,”

101

with a single incident sometimes but not usually being

sufficient.

102

The involvement of the press or other legitimate information gatherers might affect whether a

court finds liability. In Shulman, the California Supreme Court held “the media enjoy some

degree of favorable treatment under the California intrusion tort.”

103

Among other things, the

Restatement (Second) of Torts § 652B cmt. b; 2013 CRS Drones Report, supra note 4, at 15 and cases cited

therein; Farber, supra note 83, at 397-98 and cases cited therein.

Restatement (Second) of Torts § 652B cmt. c. See 2013 CRS Drones Report, supra note 4, at 15-16 (citing cases

involving individuals photographed in a race track winner’s circle, on line at an airport, in combat, and walking on a

public sidewalk, as well as the recording of vehicle license plate numbers in a public parking lot); Farber, supra note

83, at 400 and cases cited therein.

2013 CRS Drones Report, supra note 4, at 16 and cases cited therein; Farber, supra note 83, at 397, 400-01 and

cases therein.

2013 CRS Drones Report, supra note 4, at 14-15 and cases cited therein; Farber, supra note 83, at 396-97 and

cases therein.

Restatement (Second) of Torts § 652B cmt. c (giving the often-cited example of a woman in an amusement park

fun house whose skirt is blown over her head, revealing her underwear, based on Daily Times Democrat v. Graham,

12 So. 2d 474 (Ala. 1964)).

See, e.g. Shulman, supra note 33; Huskey v National Broadcasting Co., Inc., 632 F. Supp. 1282, 187-88 (N.D. Ill.

1986) (denying motion to dismiss prisoner’s suit against television crew that filmed him in prison exercise yard; “the

mere fact a person can be seen by others does not mean that person cannot legally be ‘secluded.’ Indeed, one

paradigm case of the tort is the Peeping Tom (see Restatement § 652B comment b, illustration 2). Further, Huskey's

visibility to some people does not strip him of the right to remain secluded from others.”).

100

Restatement (Second) of Torts § 652B cmt. d.

101

Farber, supra note 83, at 398-99 and cases cited therein; 2013 CRS Drones Report, supra note 4, at 14-15 and

cases cited therein.

102

Id.; Restatement (Second) of Torts § 652B cmt. d. See, e.g., Miller v. National Broadcasting Co., 232 Cal. Rptr.

668 (Cal. Ct. App. 1986) (single instance of filming man in his home while being resuscitated after heart seizure held

sufficient).

103

Shulman, supra note 33, 955 P.2d at 495 (emphasis in original).

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court held a television crew’s intrusions into the privacy of a car accident victim at the scene and

inside a medical evacuation helicopter may or may not be found “highly offensive” as a matter of

law; the “motives or justification of the intruder” (the film crew) must be considered in making

that determination, the court found.

104

Although the court acknowledged that the First

Amendment does not “immunize the press” from liability for committing torts (such as

trespassing) or crimes (such as wiretapping) in gathering the news, it concluded that “strong

societal interest in effective and complete reporting of events” reflected in the First Amendment

“may—as a matter of tort law—justify an intrusion that would otherwise be considered

offensive.”

105

How these common law tort elements would apply in the UAS context remains to be seen and

will be highly fact-dependent. With respect to cases involving UAS operations at or near one’s

home, one legal commentator has stated that just as proving drone aerial trespass may be

difficult because many states have adopted the “substantial interference with the use and

enjoyment of property” test (as discussed in Appendix II)—which may make it relatively easy for

drone operators to capture images inside and outside the home without “trespassing”

106

—

proving intrusion upon seclusion also may be difficult because of the need to prove intent to

intrude. A court might find intent based on drone-captured images of a person inside their

home, the commentator stated, assuming the person was not in public view or visible from

neighboring property.

107

A court also might find intent if the drone was hovering outside a

residential window, another legal commentator has observed,

108

although even this may not be

dispositive.

109

But “if the drone flies over someone’s fenced-in backyard and records him,”

according to the first commentator, “the tort may offer no relief” because the person might be

deemed to be in public view.

110

With respect to cases involving UAS operations away from the home, proving UAS intrusion

upon seclusion might be even more challenging because as noted, persons in public settings

are generally not deemed to be in solitude or seclusion. As one legal commentator observed,

“[FAA] rules impede the use of drones for now; United States privacy law does not. . . . Citizens

do not generally enjoy a reasonable expectation of privacy in public, nor even in the portions of

104

Shulman, supra note 33, 955 P.2d at 493.

105

Shulman, supra note 33, 955 P.2d at 493-95, citing Cohen v. Cowles Media and Dietemann, supra note 41, and

Branzburg, supra note 36.

106

Farber, supra note 83, at 383-84, 402.

107

Farber, supra note 83, at 402. See also 2015 CRS Drones Privacy Report, supra note 4, at 16 (using drone to

peer inside home using camera or extra-sensory technology likely would be found to be intrusion upon seclusion).

108

Villasenor, supra note 88, at 501-03 (“The potential of a UAS to intrude upon seclusion in the home is obvious. A

person who is unwillingly photographed in his or her own home by a UAS hovering just outside an otherwise

inaccessible window would have strong grounds for a valid cause of action, . . . [However] courts will be very unlikely

to consider a fleeting, accidental capture of imagery of a home’s curtilage or (through a window) interior acquired by a

passing UAS to be an invasion of privacy.”).

109

A UAS operator hovering close to a high-rise residence window in Seattle explained he was an aerial

photographer taking photographs of nearby property for new construction and had no intention of using his UAS to

look inside the apartment. See Farber, supra note 83, at 385, n. 207, citing Christina Sterbenz, Should We Freak Out

About Drones Looking in Our Windows?. Bus. Insider (Sept. 24, 2014), https://www.businessinsider.com/privacy-

issues-with-commercial-drones-2014-9 (last visited Sept. 1, 2020).

110

Farber, supra note 83, at 402.

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their property visible from a public vantage.”

111

Another legal commentator observed that

proving intent to intrude by recreational drone users could be difficult because they may

“capture images inadvertently. Thus a question for juries, and eventually lawmakers, will be

whether the intentional act of flying a drone is sufficient to give rise to a claim of intrusion upon

seclusion . . . .”

112

However, another legal commentator observed that “[a]lthough privacy

expectations are greatly reduced outside the home, the non-governmental use of a UAS to

capture images and other information taken while the individual is in a public setting could

nevertheless constitute an invasion of privacy.”

113

Finally, in cases involving UAS operations in both public and private settings, Fourth

Amendment protections might come into play, according to legal commentators. The Supreme

Court’s Fourth Amendment aerial surveillance precedents, if applied in the privacy tort context,

suggest that the more common it becomes to have drones operating in the national airspace,

the more difficult it will be to bring an intrusion upon seclusion claim. As noted, the Supreme

Court has held that for Fourth Amendment search-and-seizure purposes, there is no reasonable

expectation of privacy in backyards and other fenced-in areas where those areas can be seen

from above by the common technology of planes and helicopters.

114

This same reasoning might be applied to government searches by drone as drones become

more common, one legal commentator has stated—and a court might then apply the same

reasoning to a private actor in an intrusion upon seclusion case, given the common borrowing of

Fourth Amendment case law in determining privacy expectations for common law torts.

115

Yet

according to the commentator, drones in fact warrant more, not less, legal privacy protection

because of their greater technological capabilities to capture images, geo-location data, and

other personal information. “A reasonable person does not expect to be under constant

surveillance within and outside their home,” according to the commentator,

116

echoing a similar

statement by U.S. Supreme Court Justice Sotomayor.

117

111

Calo, supra note 4, at 31. See also 2015 CRS Drones Privacy Report, supra note 4, at 16-17 (likelihood of

successfully claiming intrusion upon seclusion of individual in a pubic space or private space visible from public

vantage point is “significantly diminished.”).

112

Mathews, supra note 88, at 587.

113

Villasenor, supra note 88, at 501.

114

See cases cited at supra note 4.

115

See, e.g., Veronica E. McKnight, Drone Technology and the Fourth Amendment: Aerial Surveillance Precedent

and Kyllo Do Not Account for Current Technology, 51 Calif. Western L. Rev. 263, 282 (May 2015). See also Farber,

supra note 83, at 399 (courts’ determinations of what constitutes a reasonable expectation of privacy change over

time and are significantly affected by technology); Chris Schlag, The New Privacy Battle: How the Expanding Use of

Drones Continues to Erode Our Concept of Privacy and Privacy Rights, 13 U. Pitt. J. Tech. L. & Pol’y 1, 21-22 (2013)

(“Absent some baseline mechanism for control, drone use may become so commonplace that it dissolves current

privacy expectations to the degree that individuals will have no reasonable expectation to privacy.”).

116

McKnight, supra note 115, at 289.

117

McKnight, supra note 115, at 288 (quoting public remarks by Justice Sotomayor, who observed, “There are

drones flying over the air randomly that are recording everything that’s happening on what we consider our private

property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far

we want to protect it and from whom.”) (citation omitted)).

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Personal Privacy Rights under Federal and State Law

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(ii) Public Disclosure of Private Facts (Restatement (Second) of Torts § 652D)

The tort of public disclosure of private facts, also known as publicity given to private life, also

might provide a common law remedy for UAS-related invasions of privacy, according to legal

commentators. This is a tort that protects an individual’s personal data privacy. The basic

elements are: (1) a person gives publicity to a matter concerning the private life of another

person; (2) the matter is of a kind that would be highly offensive to a reasonable person; and (3)

the matter is not of legitimate public concern.

118

When the publicized matter is of legitimate

public concern, there is no liability for this tort and First Amendment rights also might be

implicated.

The “publicity” requirement means the matter must be communicated not just to one person or a

small group but to the public at large or to so many persons that it is substantially certain to

become public knowledge.

119

The “private facts” or “private life” requirement excludes

information that is already public. This means what a person exposes to “the public eye,” such

as their personal appearance or the outside of their house, likely would not be deemed

private.

120

The requirement that the publicity would be “highly offensive to a reasonable person” means

only “unreasonable publicity” that would make a reasonable person feel “highly aggrieved,” not

just “moderate[ly] annoyed,” is actionable. As the Restatement explains, “[c]omplete privacy

does not exist in this world except in a desert, and anyone who is not a hermit must expect and

endure the ordinary incidents of the community life of which he is a part.”

121

Thus homeowners

whose home and swimming pool were photographed from their private roadway by Google’s

Street View program, with the photographs posted online, lost a suit against Google for public

disclosure of private facts because the court found “[n]o person of ordinary sensibilities would

be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her

ungated driveway and photographing the view from there.”

122

The requirement that the publicized matter not be of “legitimate public concern” has traditionally

excluded matters regarded as “news” in accordance with social norms of publishers and the

community, as well as excluding other information and facts “for purposes of education,

amusement, or enlightenment, when the public may reasonably may be expected to have a

legitimate interest in what is published.”

123

As with intrusion upon seclusion, it remains to be seen how these elements of public disclosure

of private facts would apply in the UAS context—for example, to a drone operator who captures

photographs or videos, sound recordings, or other potentially “private” facts about a person and

posts that information on social media or publishes it in traditional news outlets. Some of the

118

Restatement (Second) of Torts § 652D.

119

Restatement (Second) of Torts § 652D cmt. a.

120

Restatement (Second) of Torts § 652D cmt. b.

121

Restatement (Second) of Torts § 652D cmt. c.

122

Boring v. Google, Inc., 362 Fed. Appx. 273 (3d Cir. 2010). The court also denied the homeowners’ claims for

intrusion upon seclusion, negligence, and unjust enrichment, but granted their claim for trespass.

123

Restatement (Second) of Torts § 652D cmt. g, j.

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same challenges to recovery may arise as with the intrusion tort, such as whether the drone-

surveilled person had already made some of their “private facts” (e.g., their appearance) public

by being in a public setting or a setting viewable from a public vantage point.

As several legal commentators have noted, publicizing drone-collected information recorded in

public is “unlikely to result in successful claims. . . [T]he paramount question becomes whether

the plaintiff was in a place where one should reasonably expect to have privacy.”

124

Publicizing

the contents of drone-recorded conversations, by contrast, might be actionable.

125

And while

the court in the Google Street View case noted above held that online posting of photos of the

homeowners’ house and pool would not be highly offensive to a reasonable person, some legal

commentators have pointed out that drones’ enhanced video capabilities may capture far more

intrusive and “private” images which, if publicized, could be actionable.

126

Finally, as with intrusion upon seclusion, First and Fourth Amendment protections might come

into play. As noted, according to legal commentators, Fourth Amendment aerial surveillance

case law suggests it might become more difficult to bring a public disclosure of private facts

claim as the number of drones operating in the national airspace increases—a court might find

it has become less “reasonable” to expect privacy in certain settings. Also as noted, however, at

least one legal commentator has stated that greater legal privacy protections are needed when

drones are involved because of their greater technological capabilities.

First Amendment protections also might make it difficult to bring a public disclosure suit

involving UAS-collected private facts. Challenges could arise if the facts are of legitimate public

concern and their publication is protected by First Amendment’s rights of freedom of speech

and/or freedom of the press. As a law firm stakeholder we spoke to explained in comments filed

on behalf of the News Media Coalition:

“[R]obust, extensive and well-established state privacy laws [including intrusion upon

seclusion and public disclosure of private facts] already protect privacy. These laws

will apply to UAS photography as they do other forms of conduct, while, at the same time,

they will safeguard the public’s right to receive information and journalists’ First

Amendment rights to report the news. . . . State laws . . . safeguard the First Amendment

rights of journalists to gather the news, and the public’s right to receive the news, by firmly

protecting visual journalism in public places. Federal and state courts applying these

state laws have thus developed a robust body of case law balancing the right to privacy

against the constitutional protections for the free press.”

127

124

See, e.g., Mathews, supra note 88, at 587-90.

125

Bennett, supra note 81, at 5 (“Simply filming a private conversation from a drone probably won’t tee up a

publication of private facts claim, absent some effort on the snooper’s part to disseminate the conversation’s

contents; a quick fly-by, even when paired with video filming, probably won’t rise to the level of an intrusion upon

seclusion, either. A more sustained look might be a different story.”).

126

Farber, supra note 83, at 405 (capabilities of drones are “potentially more intrusive and nefarious” than Google

Street View technology); Villasenor, supra note 88, at 504 (“Images acquired by UAS could easily convey facts not

previously known to the public, and, upon publication, could be an actionable invasion of privacy in many states.”).

127

Comments submitted on behalf of the News Media Coalition by Holland & Knight LLP to NTIA, April 20, 2015, at

3-4, 6. These comments were submitted in connection with the NTIA-convened UAS best practices multi-stakeholder

process discussed in Part E. below,

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Personal Privacy Rights under Federal and State Law

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One legal commentator, however, has suggested that because of drones’ enhanced capabilities

to capture “private” facts, private individuals who become involuntarily caught up in newsworthy

events might nonetheless be able to sue for invasion of privacy if images of those persons are

publicized. “While news organizations are well aware of the tension between the privacy rights

of their subjects and their organizations’ First Amendment rights to gather news, they will almost

certainly need to reexamine existing policies in light of the unique imaging and other information

gathering capabilities (such as monitoring of wireless signals) of UAS,” the commentator stated.

“In addition, given the ease with which anyone—not only news organizations—can now publish

content, all users of UAS who contemplate publishing aerial images or other information from

UAS would be well advised to give careful consideration to the common law and statutory

invasion of privacy frameworks that apply in their jurisdictions.”

128

c. State Statutory Personal Privacy Laws (California Anti-Paparazzi Law)

A third type of general privacy law relevant to UAS-related invasions of privacy is illustrated by

California’s so-called anti-paparazzi statute, Cal. Civ. Code § 1708.8, cited to us by UAS

industry and state and local government stakeholders. This law protects both physical privacy

and personal data privacy. The law creates a private cause of action, broader in some respects

than the common law privacy torts discussed above, where there is either a “physical” or

“constructive” invasion of privacy for the purpose of photographing or otherwise recording a

person engaging in “private, personal, or familial activity.”

Although the law does not explicitly include the use of drones, it has been amended specifically

to ensure it applies to invasion of privacy by drones. The legislative history of a 2015

amendment to the statute explains that while the law’s “constructive invasion” provision likely

already covered the use of drones,

129

the California legislature wanted to ensure the “physical

invasion” tort also applied to drones. Citing the U.S. Supreme Court’s United States v. Causby

decision, discussed in Appendices I and II, for the principle that landowners have property rights

in the airspace above their property, the drafters included a reference to trespass “into the

airspace above the land of another person”

130

(aerial trespass) in addition to the law’s exiting

reference to traditional trespass “onto [another person’s] land.”

131

128

Villasenor, supra note 88, at 504-05.

129

“Constructive invasion of privacy” is committed by those who attempt to capture, “in a manner that is offensive to

a reasonable person, any type of visual image, sound recording, or other physical impression of the [person]

engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a

physical trespass . . . .” Cal. Civ. Code § 1708.8(b) (emphasis added),

130

See Bill Analysis re: Invasion of Privacy, A.B. 856, Calif. Senate Judiciary Committee, 2015-2016 Regular

Session, at pp. E-F (“This extension of the paparazzi law is consistent with existing . . . property law. . . ‘[I]f the

landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the

enveloping atmostphere.’ US v. Causby, 328 US 256 (1946). . . . This bill would expand the conditions under which a

person commits a physical invasion of privacy to include instances where the tortfeasor enters into the airspace

above the land . . . in order to capture images, recordings, or other physical impressions of a person . . . This

expansion would include using unmanned aerial vehicles or drones above the property of another to capture this

information data, which, because of their inherent maneuverability, can glide effortlessly above fences and walls

meant to exclude others.”).

131

“Physical invasion of privacy” now covers those who “knowingly enter[] onto the land or into the airspace above

the land of another person without permission or otherwise commits a trespass in order to capture any type of visual

image, sound recording, or other physical impression of the [person] engaging in a private, personal, or familial

activity and the invasion occurs in a manner that is offensive to a reasonable person.” Cal. Civ. Code § 1708.8(a)

(emphasis added).

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Personal Privacy Rights under Federal and State Law

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d. State Statutory Personal Information Privacy Laws (California Consumer

Privacy Act)

A final type of general state law potentially relevant to UAS privacy—the California Consumer

Privacy Act (CCPA)

132

—protects an individual’s personal data privacy. Some legal

commentators have called the CCPA, enacted in 2018, arguably the most expansive consumer

privacy legislation in U.S. history.

133

Some stakeholders we spoke with believe the law is

drafted sufficiently broadly that it may protect UAS-collected personal information.

134

The law

protects California residents’ “personal information,” defined broadly as “information that

identifies, relates to, describes, is capable of being associated with, or could reasonably be

linked, directly or indirectly, with a particular resident or household” and includes biometric

information (such as faces) and “[a]udio, electronic, visual, [and] thermal . . . or similar

information.”

135

The law took effect on January 1, 2020 and became enforceable by the California Attorney

General on July 1, 2020. It imposes a number of obligations on entities doing significant

business in California that “collect” residents’ personal information, including by purchase,

rental, receipt, access, or other means. Covered businesses must disclose to residents what

categories and specific pieces of personal information it is collecting about them and whether

that information is being sold or disclosed and to whom; stop selling personal information if

requested; allow residents to delete personal information that businesses have collected about

them; and provide non-discriminatory service and prices to residents even if they exercise these

rights under the law.

136

Commentators have suggested covered businesses may decide to

extend these protections to consumers beyond California for customer relations or other

reasons.

137

Whether the CCPA will protect the privacy of UAS-collected personal information,

and whether it will be preempted in the event Congress enacts federal consumer data privacy

legislation, remains to be seen.

2. State and Local UAS-Specific Privacy Laws

a. Enacted State and Local UAS-Specific Privacy Laws

As detailed in Appendix IV, at least 46 states had enacted or issued some type of UAS-specific

law, resolution, or executive order as of the end of 2019. Based on our analysis, it appears the

132

Stats. 2018, ch. 55 (A.B. 375), § 3, codified at Cal. Civ. Code §§ 1798.100 et seq.

133

See, e.g., Purvi G. Patel, Nathan D. Taylor, Alexandra E. Laks, Expert Q&A: The California Consumer Privacy Act

of 2018, 2018 WL 3341493 (Oct. 2, 2018).

134

See generally Cynthia Larose, Laura Stefani, Jonathan Markman, and Elana R. Safner, A New California Privacy

Law Could Change Everything for Drone Operators in the U.S. (Jan. 2, 2020), available at

https://dronelife.com/2020/01/02/a-new-california-privacy-law-could-change-everything-for-drone-operators-in-the-u-

s/ (last visited Sept. 1, 2020).

135

Cal. Civ. Code § 1798.140(o)(1)(h).

136

Stats. 2018, ch. 55 (A.B. 375), § 2.

137

Patel et al., supra note 133.

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Personal Privacy Rights under Federal and State Law

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laws in at least 26 of these states addressed privacy matters.

138

Florida, for example, has

authorized private suits to prohibit the use of drones equipped with an imaging device, by any

person, state agency, or political subdivision, to record an image of private property or the

owner or others legally on the property in violation of the surveilled person’s “reasonable

expectation of privacy.” The law then broadly defines that term as where the person cannot be

observed by others at ground level in a place where they have a legal right to be, regardless of

whether they could be seen from the air by a drone, which provides more protection than Fourth

Amendment case law.

139

Arkansas’s statute provides another example. It criminalizes the use of drones (and other

devices) to commit voyeurism and video voyeurism in certain locations or under certain

circumstances where persons have a reasonable expectation of privacy.

140

Louisiana has

amended its existing privacy laws (voyeurism, video voyeurism, and a Peeping Tom law) to add

drones as another method by which these crimes may be committed.

141

In addition to states, some localities have enacted UAS-specific privacy laws as well. As noted

in Appendix I, for example, Stone Harbor, New Jersey passed a series of UAS ordinances in

2019 which, among other things, prohibit taking photographs, video, or audio with a UAS where

persons have “a reasonable expectation of privacy.”

142

No stakeholders we spoke with were aware of instances in which state or local UAS-specific

privacy laws had yet been enforced in a particular case.

b. Uniform Law Commission Draft Model Drone Privacy Act

As discussed in Appendix II, in anticipation of increased drone operations as UAS integration

into the national airspace system progresses, the Uniform Law Commission’s Uniform Tort Law

Relating to Drones Act Drafting Committee began work in late 2017 to draft a model act that

would create liability rules specific to UAS operations that states nationwide could enact. While

the Drafting Committee’s efforts have focused on drafting a model drone aerial trespass act, as

discussed in Appendix II, the Committee also has worked to draft a model drone privacy act.

The Committee initially considered proposing a UAS-specific version of the intrusion upon

seclusion privacy tort discussed above. The Committee then drafted a privacy law similar to

California’s anti-paparazzi statute. As discussed above, that law authorizes private suits for

“physical” and “constructive” invasions of privacy—including aerial trespass—if the invasion of

privacy was for the purpose of photographing or otherwise recording a person engaging in

138

Based on our analysis of data compiled by the National Conference of State Legislatures, as of 2019, the 26

states whose UAS-specific laws addressed privacy matters were Alaska, Arkansas, California, Colorado, Delaware,

Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Mississippi, Montana, North

Carolina, Oregon, New Jersey, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin.

139

Fla. Stat. §§ 934.50(3)(b), (5)(b). As noted above, see supra note 4, the Supreme Court has ruled there is no

Fourth Amendment reasonable expectation of privacy from the government either in a persons’ backyard or on other

private property where someone flying in a plane or helicopter can see activity on the ground.

140

Ark. Code §§ 5-16-101(b), 5-16-102(b).

141

La. Stat. Ann. §§ 14:283, 14:283.1, 14:284.

142

Stone Harbor, N.J., Code § 405-15.

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“private, personal, or familial activity.” The Committee’s draft law also incorporated the Florida

drone privacy act’s broad definition of where a person has a “reasonable expectation of

privacy”; as noted above, Florida has defined this to include where the person cannot be

observed by others at ground level in a place where they have a legal right to be, regardless of

whether they could be seen by drone from the air.

Subsequent Committee drafts and discussions addressed the First and Fourth Amendment

issues discussed above; created a “safe harbor” defense where protected personal data is

deleted; considered whether to protect privacy when drones use cameras to view persons in

real time or only when they both view and record photos or other information about a person;

and adopted alternative approaches for states with and without existing privacy laws.

Ultimately, because of major differences nationwide in the privacy interests that states currently

protect and how they protect them, the Committee determined it was inappropriate to propose

enactment of a substantive uniform UAS privacy act at this time. Instead, it decided to propose

a law simply affirming that a state’s existing privacy laws, if any and whatever their content,

apply to actions taken by drones.

143

The Committee believed this approach would avoid the

possibility of introducing duplicative or conflicting provisions in those states with existing privacy

laws potentially applicable to drones. It also would be technology-neutral: if it would be a

violation of privacy rights under a state’s law to observe a person through their bedroom window

using a camera with a telephoto lens, for example, the Committee explained, observing that

person using an UAS hovering outside the window would likewise be a violation of privacy

rights.

As discussed in Appendix II, however, the Committee’s final draft drone tort law, including both

these privacy provisions and the aerial trespass provisions, was withdrawn from consideration

at the Commission’s July 2019 annual meeting and the Commission has suspended the

Committee’s work as of January 2020.

E. “Voluntary Best Practices” Protecting UAS-Collected Personal Information (NTIA-Convened

Multi-Stakeholder Process)

As noted above, in February 2015, the President issued a Presidential Memorandum

announcing the federal government was taking steps to ensure that UAS integration into the

national airspace system accounts for UAS-related privacy concerns, among other things. One

of those steps was the President’s direction to the National Telecommunications and

Information Administration (NTIA) to convene a multi-stakeholder engagement process “to

develop and communicate best practices for privacy, accountability, and transparency issues”

for non-government UAS operations.

144

In commencing this process in March 2015, NTIA noted that UAS “can enable aerial data

collection that is more sustained, pervasive, and invasive than manned flight; at the same time,

UAS flights can reduce costs, provide novel services, and promote economic growth. These

attributes create opportunities for innovation, but also pose privacy challenges regarding

143

See National Conference of Commissioners on Uniform State Laws, Annual Meeting Draft, Uniform Tort Law

Relating to Drones Act, June 2019, Sec. 8 (“Unmanned Aircraft and Violations of Privacy. “An unmanned aircraft is an

instrumentality by which a tort in violation of privacy rights may be committed under federal or state law.”).

144

2015 UAS Privacy Presidential Memorandum, supra note 11.

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Personal Privacy Rights under Federal and State Law

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collection, use, retention, and dissemination of data collected by UAS.”

145

NTIA therefore

requested public comment on, among other things, whether commercial UAS operations create

unique or heightened privacy issues compared to non-UAS platforms performing the same

services and how UAS privacy risks can be mitigated. Comments were submitted by about 50

organizations and individuals,

146

after which NTIA convened a series of meetings in 2015 and

2016 to provide a forum for discussion and consensus-building. In addition to industry and

organizational stakeholders, officials from FAA and FTC participated as observers.

The process concluded in May 2016, producing a set of voluntary best practices entitled,

Voluntary Best Practices for UAS Privacy, Transparency, and Accountability: Consensus,

Stakeholder-Drafted Best Practices Created in the NTIA-Convened Multistakeholder Process

(UAS Voluntary Best Practices).

147

Twenty-one UAS industry, news media, and other

organizations then indicated their support of these UAS Voluntary Best Practices in concept.

148

The UAS Voluntary Best Practices state that they are intended to set forth actions that “UAS

operators could take to advance UAS privacy, transparency, and accountability for the private

and commercial use of UAS.” They are self-regulatory, not legally binding, and “[i]n some

cases, . . . are meant to go beyond existing law . . . .” The UAS Voluntary Best Practices “do

not—and are not meant to—create a legal standard of care by which the activities of any

particular UAS operator should be judged.” In addition, they are “not intended to serve as a

template for future statutory or regulatory obligations, in part because doing so would make

these standards mandatory . . . and could therefore raise First Amendment concerns.”

The UAS Voluntary Best Practices apply to “covered data” collected by commercial and

recreational UAS operators, defined as “information collected by a UAS that identifies a

particular person. If data collected by UAS likely will not be linked to an individual’s name or

other personally identifiable information, or if the data is altered so that a specific person is not

recognizable, it is not covered data.”

149

In general, the UAS Voluntary Best Practices state that UAS operators should:

145

80 Fed. Reg. 11978, 11979 (March 5, 2015).

146

Comments were submitted by, among others, recreational and commercial UAS users, a large UAS

manufacturer, individual UAS operator/users including Amazon, a UAS technology company,

news organizations,

academics and academic institutions, civil rights, civil liberties, privacy and civil liberties groups including the Future

of Privacy Forum and the Center for Democracy and Technology, the real estate, insurance, and utility industries, air

mapping and airspace management companies, an amusement park association, agricultural associations,

geographic information system companies, and the motion picture industry. The comments are available at

https://www.ntia.doc.gov/federal-register-notice/2015/comments-privacy-transparency-and-accountability-regarding-

commercial-a (last visited Sept. 1, 2020).

147

Voluntary Best Practices for UAS Privacy, Transparency, and Accountability: Consensus, Stakeholder-Drafted

Best Practices Created in the NTIA-Convened Multistakeholder Process (2016) (UAS Voluntary Best Practices),

available at https://www.ntia.gov/files/ntia/publications/uas_privacy_best_practices_6-21-16.pdf (last visited Sept. 1,

2020). See generally NTIA, Finding Common Ground on UAS (May 19, 2016), available at

https://www.ntia.doc.gov/blog/2016/finding-common-ground-uas (last visited Sept. 1, 2020).

148

The 21 entities included individual UAS operators, users, and manufacturers (e.g., Amazon, X (formerly Google

X), and PrecisionHawk), news organizations, the U.S. Chamber of Commerce, software and technology groups and

companies, small-UAS users, a privacy group (Future of Privacy Forum) and an Internet-focused civil liberties group

(Center for Democracy and Technology).

149

UAS Voluntary Best Practices, supra note 147, at 2, 4.

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• avoid using UAS “for the specific purpose of intentionally collecting covered data where the

operator knows [the person] has a reasonable expectation of privacy,” unless there is a

“compelling need to do otherwise”;

• make a “reasonable effort to minimize” UAS operations over or within private property

without landowner consent and “appropriate legal authority,” unless this would impede the

purpose for which the UAS is used or conflict with FAA guidelines;

• make reasonable efforts, where practicable, to give advance notice to potentially affected

individuals of the general time and place where UAS operations may “intentionally” collect

covered data;

• provide a publicly available privacy policy, where covered data collection is anticipated, that

includes, as practicable, the purposes of data collection, the kinds of data to be collected,

any data retention and de-identification practices, examples of any entities with whom the

data will be shared, how to file a complaint, and how responses will be made to law

enforcement requests for collected data;

• make a “reasonable effort to avoid knowingly retaining covered data longer than reasonably

necessary”; and

• limit the use and sharing of data; secure collected data; and monitor and comply with

evolving federal, state, and local UAS laws.

150

The UAS Voluntary Best Practices do not apply to news organizations and other newsgatherers

because their activities “are strongly protected by United States law, including the First

Amendment to the Constitution.” Instead, these entities “should operate under the ethics rules

and standards of their organization and according to existing federal and state laws.”

151

The UAS Voluntary Best Practices do apply to both recreational and commercial UAS operators

(other than news gathering organizations), and the Practices include a short reference guide,

“Guidelines for Neighborly Drone Use,” for recreational users. Among other things, the

Guidelines explain that “[p]rivacy is hard to define but it is important. There is a balance

between your rights as a drone user and other people’s rights to privacy. That balance isn’t easy

to find.” The Guidelines then provide a list of “do’s and don’ts,” including the admonition that “[i]f

you think someone has a reasonable expectation of privacy, don’t violate that privacy by taking

pictures, video, or otherwise gathering sensitive data, unless you’ve got a very good reason.”

152

Several UAS stakeholders told us that developing best practices rather than enacting binding

legislation was appropriate at the time they were drafted given the nascent stage of UAS

technology and their view that binding laws can stifle innovation. Once platforms and business

models have matured, policymakers can legislate wisely based on actual experience, they said.

On the other hand, a privacy group stakeholder we spoke to and a civil liberties group, who both

participated in the NTIA multi-stakeholder process, have said they did not sign on as supporters

to the final UAS Voluntary Best Practices because were not legally enforceable and industry

150

UAS Voluntary Best Practices, supra note 147, at 5-6. Several of these types of features have been included in

legislation introduced in recent Congresses. See, e.g., Drone Aircraft Privacy and Transparency Act of 2017, S. 631

and H.R. 1526, 115

Cong. (2017); Drone Aircraft Privacy and Transparency Act of 2015, H.R. 1229, 114

Cong.

(2015); Drone Aircraft Privacy and Transparency Act of 2013, H.R. 1262, 113

Cong. (2013). Some of these features

also are similar to restrictions now imposed on federal agencies’ use of drones by the 2015 UAS Privacy Presidential

Memorandum that mandated the NTIA multi-stakeholder process.

151

UAS Voluntary Best Practices, supra note 147, at 7.

152

UAS Voluntary Best Practices, supra note 147, at 8.

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should be willing to commit to basic privacy principles rather than making vague and non-

binding statements.

As discussed in Part C.3., however, although the UAS Voluntary Best Practices are not legally

binding and do not create legal standards of care by which UAS operator actions can be judged,

FTC officials told us that once a company announces it is abiding by one or more of the

Voluntary Best Practices (or any code of conduct or binding or non-binding rules or practices),

failure to comply could be an “unfair” or “deceptive” trade practice which FTC could enforce

under section 5 of the FTC Act. The officials said FTC’s use of the Voluntary Best Practices in

this way was discussed during the multi-stakeholder drafting process. The officials also

indicated their understanding that companies are generally adhering to the Voluntary Best

Practices today.

F. Stakeholder Issues and Positions

FAA,

153

NTIA,

154

and FTC

155

have characterized the ongoing debate about UAS privacy as

involving three key issues:

• whether UAS pose novel privacy concerns or instead are simply a new technology raising

the same concerns as other technologies;

• whether UAS privacy concerns are adequately addressed under existing law or instead

warrant additional, possibly UAS-specific privacy laws; and

• how UAS privacy concerns should be further addressed.

We discuss below the general range of positions on these matters expressed by stakeholders

we spoke to and others who have addressed these issues.

1. Stakeholder Positions on Whether UAS Operations Raise Novel Privacy Concerns

a. Federal Agency Statements

Agency officials we spoke with at FAA, NTIA, and FTC, each of which agencies have taken

actions to address UAS privacy, did not express formal views on any of the above issues. The

agencies have previously noted that UAS have characteristics that may raise privacy concerns:

FAA, in issuing its proposed fights-over-people rule in February 2019, “acknowledge[d that]

unique characteristics and capabilities of UAS may pose uncertainties with regard to individual

privacy. . . . [T]hese concerns are generally related to technology and equipment, which may be

installed on an unmanned (or manned) aircraft, but are unrelated to the safe operation of the

aircraft.”

156

NTIA, in convening the 2015-2016 Presidentially-mandated multi-stakeholder engagement

153

81 Fed. Reg. at 42190 (Part 107 final rule); 84 Fed. Reg. at 3893 (proposed flights-over-people rule).

154

80 Fed. Reg. 11978, 11979 (March 5, 2015) (NTIA request for comment regarding UAS privacy mutli-stakeholder

process).

155

Agenda, FTC UAS Privacy Workshop, Oct. 13, 2016, supra note 80.

156

84 Fed. Reg. at 3893; see supra note 153.

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process that resulted in the UAS Voluntary Best Practices discussed above, stated that “UAS

can enable aerial data collection that is more sustained, pervasive, and invasive than manned

flight . . . These attributes . . . pose privacy challenges regarding collection, use, retention, and

dissemination of data collected by UAS.”

157

Then-FTC Commissioner Ohlhausen, in remarks at FTC’s October 2016 UAS privacy

workshop, noted that new technologies often have impacts on privacy and that part of society’s

adaptation to these new technologies and their privacy impacts can be changes in law, policy,

and social norms. As an example of such legal changes, the Commissioner noted that the

invention of portable cameras and instantaneous photography prompted the writing of

Brandeis

and Warren’s 1890 Right to Privacy law review article. This, in turn, ultimately led to

development of the common law privacy torts and criminal Peeping Tom laws that remain an

important part of today’s legal framework protecting personal privacy. Commissioner

Ohlhausen commented that concerns about UAS privacy are likewise not surprising, “given that

drones can be used as flying platforms for sensors, including cameras.” It remains to be seen

what all of the potential benefits of UAS are, what unique privacy concerns they may raise, and

what the resulting consumer protection issues might be, she said.

158

b. Other Stakeholder Positions

A number of UAS stakeholders we spoke to, as well as news organizations, academic

stakeholders, and others, have stated that UAS have characteristics that can raise privacy

concerns. The characteristics cited most often are UAS’s small size and maneuverability—

what an academic stakeholder has called their “locational capability”

159

—and their capacity to

carry sophisticated recording and sensing equipment—what a UAS manufacturer stakeholder

has called their “robust data collection capability.”

160

The UAS Voluntary Best Practices,

supported in concept by 21 companies and organizations, acknowledge that these traits can

raise privacy concerns.

161

A UAS manufacturer stakeholder we spoke to, several privacy

groups, and several academics also have identified the typical “remoteness” of the drone

operator—the fact that the operator is usually in a location remote from, and therefore is

unseen by, those the drone is flying over and potentially collecting data about—as a unique

privacy risk because the identity of the pilot and the purposes of the flight are unknown.

Stakeholders have expressed differing views, however, on whether UAS operations raise

157

80 Fed. Reg. at 11979; see supra note 154.

158

Remarks of FTC Commissioner Ohlhausen, FTC Fall Technology Series: Drones, Oct. 13, 2016 (2016 FTC UAS

Privacy Workshop), Segment 1, Transcript available at https://www.ftc.gov/system/files/documents/videos/ftc-fall-

technology-series-drones-part-1/ftc_fall_technology_series_drones_-_transcript_segment_1.pdf (last visited Sept. 1,

2020).

159

Remarks of Gregory McNeal, Professor of Law and Public Policy, Pepperdine University School of Law and Co-

Founder, AirMap, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

160

Remarks of Kara Calvert, Director, Drone Manufacturers Alliance, 2016 FTC UAS Privacy Workshop Segment 1,

supra note 158. See also Ravich, supra note 10, 42 N. Ky. L. Rev. at 162 (“Fundamentally, then, [UAS] are aerial

platforms on which to deploy the latest and most sophisticated hardware and software information-gathering

gadgets.”).

161

The Voluntary Best Practices state that “the very characteristics that make UAS so promising for commercial and

non-commercial uses including their small size, maneuverability and capacity to carry various kinds of recording or

sensory devices, can raise privacy concerns.” UAS Voluntary Best Practices, supra note 147, at 2.

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Personal Privacy Rights under Federal and State Law

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unique privacy concerns. On the one hand, stakeholders from the UAS industry and elsewhere

have stated UAS privacy concerns are not unique, at least with respect to their information

collection capabilities, because they are just one of many

platforms equipped with cameras and

sensors that have the potential to collect data and information. One UAS manufacturer

stakeholder we spoke to, for example, has noted that aerial imagery such as that conducted by

drones is not new: airplanes have been flying for over a century, satellites provide overhead

imagery at high resolution that can be publicly accessed such as on Google Maps, and other

companies such as Bing Maps provide even higher resolution aerial imagery captured by

manned aircraft from a “Bird’s Eye” view. The UAS privacy debate therefore should start not

with devising legal solutions or best practices to address possible problems, but with identifying

what actual problems, if any, have been created by technologies and practices unique to UAS,

the stakeholder said.

162

Similarly, an academic stakeholder has questioned whether there are harms uniquely

attributable to UAS as opposed to other technologies, suggesting there is no difference

between a GoPro camera held in one’s hand and the same camera affixed to a drone one inch

above that in the air. Restricting one but not the other leads to “the slippery slope of privacy

law . . . [And] the path of privacy law protections eventually leads to a conflict with the First

Amendment, my right to freely associate; my right to freely gather information, not just for

journalists and news gathering organizations, but for any person who wants to engage in that

protected speech, of which photography is a protected form of speech,” the stakeholder said.

163

A privacy s

takeholder we spoke to also has noted the many capabilities of equipment added as

a payload on a drone—“[d]rones may be best understood as an aerial platform that will offer a

wide variety of different services,” the stakeholder said—and cited some of their novel

applications.

164

Nonetheless, the stakeholder emphasized that although “[i]ndividually, these

sensor capabilities will collect a lot of information, . . . privacy concerns will only arise” based

on the combination of sensors on board the drone (e.g., whether the drone will be able to

record images as well as live-view) and how the collected data will be allowed to be used.

165

On a related note, two UAS trade association stakeholders we spoke to have stated that UAS

privacy discussions are often driven by hypotheticals and hyperbole and that UAS privacy

issues are like those raised by other technologies such as cameras on mobile devices. “In

162

Remarks of Brendan Schulman, Vice President of Policy & Leal Affairs, DJI Technology, 2016 FTC UAS Privacy

Workshop Segment 1, supra note 158.

163

Remarks of Gregory McNeal, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158. We discuss the

potential impact on UAS operations of the First Amendment, freedom of speech, and rights to take photographs and

gather news and other information in Part B. above. Similarly, another legal commentator has said that while drones

have the capability “to obliterate traditional notions of privacy, trespass, and government searches,” the appropriate

reaction is not to enact “reactionary laws that completely squelch innovation and allowable uses” but rather to

determine whether “[e]xisting Fourth Amendment and privacy protections may be sufficient . . . .” Ravich, supra note

10, 42 N. Ky. L. Rev. at 189-90.

164

Comments of Future of Privacy Forum, April 20, 2015, NTIA-Convened UAS Privacy Multi-Stakeholder Process,

at 4-5. These applications included providing a simultaneous array of different audio-visual sensors, broadcasting

equipment, and connective functionality by use of high-powered zoom camera lenses; advanced imaging capabilities

such as night vision, infrared, ultraviolet, and thermal imaging; radar technologies; video analytics technologies;

biometric recognition capabilities; and the ability to connect to personal devices on the ground.

165

Id.

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Personal Privacy Rights under Federal and State Law

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fact,” one of these stakeholders has said, “with sensors of all kinds getting smaller and

cheaper, all sorts of data will be transmitted from unlikely places.”

166

Finally, a UAS manufacturer stakeholder has said UAS privacy is “really about behavior”

167

and

as an example, another UAS manufacturer stakeholder has said persistent surveillance by a

drone is a “societal problem we have to deal with without regard to which technology” is

involved.

168

An entity that “misbehave[s]” in how it uses UAS-collected personal data or in how

it commits to using it but then violate[s] that commitment is not different from other technology

users that misbehave in the same ways, the first UAS manufacturer stakeholder said.

169

And

UAS operator and trade association stakeholders we spoke to and a news coalition, citing

Brandeis and Warren’s 1890 Right to Privacy essay that formed the basis for modern privacy

tort law, stated that just as Brandeis, Warren, and the public initially decried the use of the

newly invented portable camera to invade personal privacy, yet the public has now embraced

this technology, the same evolution will occur with drones as the public becomes accustomed

to them and appreciates their many benefits.

On the other hand, privacy group stakeholders we spoke to, academics, and other legal

commentators have said UAS do raise unique privacy concerns—what one privacy group has

referred to in the law enforcement context as “the perfect storm for surveillance concerns”

170

and others have characterized as UAS-enabled “spying.”

171

These concerns stem from drones’

unique combination of small size (and thus their unobtrusiveness and ability to maneuver in

small spaces), their mobility through the airspace including being able to hover in place, and

their virtually universal use of some type of digital camera, live video-streaming capability, or

sensory-enhancing technology—what one legal commentator has described as a “platform for

enabling surveillance.”

172

Another legal commentator has attributed drones’ “unique” privacy risks to the increasing

number of drones operated by not only by the government but by private actors, due in part

from their relatively low cost.

173

A civil liberties group has said “UAS are far more than flying

166

Comments of Small UAV Coalition, April 20 2015, NTIA-Convened UAS Privacy Multi-Stakeholder Process, at 4.

167

Remarks of Kara Calvert, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

168

Remarks of Brendan Schulman, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

169

Remarks of Kara Calvert, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

170

Electronic Frontier Foundation, The Civil Rights and Privacy Implications of Government Use of Drones,

Presentation at DOJ Unmanned Aircraft Systems Convening, in DOJ Office of Justice Programs, Institute of Justice,

Considerations and Recommendations for Implementing an Unmanned Aircraft System Program, Report NCJ

250283 (Dec. 2016) at 77, 81.

171

Melissa Barbee, Uncharted Territory: The FAA and the Regulation of Privacy Via Rulemaking for Domestic

Drones, 66 Admin. L. Rev. 463, 475, 478 (Spring 2014). See also Katy McLaughlin, The Spies From Above, Wall

Street Journal, June 21, 2019.

172

Farber, supra note 83, at 370.

173

Bennett, supra note 81, at 6 (“Two core assumptions inform modern drone policy: drones will allow for more aerial

surveillance than other airborne platforms have to date, and more drones will soon find their way into more private

hands. If these postulates prove even partially true, then drones are unique.”).

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Personal Privacy Rights under Federal and State Law

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cameras,” emphasizing their “technologically unique nature.”

174

“[M]any are enabled with

movement, light, or temperature sensors, some are Internet-connected, and others carry and

deliver supplies. . . UAS are capable of going places manned aircraft cannot (such as between

narrow buildings) and operating in environments that humans cannot (such as during high-g

tactical maneuvers, high altitudes, and long times aloft). UAS, like manned aircraft, have

unique vantage points allowing for levels of surveillance that ground-based individuals may not

expect,” the group has said.

175

As a result, rules or guidance should be developed identifying

the types of locations where individuals have a reasonable expectation of privacy—within their

homes and potentially other locations on their private property—so appropriate steps can be

taken to protect their privacy, according to this group.

According to a privacy group stakeholder we spoke to and a group of academic stakeholders,

the types of unique privacy problems UAS can pose are more likely to arise with commercial

rather than recreational UAS operations.

Commercial UAS are typically equipped with cameras

and other sensors capable of collecting personal information and may collect more information

than consumers might imagine, they said. As the privacy group stakeholder said, “if you know

anything about tech companies, they like to . . . collect information. So it’s not out of the realm

of possibility that the technology used to navigate the airspace . . . will also be used to collect

information about the environment and the public below.”

176

For example, the academic stakeholders group noted, in the case of a delivery drone equipped

with a recording camera, a consumer can reasonably foresee the

UAS would acquire and store

their address. However, they explained, “[i]t is one thing for a delivery UAS to know where you

live, and another entirely for the delivery UAS to record and store data on what bathrobe you

were wearing each time you open your door to collect a package. . . And while layering on

facial recognition technology could theoretically be valuable to the delivery service—

recognizing the intended recipient before completing delivery could cut down on stolen or

missing packages, for example—

that, too, adds a level of privacy concern that is unforeseeable

when considering delivery UAS in the abstract.”

177

Another novel aspect of UAS operations raising personal data privacy concerns, one of these

academic stakeholders has noted—at least as distinguished from personal data an individual

provides with nominal consent to online businesses—is that UAS-collected personal data are

typically collected without consent and often even without the individual’s knowledge that data

are being collected.

178

174

Comments of Center for Democracy & Technology, April 20 2015, NTIA-Convened UAS Privacy Multi-

Stakeholder Process, at 1.

175

Comments of Center for Democracy & Technology, supra note 174, at 2.

176

Remarks of Jeramie D. Scott, Director, Electronic Privacy Information Center (EPIC} Domestic Surveillance

Project, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

177

Comments of Assistant Professor Margot E. Kaminski, Amie Stepanovich, and Nabiha Syed, undated, NTIA-

Convened UAS Privacy Multi-Stakeholder Process, at 5.

178

Remarks of Margot E. Kaminski, Assistant Professor of Law, Moritz College of Law, The Ohio State University, at

2016 FTC UAS Privacy Workshop, Segment 2, Transcript available at

https://www.ftc.gov/system/files/documents/videos/ftc-fall-technology-series-drones-part-

2/ftc_fall_technology_series_drones_-_transcript_segment_2.pdf (last visited Sept. 1, 2020).

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Personal Privacy Rights under Federal and State Law

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In addition, a technology public policy stakeholder has questioned the view that images

captured by drones are no different than images captured by Google and other commercial

entities using cars, planes, and satellites. The stakeholder explained, “[o]f course, drones are

different: they are not simply better [Google] Street View cameras. They do raise new

concerns: unlike Street View cameras, which merely automate, systemize and preserve what

anyone could already see from public streets, drones can observe us from completely new

angles—and, potentially, from much closer distance, depending on how

low they are allowed to

fly. Certainly, drones can observe us in a level of detail that is far more granular than what

satellites could do—and probably also more than what manned aerial systems could do. How

private actors use such UAS creates legitimate grounds for concern—above and beyond what

government might do with them . . . .”

179

Finally, a privacy stakeholder we spoke to has questioned the position that the public will

become accustomed to drones and embrace this new technology as it did with portable

cameras a century ago, after Brandeis and Warren declared their use an invasion of privacy.

The stakeholder said the public has not, in fact, grown accust

omed to cameras as a technology

per se

; it has grown accustomed to the use of cameras in settings where there is no reasonable

expectation of privacy. This distinction is illustrated by a Supreme Court decision that use of a

different technology, GPS, can violate the Fourth Amendment.

180

The Court ruled that even

though use of GPS is embraced in many settings, its use violated a defendant’s reasonable

expectation of privacy in a different setting. Brandeis and Warren’s fundamental point—that

technology can be used in ways that unacceptably invade personal privacy—therefore remains

valid today, the stakeholder said.

181

2. Stakeholder Positions on Whether UAS Privacy Issues Are Adequately Addressed

Under Existing Law

On the one hand, stakeholders that have indicated UAS generally do not raise novel privacy

concerns also have generally indicated that any UAS privacy concerns are adequately

addressed by existing privacy laws. They do not believe there is a

gap that needs to be filled to

protect UAS privacy because there are strong frameworks of robust, extensive, and well-

established state laws that protect personal privacy. These frameworks, the stakeholders

state, have developed over decades of lawmaking and reasoned judicial decision-making to

encompass and address each new form of technology. In particular, these stakeholders have

said the current state-law legal framework is sufficient by citing the common law torts of

intrusion upon seclusion and public disclosure of private facts, Peeping Tom laws, and laws

against trespass (including California’s anti-paparazzi law), nuisance, electronic eavesdropping

and wiretaps, stalking, and harassment.

182

For example, one UAS stakeholder cited the People v. Beesmer case, discussed in Part D.1.a.

above, as illustrating how existing technology-neutral Peeping Tom laws have been

179

Comments of Tech Freedom, April 20 2015, NTIA-Convened UAS Privacy Multi-Stakeholder Process, at 3

(emphasis in original).

180

The referenced Supreme Court decision is United States v. Jones, supra note 4.

181

Remarks of Jeramie D. Scott, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

182

We discuss intrusion upon seclusion, public disclosure of private facts, Peeping Tom laws, and the California anti-

paparazzi law in Part D. above. We discuss trespass and aerial trespass laws in Appendix II.

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Personal Privacy Rights under Federal and State Law

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successfully applied to address UAS privacy concerns. He noted the UAS operator in that case

was acquitted of attempted unlawful surveillance (requiring intent to surveil) because the

medical exam room windows he was accused of trying to peer into had been treated to prevent

outsiders from looking in. Thus existing state privacy laws will apply to UAS photography and

other UAS-based activities just as they do other forms of conduct, the stakeholders have said,

protecting people where they have a “reasonable expectation of privacy” while safeguarding,

among other things, the public’s right to receive information and journalists’ First Amendment

rights to gather and report the news.

On the other hand, stakeholders that have indicated UAS do raise novel privacy concerns also

have generally concluded that these concerns are not adequately addressed under existing

law.

183

For example, in response to the view that existing common law privacy torts, Peeping

Tom laws, and other privacy laws will provide recourse for any UAS-related privacy concerns,

an academic stakeholder has stated there are “legal vacuums” in those laws.

184

Peeping Tom

laws, for example, often have a trespass requirement and it is not always clear whether aerial

trespass by a drone would meet that requirement, the stakeholder said. Those laws also often

require the voyeur himself to look into windows, and it is not clear whether a drone looking into

a window using a telephoto camera lens, for instance, would meet that requirement.

In addition, as discussed in Part D. above, legal commentators have noted additional reasons

why Peeping Tom laws and the common law privacy torts may not address at least some UAS

privacy concerns. The “intent to surveil” requirement in virtually all criminal Peeping Tom laws

may not be met where the drone operator could not see what images were being filmed until

the drone lands, for example. The “intent to intrude” and “reasonable expectation of

seclusion/privacy” requirements in the intrusion upon seclusion tort also may be difficult to meet

when individuals are on their own property but visible from a public vantage point, as well as

when they are in a more public setting, legal commentators have said.

Legal commentators also have suggested, as discussed in Part D., that it may become more

difficult to prove one has a reasonable expectation of privacy as the number of drones in the

airspace increases. Similar challenges could occur in proving the “privacy” of personal facts

exposed in a public or publicly viewable setting in a suit for public disclosure of private facts,

according to legal commentators, even though drone cameras can often capture far more

invasive and “private” images than the naked eye or a hand-held camera.

Finally, the position that drones pose no greater privacy risk than cellphones or other existing

technologies and that those technologies’ privacy risks are adequately addressed under

existing law also should be “debunk[ed],” an academic stakeholder has said.

185

Current law

does not effectively address those other technologies’ privacy risks either, and a “significantly

lower ceiling” is needed both for UAS and those technologies. “[Y]ou are having zero

183

One legal commentator who has identified shortcomings in current privacy law as applied to UAS nevertheless

acknowledges “[i]t is prudent to ask whether existing laws already prohibit the targeted conduct. . . . If taking a

photograph of someone without consent can constitute an invasion of privacy, depending on whether an expectation

of privacy exists, then why pass a new law that states it is illegal to do that same thing with a drone?” Farber, supra

note 83, at 379.

184

Remarks of Margot E. Kaminski, 2016 FTC UAS Privacy Workshop Segment 2, supra note 178.

185

Remarks of Margot E. Kaminski, 2016 FTC UAS Privacy Workshop Segment 2, supra note 178.

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Personal Privacy Rights under Federal and State Law

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regulation in most of these places, as opposed to effective regulation of anyone,” the

stakeholder said.

186

Nor can these UAS privacy concerns be adequately addressed by

voluntary best practices, this stakeholder and a privacy group stakeholder have stated, at least

not the UAS Voluntary Best Practices (discussed in Part E. above). “[N]early every single one

of these suggested practices has some sort of exception, including when you’re using drones

for a compelling purpose, or when you are using drones for the purpose for which they are

being used, or in compliance with FAA guidelines,” the academic stakeholder said.

187

3. Stakeholder Positions on Potential Additional Measures to Protect UAS Privacy

a. Federal and State Legal Authority to Protect UAS Privacy

A threshold question in considering what, if any, additional legal measures should be taken to

mitigate UAS privacy concerns is determining which level of government—the federal

government or the state and local governments (or both)—has authority to act. As with

determining federal versus state and local jurisdiction over UAS operations in low-altitude

airspace and property rights in that airspace, as discussed in Appendices I and II,

the answer is

based in the Constitution. The federal government may protect UAS privacy to the extent it is

within its power under the Constitution’s Commerce Clause or another enumerated

constitutional power. Otherwise, unless Congress has clearly manifested its intent to preempt

state action on matters within its constitutionally assigned powers, states may protect privacy

as part of their traditional police powers to protect public health, safety, and welfare. As the

Supreme Court has observed, “the protection of a person’s general right to privacy—

his right to

be let alone by other people—is, like the protection of his property and of his very life, left

largely to the law of the individual States.”

188

With respect to Congress’s Commerce Clause authority to regulate UAS-based “pure”

invasions of physical privacy—that is, involving no collection of data—as discussed in Appendix

I, the courts have broadly interpreted the Commerce Clause and upheld its use to regulate

aviation and airspace management. Nevertheless, also as discussed in Appendix I, the courts

have found the Commerce Clause cannot be used to regulate purely personal, localized

conduct with no material impact on interstate commerce.

189

As the district court observed in

Huerta v. Haughwout in questioning Congress’s power to regulate low-altitude UAS operations

over private property, “[n]o clause in the Constitution vests the federal government with a

general police power over all of the air or all objects that leave the ground.”

190

186

Id. This stakeholder also noted that FTC’s ability to protect the privacy of drone-collected personal information

might be limited in some cases. Protecting consumer data privacy in the context of the manufacturer and purchaser

of a product typically means looking at what privacy commitments the manufacturer provides to the purchaser, such

as online commitments, and whether the manufacturer abided by those commitments. Where that product is a drone,

however, the privacy concerns are those of a third party—the surveilled person on the ground—not those of the

drone purchaser/drone operator, meaning the drone manufacturer’s privacy commitments will not carry over. This

has been referred to as the “Internet of Other People’s Things problem,” the stakeholder said.

187

Id.

188

Katz v. United States, supra note 27, 389 U.S. at 350 (citing Warren and Brandeis, The Right to Privacy, supra

note 15; other citations omitted).

189

See Appendix I, Part D.1.a., discussing United States v. Morrison, 529 U.S. 598 (2000), and United States v.

Lopez, 514 U.S. 549 (1995).

190

Huerta v. Haughwout, 2016 WL 3919799 at *4 (D. Conn. 2016), discussed in Appendix I, Part D.1.a.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

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Some law firm and privacy group stakeholders we spoke to questioned whether Congress can

use its Commerce Clause power to regulate pure UAS physical privacy concerns involving no

recording or use of data. A law firm stakeholder suggested Congress might lack a Commerce

Clause “hook” to regulate a UAS Peeping Tom, for example, at least where the operator does

not record images or other data that might then be distributed in interstate commerce.

Similarly, then-FTC Commissioner Ohlhausen said the Commission’s FTC Act section 5

authority likely does not cover UAS Peeping Toms unless there is a connection to commercial

activity.

191

By contrast, Congress’s Commerce Clause power to regulate UAS data privacy—that is,

drones’ collection of personal data and how that data is subsequently used, retained, and

disseminated—appears to be undisputed because of the potential for that data to become part

of interstate commerce. Indeed, Congress’s authority to regulate UAS data privacy and to

preempt state lawmaking in this area appears to have been a working assumption in many

UAS privacy discussions, such as the NTIA-convened multi-stakeholder process that focused

solely on UAS personal data privacy. Moreover, Congress’s authority to protect personal data

privacy in specific sectors or industries is well established; as we have reported, federal laws

protect the privacy

of personal data used to make credit, insurance, and employment decisions;

personal data provided to financial institutions; personal health data; and personal information

from children that is collected online, for example.

192

The Congressional Research Service and an attorney stakeholder we spoke to have

suggested

Congress could use its Commerce Clause power to address UAS privacy to the same extent

this power supports FAA’s regulation of UAS operations generally. They said Congress could,

for example, enact a UAS-specific Peeping Tom or video voyeurism law, a UAS-based

intrusion upon seclusion law, or a UAS-specific version of California’s anti-paparazzi law.

193

191

At FTC’s 2016 UAS privacy workshop (discussed above), Commissioner Ohlhausen said the Commission’s

jurisdiction is “limited to acts or practices in or affecting commerce, [so] probably excludes most cases of individual

Peeping Toms . . . .” Remarks of FTC Commissioner Ohlhausen, 2016 FTC UAS Privacy Workshop Segment 1,

supra note 158. By contrast, as discussed in Part C.3. above, FTC officials told us the Commission would be able to

use its section 5 “unfairness or “deception” authority against a business that, for example, transmits photographs or

other personal data using a UAS or represents it will protect the privacy of personal data collected by UAS but

violates that representation.

192

See GAO-19-52, supra note 47, at 6, 12-13.

193

See 2013 CRS Drones Report, supra note 4, at 20-22; Schaffer, supra note 60, at 55-56 (including possible

preemptive effect). We discuss the non-UAS specific versions of these laws in Part D.1. above.

CRS also suggested Congress could use its Commerce Clause power to extend the current federal criminal “video

voyeurism”/Peeping Tom statute (discussed in Part 1. above) to include UAS privacy violations occurring in “federal

airspace.” See 2013 CRS Drones Report, supra note 4, at 20 n. 168 and 21 n. 171 (referencing cases upholding

federal aviation legislation under the Commerce Clause). However, we note that this statute, 18 U.S.C. § 1801,

which applies only within “the special maritime and territorial jurisdiction of the United States,” appears to have been

enacted under the Constitution’s Federal Enclave Clause, not the Commerce Clause.

The Enclave Clause provides that Congress shall have power “[t]o exercise exclusive Legislation in all Cases

whatsoever . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be .

. . .” U.S. Const., Art. I, sec. 8, cl. 17. See Video Voyeurism Prevention Act of 2003, H. Rep. No. 108-504, 108

Cong., 2d Sess. (2004); see generally DOJ, Criminal Resource Manual, Sec. 664 (Territorial Jurisdiction) and cases

cited therein, available at https://www.justice.gov/jm/criminal-resource-manual-664-territorial-jurisdiction (last visited

Sept. 1, 2020); Emily S. Miller, The Strongest Defense You’ve Never Heard of: The Constitution’s Federal Enclave

Doctrine and its Effect on Litigants, States, and Congress, 29 Hofstra Labor & Employment L. J. 73 (2011). Federal

enclaves include certain military bases, for example, as well as national parks, post offices, and other areas.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 37

CRS’s view, the Commerce Clause also would support enactment of UAS privacy standards for

law enforcement search warrants or regulations regarding the use, retention, or dissemination

of UAS-collected data.

194

Other stakeholders told us Congress also might be able to regulate

UAS privacy under the Commerce Clause by imposing privacy standards on UAS

manufacturers; these standards would then apply indirectly to recreational and commercial

UAS operators, they said.

Assuming Congress may regulate UAS personal data privacy, the fact that UAS physical

privacy and personal data privacy often go hand-in-hand as noted (because most drones can

both live-view and record personal information) may create challenges in developing a

comprehensive UAS privacy legal framework involving both the federal government and states

and localities. If, for example, UAS physical privacy is regulated by states and localities and

UAS personal data privacy is regulated by the federal government—the traditional division of

authority noted by most stakeholders we spoke to, as discussed below—which level of

government would regulate the initial collection of data, a step that involves both “physical” and

“personal data” privacy? If Congress passes legislation addressing both UAS physical privacy

(assuming that is within its constitutional powers) and UAS personal data privacy, would that

preempt state Peeping Tom laws and common law intrusion upon seclusion and public

disclosure of private facts lawsuits? Or state altitude-based or other privacy-based restrictions

on drone operations?

Some of these questions were briefly addressed by an academic stakeholder and UAS industry

stakeholders at FTC’s 2016 UAS privacy workshop. Responding to a UAS manufacturer

stakeholder’s comment that state or local privacy-based UAS laws such as minimum altitude

restrictions could “get into a patchwork of laws and regulations that actually could . . . truly hurt

the safety implications that the FAA is working so hard to ensure as drones are integrated into

the airspace,”

195

an academic stakeholder acknowledged the need to protect safety but

suggested states and localities should be not be preempted from enacting privacy-based

restrictions at least at very low altitudes.

196

Another UAS industry stakeholder later raised

Congress also may exercise limited police power (e.g., to address trespass) over property it holds in its proprietary

capacity using its powers under the Constitution’s Property Clause and Necessary and Proper Clause, U.S. Const.

Art. IV, Sec. 3, cl. 2; Art. I, Sec. 8, cl. 18. See DOJ Criminal Resource Manual, Sec. 668 (Limited Criminal Jurisdiction

Over Property Held Proprietorially) and cases cited therein, available at https://www.justice.gov/jm/criminal-resource-

manual-668-limited-criminal-jurisdiction-over-property-held-proprietorially (last visited Sept. 1, 2020).

It seems highly uncertain, however, that a court would interpret the Enclave Clause or the Property Clause to mean

that all “federal airspace” or “navigable airspace” is a “Place” or “Property.” Among other things, that would appear to

give the federal government plenary police power over all activity in all airspace in the United States without regard to

whether that activity constitutes interstate commerce or any other activity subject to Congress’s Article I, section 8

enumerated powers. As the district court stated in Haughwout, “[n]o clause in the Constitution vests the federal

government with a general police power over all of the air . . . .” 2016 WL 391799 at *4.

194

2015 CRS Drones Privacy Report, supra note 4, at 2 (citation omitted).

195

Remarks of Kara Calvert, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

196

Remarks of Gregory McNeal, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158 (“[T]hen we start to

get into all these questions about airspace which are still somewhat undefined for us. It’s easy at 500 feet to say that

local authorities shouldn’t say anything about that. I think it’s actually very hard to say what local authorities can say

about two feet above a sidewalk or two feet adjacent to your third-floor window, even if [the drone is] not camera-

equipped.”). Professor McNeal later became the Reporter for the Uniform Law Commission’s Tort Law Relating to

Drones Act Drafting Committee, which, as discussed in Appendix II, Part A., worked to draft a model drone aerial

trespass act until its efforts were suspended in January 2020.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 38

these issues but questioned state and local jurisdiction over airspace in light of FAA’s possibly

exclusive jurisdiction. This stakeholder also said that airspace is to be maintained for the public

and that “you don't have a private right in certain areas within your own private property with

airspace.”

197

These questions remain unresolved.

b. Federal versus State Regulatory Roles

Assuming both the federal government and states and localities have authority to regulate both

UAS physical and personal data privacy, the next question stakeholders have debated is which

level of government is better positioned to do so. As discussed above, states and localities

have traditionally regulated physical privacy while the federal government has, to some extent,

regulated data privacy. We describe below the positions expressed on these matters by

stakeholders we spoke to and legal commentators.

Stakeholders from the UAS industry, state and local governments, and academia viewed UAS

physical privacy issues as a matter to be addressed at the state and local level. They noted

states’ longstanding primacy and experience in addressing privacy interests, along with

property interests, under their traditional police powers (as discussed in Part D. above). In

addition to states’ considerable experience in developing these privacy protections,

stakeholders told us the inherently “local” nature of pers

onal privacy invasions also makes them

more appropriately enforced by states and localities than by the federal government, which

would lack the resources to take timely enforcement action.

198

By contrast, those same stakeholders viewed UAS personal data privacy as most

appropriately

addressed by the federal government, with one state stakeholder expressing reservations

about legislating UAS data privacy. Although stakeholders acknowledged there currently is no

comprehensive or UAS-specific federal data privacy legislation, they noted the federal

197

Remarks of Michael Drobac, representing the Small UAV Coalition, 2016 FTC UAS Privacy Workshop Segment

2, supra note 178 (“[W]e then get into a question of the state and local regulation, where it becomes really a viable

question as to . . . who has jurisdiction here? . . . [W]hat jurisdiction does the FAA have, and is it exclusive? . . . who's

got jurisdiction over the airspace? . . . [T]hat discussion, in many people's minds, has already been established. . . .

Then there's another question, . . . how far up is this vehicle? Supreme Court jurisdiction is beginning to demonstrate

that, in fact, the airspace is maintained for the public, and that you don't have a private right in certain areas within

your own private property with airspace.”).

198

As discussed in Appendix I regarding enforcement of other types of state and local laws to address UAS

concerns, some state and local stakeholders told us it is difficult to enforce their privacy laws against drones because

the identity of the operator is usually unknown due to the current lack of a Remote ID requirement. Also as discussed

in Appendix I, however, FAA has proposed a Remote ID rule. The proposal was issued in December 2019 and DOT

officials told us FAA plans to complete its analysis of public comments on the proposal by December 2020.

In addition, a few state, local, and tribal stakeholders we spoke to were uncertain whether they had authority to

enforce their traditional privacy laws to address UAS concerns. They explained that because drones are aircraft

regulated under FAA’s UAS regulations, which FAA has emphasized have a broad preemptive effect, they believed

they may be preempted from enforcing their privacy laws against drones as well, such as in a Peeping Tom situation.

This is particularly the case, they said, if the drone appears to be operating in compliance with FAA requirements and

in a location where, as they understood the law, persons have no reasonable expectation of privacy such as outside

in their backyards. A municipality organization believed its local members would need to call FAA if there were a

UAS privacy problem and ask FAA to address the matter, which they found “unsettling.” Another local stakeholder

described being “at a loss” to know what local law enforcement is authorized to do if there is a UAS privacy concern,

such as whether they may order the drone operator to land. Finally, those local stakeholders who were aware that

FAA has declined to regulate privacy because it believes it lacks authority believed they, too, may lack authority to

address UAS privacy violations.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

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government has experience protecting data privacy on a sector-specific basis as well as under

FTC’s “unfair or deceptive trade practices” authority.

199

In addition, UAS stakeholders believed

it would be most effective to enact a single federal law that included protections for UAS

personal data privacy. They expressed concern that allowing states to enact individual data

privacy laws—such as the California Consumer Privacy Act (CCPA)—will create a “regulatory

patchwork quilt” that will stifle innovation, create uncertainty for the industry, and pose risks to

safety, particularly if the laws are UAS-specific.

200

This concern also has been raised by NTIA

in requesting public comment about the current Administration’s consumer data privacy

approach more generally.

201

Finally, with respect to whether federal data privacy legislation should be comprehensive or

UAS-specific, most stakeholders we spoke to believed the law should be drafted broadly

enough to include UAS privacy and could then serve as the basis for creating more specific

standards for UAS, while a few stated UAS-specific legislation would be more effective.

However, several legal commentators

202

and a news organization stakeholder

203

have

disagreed that UAS data privacy should be legislated at the federal level, believing this should

left to the states, at least initially. In addition to noting states’ long history and experience

protecting privacy, the legal commentators said states are best positioned to develop a range

of diverse approaches to UAS data privacy and federal policymakers will benefit by seeing the

results of such “state experimentation.” Seeing states’ differing approaches is particularly

important with respect to identifying the most appropriate balance of privacy rights

of individuals

on the ground with First Amendment rights of UAS operators gathering information, an issue

with which states already have considerable experience, the stakeholders said.

One of the legal commentators believed state regulation of drones’ initial collection of personal

information was particularly important, noting regulation of UAS-acquired information after it is

collected—addressing how it is allowed to be aggregated, processed, and stored—could be

part of broader data privacy regulation enacted at the federal level. The other legal

commentator stated it was pragmatic to leave UAS data privacy to states initially because there

is no consensus about what privacy should mean in the UAS context, which would be a

199

We discuss FTC’s authority to address data privacy issues in Part C.3. above.

200

We discuss the CCPA in Part D.1.d. above.

201

As discussed in Part C.1. above, NTIA requested comment on a potential high-level Administration goal of

harmonizing the U.S. regulatory landscape to avoid “patchwork of competing and contradictory baseline [privacy]

laws.” See supra note 51. One of the privacy group stakeholders we spoke who submitted comments in that

proceeding said that goal is “contrary to U.S. privacy law and principles of federalism. NTIA should promote federal

baseline legislation . . . [to] ensure[] minimal protections while still preserving state and local innovation . . . “ The

stakeholder also stated that “[p]rivacy is a fundamental human right in the 21

century, it may become one of the

most critical human rights of all.” Comments of the Electronic Privacy Information Center, Nov. 9, 2018, NTIA

Request for Comment, Developing the Administration’s Approach to Consumer Privacy, at 4, 8. Another public

interest advocacy group commented in that proceeding that “the use of the tired, pejorative term ‘patchwork’ to mis-

characterize state leadership on privacy suggests either a misunderstanding of the ways that the states have led

efforts to protect consumer privacy or, worse, suggests a pre-determined bias toward preemption.” See Comments of

U.S. Public Interest Research Group, Nov. 9, 2018, at 1.

202

See Kaminski, supra note 32; Bennett, supra note 81.

203

Comments of the Newspaper Association of America, April 20, 2015, NTIA-Convened UAS Privacy Multi-

Stakeholder Process, at 6.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 40

necessary starting point in enacting comprehensive federal legislation.

The news organization stakeholder also strongly favored leaving UAS data privacy to the states

to ensure appropriate protection of First Amendment rights. State privacy torts are already

calculated to capture variances in how states balance privacy rights and newsgathering-related

rights, it said, while a nationwide UAS data privacy law would not capture those nuances

developed over more than a century of reasoned lawmaking. In addition, state courts are

already experienced in interpreting these privacy torts in light of the constitutional protections

for newsgathering, broadcast, and publication and there is no reason to start over in developing

a new set of federal rules for drones, this stakeholder said.

Finally, of those stakeholders we spoke to who believed the federal government should

regulate UAS personal data privacy, the majority who expressed a position believed FAA

should not be assigned this responsibility, while most but not all believed FTC could manage

this responsibility. With respect to FAA (which as discussed in Part C.2. above, believes it

currently lacks authority to regulate UAS privacy), stakeholders representing various UAS

industry interests, states and state organizations, and a think tank stated FAA currently lacks

the subject matter expertise and the resources to take on this responsibility, given its focus on

its responsibilities to ensure aviation safety and efficient management of the airspace.

Two privacy group stakeholders we spoke to believed FAA does currently have authority to

regulate UAS privacy, however, as discussed in Part C.2. above,

and should do so as part of its

overall regulation of UAS operations. To regulate UAS operations comprehensively but omit a

key aspect of those operations—the risks they pose to privacy—is, at the least, confusing, one

stakeholder said. Without a federal baseline, this stakeholder felt states would create a

patchwork of laws like California’s CCPA which would be difficult for UAS operators and

citizens to navigate. And although FAA may lack significant experience in regulating privacy

matters, the other privacy stakeholder said, FAA and all agencies have some experience in

protecting individual privacy based on their responsibilities in administering the Privacy Act.

204

One attorney stakeholder told us that while FAA should continue with its focus on regula

ting the

safety of UAS operations, DOT should regulate “social issues” relating to UAS such as privacy.

With respect to FTC, a number of UAS stakeholders and a local government association

stakeholder told us they believe FTC has the legal authority and the expertise to protect UAS

privacy,

particularly with respect to commercial entities. A law firm stakeholder said FTC would

need traditional Administrative Procedure Act rulemaking authority to take on UAS privacy, as

Congress gave it in the Children’s Online Privacy Protection Act, because otherwise, FTC is

limited to bringing individual enforcement actions that do not establish binding precedent.

205

privacy group stakeholder we spoke to,

however, has strongly criticized FTC’s enforcement

record using the authority it currently has.

206

This privacy stakeholder and a number of others

204

We note Privacy Act protections in Part C.1 above.

205

We note differences between traditional APA notice-and-comment rulemaking and FTC’s current rulemaking

authority under the FTC Act in Part C. above.

206

Comments of the Electronic Privacy Information Center to NTIA, Nov. 9, 2018, supra note 201.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

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have called for creation of a new federal data privacy agency that would replace FTC in that

role under a new non-preemptive, federal baseline privacy law.

207

c. Considerations in Enacting Additional Measures

A comprehensive survey of the possible measures stakeholder and legal commentators have

identified to mitigate UAS privacy concerns is beyond the scope of this report. We describe

below examples of the types of measures stakeholders have identified and their positions on

when such measures should be enacted.

(i) Timing

At the start of the NTIA multi-stakeholder process in 2015, a technology think tank stakeholder

cautioned against enacting legally binding UAS privacy laws before actual privacy risks are

known:

“[W]e urge caution in attempting to prescribe how . . . [UAS] technologies are

regulated . . . rules written in advance will tend to inflate hypothetical threats and

under-estimate both the unseen benefits of new technologies and our collective ability

to adapt our expectations and social norms. America never had a federal camera law,

nor a Federal Camera Commission. Nor did the Federal government of the early 20

century convene a ‘multistakeholder’ process to set industry standards, which the

Federal government would then enforce. Instead, concerns about the camera were

addressed in the first instance through private ordering (social norms about when

it is appropriate to photograph people) and only secondarily through law.”

208

Subsequently, at the time of FTC’s October 2016 UAS privacy workshop, a UAS organization

stakeholder stated that privacy laws need to be revised to address modern technologies,

stating, “we . . . have a lot of privacy laws on the books that are outdated . . . they're still looking

at things that are completely anachronistic to how we live.”

209

Most recently, in the course of

our review for this report, a UAS industry stakeholder told us the time may now be right to enact

UAS privacy measures because UAS technology and business practices have evolved since

the NTIA multi-stakeholder process. The stakeholder said the industry may now have reached

an “inflection point” warranting action by Congress or FAA because FAA is getting closer to

authorizing routine UAS operations beyond the operator’s visual line of sight (currently allowed

only by FAA waiver). Beyond-visual-line-of-sight operations, in turn, could increase the number

of “remote” operators, a factor stakeholders have identified as increasing privacy risks, as noted

above.

(ii) Technology-Neutral versus UAS-Specific Measures

Stakeholders have expressed varying positions on whether any additional legal measures

207

Center for Digital Democracy et al., The Time Is Now: A Framework for Comprehensive Privacy Protection and

Digital Rights In the United States, Jan. 17, 2019, available at

https://www.democraticmedia.org/sites/default/files/field/public-files/2019/privacy-and-digital-rights-for-all-

framework.pdf (last visited Sept. 1, 2020).

208

Comments of Tech Freedom, supra note 179, at 3.

209

Remarks of Michael Drobac, 2016 FTC UAS Privacy Workshop Segment 2, supra note 178.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

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protecting UAS privacy should be technology-neutral or UAS-specific.

210

On the federal level, if

Congress were to enact data privacy legislation, as noted most stakeholders we spoke to

believed it should be drafted broadly enough to include UAS privacy, and could serve as the

basis for enacting UAS-specific standards at a later time. A few stakeholders told us UAS-

specific legislation would be more effective.

On the state level, a number of UAS industry stakeholders told us privacy laws should be

“agnostic” and technology-neutral. UAS-specific legislation unfairly targets UAS as a

technology that is somehow uniquely invasive of privacy, the stakeholders said, even though

other technologies may raise similar privacy concerns. The laws should address the actual bad

behavior rather than the technology being used to carry out that bad behavior, the stakeholders

stated, although most told us it would not be problematic to amend existing privacy laws to add

drones to a list of other methods by which prohibited conduct may be carried out.

Moreover, the UAS stakeholders said UAS-specific legislation is largely redundant because

general privacy statutes already address bad behavior by UAS operators. If a privacy statute

prevents an individual from using a camera on a pole to look over a neighbor’s fence, the same

statute should prevent a UAS operator with a camera from engaging in the same conduct, they

said. Several legal commentators and a technology think tank stakeholder have expressed the

same position. As one academic stakeholder we spoke to has said, “[a]s with any new

technological development . . . there is a tendency . . . to focus too strongly on the technology

and miss the way the technology fits into the existing regulatory scheme. . . . Where necessary,

drone specific regulations make sense, but generally following the path of integrating such

regulations into existing frameworks is the better path to take.”

211

On the other hand, some state and local stakeholders told us UAS-specific laws are needed

because they create certainty that the protections in fact apply to drones, as well as specifying

precisely what legal elements must be proven to constitute an invasion of privacy by a drone.

Such specificity, in turn, can eliminate the need to file litigation where a general privacy law may

be ambiguous and its application to drones unclear. The current legal elements also might

need to be altered for the UAS context. For example, a privacy group stakeholder told us the

requirement in some states to prove that an invasion of privacy has caused monetary harm may

not be appropriate because even though peering into someone’s window by drone may not

cause monetary harm, it is clearly an invasion of privacy.

A local-government organization stakeholder told us its constituents are concerned that current

privacy laws contain “loopholes” or gaps in coverage because they were developed to address

conduct on the ground rather than in the air. State and local stakeholders also told us UAS-

specific statutes can be beneficial because they ease constituents’ concerns about privacy and

evolving technologies, which in turn can help facilitate public acceptance of UAS. Finally, state

and local stakeholders and a UAS technology stakeholder told us general privacy laws may not

address the diverse and unique fact situations of their jurisdictions, such as California’s need to

create a law to address paparazzi using drones to photograph individuals engaging in private

210

FAA officials told us they do not have a position on which is preferable. They said when states and localities ask

whether they can enforce their general privacy laws to address UAS privacy risks, FAA simply advises them that their

general laws may be used as long as they are drafted broadly enough.

211

Robert A. Heverly, The State of Drones: State Authority to Regulate Drones, 8 Albany Gov’t L. Rev. 29, 61-62

(2015).

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Personal Privacy Rights under Federal and State Law

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activities and California’s resulting amendment of its anti-paparazzi statute to apply to drones.

212

(iii) Stakeholder-Based Examples of Potential UAS Privacy, Transparency, and

Accountability Measures

As noted, discussions regarding possible UAS personal data privacy measures have often been

framed in terms of privacy, transparency, and accountability. According to NTIA, “privacy”

refers to restrictions on the initial UAS-collection of personal information and/or on the

subsequent use, retention, or dissemination of that UAS-collected information; “transparency”

refers to informing those affected that their information is being collected and why and how the

data will be used, retained, and/or disseminated; and “accountability” refers to internal

measures taken by entities to ensure these privacy protections and transparency policies are

enforced within the organization.

213

Some stakeholders we spoke to and other entities and legal commentators have described

various types of measures that might be appropriate to enhance UAS data privacy. We

describe some of these possible privacy measures below; this non-exhaustive list represents

just some of the many types of possible UAS privacy measures that might be established.

Emphasizing that these were developed with the express caveat that they were not intended to

serve as a template for future statutory or regulatory obligations, one set of UAS privacy

measures that might be considered in developing future requirements are the UAS Voluntary

Best Practices. As discussed in Part E. above, the UAS Voluntary Best Practices, with

numerous qualifications and exceptions, suggest restricting the intentional collection of personal

data where the UAS operator knows the potentially affected person “has a reasonable

expectation of privacy”; minimizing UAS operations above or on private property without the

landowner’s consent or in violation of law; and limiting the use, retention, and sharing of

collected personal data.

The UAS Voluntary Best Practices also suggest transparency and accountability measures:

providing advance notice to potentially affected individuals when and where UAS operations

may intentionally collect their personally identifiable data; developing a publicly available privacy

policy that addresses the purposes of data collection, the kinds of data to be collected, any data

retention and de-identification practices, examples of any entities with whom the data will be

shared, how to file a complaint, and how responses will be made to law enforcement requests

for collected data; and monitoring and complying with federal, state, and local UAS laws as they

evolve. A number of these measures are similar to those already imposed on federal agencies’

use of drones by the 2015 UAS Privacy Presidential Memorandum (see Part C.1.above).

One of the legal commentators noted above who has recommended leaving UAS data privacy

to the states also has suggested several types of limits that states might impose on UAS initial

data collection: enacting reasonable time, place, and manner restrictions (e.g., banning data

collection in certain locations or at certain times with possible exceptions for First Amendment

activities); addressing “socially unacceptable behavior” by banning surreptitious use of drones to

212

As discussed in Part D.1.c. above, while California’s anti-paparazzi law does not explicitly mention drones, the

legislative history amendments to this law explicitly states the amendments were made to ensure the statute applies

to drones.

213

80 Fed. Reg. at 11979-80 (March 5, 2015) (NTIA request for comment regarding UAS privacy mutli-stakeholder

process).

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 44

record information or requiring consent to record; banning the use of “superhuman” enhanced

technology to record information about a person in a traditionally private space; and banning the

recording of acts that are subject to a reasonable expectation of privacy, including private acts

occurring in public places.

214

A civil liberties group has suggested UAS privacy measures along some of the same lines,

recommending development of rules to identify the types of locations where individuals have a

reasonable expectation of privacy; enactment of limits on UAS collection of data and

subsequent analysis and retention of that data; development of standardized methods to

disclose data collection practices by commercial UAS operators and of technical capabilities to

identify those operators; and creation of methods to honor requests to opt-out from UAS data

collection in certain locations.

215

A privacy group stakeholder we spoke to has called for enactment of baseline transparency

measures to ensure that potentially affected individuals will be provided with notice of (and

perhaps consent to) what data drones are collecting and how that data will be used, retained,

and shared. Such measures will help facilitate integration of UAS into the airspace because it

will make people more comfortable with their use, according to this stakeholder. Notice is

needed, they explained, even though some existing privacy laws cover some of the types of

invasive behavior drones can be used for, because it will be impossible in many cases to

enforce those laws given the anonymity of the drone operator. The stakeholder also believed

some restrictions on the use of UAS-collected data could be appropriate, but did not favor

restrictions on drones’ initial data collection because that may be necessary for navigational

purposes.

Other stakeholders have questioned some of these measures, however. A UAS manufacturer

stakeholder we spoke to has cautioned that requiring advance notice to and consent from

potentially affected landowners could be impractical and burdensome to the point of making

operations almost impossible in the case of an apartment building with multiple tenants. One of

the FTC attorneys moderating the 2016 FTC UAS Privacy Workshop (discussed in Parts F.1.

and 2. above) also raised the question how the Commission’s usual privacy guidance to

industry—to provide consumers with notice and choice—would apply where a drone is

delivering a package, for example. How would notice be provided to the neighbor or other third

parties, the attorney asked. The FTC attorney also raised the question whether the potential

impracticality of providing notice in such cases means restrictions should instead be placed on

the collection or use of personal data. Requiring a drone operator to provide notice of their data

collection to potentially affected parties also might raise First Amendment concerns, according

to a legal commentator, because the notice might then be deemed to be compelled speech.

216

Finally, an academic stakeholder has cautioned against lawmakers inadvertently creating new

problems by imposing overly restrictive measures to address UAS privacy concerns. Prohibiting

a drone from collecting certain visual or sensor information in order to protect privacy, for

example, might make the drone less capable of navigating safely in the airspace, the

stakeholder said. Because there may be customized technology solutions to the privacy

problems, this stakeholder said, Congress should define privacy harms and allow industry to

214

Kaminski, supra note 32, at 69-71.

215

Comments of Center for Democracy & Technology, supra note 174.

216

Remarks of Margot E. Kaminski, 2016 FTC UAS Privacy Workshop Segment 2, supra note 178.

Appendix III – Considerations Involving UAS-Related

Personal Privacy Rights under Federal and State Law

B-330570 Current Drone Legal Issues Page 45

develop solutions rather than enacting prescriptive privacy protections that may have

unintended consequences.

217

Remarks of Gregory McNeal, 2016 FTC UAS Privacy Workshop Segment 1, supra note 158.

APPENDIX IV: STATE UAS-SPECIFIC LAWS, RESOLUTIONS, AND EXECUTIVE ORDERS

This table reflects GAO’s analysis of information compiled annually by the National Conference of State

Legislatures (NCSL) for the years 2013 through 2019, as made available at

https://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx (last

visited Sept. 1, 2020). As detailed in this table, 46 states had passed some type of unmanned aircraft

system (UAS)-specific law, resolution, or executive order as of 2019. While NCSL’s annual updates have

included all state laws, resolutions, and orders related to UAS, this table includes only those that explicitly

state they apply to UAS or drones, with one exception. That exception is the California statute commonly

referred to as the anti-paparazzi law. Although that law does not explicitly refer to UAS or drones, its

legislative history states it was expressly amended to apply to drones.

STATE SUMMARY AS CODIFIED YEAR

ENACTED

Alabama Adopts a resolution, HR 381, to recognize the benefits of a thriving UAS

industry in the state and to encourage a partnership between the state of

Alabama and FAA to select Huntsville, AL as a UAS test site.

Resolution (not codified) 2013

Appropriations Act provision in HB 2001 provides $1.2 million to higher

education institutions for a Juneau Readiness Center and Unmanned Aerial

System Joint Facility.

Appropriations law

(HB 2001)

2019

Alaska

Adopts a resolution, HCR 6, to create a legislative task force on UAS, charged

with reviewing Federal Aviation Administration (FAA) regulations and guidance

regarding UAS and drafting written recommendations and legislation that allow

UAS to be used in a way that protects privacy. The task force shall include, in

addition to members of the legislature, representatives from state agencies,

aviation organizations, and academia. The task force must provide an initial

report of its findings by Jan. 15, 2014, and a final report by July 1, 2014.

Appropriations law

(HB 2001)

2013

Enacts HB 255, which creates procedures and standards for law enforcement

use of UAS, as well as regulations for the retention of information collected with

UAS (codified at Alaska Stat. §§ 18.65.900 to 18.65.909). Requires law

enforcement agencies to adopt procedures that ensure appropriate FAA flight

authorization is obtained (Alaska Stat. § 18.65.901)(1)); UAS operators are

trained and certified (Alaska Stat. § 18.65.901)(2)); a record of all flights is

maintained (Alaska Stat. § 18.65.901)(5)); and there is an opportunity for

community involvement in the development of the agencies’ procedures

(Alaska Stat. § 18.65.901)(8)). Under the law, police may use UAS pursuant to

a search warrant, a judicially recognized exception to the warrant requirement,

and in situations not involving a criminal investigation (Alaska Stat. §

18.65.902). Images captured with UAS may be retained by police for training

purposes or if it is required as part of an investigation or prosecution (Alaska

Stat. § 18.65.903). The law also authorizes the University of Alaska to develop

a training program for operating UAS (Alaska Stat. § 14.40.082).

Adopts a resolution, HCR 15, to extend the operating time (until June 30, 2017)

and expand the number and type of participants as well as the duties of the

state UAS task force.

Alaska Stat.

§§ 14.40.082, 18.65.900,

18.65.901, 18.65.902,

18.65.903, 18.65.909,

29.10.200, 29.35.146

Resolution (not codified)

2014

Adopts a resolution, HRJ 5, to recognize the Academy of Model Aeronautics

and to urge the state to work with federal agencies to promote best practices

and communications that result in meaningful guidelines and regulations for the

recreational use of UAS in a manner that protects personal privacy and safety.

Resolution (not codified)

2015

Appropriations Act provision in HB 256 requests the Department of Fish and

Game to evaluate the use of UAS for aerial survey work and report findings

related to safety and cost-savings compared to manned aircraft.

Adopts a resolution, HCR 17 (TRA), to support the economic growth of the

UAS industry in the state and encourage the establishment of safe and

responsible UAS business in the state. The resolution urges the governor to

make state-owned land available for use by designers, owners, developers,

and operators of commercial UAS for use in the in the research,

manufacturing, testing, training, management and operation of those systems.

Appropriations law

(HB 256)

Resolution (not codified)

2016

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 2

Adopts a resolution, SCR 4, that continues the task force on UAS until June 30,

2018, and specifies additional membership and duties, e.g., review FAA

regulations and guidance, provide written recommendations and suggested

legislation, evaluate complaints and concerns it has received, identify privacy

and public safety concerns associated with UAS and whether legislation is

needed to resolve them, conduct studies, conduct hearings on privacy

concerns.

Resolution (not codified)

2017

Enacts SB 194, which amends the crime of disorderly conduct to include a

person who knowingly causes an unmanned aircraft system to loiter over a

private place of another without consent (Alaska Stat. § 11.61.110). It also

amended the crime of indecent viewing or photography to include a person on

private property without the knowledge or consent of the person viewed or

shown in the picture using an unmanned aircraft system in the airspace above

the private property (Alaska Stat. § 11.61.123). It also provides the definition to

be used for the term “unmanned aircraft system” (Alaska Stat. § 11.81.900).

Alaska Stat.

§§ 11.61.110,

11.61.123, 11.81.900

2018

Arizona

Prohibits certain operation of UAS, including operation in violation of FAA

regulations and operation that interferes with first responders (Ariz. Rev. Stat.

§ 13-3729). The law prohibits operating near, or using UAS to take images of,

a critical facility (Ariz. Rev. Stat. § 13-3729). The law also preempts any

locality from regulating UAS with exceptions (Ariz. Rev. Stat. § 13-3729). The

law defines several terms and adds UAS to an existing provision regarding the

careless or reckless operation of an aircraft (Ariz. Rev. Stat. § 28-8280).

Amends powers and duties related to UAS of the Aeronautics Division of the

Arizona Department of Transportation (Ariz. Rev. Stat. § 28-8242).

Ariz. Rev. Stat.

§§ 13-3729.

28-8242, 28-8280a

2016

Makes the state liable for willful misconduct, gross negligence, or bad faith of

an emergency worker engaging in emergency management activities or

performing emergency functions including operating a UAS or public UAS while

engaged in or supporting emergency management activities or performing

emergency functions.

Ariz. Rev. Stat. § 26-314

2018

Arkansas

Arkansas Act 293 prohibits video voyeurism by knowingly using a UAS (and

other devices) that is concealed, flown in a manner to escape detection, or

disguised, to secretly or surreptitiously videotape, film, photograph, record, or

view by electronic means another person without consent to view any part of

the person’s body in which they have a reasonable expectation of privacy and

under circumstances in which they have a reasonable expectation of privacy

(Ark. Code Ann. § 5-16-101(b). Prohibits voyeurism by knowingly using a UAS

(or other unmanned device or in person) for the purpose of sexual arousal or

gratification, to look into a private place that is part of a public accommodation

where persons likely are at least partially unclothed or looks into a person’s

dwelling unit in order to intrude on the person’s privacy and the person has a

reasonable expectation of privacy in that part of the dwelling (Ark. Code Ann. §

5-16-102(b)).

Arkansas Act 1019 amends Arkansas Code Title 5, Chapter 60 to include a

definition of “unmanned aircraft system” and prohibits the use of UAS to collect

information about or photographically or electronically record information about

critical infrastructure without consent (Ark. Code Ann. § 5-60-103). It also

provides for civil action against operators of UAS (Ark. Code Ann. § 16-118-

111).

Ark. Code Ann.

§§ 5-16-101(b),

5-16-102(b),

5-60-103,

16-118-111

2015

Amends the term “critical infrastructure” to add “railroad operating facility” and

“communication tower and facility” to the areas where UAS may not operate.

Amends the term “unmanned aircraft system” to eliminate references to the

Arkansas Department of Emergency Management.

Ark. Code Ann.

§ 5-60-103(a)

2019

California

Adopts a resolution to recognize the benefits of a thriving UAS industry in the

state and to encourage FAA to consider California as a test site for UAS and

integration of those systems into a next generation air transportation system.

Resolution (not codified) 2013

[NOTE: This act does not explicitly refer to UAS or drones. However, the

legislative history of the 2015 amendment states it was expressly enacted to

apply to drones entering into airspace above private property in accordance

with the U.S. Supreme Court’s decision in United States v. Causby.]

Expanded the “physical invasion of privacy” cause of action in the state’s so-

called “anti-paparazzi” statute so that it not only prohibits a person from

Cal. Civ. Code

§ 1708.8 (a)

2015

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 3

entering onto another person’s land, but also from entering into the airspace

above another person’s land, in order to capture an image or recording of that

person engaging in a private, personal, or familial activity without permission.

Defines unmanned aircraft and unmanned aircraft system (Cal. Gov. Code §

853). Provides immunity for first responders who damage a UAS that was

interfering with the first responder while that person was providing emergency

services (Cal. Civ. Code § 43.101; Cal. Gov. Code § 853). Limits liability for

public entities and employees that damage a UAS while providing emergency

services if the UAS interferes with the operation, support, or enabling of

emergency services (Cal. Civ. Code § 43.101; Cal. Gov. Code § 853). Under

the law, interfering with the activities of first responders, including through use

or operation of an unmanned aerial vehicle, remote piloted aircraft, or drone

during an emergency is a misdemeanor.

Cal. Civ. Code

§ 43.101, Cal. Gov.

Code § 853, Cal.

Penal

Code § 402

2016

Makes a person who knowingly and intentionally operates a UAS on or above

the grounds of a state prison, a jail, or a juvenile hall, camp, or ranch guilty of

an infraction punishable by a specified fine (Cal. Penal Code § 4577).

Exempts persons employed by these facilities acting within the scope of that

employment, or a person who receives certain authority to operate a UAS

around these facilities (Cal. Penal Code § 4577).

Makes it unlawful for a person to operate a UAS to carry out pest control

unless the pilot holds a valid manned or unmanned pest control aircraft pilot's

certificate issued by the director and is certified by FAA to conduct pest control

(Cal. Food and Agric. Code § 11901). Requires a pilot to be certified by the

State Department of Public Health as a vector control technician to be eligible

for an unmanned pest control aircraft pilot's certificate under the status of

vector control technician (Cal. Food and Agric. Code § 11910).

Cal. Penal Code

§ 4577

Cal. Food and Agric.

Code

§§ 11901, 11902.5,

11910

2018

Makes it a misdemeanor offense to operate UAS for the purpose of invading

the privacy of a person inside their home or any other interior area where there

is a reasonable expectation of privacy.

Cal. Penal Code

§ 647

2019

Colorado

Requires the center of excellence within the department of public safety to

perform a study. The study must identify ways to integrate UAS within local

and state government functions relating to firefighting, search and rescue,

accident reconstruction, crime scene documentation, emergency management,

and emergencies involving significant property loss, injury, or death. The study

also must consider privacy concerns, costs, and timeliness of deployment for

each of these uses. The legislation also creates a pilot program requiring the

deployment of at least one team of UAS operators to a region of the state that

has been designated as a fire hazard where they will be trained on the use of

UAS for the above specifies functions.

Colo. Rev. Stat.

§ 24-33.5-1228

2017

Prohibits the use of UAS to obstruct public safety operations, provides

exceptions to the offense of using or threatening to use a UAS as an obstacle

under specified conditions.

Colo. Rev. Stat.

§ 18-8-104

2018

Connecticut Provides a definition of “commercial unmanned aircraft” and prohibits

municipalities from regulating UAS. It allows a municipality that is also a water

company to enact ordinances that regulate or prohibit the use or operation of

UAS over the municipality's public water supply and land as long as they do not

conflict with federal law or policies and procedures adopted by the Connecticut

Airport Authority.

Conn. Gen. Stat.

§ 7-149b

2017

Delaware Creates the misdemeanor crime of unlawful use of a UAS and prohibits

operation over any event with more than 1,500 attendees, over critical

infrastructure, and over an incident where first responders are actively engaged

in response or transport. The law provides exemptions, such as use of the UAS

for law enforcement purposes, operation pursuant to authorization granted by

the FAA, or operation pursuant to written permission granted by the property

owner. The law specifies that only the state may enact a law or regulation,

preempting the authority of counties and municipalities.

Adopts a resolution to express support for developing the many facets of UAS

and increasing economic and training opportunities available within the FAA

regulatory framework and to affirm that the protection of privacy rights (as

guaranteed by the Fourth Amendment) is recognized in connection with the

development of UAS and related technologies.

Del. Code tit. 11, § 1334

Resolution (not codified)

2016

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Amends the misdemeanor offense of unlawful use of a UAS to make it a crime

to fly a UAS in a manner that invades the privacy of or subjects to harassment

another person who is on private property in a manner that violates Delaware’s

invasion of privacy statute in Del. Code tit. 11.

Del. Code tit. 11,

§ 1334(b)(5)

2018

Makes it a felony offense to operate UAS over a correctional facility to deliver

prison contraband.

Del. Code tit. 11,

§ 1256(b)(2)

2019

Florida

Defines a drone and limits its use by law enforcement to gather evidence or

other information, but provides that law enforcement may use a drone if it

obtains a search warrant, there is a terrorist threat, or “swift action” is needed

to prevent loss of life or to search for a missing person. The law also

authorizes someone harmed by an inappropriate use of drones to pursue civil

remedies and prevents evidence gathered in violation of the law from being

admitted in any Florida court.

Fla. Stat. § 934.50

2013

Creates a private cause of action to enforce a statutory prohibition against the

non-consensual use of a drone to capture an image of privately owned

property or the owner or others legally on the property if a “reasonable

expectation of privacy” exists. Defines that term to mean where the person

cannot be observed by others at ground level in a place where they have a

legal right to be, regardless of whether they could be seen from the air with the

use of a drone.

Fla. Stat. § 934.50

2015

Defines critical infrastructure to include a number of energy installations and

wireless communications facilities (Fla. Stat. § 330.41). The law preempts

local regulation of UAS, but allows localities to enact ordinances relating to

nuisances, voyeurism (invasion of privacy law), harassment, reckless

endangerment, property damage or other illegal acts (Fla. Stat. § 330.41). It

also prohibits operation of UAS over or near critical infrastructure, making it a

misdemeanor (Fla. Stat. § 330.41). The law also prohibits the possession or

operation of a weaponized UAS (Fla. Stat. § 330.411). The law exempts

communication service providers using drones for certain operation and

maintenance tasks (Fla. Stat.

§ 934.50).

Fla. Stat.

§§ 330.41, 330.411,

934.50

2017

Georgia

Adopts a resolution to recognize the benefits of a thriving UAS industry in the

state and to support efforts to strengthen the aerospace industry.

Resolution (not codified)

HR 80, HR 81,

SR 172

2013

Adopts a resolution to establish a House committee to study the conditions,

needs, issues, and problems related to drones and recommend any action or

legislation the committee deems necessary or appropriate.

Resolution (not codified) 2015

Creates, by executive order, the Commission on Unmanned Aircraft

Technology in order to adopt state-level rules and offer recommendations to

the governor consistent with current FAA regulations as well as the state’s

business and public safety interests.

Executive order

(not codified)

2016

Defines unmanned aircraft systems and preempts local regulation of UAS after

April 1, 2017. The law allows for regulation of the launch or landing of UAS on

public property by the state or local government.

Ga. Code Ann. § 6-1-4

2017

Prohibits UAS from delivering or attempting to deliver contraband to a

correctional facility and from photographing any place of incarceration without

prior permission.

Ga. Code Ann.

§ 42-5-18

2019

Hawaii Appropriates $100,000 for two staff positions, contracted through the University

of Hawaii, to plan for the creation of, among other programs, a professional

UAS pilot program administered through Hawaii Community College.

Appropriations law

(not codified)

2013

Creates a chief operating officer position for the Hawaii UAS test site (Haw.

Rev. Stat. § 201-72.7; 201-73). It also establishes a UAS test site advisory

board to plan and oversee test site development and appropriates funds to

establish the test site (Haw. Rev. Stat. § 201-72.6).

Haw. Rev. Stat.

§§ 201-72.6, 201-72.7,

201-73

2015

Authorizes the Department of Land and Natural Resources to mitigate the

hazards posed by vessels, thrill craft, drones, and other means used by

spectators to observe or record regattas, marine parades, surfing contests, and

other events in the waters of the state.

Haw. Rev. Stat.

§ 200-40.5

2018

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B-330570 Current Drone Legal Issues Page 5

Provides that probable cause for arrest for violation of the state’s Fireworks

Control Law or a county’s fireworks ordinance may be established by, among

other things, recordings made using a UAS showing the commission of the

offense and exempting such UAS-collected recordings from the general

requirement of authentication by one or more witnesses.

Haw. Rev. Stat.

§ 132D-20

2019

Idaho Defines “unmanned aircraft system,” requires search warrants for their use by

law enforcement, establishes guidelines for their use by private citizens and

provides civil penalties for damages caused by improper use.

Adopts a resolution to recognize the benefits of a thriving UAS industry in the

state.

Idaho Code § 21-213

Resolution (not codified)

2013

Prohibits the use of UAS for hunting, molesting or locating game animals,

game birds and furbearing animals.

Idaho Code § 36-1101

2016

Illinois

Defines "drone" as any aerial vehicle that does not carry a human operator

(720 Ill. Comp. Stat. § 5/48-3). The law prohibits anyone from using a drone to

interfere with hunters or fisherman (720 Ill. Comp. Stat. § 5/48-3). Allows

drones to be used by law enforcement with a search warrant, to counter a

terrorist attack, to prevent harm to life or to prevent the imminent escape of a

suspect among other situations (725 Ill. Comp. Stat. § 167/15). If a law

enforcement agency uses a drone, the agency must destroy all information

gathered by the drone within 30 days, except that a supervisor at the law

enforcement agency may retain particular information if there is reasonable

suspicion it contains evidence of criminal activity (725 Ill. Comp. Stat. §

167/20).

720 Ill. Comp. Stat. Ann.

§ 5/48-3,

725 Ill. Comp. Stat. Ann.

§ 167/1 to 167/40

2013

Creates regulations for how law enforcement can obtain and use information

gathered from a private party’s use of UAS. The law requires police to follow

search warrant protocols to compel third parties to share information, and if the

information is voluntarily given to police, authorities are required to follow the

state’s law governing UAS data retention and disclosure (725 Ill. Stat. Ann.

§ 167/40). The law also loosens regulations regarding law enforcement’s use

of UAS during a disaster or public health emergency (725 Ill Comp. Stat. Ann.

§ 167/15).

725 Ill. Comp. Stat. Ann.

§§ 167/15, 167/40

2014

Creates a UAS Oversight Task Force, which is charged with considering

commercial and private use of UAS, landowner and privacy rights, and general

rules and regulations for the safe operation of UAS. The task force will prepare

recommendations for the use of UAS in the state.

20 Ill. Comp. Stat.

§ 5065/1 - 99 (Repealed

2017)

2015

Expands the membership of the UAS Oversight Task Force and extends the

deadline for the task force to issue a report from July 1, 2016 to July 1, 2017.

20 Ill. Comp. Stat.

§ 5065/15, 20 (Repealed

2017)

2016

Amends the Aeronautics Act to establish definitions related to UAS and

regulations for UAS. Provides that to the extent it does not conflict with federal

laws, rules or regulations, regulation of UAS is an exclusive power of the State.

620 Ill. Comp. Stat. Ann.

§ 5/42.1

2018

Indiana

Adopts a resolution to urge the legislative council to study UAS issues. Resolution (not codified)

2013

Excludes electronic monitoring with an UAS from the definition of “lawful

detention.” Creates search warrant requirements and exceptions for police use

of UAS and real-time geo-location tracking devices. It also prohibits law

enforcement from compelling individuals to reveal passwords for electronic

devices without a warrant. If law enforcement obtains information from an

electronic service provider pursuant to a warrant, the provider is immune from

criminal or civil liability (Ind. Code § 35-33-5-13). The law provides that if

police seek a warrant to compel information from media entities and personnel,

then those individuals must be notified and given the opportunity to be heard

by the court concerning issuance of the warrant (Ind. Code § 35-33-5-14). The

law also creates the privacy-related crime of "Unlawful Photography and

Surveillance on Private Property," making it a misdemeanor. This crime is

committed by a person who knowingly and intentionally electronically surveys

the private property of another without permission.

Ind. Code

§§ 35-31.5-2-343.7,

35-31.5-2-337.5,

35-33-5-0.5,

35-33-5-9,

35-33-5-10

2014

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

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Allows the use of UAS to photograph or take aerial photographs or video of a

traffic crash site on a public street or highway. Prohibits the use of UAS to

scout game during hunting season, but permits use of UAS to monitor areas of

agriculture production or to monitor nuisance wild animals as well as to provide

veterinary treatment to a wild animal.

Ind. Code §§ 14-22-6-16,

35–33–5–9

2016

Defines unmanned aerial vehicle, creates a number of new criminal offenses.

These offenses include the “sex offender unmanned aerial vehicle offense,

“public safety remote aerial interference”, and “remote aerial harassment.” All

of these offenses are misdemeanors unless the person has a prior conviction,

in which case it is a felony. It is also a misdemeanor to commit “remote aerial

voyeurism” (invasion of privacy). It becomes a felony if the person publishes

the images, makes them available on the Internet, or shares them with another

person.

Ind. Code

§§ 14-22-6-16,

35-31.5-2-342.3,

35-31.5-2-343.7,

35-31.5-2-343.8,

35-33-5-0.5,

35-42-4-12.5,

35-44.1-4-10, 35-45-4-5,

35-45-10-6, 35-46-1-15.1

2017

Amends § 35-33-5-9 to require a search warrant to use a UAS over private

property or to conduct surveillance, obtain a photograph, or obtain video of

private property or of individuals, items, or structures on private property

without the property owner’s consent, except that a warrant is not required to

use a UAS if a warrant would not be required for the same search without a

UAS.

Ind. Code

§ 35-33-5-9

2019

Iowa Defines Unmanned Aerial Vehicles. Under law, it illegal for a state agency to

use a UAS to enforce traffic laws (Iowa Code § 321.492B). The law requires a

search warrant, or other lawful means, to use information obtained with UAS in

a civil or criminal court proceeding (Iowa Code § 808.15). It also requires the

department of public safety to develop guidelines for the use of UAS and to

determine whether changes to the criminal code are necessary; the

department’s findings must be reported to the general assembly by Dec. 31,

2014 (some provisions not codified).

Iowa Code

§§ 321.492B

808.15

2014

Kansas Expands the definition of harassment in the Protection from Stalking Act to

include certain uses of UAS.

The law appropriates funds that can be used to focus on research and

development efforts related to UAS by state educational institutions. The law

specifies a number of focuses for the research, including the use UAS for

inspection and surveillance by the Department of Transportation, Highway

Patrol, and State Bureau of Investigation. It requires that the director of UAS

make recommendations regarding state laws and rules that balance privacy

concerns and the need for “robust UAS economic development” in the state.

(Some provisions are not codified)

Kan. Stat. Ann.

§ 60-31-a02

2016 Omnibus

Appropriations Act

2016

Adopts resolution urging FAA to accept Kansas’s 2019 application to be a

participant in FAA’s UAS Integrated Pilot Program.

Resolution (not codified) 2018

Kentucky

Allows commercial airports to prepare UAS facility maps to display the airport’s

airspace overlaid with gridlines or other indicators of where it is unsafe to

operate a UAS without airport authorization, unless FAA has created such a

facility map. Prohibits UAS from entering into areas prohibited by the airport’s

facility map for UAS takeoff, landing, or operation. Prohibits operation of UAS

in a reckless manner that creates a risk of serious physical injury or damage to

property. Anyone who violates § 183.086 is guilty of a misdemeanor, or a

felony if the violation causes a significant change of course or a serious

disruption to the safe travel of an aircraft that threatens the physical safety of

the passengers and crew. The law does not apply to commercial UAS

operators in compliance with FAA regulations.

Ky. Rev. Stat. Ann

§§ 183.011

183.085

183.086

183.990

2017

Creates Citizens’ Freedom from Unwarranted Surveillance Act. Defines

unmanned aircraft system, prescribes permitted and prohibited uses of UAS,

provides exceptions, prohibits the use of evidence obtained by a UAS in

violation of stated prohibitions, clarifies criminal liability for offenses committed

using a UAS, creates the offense of obstructing an emergency responder. The

law also establishes the offense of trespass upon key infrastructure assets,

defines key infrastructure assets to include various utility facilities, hazardous

material facilities, rail facilities, military defense facilities, and

telecommunication facilities, and provides that a violation is a misdemeanor

and also provides exceptions.

Ky. Rev. Stat. Ann.

§§ 500.130

511.100

2018

Prohibits UAS over a correctional facility, as a newly-added key critical

infrastructure asset, or to deliver contraband.

Ky. Rev. Stat. Ann.

§§ 511.100

520.010

2019

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 7

Louisiana

Defines the unlawful use of a UAS as the intentional use of a UAS to conduct

surveillance of a targeted facility (e.g., oil and alumina refineries, nuclear

facilities, chemical and rubber manufacturing facilities) without the owner’s prior

written consent. The crime is punishable by a fine of up to $500 and

imprisonment for six months. A second offense may be punishable by a fine up

to $1,000 and one year imprisonment.

La. Stat. Ann § 14:337

2014

Adds a new chapter of the Louisiana Revised statutes to regulate the use of

UAS in agricultural commercial operations, provide definitions, authorize the

commissioner to adopt rules, provide for license and registration requirements,

discuss operation of UAS, and cover violations and related penalties.

La. Stat. Ann §§ 3:41

through 3:47

2015

Adds the intentional crossing of a police cordon using a drone to the crime of

obstructing an officer. Authorizes law enforcement and fire department

personnel to disable [counter] UAS if it endangers the public or an officer's

safety. Prohibits using a drone to conduct surveillance of, gather evidence or

collect information about, or take photo or video of a school, school premises,

or correctional facilities. The law establishes a penalty of a fine and up to six

months in jail. The law authorizes the establishment of registration and

licensing fees for UAS. The law adds the use of UAS to the existing invasion of

privacy crimes of voyeurism, video voyeurism, and Peeping Tom. The law

specifies that surveillance by a UAS constitutes criminal trespass under certain

circumstances.

La. Stat. Ann

§§ 3:43, 3:48,

14:108, 14:337,

14:283, 14:283.1,

14:284

2016

Specifies that only the state may regulate UAS. The law also defines

“unmanned aerial system” and “unmanned aircraft system.” It specifies that the

definition of UAS does not apply to a UAS used by a local, state, federal

government, or other specified entities.

La. Stat. Ann. § 2:2

2017

Specifies that surveillance equipment may not be attached to UAS for video

voyeurism. Adds that identifiable person has a reasonable expectation of

privacy. Provides and exception for bone fide news or public interest media.

La. Stat. Ann § 14:283 2018

Maine Requires law enforcement agencies to obtain approval before acquiring UAS.

Specifies that the use of UAS by law enforcement must comply with all FAA

requirements and guidelines. The law requires a search warrant to use UAS for

criminal investigations except in certain circumstances and sets out standards

for the operation of UAS by law enforcement. The Commissioner of Public

Safety shall submit to the legislature a report containing the number of

instances in which a UAS has been deployed by any law enforcement agency.

Me. Stat. tit. 25, § 4501 2015

Maryland

Appropriates $500,000 for the state’s unmanned aerial system test site.

Appropriations law

(not codified)

2013

Adds a new section to the Article for Economic Development that defines

“unmanned aircraft” and “unmanned aircraft system.” Specifies that only the

state can enact laws to prohibit, restrict, or regulate the testing or operation of

unmanned aircraft systems. This preempts county and municipal authority.

Enacts the Unmanned Aircraft Systems Research, Development, Regulation,

and Privacy Act of 2015. This requires a study on the concerns and specified

benefits of UAS, encourages local governments to work with Federal Aviation

Law Enforcement to determine how to enforce FAA regulations and general

applicability laws that apply to UAS, and requires the review of UAS

recreational use and make recommendations for regulatory changes to support

governance or enforcement efforts related to UAS.

Md. Code, Econ. Dev.

§ 14-301

2015 Maryland Laws Ch.

164 (S.B. 370)

2015

Michigan

Adopts a resolution to recognize the benefits of a thriving UAS industry in the

state.

Resolution (not codified) 2013

Prohibits using UAS to interfere with or harass an individual who is hunting.

The law prohibits using UAS to take game.

Mich. Comp. Laws

§ 324.40111c

2015

Enacted the Unmanned Aircraft Systems Act that provides for the operation

and regulation of UAS. Prohibits localities from regulating UAS unless

authorized by statute. Permits commercial operation in the state if the operator

is authorized by the FAA to operate commercially and permits hobby operation

so long as the operator complies with federal law. The law prohibits using a

drone in a way that interferes with emergency personnel and it prohibits the

use of a drone to harass an individual, to violate a restraining order, or to

capture images in a way that invades an individual’s reasonable expectation of

privacy. The law also prohibits sex offenders from using a drone to follow,

contact, or photograph a person that they are prohibited from contacting.

Anyone who uses a drone in a prohibited way is guilty of a misdemeanor. The

Mich. Comp. Laws

§ 259.301 to 331

2016

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 8

law also creates the unmanned aircraft systems task force to “develop

statewide policy recommendations on the operation, use, and regulation” of

UAS in the state. It specifies the members of the task force, the length of

appointment and other specifics related to the task force.

Provides a budget for the department of state police to draft a report that

evaluates law enforcement issues related to the use of drones; the efficacy of

federal, state, and local regulation; and recommendations for laws/regulations

and policy related to the use of drones.

Appropriations law

(not codified)

2018

Allows a political subdivision that prohibits the operation of nonemergency

motor vehicles to enact and enforce an ordinance, regulation or resolution,

under certain circumstances, to prohibit the knowing and intentional operation

of UAS in a manner that interferes with the safe use of a horse in certain

commercial activities.

Mich. Comp. Laws

§ 259.305

2019

Minnesota Appropriates money from environment and natural resources trust fund to the

University of Minnesota to assess the use of unmanned aerial vehicles to

monitor moose populations and changes in the ecosystem.

Appropriations law

(not codified)

2017

Mississippi Specifies that using a drone to commit the invasion of privacy offense of

"Peeping Tom" activities is a felony.

Miss. Code Ann

§ 97-29-61

2015

Montana Limits when information gained from the use of UAS may be admitted as

evidence in any prosecution or proceeding within the state. The information

can be used when it was obtained pursuant to a search warrant or through a

judicially recognized warrant exception. The law defines “unmanned aerial

vehicle” as “an aircraft that is operated without direct human intervention from

on or within the aircraft,” not including satellites.

Mont. Code Ann.

§ 46-5-109

2013

Defines “unmanned aircraft” and “unmanned aircraft system.” Prohibits using

UAS to interfere with wildfire suppression efforts. Anyone who violates this

prohibition is liable for the amount equivalent to the costs of the interference.

The law also prohibits local governments from enacting an ordinance

addressing the private use of UAS in relation to a wildfire.

Mont. Code Ann.

§§ 76-13-214,

7-1-111

2017

Specifies that information obtained from UAS is admissible as evidence during

the investigation of a motor vehicle crash scene on a public roadway.

Mont. Code Ann.

§ 46-5-109

2019

Nevada Appropriates $4 million to the interim Finance Committee for allocation to the

Governor's Office of Economic Development for the Unmanned Aerial Vehicle

program. The funds can only be appropriated if Nevada is selected as an FAA

test site. The legislature adopted a resolution to recognize the benefits of a

thriving UAS industry in the state.

Appropriations law &

Resolution

(not codified)

2013

Includes UAS in the definition of aircraft and regulates the operators of UAS.

Prohibits the use of weaponized UAS and prohibits the use of UAS within a

certain distance of critical facilities and airports without permission. The bill

specifies certain restrictions on the use of UAS by law enforcement and public

agencies and requires the creation of a registry of all UAS operated by public

agencies in the state. Provides certain criminal and civil penalties for the

unlawful operation or use of a UAS.

Nev. Rev. Stat.

§§ 493.020, 493.103 to

493.118, 493.120

2015

Adds certain transmission lines to the definition of “critical facility” for the

purpose of limiting where a UAS can be operated.

Nev. Rev. Stat. § 493.020

2017

Directs the Office of Economic Development to establish a UAS program,

including UAS registration. Authorizes the program to provide training, conduct

testing and develop safety guidelines.

Nev. Rev. Stat.

§ 231.1525

2019

New

Hampshire

Prohibits the use of UAS for hunting, fishing or trapping. N.H. Rev. Stat. Ann.

§ 207:57

2015

New

Jersey

Provides that UAS operation must comply with federal law. Specifies that

owners or operators of critical infrastructure may apply to FAA to prohibit or

restrict operation of UAS near critical infrastructure. Operating a UAS in a

manner that endangers the life or property of another is an offense. It is a crime

if a person endangers the safety or security of a correctional facility by

operating a UAS on the premises of or in close proximity to that facility. Using a

UAS to conduct surveillance of a correction facility is also a crime. It is a

criminal offense to operate a UAS in a way that interferes with a first

responder. A person may not use a UAS to capture wildlife. The law prohibits

operation of a UAS under the influence of drugs or alcohol. Restrictions on

N.J. Stat. Ann.

§§ 2C:40-27 to 2C:40-

302C:43-6.4

2017

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 9

UAS operation may be included in restraining orders; however, a conviction for

violating a UAS law is separate from other convictions such as harassment,

stalking, and invasion of privacy. The law allows for prohibition or restricted

use of UAS by sex offenders. The law preempts localities from regulating UAS

in any way that is inconsistent with state law.

Resolution urges the U.S. Congress and the President to fund the FAA’s Drone

Test Site Program.

Resolution (not codified)

2018

Appropriates $500,000 to the Department of Transportation for its UAS

program.

Prohibits UAS from transferring or delivering medical cannabis.

Appropriations law

(not codified)

N.J. Stat. Ann.

§ 24:6I-20

2019

New

Mexico

House and Senate adopt memorials to express its desire that state entities with

wildlife responsibilities stay aware of changing technologies, including drones

that may affect wildlife. Also calls for the state parks division to recommend

methods for to protect wildlife from drones.

Memorials (not codified)

2015

North

Carolina

Prohibits the use of UAS by state and local personnel unless the use is

approved by the Chief Information Officer (CIO) for the Department of

Transportation. The CIO may determine there is a need to develop a UAS

program within the State of North Carolina. This effort must include the CIO

and the Department of Transportation Aviation Division Director.

Appropriations law

(not codified)

2013

Prohibits the purchase and use of UAS by state and local personnel, until

December 31, 2015, unless the use is approved by the Chief Information

Officer (CIO) for the Department of Transportation (not codified). Defines

“unmanned aircraft” and “unmanned aircraft system.” Prohibits any entity from

conducting UAS surveillance of a person or private property and prohibits

taking a photo of a person without their consent for the purpose of distributing it

(N.C. Gen. Stat. § 15A-300.1). The law creates a civil cause of action for those

whose privacy is violated (N.C. Gen. Stat. § 15A-300.1). Any crime committed

with UAS in NC is subject to NC law (N.C. Gen. Stat. § 14-7.45). Restricts the

use of infrared and thermal imaging technology by commercial and private

UAS (repealed in 2017) (N.C. Gen. Stat. § 15A-300.1(d). See also N.C. Gen.

Stat. § 14-401.25. All agents of the state who operate UAS must pass a

knowledge and skills test (N.C. Gen. Stat. § 63-95). The law enables law

enforcement to use UAS pursuant to a search warrant (N.C. Gen. Stat. § 15A-

300.1). Creates several new crimes e.g., using UAS to interfere with manned

aircraft (N.C. Gen. Stat. § 14-280.3), possessing an unmanned aircraft with an

attached weapon (N.C. Gen. Stat. § 14-401.24), the unlawful fishing or hunting

with UAS (N.C. Gen. Stat. § 14-401.24), harassing hunters or fisherman with a

UAS (N.C. Gen. Stat. § 113-295), unlawful distribution of images obtained with

a UAS (N.C. Gen. Stat. § 14-401.25), and operating a UAS commercially

without a license (N.C. Gen. Stat. § 63-96). The law prohibits the launch or

recovery of a UAS from any State or private property without consent.

N.C. Gen. Stat.

§§ 15A-300.1, 15A-300.2,

14-7.45, 14-280.3,

14-401.24, 14-401.25,

63-95, 63-96, 113-295

2014

Expands the authority of the state's Chief Information Officer to approve the

purchase and operation of UAS by the state and modifies the state regulation

of UAS to conform to FAA guidelines. (Some provisions not codified.)

N.C. Gen. Stat. § 63-96

2015

Prohibits the operation of UAS within a certain distance of a correctional

facility. (N.C. Gen. Stat. § 15A-300.3) The exemption that specified that certain

model aircraft were not unmanned aircraft was removed (N.C. Gen. Stat. §

15A-300.1). Allows the use of UAS for emergency management activities,

including incident command, area reconnaissance, search and rescue,

preliminary damage assessment, hazard risk management, and floodplain

mapping. The bill makes other changes to align the state law with federal law.

It also exempts model aircraft from training and permitting requirements for

UAS. Repealed § 300.1(d) to remove the restriction on the use of special

imaging technology. (Some provisions not codified.)

N.C. Gen. Stat.

§§ 15A-300.1,

15A-300.3,

63-94, 63-96

2017

Appropriates $4 million to the Department of Transportation for the purchase of

UAS equipment, including aircraft systems, mobile command systems and

technology.

Appropriations law

(not codified)

2019

North

Dakota

Grants $1 million from the state general fund to a UAS test site officially

designated by FAA. If selected, the law would grant an additional $4 million to

operate the site. The law created a special treasury fund to defray the

expenses of the operations of the UAS test site facility.

N.D. Cent. Code

§ 54-60-29

2013

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 10

The legislature adopted a resolution to recognize the benefits of a thriving UAS

industry in the state.

Resolution (not codified)

With exceptions, limits the use of UAS for surveillance. Prohibits domestic

UAS use in private surveillance without the express, informed consent of either

the surveilled person or the landowner of property on which the surveilled

person is present. Person authorized to conduct surveillance must document

use; any images or other UAS-collected data lawfully obtained must be deleted

after 90 days unless there is a reasonable and articulable suspicion the images

or data contain evidence of a crime or are relevant to an ongoing investigation

or trial. The law prohibits arming a UAS with a lethal weapon including by law

enforcement.

N.D. Cent. Code

§ 29-29.4-01 to -06

2015

Executive order establishes the Northern Plains Unmanned Systems Authority

to oversee operation of the UAS test site in the state

Executive order

(not codified)

2016

Adopts a resolution to support development of the UAS industry in the state,

congratulates FAA on the first Beyond Visual Line of Sight Certificate of

Authorization in the United States, and encourages further cooperation with

FAA to integrate UAS into the national airspace.

Resolution (not codified) 2017

Ohio Creates the aerospace and aviation technology committee, the duties of which

include research and development of aviation technology including UAS.

Ohio Rev. Code § 122.98

2014

Appropriates $125,000 annually to support the expansion of an unmanned

aviation STEM program for high school students.

Appropriations law

(not codified)

2019

Oklahoma Prohibits the operation of UAS over a critical infrastructure facility if the

unmanned aircraft is less than 400 feet above ground; defines several terms

related to UAS and critical infrastructure.

Okla. Stat. tit. 3, § 322

2016

Oregon

Defines a drone as an unmanned flying machine, not including model aircraft.

The law allows law enforcement agencies to use UAS if they obtain a search

warrant, with exceptions including for training purposes. Requires that a drone

operated by a public body be registered with the Oregon Department of

Aviation (DOA), which shall keep a registry of drones operated by public

bodies. The law grants the DOA rulemaking authority to implement these

provisions. It also creates new crimes and civil penalties for mounting weapons

on drones and interfering with or gaining unauthorized access to public drones.

Creates a cause of action for landowners to exclude UAS flights below 400 feet

above their property, and obtain treble damages, if the UAS operator

previously flew over the property at least once and the landowner told the

operator not to do so. The law also requires the DOA to report to legislative

committees on the status of federal regulations and whether UAS operated by

private parties should be registered in a manner similar to the requirement for

other aircraft. Law prohibits local regulation of drones.

Or. Rev. Stat. §§ 837.300

to 837.390

2013

Requires the development of rules prohibiting the use of UAS for angling,

hunting, trapping, or interfering with a person who is lawfully angling, trapping,

or hunting. Changes the term "drone" to "unmanned aircraft system" in statute.

Or. Rev. Stat.

§§ 498.128,

837.300 to 837.390,

837.995

2015

Modifies definitions related UAS and makes it a misdemeanor to operate a

weaponized UAS. It also creates the offense of reckless interference with an

aircraft through certain uses of UAS. The law regulates the use of drones by

public bodies, including requiring policies and procedures for the retention of

data. It also prohibits the use of UAS near critical infrastructure, including

correctional facilities. The law specifies the fees for registration of public UAS.

Or. Rev. Stat.

§§ 163.700, 164.885,

837.300, 837.360

837.362, 837.365,

837.372, 837.374,

837.380

2016

Modifies the law prohibiting the weaponization of a UAS, making it a felony. It

is a felony if serious physical injury is caused to another person. The law also

creates an exception if the UAS is used to release a nonlethal projectile other

than to injure or kill people or animals, if the UAS is used in compliance with

specific authorization from the FAA. UAS may be used by law enforcement to

reconstruct an accident scene. Prohibits UAS operators from flying over

private property to intentionally, knowingly, or recklessly harass or annoy the

owner or occupant of the property. This law does not apply to law enforcement.

Or. Rev. Stat.

§§ 837.340, 837.365,

837.370

2017

Modifies the law prohibiting the weaponization of UAS. Prohibits UAS from

being designed or modified to cause, and is presently capable of causing,

serious physical injury.

Or. Rev. Stat. § 837.365

2018

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 11

Makes it a misdemeanor offense to operate UAS to direct a laser at an aircraft,

crash into aircraft, or prevent takeoff or landing of an aircraft.

Directs the Department of Aviation to adopt rules maintaining records of an

educational institution’s use of UAS, including registration, and states that the

Department shall not charge UAS registration fees to educational institutions.

Or. Rev. Stat.

§§ 837.374, 837.360

2019

Penn. Adopts a resolution that directs the Joint State Government Commission to

conduct a study on the use of UAS by state and local agencies.

Resolution (not codified) 2015

Amends statutes relating to burglary and other criminal intrusion, defines the

offense of unlawful use of a UAS and provides exceptions. The law prohibits

local regulation of UAS and preempts any UAS ordinance, resolution, rule or

other enactment of a municipality.

18 Pa. Cons. Stat. § 3505

53 Pa. Cons. Stat. § 305

2018

Rhode

Island

Gives exclusive regulatory authority over UAS to the state of Rhode Island and

the Rhode Island Airport Corporation, subject to federal law.

1 R.I. Gen Laws § 1-8-1 2016

South

Carolina

Provides that it is unlawful to operate a UAS within a certain distance of a

Department of Corrections facility and any local detention facility without written

consent. Provides penalties for this violation and requires recordkeeping of

confiscated UAS.

S.C. Code Ann.

§§ 24-1-300,

24-5-175

2018

South

Dakota

Exempts UAS that weigh less than 55 pounds from aircraft registration

requirements. (The provision exempting certain unmanned aircraft from

registration was repealed in 2019). The law defines “drone” as a powered

aerial vehicle without a human operator that can fly autonomously or be piloted

remotely (repealed 2018). The law requires that UAS operation comply with all

applicable FAA requirements. Military drones are exempt from Act to regulate

Drones. The law prohibits operation of drones over the grounds of correctional

and military facilities unless authorized Operation over these facilities is a

misdemeanor. If a drone is used to deliver contraband or drugs to a

correctional facility, the operator is guilty of a felony. The law also prohibits the

intentional use of a drone to observe, photograph or record someone in a

private place with a reasonable expectation of privacy and landing a drone on

the property of an individual without that person’s consent. Unlawful

surveillance is a misdemeanor. The unlawful surveillance provisions do not

apply to individuals operating a drone for commercial or agricultural purposes

or to emergency management workers using a drone in their duties.

S.D. Codified Laws

§§ 22-21-1, 50-11-9.1,

50-15-1 (repealed 2018),

50-15-2 to 50-15-4

2017

Defines that aircraft include drones. Drones are further defined as a small UAS

which is “any unmanned aircraft and its associated elements that is operated

without the possibility of direct human intervention from within or on the aircraft,

and that weighs not more than fifty-five pounds, including anything that is

onboard or otherwise attached to the aircraft.”

S.D. Codified Laws

§§ 50-1-1, 50-11-8

(repealed 2019)

2018

Tennessee Addresses the use of drones by law enforcement. The law authorizes law

enforcement to use drones in compliance with a search warrant, to counter a

high-risk terrorist attack and if swift action is needed to prevent imminent

danger to life. Evidence obtained in violation of this law is inadmissible in state

criminal prosecutions. Those wronged by such evidence also can seek a civil

remedy.

Tenn. Code Ann.

§ 39-13-609

2013

Makes it a misdemeanor for any private entity to use a drone to conduct video

surveillance of a person who is hunting or fishing without their consent. It also

makes it a misdemeanor for a person to use UAS to interfere with privacy–to

intentionally conduct surveillance of an individual or their property. It makes it

a crime to possess those images or distribute and otherwise use them. The

law also identifies 18 lawful uses of UAS, including the commercial use of UAS

under FAA regulations, professional or scholarly research and for use in oil

pipeline and well safety.

Tenn. Code Ann.

§§ 70-4-301,

70-4-302

2014

Prohibits using a drone to capture an image over certain open-air events and

fireworks displays. It also prohibits the use of UAS over the grounds of a

correctional facility.

Tenn. Code Ann.

§ 39-13-903

2015

Creates the crime of using a drone to fly within 250 feet of a critical

infrastructure facility for the purpose of conducting surveillance or gathering

information about the facility. The law clarifies that it is permissible for a

Tenn. Code Ann.

§§ 39-13-902,

39-13-903

2016

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 12

person to use a UAS on behalf of either a public or private institution of higher

education, rather than just public institutions.

Defines drone, law enforcement must obtain a search warrant to use drone to

search for and collect evidence or obtain information or data. Provides an

exception for use of drone without a warrant. Provides that evidence and

information obtained by use of drone shall be deleted within 3 business days

unless it is part of an ongoing investigation. Provides civil remedy for violation

of the law.

Tenn. Code Ann.

§ 39-13-609

2018

Prohibits UAS operations over a correctional facility. Makes it a felony offense,

rather than a misdemeanor, to operate UAS over a “critical infrastructure

facility,” which includes electrical systems, petroleum refineries, certain

manufacturing facilities, chemical storage facilities, water treatment facilities,

utilities transmission infrastructure and railroads.

Tenn. Code Ann.

§ 39-13-903

2019

Texas

The newly enacted Texas Privacy Act creates two invasion of privacy

misdemeanor crimes: (1) to “use[] an unmanned aircraft to capture an image of

an individual or privately owned property . . . with the intent to conduct

surveillance on the individual or property captured in the image” and (2) to

capture such an image and possess, disclose, display, distribute, or otherwise

use it. “Image” is broadly defined. Violators also are subject civil actions by an

affected landowner or tenant. Destruction of an image violating the law is a

defense. The law specifies 19 exceptions (now 21 exceptions) of

circumstances in which it is lawful for a UAS to capture images, e.g., use to

capture images of “public real property or a person on that property”; use to

capture images with the subject’s consent; use in airspace designated as an

FAA test site; use in connection with a valid search or arrest warrant; and use

in oil pipeline safety and rig protection. The Department of Public Safety is

directed to adopt rules for use of UAS by law enforcement and law

enforcement agencies in communities of over 150,000 people are required to

submit annual reports on their use.

Two resolutions were adopted addressing the legislative procedure needed to

enact the new Texas Privacy Act.

Tex. Gov. Code

§§ 423.001 to 423.008

Resolutions (not codified):

HR 3035

SR 1084

2013

Bans UAS operations below 400 feet over a “critical infrastructure facility”;

violation is a Class B misdemeanor. Authorizes state officials to adopt rules

restricting or banning UAS operations above the State Capitol Complex,

making violation of the rules a misdemeanor. Authorizes those in specified

professions or engaging in certain activities to capture images using UAS in the

course of those professions or activities under certain conditions.

Tex. Gov. Code

§§ 423.002,

423.0045, 411.062

2015

Expands the ban of UAS operations below 400 feet to UAS operations over

correctional facilities and sports venues. Expands the definition of “critical

infrastructure” to include structures used as part of telecommunications

services, animal feeding operations, and a number of facilities related to oil and

gas. Prohibits political subdivisions from regulating UAS use except use during

“special events” and when the UAS is used by the political subdivision.

Expands the exceptions permitting use of UAS to capture images. Specifies

that only law enforcement may use UAS to captures images of real property

that is within 25 miles of the U.S. border for border security purposes.

Tex. Gov. Code

§§ 423.002,

423.0045, 423.0046,

423.009

2017

Utah

Regulates the use of UAS by state government entities. A search warrant is

required for a law enforcement agency to “obtain, receive or use data” derived

from the use of UAS. The law also establishes standards for when it is

acceptable for an individual or other non-governmental entity to submit data to

law enforcement. The law provides standards for law enforcement’s collection,

use, storage, deletion and maintenance of data. If a law enforcement agency

uses UAS, that agency must submit an annual report on their use to the

Department of Public Safety and to publish the report on its website. The new

law notes that it is not intended to “prohibit or impede the public and private

research, development, or manufacture of unmanned aerial vehicles” (not

codified).

Utah Code Ann.

§§ 72-14-101, 72-14-102,

72-14-203, 72-14-204

(originally codified at

63G-18-101 to 63G-18-

105) (63G-18-105

repealed in 2017)

2014

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 13

Allows a law enforcement agency to use an unmanned aircraft system to

collect data at a testing site and to locate a lost or missing person in an area in

which a person has no reasonable expectation of privacy. It also institutes

testing requirements for a law enforcement agency's use of an unmanned

aircraft system.

Utah Code Ann.

§§ 72-14-101, 72-14-102,

72-14-203, 72-14-204

(originally codified at

63G-18-101 to

63G-18-105)

(63G-18-105 repealed in

2017)

2015

Makes it a misdemeanor to operate a UAS within a certain distance of a

wildfire. It is a misdemeanor if the UAS causes an aircraft fighting the wildfire

to drop a payload in the wrong location or to land without dropping the payload.

It is a felony if the UAS crashes into a manned aircraft or if it causes the

manned aircraft to crash. The law increases the penalties for offenses related

to operating within a certain distance of a wildfire and permits certain law

enforcement officers to disable a drone that is flying in a prohibited area near a

wildland fire.

Utah Code Ann.

§ 65A-3-2.5

2016

Prohibits a person from intentionally, knowingly, or recklessly chasing, actively

disturbing, or harming livestock through the use of UAS. Anyone who violates

this law is guilty of a misdemeanor. Preempts local regulation of UAS and

exempts UAS from aircraft registration in the state. Addresses UAS use by law

enforcement, allowing use for purposes unrelated to a criminal investigation.

Requires law enforcement to create an official record when using UAS that

provides information regarding the use of the drone and any data acquired.

The law makes it a misdemeanor to fly a UAS that carries a weapon or has a

weapon attached. Exceptions include if a person has authorization from the

FAA, the state or federal government. The law also defines safe operation of

unmanned aircraft, specifying operational requirements for recreational

operators. The operator must maintain visual line of sight, cannot operate

within certain airspace, cannot operate in a way that interferes with operations

at an airport, heliport or seaplane base, cannot operate from specified

locations, and must operate below 400 feet unless it is within 400 feet of a

structure. Any operator who violates these requirements is liable for any

damages and law enforcement shall issue a written warning for the first

violation. A second violation is an infraction and any subsequent violations are

misdemeanors. The offense of criminal trespass is modified to include drones

entering and remaining unlawfully over property with specified intent. The law

also specifies that a person is not guilty of what would otherwise be a privacy

violation if the person is operating a UAS for legitimate commercial or

education purposes consistent with FAA regulations. It also modifies the

offense of voyeurism, a misdemeanor, to include the use of any type of

technology, including UAS, to secretly record video of a person in certain

instances.

The legislature adopted a resolution to support the building of a NASA drone

testing facility and Command Control Center and requested the Governor's

support to expand Utah's UAS infrastructure.

Utah Code Ann.

§§ 72-10-109, 72-14-103,

72-14-104, 72-14-201,

72-14-202, 72-14-205,

72-14-206, 72-14-301,

72-14-302, 72-14-303,

72-14-401, 72-14-402,

72-14-403, 76-9-308,

76-9-402, 76-9-702.7

Resolution (not codified)

2017

Defines correctional facility, prohibits the operation of UAS to deliver any item

to or inside the property of a correctional facility or in a manner that interferes

with the operations or security of the facility. Exempts UAS operating in the

course and scope of an operation of a mosquito abatement district.

Utah Code

§§ 72-10-109,

72-14-304

2018

Virginia

Prohibits drone use by any state agencies “having jurisdiction over criminal law

enforcement or regulatory violations” or units of local law enforcement until July

1, 2015. Numerous exceptions to the ban are provided, including enabling

officials to deploy drones for Amber Alerts, Senior, Alerts, Blue Alerts, use by

the National Guard, by higher education institutions and search and rescue

operations. Requires the Virginia Department of Criminal Justice Services and

other state agencies to research and develop model protocols for drone use by

law enforcement in the state.

Temporary moratorium

(not codified)

2013

Defines unmanned aircraft and unmanned aircraft system. Requires law

enforcement agencies to obtain a search warrant before using a drone for any

purpose, except in limited circumstances, such as when certain alerts have

been activated or when the use of UAS is necessary to alleviate immediate

danger to an individual.

Va. Code Ann.

§ 19.2-60.1

2015

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B-330570 Current Drone Legal Issues Page 14

An executive order established a commission on UAS to study drones and

their potential uses and concerns.

Executive order (not

codified)

Prohibits the regulation of UAS by localities and prohibits individuals from

entering land solely on the basis of UAS possession if otherwise not permitted

to enter.

The legislature appropriated $1,000,000 to support the advancement of

unmanned systems companies and development of the unmanned systems

industry. In addition, it appropriated $850,000 for the establishment of an

Unmanned Aerial Systems Commercial Center of Excellence and business

accelerator. Also appropriated $1,636,493 to Virginia Tech for UAS research

and development.

Va. Code Ann.

§ 15.2-926.3

Appropriations law (not

codified)

2016

Makes it a misdemeanor to use UAS to trespass to secretly or furtively peep,

spy, or attempt to peep or spy into a dwelling or occupied building (invasion of

privacy). Specifies that the fire chief or other officer in charge of a fire

department has authority to maintain order at an emergency incident including

the immediate airspace. Individuals who do not obey the orders of the officer in

charge are guilty of a misdemeanor.

Va. Code Ann.

§§ 18.2-130.1,

27-15.1, 27-15.1:1

2017

Provides that any person who knowingly and intentionally causes any

electronic device to enter the area of a dwelling house of another person with

the intent to coerce, intimidate, or harass any other person, after being given

notice to desist, is guilty of a misdemeanor. Also provides that a UAS may be

deployed without a search warrant by a law enforcement officer, following an

accident where a report is required, to survey the scene of such accident for

the purpose of crash reconstruction and to record the scene by photographic or

video images. Defines unmanned aircraft and unmanned aircraft system.

Prohibits a political subdivision from regulating the use of a privately owned

UAS; prohibits a person from entering upon public land solely on the basis of

possession of a UAS unless otherwise permitted to do so; makes it a crime to

commit trespass with a UAS; provides penalties.

Va. Code Ann.

§§ 5.1-1, 15.2-926.3,

18.2-121.3, 18.2-324.2,

19.2-60.1

2018

Makes it a misdemeanor offense to take off or land in violation of current

Federal Aviation Administration Special Security Instructions or UAS Security

Sensitive Airspace Restrictions (e.g., military and defense facilities). Allows

UAS to be operated by law enforcement to survey the residence of a person

subject to an arrest warrant, or to locate a person that has fled law

enforcement and the officer is in active pursuit.

Va. Code Ann.

§§ 18.2-121.3,

19.2-60.1

2019

Vermont Regulates the use of drones by law enforcement, requires compliance with

FAA requirements and guidelines, and requires law enforcement to annually

report on the use of drones by the department. Prohibits weaponized drones.

Requires the Transportation Agency on or before December 15, 2016, to make

recommendations or proposals it determines necessary for the regulation of

drones pursuant to Vt. Stat. Ann. tit. 20, § 4623 (not codified).

Vt. Stat. Ann. tit. 20

§§ 4621, 4622,

4623, 4624

Vt. Stat. Ann. tit. 13,

§ 4018

2016

Revises provisions prohibiting the use of drones over a correctional facility or

surrounding property that is easily recognizable or identifiable to a reasonable

person as being a correctional facility property; establishes civil penalties;

provides exceptions.

Vt. Stat. Ann. tit. 20

§§ 4621

4625

2018

Washington Appropriates $300,000 to develop a UAS program at a local college.

Appropriations law

(not codified)

2019

Wisconsin

Revises provisions relating to the operation and local regulation of UAS; makes

technical corrections.

Wis. Stat.

§§ 114.04, 114.105,

175.55

2018

Requires law enforcement to obtain a search warrant before using drones in a

place where an individual has a reasonable expectation of privacy. The law

also creates two new crimes: “possession of a weaponized drone” and “use of

a drone.” Use of a drone is a misdemeanor prohibiting a person who, with

intent, observes another person in a place where that person has a reasonable

expectation of privacy. Possession of a weaponized drone is a felony.

Wis. Stat.

§§ 114.04, 175.55,

941.292, 942.10, 972.113

2014

Appendix IV – State UAS-Specific Laws, Resolutions, and Executive Orders

B-330570 Current Drone Legal Issues Page 15

Source: GAO analysis of 2013-2019 information compiled by the National Conference of State Legislatures.

Prohibits using a drone to interfere with hunting, fishing, or trapping. Prohibits

the operation of UAS over correctional facilities.

Wis. Stat.

§§ 29.083, 29.971,

114.04, 114.045

2016

West

Virginia

Prohibits hunting with a UAS.

W. Va. Code

§ 20-2-5

2015

Establishes regulation for UAS, establishes misdemeanor criminal offenses for

certain conduct using a UAS, provides for penalties, establishes felony criminal

offenses for operating a UAS equipped with a lethal weapon, establishes felony

criminal offenses for operating a UAS with the intent to cause damage or to

disrupt in any way the flight of a manned aircraft. Authorizes the use of

recreational drones within state parks, requires persons who intend to operate

drones to register and specify where the activity will take place, provides that a

superintendent may only prohibit the use of drones within a state park in

certain circumstances and areas, requires the superintendent to provide a list

and map of any prohibited areas, provides that participants in drone activity

assume full responsibility and liability for any risk or injury thereto. Prohibits the

use of a drone or unmanned aircraft to wound, harass, or transport wildlife.

W. Va. Code

§§ 20-2-5, 20-5-2,

20-7-9, 61-16-1, 61-16-2

2018

Wyoming

Defines the term “operator” and defines “unmanned aircraft” to exclude small

UAS weighing under 55 pounds. Requires the Wyoming Aeronautics

Commission to develop rules regulating where UAS can take off and land. The

commission is also permitted to develop reasonable rules regulating the

operation of UAS through coordination with the UAS and local governments.

The law specifies that the commission does not have the power to regulate

UAS operations in navigable airspace. It also makes it unlawful to land a UAS

on the property of another person, but operators can pilot a UAS over their own

property.

Wyo. Stat. Ann.

§§ 10-1-101, 10-3-201,

10-3-301, 10-4-303

2017

APPENDIX V: EVOLUTION OF PROPERTY RIGHTS IN AIRSPACE

To understand what property rights in airspace the law may recognize today—which, in turn,

may affect the Federal Aviation Administration’s (FAA) and Congress’s authority to regulate

activity within the “navigable airspace,” the “national airspace system,” and “airspace of the

United States,” as discussed in Appendix I

—it is necessary to understand the evolution of

these rights. As discussed below, while property rights are traditionally governed by state law,

some argue Congress or FAA have eliminated or at least preempted state law-based property

rights in airspace, while others argue such rights remain in full force and have a significant

impact on key UAS jurisdiction issues being debated today.

While the advent of unmanned aircraft has raised concerns about flights into the airspace above

private property, similar concerns arose about manned aircraft a century ago. In both cases,

new technology raised questions about the balance between individual private property rights,

on the one hand, and the benefits of aviation to society, on the other hand. As the California

Supreme Court described these competing interests in 1964, in the context of landowners

seeking to stop commercial jet overflights but in terms similar to those used to describe UAS-

related concerns today:

“The use of large and powerful aircraft has created certain annoyances:

noise, vibrations, and in some cases apprehension to many people. The

question as to whether an individual should have redress for such annoyances

and, if so, under what theory and against whom, are very troublesome. These

problems have become aggravated by the advent of jets, which are noisier . . .

and which require longer and shallower glide paths. . . . On the other hand, the

great public benefit, in terms of commerce, transportation, and defense, which is

derived from the use of jet aircraft, is obvious.”

As some have framed the issue: who owns the sky? Does the federal government own the

airspace above the states and territories based on Congress’s declaration that the government

has “exclusive sovereignty of airspace of the United States”

or some other basis?

Or do

As discussed in Appendix I, Congress has provided that every “citizen of the United States has a public right of

transit through the navigable airspace” and has authorized FAA to regulate “the use of the navigable airspace” in 49

U.S.C. § 40103(a)(2) and (b)(1); has directed FAA to set requirements for civil (non-government) UAS operations in

the “national airspace system” in 49 U.S.C. §§ 44802 and 44807; and has declared that the U.S. Government has

“exclusive sovereignty of airspace of the United States” in 49 U.S.C. § 40103(a)(1).

Loma Portal Civic Club v. American Airlines, Inc., 394 P.2d 548, 550 (Cal. 1964). In Loma Portal, although the

court declined to stop the airlines from flying through landowners’ overlying airspace based on a traditional balance-

of-equities analysis, it rejected the airlines’ threshold argument that FAA’s comprehensive regulatory scheme

preempted the state court from even considering these issues. The court suggested the landowners would have

been successful if they had sued the airlines for monetary damages for nuisance or trespass instead of seeking to

prevent the planes from flying through their overlying airspace, or had sued the county airport owner/operator for an

unconstitutional taking of their property rights in the overlying airspace in accordance with the Supreme Court’s

decision in Griggs v. Allegheny County, 369 U.S. 84 (1962) (discussed below).

49 U.S.C. § 40103(a)(1).

The courts have not resolved this issue. At least seven U.S. Supreme Court Justices have stated, in various

decisions, that the federal government does not own the airspace. See Braniff Airways v. Nebr. Bd. of Equalization

and Assessment, 347 U.S. 590, 596 (1954) (5-Justice majority rejected Congress’s assertion of U.S. airspace

“sovereignty” in 49 U.S.C. § 40103(a)(1) as establishing federal ownership of the airspace; “[t]hese Federal Acts

regulating air commerce are bottomed on the commerce power of Congress, not on national ownership of the

airspace, as distinguished from sovereignty.”); Massachusetts v. United States, 435 U.S. 444, 473 (1978) (2

Appendix V – Evolution of Property Rights in Airspace

B-330570 Current Drone Legal Issues Page 2

landowners own at least some of the overlying airspace that runs with their parcel of land, and

thus have the traditional property “bundle of rights” to control that airspace and exclude others?

Questions about ownership and control of the airspace are not new. As one academic legal

expert we spoke with has explained, disputes involving objects in the airspace over private

property date back centuries, at least to the late 1500s and possibly back to the days of the

Romans.

For most of that time, such concerns were addressed by reference to the legal

doctrine of cujus est solum, ejus est usque ad coelum et ad inferos—he who owns the soil,

owns upwards unto the heavens and down to the depths.

These “three-dimensional” property

interests gave landowners the right to build structures on their land, for example, and to compel

their neighbors to remove “trespassing” structures or tree branches overhanging onto their

property—rights that remain in place today.

Courts continued to apply the ad coelum legal doctrine as technology advanced. In 1906, for

example, in the often-cited case of Butler v. Frontier Telephone Co.,

the court ruled that

installation of a telephone wire across private property, 20 feet above the land, was a

permanent ouster of the landowner’s possession of his property justifying the wire’s “ejectment”

(removal). “Was the space occupied by the wire part of the land in the eye of the law?,” the

additional Justices, dissenting, stated “[t]he United States does not ‘own’ the airspace above its territorial boundaries,

although it undoubtedly has considerable authority to regulate the use of that airspace.”) (citations omitted).

Department of Transportation (DOT) officials told us it is not the Department’s position that Congress’s declaration of

U.S. government sovereignty of airspace of the United States in 49 U.S.C. § 40103(a)(1) gives the United States

“ownership” of the navigable airspace, citing Braniff Airways. Rather, the provision merely excludes the exercise of

sovereignty by foreign nations (but not states or localities), they said. At least one legal commentator has come to a

different conclusion. See Robert A. Heverly, The State of Drones: State Authority to Regulate Drones, 8 Albany Gov’t

L. Rev. 29, 37 (2015) (“The question of who owns the skies is oft repeated in the drone discussion. The short answer

is: The United States of America owns the skies above the United States,” citing 49 U.S.C. § 40103(a)(1)).

Courts have long recognized that property is comprised of a legal “bundle of rights,” including the right to possess,

exclude, use, control, and dispose. See, e.g., United States v. General Motors Corp., 323 U.S. 373 (1945); United

States v. Lutz, 295 F.2d 736 (5th Cir. 1961). The right to exclude has been recognized as “’one of the most essential

sticks in the bundle of rights that are commonly characterized as property.’” Dolan v. City of Tigard, 512 U.S. 374,

384 (1994) (citation omitted). See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982)

(“The power to exclude has traditionally been one of the most treasured strands in an owner’s bundle of property

rights.”); Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979) (citations omitted) (the right to exclude is “so

universally held to be a fundamental element of the property right”). See generally GAO, Department of Commerce—

Property Implications of Proposed Transition of U.S. Government Oversight of Key Internet Technical Functions,

B-327398 (Sept. 12, 2016), at 8-10.

See Stuart Banner, Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On (Harvard

Univ. Press 2008). See generally Colin Calhoon, Low Altitude Airspace: A Property Rights No-Man’s Land, 56 J. Air.

L. & Com. 157, 161-67 (Fall 1990); Stuart Ball, The Vertical Extent of Ownership in Land, 76 U. Pa. L. Rev. 631

(1928); Troy A. Rule, Airspace in an Age of Drones, 95 B. U. L. Rev. 155, 166-69 (2015).

See, e.g., Banner, supra note 6, at 4-41, 69-101; United States v. Causby, 328 U.S. 256, 260-61, n. 5, 264, n. 9

(1946), citing 1 Coke, Institutes of the Laws of England (19

ed. 1832) ch. 1, § 1 (4a); 2 Blackstone, Commentaries

on the Laws of England (Lewis ed. 1902) at 18; 3 Kent, Commentaries on American Law (Gould ed. 1896) at 621;

Baten’s Case, 77 Eng. Rep. 810 (1610).

See Appendix II, discussing Restatement (Second) of Torts (1965) §§ 158, 159(a).

Butler v. Frontier Telephone Co., 79 N.E. 716 (N.Y. 1906).

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B-330570 Current Drone Legal Issues Page 3

court asked, and found that it was, relying on the ad coelum doctrine. The landowner “owned

the space occupied by the wire, and had the right of the exclusive possession of that space,

which was not personal property but a part of his land. . . . [S]pace above land is real estate the

same as the land itself,” the court declared.

The advent of manned flight, first by hot-air balloons and dirigibles in the 1800s, then by

traditional aircraft in the early 1900s following the Wright Brothers’ famous first flight, began to

change how society and the law viewed activities in the airspace. Now competing with core

property rights of individuals in the airspace above their land was the desire to use the same

airspace for manned flight to achieve economic progress for society as a whole. Some aviation

proponents suggested enacting federal or state legislation declaring a public right of flight at a

minimum altitude without liability to underlying landowners for interference with their property

rights.

Some government lawyers, however, raised objections that such legislation would amount to an

unconstitutional “taking” of private property without “just compensation,” in violation of the Fifth

Amendment to the U.S. Constitution or its state equivalents.

To address these concerns, the

lawyers suggested either following the constitutional process—by having Congress use its

eminent domain power to condemn the airspace above all privately owned land in the United

States and pay just compensation

—or amending the Constitution so landowners give up their

property rights in airspace to some extent and allow an easement of passage through the

airspace (thought to be a less expensive although more time consuming option than

condemning airspace across the country).

Neither suggestion was implemented.

In the absence of such global solutions, state courts began limiting landowners’ airspace

property rights as a matter of common law, as did a number of state legislatures. In the often-

cited 1923 decision in Johnson v. Curtiss Northwest Airplane Co.,

for example, the first

apparent civil trespass-by-airplane decision in the U.S., the court relied on the ad coelum

doctrine but ruled that it must yield to some extent to the modern age of flight. The court

declined to prohibit all plane flights over the plaintiff’s land at any altitude on the basis that they

were “trespassers,” instead prohibiting only those flights below an altitude-based line in the sky

of 2,000 feet above ground level, based on the state’s minimum altitude for flights in the

Butler, 79 N.E. at 718 (emphasis added).

The Fifth Amendment authorizes the federal government to “take” private property for a public use using its

eminent domain power, provided the government pays “just compensation.” U.S. Const. Amend. V. This limitation

has long been recognized as applying to the states through the Fourteenth Amendment. See, e.g., Palazzolo v.

Rhode Island, 533 U.S. 606, 617 (2001), citing Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897).

See William R. MacCracken, Air Law, 57 Am. L. Rev. 98, 99 (1923), citing proposal by William Lamb, Solicitor of

the Department of Commerce. MacCracken was later appointed as the first U.S. Assistant Secretary of Commerce

for Aeronautics.

Elza C. Johnson, Legal Questions Affecting Federal Control of the Air, U.S. Army Air Service (Washington, DC:

Government Printing Office, 1921) at 13-14. Johnson was a U.S. Army Major and lawyer in the Judge Advocate

General’s office advising the U.S Army Air Service, predecessor to the U.S. Air Force.

Johnson v. Curtiss Northwest Airplane Co. (Minn. Dist. Ct. 1923), reprinted in Current Topics and Notes, 57 Am. L.

Rev. 905, 908-911 (1923).

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plaintiff’s location.

At around the same time, the National Conference of Commissioners on Uniform State Laws,

now known as the Uniform Law Commission (ULC),

approved a model state aviation law in

1922 known as the Uniform Aeronautics Act. Instead of a line-in-the-sky approach adopted by

the court in Curtiss Northwest, the model law took an interference-based approach. The model

law explicitly recognized that a landowner “owns” the airspace above his land, but also

recognized a flight easement in that airspace as long as the flights were high enough not to

“interfere with the then existing use to which the land . . . or the space over the land . . . is put by

the owner” and did not create imminent danger to persons or property lawfully on the ground.

The model law seemingly declared that such an easement already existed rather than being

newly created, thus avoiding the constitutional requirement for the government to pay just

compensation for a Fifth Amendment taking. Although a number of Commissioners opposed

the model law because they believed it changed existing law and thus was a taking of

landowners’ airspace property rights, ultimately 23 states enacted it.

According to one legal

commentator, as of 2017, the model law’s declaration of landowner airspace ownership

remained in force in 22 states.

Congress addressed some of these issues to some extent when it enacted the Air Commerce

Act of 1926, the first federal statute regulating air commerce, aviation, and airspace

The court explained, “This [ad coelum] rule . . . is a generality [and] . . . was adopted . . . . at a time when any

practical use of the upper air was not considered or thought possible . . . . The air, so far as it has any direct relation

to the comfort and enjoyment of the land, is appurtenant to the land, and no less the subject of protection than the

land itself, but when, as here, the air is to be considered at an altitude of two thousand feet or more, to contend that it

is a part of the realty . . is only a legal fiction, devoid of substantial merit.” Id.

The American Bar Association established the National Conference of Commissioners on Uniform State Laws in

1878. The purpose of this organization, comprised of state-appointed lawyers, judges, law professors, and other

experts serving as Commissioners, was and remains to draft proposed uniform state laws, which the Commissioners

then seek to have enacted by their home state legislatures.

The relevant provisions of the 1922 model Uniform State Law of Aeronautics stated:

“Section 3. Ownership of Space—The ownership of the space above the lands and waters of this State is

declared to be vested in the several owners of the surface beneath, subject to the right of flight described

in Section 4.

“Section 4. Lawfulness of Flight—Flight in aircraft over the lands and waters of this State is lawful, unless

at such a low altitude as to interfere with the then existing use to which the land or water, or the space over

the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons

or property lawfully on the land or water beneath . . . .”

See Braniff Airways, supra note 4, 347 U.S. at n. 11 (1954) (emphasis added).

Braniff Airways, supra note 4, 347 U.S. at 595; Banner, supra note 6, at 127-130.

Stephen J. Migala, UAS: Understanding the Airspace of States, 82 J. Air. & Com. 3, 60-61 (Winter 2017). The

Uniform Law Commission withdrew its recommendation for enactment of the 1922 model act and other aviation

model laws it had approved in 1943, because it was believed their usefulness as uniform acts had waned. See Braniff

Airways, supra note 4, 347 U.S. at 596; Herzel H.E. Plaine, State Aviation Legislation, 14 J. Air L. & Com. 333, 335

(1947).

Appendix V – Evolution of Property Rights in Airspace

B-330570 Current Drone Legal Issues Page 5

management.

Enactment followed debate about which of Congress’s constitutional powers

authorized such legislation; Congress determined to rely on its power under the Commerce

Clause.

Although the explicit language of the Commerce Clause only authorizes federal

regulation of interstate, not intrastate, commerce (Congress may regulate commerce “among

the Several States”), the Supreme Court by that time had interpreted the clause broadly to

include intrastate acts that affect interstate commerce.

Congress thus authorized flight within

the zone where it believed interstate commerce or activities affecting interstate commerce

occurred—“navigable airspace”—which it defined as “airspace above the minimum safe

altitudes of flight prescribed by the Secretary of Commerce . . . .”

The 1926 Air Commerce Act also declared a “public right of freedom of . . . air navigation”

through this navigable airspace, although initially this right was limited to interstate flights.

Some believed this public navigation easement was a “taking” of landowners’ property rights in

airspace, the same concern expressed several years earlier when legislation was first

discussed, as noted above. This public navigation easement also left unclear what landowners

and state and local governments could do regarding flights below navigable airspace.

Litigation continued in the state courts, with landowners obtaining varying results in suits for

aerial trespass and/or nuisance based on their overlying airspace property rights.

In 1934, the

American Law Institute issued its first “restatement” of the common law of aerial trespass, which

was similar to the ULC’s 1922 model Uniform Aeronautics Act described above.

The

Restatement declared that landowners had property rights in their overlying airspace but also

that aircraft had a “privilege” to trespass through the airspace as long as the flight was

Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568 (1926 Air Commerce Act).

Other options reportedly considered included the Admiralty and Maritime Clause, U.S. Const. Art. III, sec. 2, cl. 1;

the Treaty Clause in conjunction with the Necessary and Proper Clause, U.S. Const. Art. VI, cl. 2; Art. I, sec. 8, cl. 18;

and the War Powers Clause, U.S. Const. Art. I, sec. 8, cl. 11. Some believed a constitutional amendment was

needed due to concerns about the inadequacy of these existing powers. See generally Banner, supra note 6, at 136-

68; see also Swetland v. Curtiss Airports Corp., 41 F.2d 929, 938 (N.D. Ohio 1930).

See, e.g., Swift & Co. v. United States, 196 U.S. 375, 398-99 (1905) (allowing federal regulation of intrastate acts

that are part of a “current of commerce”); Houston, East & West Texas Ry. Co. v. United States, 234 U.S. 342, 251-

52 (1914) (allowing federal regulation of intrastate acts “related” to interstate acts); Railroad Comm’n of Wisconsin v.

Chicago, Burlington & Quincy Railroad Co., 257 U.S. 563, 588 (allowing “incidental” regulation of intrastate acts

needed for effective interstate regulation).

1926 Air Commerce Act § 10, 44 Stat. at 574.

Id. (“[S]uch navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation

in conformity with the requirements of this Act.”) (emphasis added).

Banner, supra note 6, at 162-68.

See, e.g., Smith v. New England Aircraft Co., 170 N.E. 385 (Mass. 1930) (aircraft trespass occurs in lower

airspace (100 feet)); Swetland v. Curtiss Airports Corp., 55 F.2d 201 (6

Cir. 1932) (aircraft trespass does not occur

in upper airspace (above 500 feet)).

The American Law Institute (ALI) was established in 1923 to mitigate uncertainty and complexity in the law. Today

its members are noted lawyers, law professors, judges, and other legal experts. ALI has issued a series of

“restatements” of the law in key areas to clarify and synthesize the common law in various subject areas. While

Restatements are relied upon as authoritative by many courts and practitioners, they are not the law and have no

independent legal effect.

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conducted in a reasonable manner and at such a height as not to unreasonably interfere with

the landowner’s enjoyment of his land or airspace.

Congress amended the public navigation easement provision of the 1926 Air Commerce Act in

the 1938 Civil Aeronautics Act, giving the public a right of transit through navigable airspace for

intrastate as well as interstate flights.

Litigation continued regarding what property rights

landowners had in lower-altitude airspace above their land, with courts again reaching differing

conclusions. Some courts referenced the minimum flight altitudes set by the federal government

in defining navigable airspace, while other courts did not.

Ultimately these airspace property rights issues reached the U.S. Supreme Court in 1946, in the

landmark case of United States v. Causby.

In Causby, the Army and Navy had leased a local

airport near a family-owned chicken farm and residence in North Carolina and their bombers

and other military aircraft continuously took off and landed directly over the family’s property.

The flights were frequent, loud, and low, as low as 83 feet above the land and 18 feet above the

trees. The flights caused the death of so many chickens that the property could no longer be

used for the business and also adversely affected the well-being of the family. Unable to file a

trespass suit against the U.S. government because Congress had not yet waived the federal

government’s sovereign immunity from such suits,

the family instead sued under the Fifth

Amendment, seeking just compensation for the government’s taking of its property based on the

military’s flights through the airspace above their land.

The government argued it was not liable because Congress had granted all citizens a right of

transit through the navigable airspace, that is, airspace above the minimum safe altitudes of

flight prescribed by the Civil Aeronautics Authority, predecessor to FAA. Because the

government alleged its flights occurred within that airspace and did not physically invade what

the government asserted was the landowners’ only private property—the land—there was no

“taking,” the government argued.

The Court, acknowledging “[t]his is a case of first impression,”

ruled against the United States.

It found the government had taken the Causbys’ property and owed them just compensation.

The Court rejected the government’s assertion that its flights had occurred within statutory

“navigable airspace,” noting that even though the Civil Aeronautics Authority had approved the

particular takeoff and landing glide path, the statutory definition was restricted to safe altitudes

of flight, not safe altitudes of takeoffs and landings. If the government had defined the safe flight

altitude as 83 feet—the lowest takeoff/landing altitude involved in Causby—that regulation might

Restatement of Torts § 194, Travel Through Air Space (1934).

Civil Aeronautics Act of 1938, Pub. L. No. 75-706, § 3, 52 Stat. 973, 980 (1938) (“There is hereby recognized and

declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce

through the navigable air space of the United States.”). The 1938 Act also made non-substantive changes to the

definition of navigable airspace, to read “airspace above the minimum safe altitudes of flight prescribed by the Civil

Aeronautics Authority.” Id., at § 1(24).

United States v. Causby, 328 U.S. 256 (1946).

Congress enacted the Federal Tort Claims Act in 1946, waiving the federal government’s sovereign immunity from

certain common law tort claims in certain circumstances.

Causby, supra note 30, 328 U.S. at 258.

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be “invalid[],” the Court said.

But even if Congress had defined navigable airspace to include

takeoff and landing pathways (which it later did, as discussed below), and even if the flights

were within that airspace in compliance with federal law, the Court said—and the government

agreed—that flights so close to private land as to make it uninhabitable would still constitute a

taking.

Writing for the Court, Justice Douglas agreed with previous rulings of some lower courts that the

historic common law ad coelum doctrine “has no place in the modern world.”

Paraphrasing

Congress and agreeing with the government on this point, he declared:

“The air is a public highway . . . Were that not true, every transcontinental flight

would subject the operator to countless trespass suits. Common sense revolts

at the idea. To recognize such private claims to the airspace would clog these

highways, seriously interfere with their control and development in the public

interest, and transfer into private ownership that to which only the public

has a just claim.”

But while Justice Douglas rejected property rights in airspace as extending as far up as “the

periphery of the universe,” he found a landowner does still “own []at least as much of the space

above the ground as he can occupy or use in connection with the land.” On the specific facts of

Causby, the Court found this meant at least up to the government’s 83-foot altitude flights,

which the Court found were within the “immediate reaches” of the family’s land. As the Court

explained:

“We have said that the airspace is a public highway. Yet it is obvious that if the landowner

is to have full enjoyment of the land, he must have exclusive control of the immediate

reaches of the enveloping atmosphere. Otherwise buildings could not be erected [and] trees

could not be planted . . . The landowner owns at least as much of the space above the

ground as he can occupy or use in connection with the land. . . The fact that he does not

occupy it in a physical sense—by the erection of buildings and the like—is not material. . .

The Court stated, “[t]he fact that the path of glide taken by the planes was that approved by the Civil Aeronautics

Authority does not change the result. The navigable airspace which Congress has placed in the public domain is

‘airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.’ . . . If that agency

prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the

regulation. But . . . [t]he minimum [flight altitude] prescribed by the Authority is 500 feet during the day and 1,000 feet

at night for air carriers . . . and from 300 feet to 1,000 feet for other aircraft . . . . The Civil Aeronautics Authority has,

of course, the power to prescribe air traffic rules. But Congress has defined navigable airspace only in terms of one of

them—the minimum safe altitudes of flight.” Causby, 328 U.S. at 263-64 (citations omitted) (emphasis added).

Some legal commentators have suggested the Causby Court meant that a federal regulation setting a minimum

altitude of flight within the “immediate reaches” of a landowner’s property would exceed Congress’s (and thus the

agency’s) Commerce Clause power. See, e.g., Migala, supra note 19, at 78; Maxwell Mensinger, Remodeling “Model

Aircraft”: Why Restrictive Language That Grounded Unmanned Industry Should Cease to Govern It, 100 Minn. L.

Rev. 405, 415-16 (Nov. 2015). Another legal commentator seems to suggest the Court meant that such a regulation

would be an unconstitutional taking. See Calhoon, supra note 6, at 171-72. It is also possible the Court simply

meant a regulation specifying what was a safe takeoff/landing altitude as a safe flight altitude would exceed the

agency’s statutory authority to set safe flight altitudes, without reference to whether that would constitute a taking.

Causby, supra note 30, 328 U.S. at 261.

Id.

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While the owner does not in any physical manner occupy that stratum of airspace or make

use of it in the conventional sense, he does use it in somewhat the same sense that space

left between buildings for the purpose of light and air is used. The superadjacent airspace

at this low altitude is so close to the land that continuous invasions of it affect the use of the

surface of the land itself. We think that the landowner, as an incident to his ownership, has

a claim to it and that invasions of it are in the same category as invasions of the surface. . . .

[T]he damages . . . were a product of a direct invasion of [the Causbys’] domain.”

The Court concluded by holding that the government had taken an “easement of flight”

in the

Causbys’ immediate reaches property, leaving open the precise boundaries of that property:

“[t]he airspace, apart from the immediate reaches above the land, is part of the public domain.

We need not determine at this time what those precise limits are.”

As for what government

acts constitute a taking of that “immediate reaches” airspace requiring compensation, the Court

declared that “[f]lights over private land are . . . a taking . . . [if] they are so low and so frequent

as to be a direct and immediate interference with the enjoyment and use of the land.”

Justice Black, dissenting, joined by Justice Burton, disagreed with the Court’s analysis and

believed there was no government taking. As Justice Black explained, “the Constitution has

heretofore never been given so sweeping a meaning. . . . It is inconceivable to me that the

Constitution guarantees that the airspace of this Nation needed for air navigation is owned by

the particular persons who happen to own the land beneath to the same degree as they own the

surface below. . . . Old concepts of private ownership of land should not be introduced into the

field of air regulation.”

Following Causby, in 1958 Congress expanded the statutory definition of “navigable airspace” to

include airspace necessary to ensure safe takeoffs and landings.

But as Justice Douglas had

predicted in Causby, the Court again ruled, in Griggs v. Allegheny County,

that aircraft

conducting low-altitude takeoffs and landings above private land that interfered with landowners

use and enjoyment of their property were an unconstitutional taking. This time, Justice Douglas,

again writing for the Court, held the county owner/operator of the airport liable for the taking and

payment of just compensation, determining the county had appropriated a flight easement in the

airspace above the neighboring landowners’ land by authorizing takeoffs and landings as low as

30 feet above their houses. Even though the flights occurred in what Congress had now

Causby, supra note 30, 328 U.S. at 264-65 (emphasis added) (citations omitted).

Flights easements, also known as avigation easements, are discussed immediately below regarding the Griggs

decision.

Causby, supra note 30, 328 U.S. at 266 (emphasis added).

Id.

Causby, supra note 30, 328 U.S. at 270-71, 274 (citations omitted) (Black, J., dissenting).

Federal Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 731 (1958), as amended and recodified, 49 U.S.C.

§§ 40101 et seq. The Federal Aviation Act was passed following a series of fatal collisions between civil and military

aircraft operating under separate flight rules, to which Congress responded by creating and enforcing one unified

system of flight rules under the control of the Federal Aviation Agency, later renamed as the Federal Aviation

Administration as part of the creation of the Department of Transportation.

Griggs v. Allegheny County, 369 U.S. 84 (1962).

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defined as “navigable airspace,” the Court, relying on Causby, found that low-altitude airspace

was still part of the underlying landowners’ property. Affirming the reasoning of its Causby

ruling 16 years earlier, the Griggs Court explained that “the use of the land presupposes the use

of some of the airspace above it” and “invasion of the ‘superadjacent airspace’” often adversely

affects use of the underlying land to an extent that it constitutes a taking of private property.

The Griggs Court rejected the county’s argument that it was the airlines—which had conducted

the flights

—or the federal government (the Civil Aeronautics Administration)—which had

approved the airport’s runway plans and required the county to acquire flight easements in

neighboring airspace needed for takeoff and landing—that were legally responsible. Instead,

Justice Douglas found the county responsible because a federal statute placed the onus on

airport sponsor-grantees such as the county to acquire “good title” to airport landing areas. “In

designing [the airport, the county] had to acquire some private property. Our conclusion is that

by constitutional standards it did not acquire enough,” Justice Douglas concluded.

Justice Black and Justice Frankfurter, dissenting, believed it was the United States, not the

county, that had taken the landowners’ airspace property rights. Justice Black, who had

dissented in Causby, now agreed that under the binding precedent of that decision, the flights in

Griggs had caused a taking. But he reasoned the United States was responsible because it

was the federal Civil Aeronautics Administrator who had approved the county’s runway locations

and “Congress . . . [already] appropriated the airspace necessary for planes to fly at high

altitudes . . . [and] the low altitude airspace essential for . . . approach and take off from

airports.”

“There is no . . . duty on the local community to [again] acquire flight airspace,”

Griggs, supra note 42, 369 U.S. at 84 (citations omitted).

The landowners had originally sued the airlines as well, for trespass. See Gardner v. County of Allegheny, 114 A.

2d 491 (Pa. 1955); Gardner v. County of Allegheny, 142 A.2d 187 (Pa. 1958). The landowners later dismissed the

airlines from their suit, apparently for strategic reasons.

Griggs, supra note 42, 369 U.S. at 90. The Griggs Court was interpreting former 49 U.S.C. § 1108(d), which

authorized the Civil Aeronautics Administration, predecessor to FAA, to approve public airport development grants

only if a public agency held or acquired “good title” to the airport “landing area.” See Pub. L. No. 79-377, sec. 9(d),

60 Stat. 170, 175 (1946), formerly codified at 49 U.S.C. § 1108(d). Griggs interpreted this title requirement as

including title to what it called “air easements” or “navigation easements,” which Causby had called “flight easements”

and which are today known as “avigation easements.” Avigation easements continue to be recognized today as a

property interest with market value. See, e.g., Wisconsin Dept. of Transportation, Avigation Easements (May 2012),

available at

https://wisconsindot.gov/Documents/doing-bus/aeronautics/resources/av-ease.pdf (last visited Sept. 1,

2020); Gary David Strauss, Valuation of Avigation Easements, Right of Way (March/April 2012); Stephon B. Bagne,

Broad Rights of an Avigation Easement, Right of Way (May/June 2014).

As discussed in Appendix I, the same statutory “good title” restriction applies to DOT today—it may only approve an

airport development grant if the sponsor, a public agency, or the Government holds or will acquire “good title” to the

airport landing, takeoff, and maneuvering areas. See 49 U.S.C. § 47106(b)(1). Seemingly consistent with Griggs,

FAA has implemented 49 U.S.C. § 47106(b)(1) in its Airport Improvement Program (AIP), and property acquisition

requirements in the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. §§ 4601 et

seq., as including avigation easements. FAA’s AIP directives state that avigation easements are “real property

interests” and “a conveyance of airspace,” and thus airport sponsors must pay “just compensation” to acquire them

and may need to use formal “taking” (condemnation) proceedings under the government’s eminent domain power.

DOT officials declined to indicate to us whether they agree with Griggs or to identify the basis for FAA’s inclusion of

avigation easements in its AIP property requirements, explaining it is currently considering such issues. Appendix I,

Part D.1.a.(ii) provides additional detail.

Griggs, supra note 42, 369 U.S. at 92 (Black, J. dissenting).

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Justice Black explained, because “[h]aving taken the airspace over Griggs’ private property for a

public use, it is the United States which owes just compensation.”

Relying on Causby and Griggs, courts have continued to recognize landowners’ low-altitude

airspace property rights in the context of manned aviation, finding government takings of private

property. In McCarran International Airport v. Sisolak,

for example, the Nevada Supreme

Court held a county’s 150-foot height limit on development near a local airport was an

unconstitutional taking of a landowner’s overlying airspace. And in Brenner v. New Richmond

Regional Airport Commission,

the court found a landowner had a property interest in the

airspace above his land, bounded by the surface dimensions of the land up to approximately the

height of government-defined minimum safe altitudes of flight, and physical invasions of that

superadjacent airspace by aircraft overflights may be an unconstitutional taking.

Courts relying on Causby also have continued to recognize low-altitude property rights in

airspace in upholding state law claims for aerial trespass by aircraft. As discussed in Appendix

II, under Restatement (Second) of Torts § 159(2), there is a trespass if an aircraft enters the

“immediate reaches” of a landowner’s overlying airspace and this “interferes substantially with

the other’s use and enjoyment of his land.” The court in Schronk v. Gilliam,

for example,

relying in part on Causby, found that “[a]bsent legislation, the aeronaut's rights generally

terminate at, and the landowner's exclusive dominion extends at least to the altitude of the

owner's existing and effective reasonable use of the land.” The court therefore found a crop

duster flying in the “immediate reaches” over the plaintiff’s land, which inadvertently sprayed

poison intended for other crops on the plaintiff’s crops, had committed a trespass.

Most recently, the Uniform Law Commission’s Uniform Tort Law Relating to Drones Act Drafting

Committee worked from 2017 until January 2020, when its work was suspended, to draft a

model state aerial trespass statute specific to drones. As discussed in Appendix II, the

Committee’s final June 2019 draft, derived from Causby, recognized aerial trespass if drones

flying in a landowner or land possessor’s overlying airspace cause “substantial interference with

the use and enjoyment of the property” based on a multiple-factor test.

Finally, the U.S. Supreme Court has recognized airspace private property rights in non-aviation

contexts as well. One of the most notable examples is the Court’s seminal decision in Penn

Central Transp. Co. v. City of New York.

Penn Central owned the Grand Central Terminal

railroad station, a designated landmark in New York City. It proposed to build a 55-story office

building above the terminal using its airspace rights—known as “transferable development

rights” under New York City’s zoning laws. Then and today, those laws enable landowners who

have not developed their properties to the full permitted height to transfer their unused rights to

Griggs, supra note 42, 369 U.S. at 94 (Black, J., dissenting).

McCarran Intern. Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006).

Brenner v. New Richmond Regional Airport Com’n, 816 N.W. 2d 291 (Wisc. 2012).

Schronk v. Gilliam, 380 S.W.2d 743, 744-45 (Ct. Civ. App. Tex. 1964).

Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).

Appendix V – Evolution of Property Rights in Airspace

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another land parcel.

When the New York City Landmarks Preservation Commission

disapproved Penn Central’s construction plans, the company sued the city, claiming the

Commission’s disapproval was a Fifth Amendment taking of its airspace property for which it

was owed just compensation.

Relying in part on Causby, the Supreme Court did not question that Penn Central had “valuable”

“air rights” constituting “property interests” in the airspace above the Terminal.

To determine

whether the city had “taken” this Penn Central property, the Court looked to Causby and Griggs.

In those cases, the Penn Central Court noted, there had been a government “acquisition” and

“appropriati[on]” of property in part because there was a “physical invasion” of the airspace by

the aircraft.

The Penn Central Court also distinguished the case before it from Portsmouth

Co. v. United States,

where the Court had found an unconstitutional taking based on the U.S.

military’s repeated firing of gunshots over private property. The Penn Central Court concluded

New York City had not taken the airspace over Grand Central Terminal in part because there

was no physical invasion of the airspace causing an interference with property rights as in

Causby, Griggs, and Portsmouth, and because viewing Penn Central’s property interests as a

whole—airspace plus the underlying land and structures—the Court believed the company

could still earn what the Court said was a reasonable return on its investment. Thus the

Supreme Court reaffirmed the existence of property rights in airspace above private property but

determined the government’s actions in the case before it did not rise to the level of a taking.

The Supreme Court again recognized airspace property rights, and found a government taking

of those rights based on physical invasion and occupation, in Loretto v. Teleprompter

Manhattan CATV Corp.

Relying on Causby and Penn Central, Loretto held that a New York

City ordinance compelling landlords to allow placement of small cable television boxes and

cable on their building rooftops and exterior walls was a so-called regulatory taking. The Court

noted the equipment not only occupied part of the rooftop surface but also the “space

immediately above” that surface, which it found constituted part of the landlord’s property.

Quoting Causby, the Loretto Court said it was “constitutionally irrelevant” whether the landlord

had previously occupied that airspace because “a ‘landowner owns at least as much of the

space above the ground as he can occupy or use in connection with the land.’”

The Loretto Court also clarified that the relatively small size of the cable equipment “invading”

Sale of air rights in the U.S. occurred as early as the 1920s and 1930s in urban locations such as New York,

Chicago, Philadelphia, Boston, Baltimore, and Cleveland. See Banner, supra note 6, at 32-33. Regarding the current

recognition and use of transferable development rights in New York City, see New York City Department of Planning,

A Survey of Transferable Development Rights Mechanisms in New York City (Feb. 26, 2015), available at

https://www1.nyc.gov/site/planning/plans/transferable-development-rights/transferable-development-rights.page (last

visited Sept. 1, 2020); Norman Marcus, Air Rights in New York City: TDR, Zoning Lot Merger and the Well-

Considered Plan, 50 Brook. L. Rev. 867 (1984).

Penn Central, supra note 51, 438 U.S. at 135-37.

Penn Central, supra note 51, 438 U.S. at 124, 128, 135 (citations and quotations omitted).

Portsmouth Co. v. United States, 260 U.S. 327 (1922).

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

Loretto, supra note 56, 458 U.S. at 438, n. 16, quoting Causby, 328 U.S. at 264.

Appendix V – Evolution of Property Rights in Airspace

B-330570 Current Drone Legal Issues Page 12

and “occupying” the landlord’s property (approximately 1-½ cubic feet) did not affect its takings

analysis. “[W]hether the installation is a taking does not depend on whether the volume of

space it occupies is bigger than a breadbox,” the Court explained.

The Court did consider

relevant, however, that the invasion and occupation was by a “stranger,” which it said resulted in

“a special kind of injury . . .[P]roperty law has long protected an owner’s expectation that he will

be relatively undisturbed at least in the possession of his property. To require, as well, that the

owner permit another to exercise complete dominion literally adds insult to injury.”

On a

related point, the Court concluded that “the government does not have unlimited power to

redefine property rights . . . [A] State, by ipse dixit, may not transform private property into public

property without compensation.”

Loretto, supra note 56, 458 U.S. at 438, n. 16.

Loretto, supra note 56, 458 U.S. at 436.

Loretto, supra note 56, 458 U.S. at 439 (citation and quotations omitted).

APPENDIX VI: LIST OF INTERVIEWEES

For this report on federalism and personal privacy issues related to the integration of unmanned

aircraft systems (UAS) into the national airspace system, conducted pursuant to sections 373

and 358 the FAA Reauthorization Act of 2018, Public Law No. 115-524, we spoke with the 66

individuals, entities, and organizations listed below. We selected the federal agencies based in

part agencies that were identified in these mandates (the Department of Transportation (DOT)

including the Federal Aviation Administration (FAA), as well as the National

Telecommunications and Information Administration), as well as agencies authorized to enforce

requirements relevant to the subjects of the mandates (the Department of Justice and the

Federal Trade Commission).

We also selected interviewees based on their representation of constituencies identified in the

mandates (state, local, and tribal governments) and organizations and individuals

recommended by those constituencies, as well as their status as Lead Participants in DOT’s

UAS Integrated Pilot Program. In addition, based on our prior work relating to UAS matters and

consumer data privacy matters, we spoke with privacy advocate groups and with large and

small UAS industry manufacturers, UAS operators, UAS traffic management system

developers, and trade associations representing these and other UAS industry members, as

well as with individuals recommended by those entities.

In addition, we spoke with academic legal experts, attorneys and consultants, state model-law

drafting commission members and affiliated individuals, and others knowledgeable about

aviation and UAS matters, property law matters, and constitutional law matters, who we

identified through our prior work as well as through literature searches and recommendations.

Finally, in order to obtain a diverse range of geographic views, we sought out individuals in the

above-mentioned categories located in different parts of the country, and we spoke with various

individuals and organizations that actively reached out to us to speak about the matters

addressed in the mandates.

____________________________________________________________________________

Industry AirMap

Amazon

Boeing

Digital Design & Imaging Service, Inc./

AirPhotosLIVE.com

DJI Technology

Federal Express

Google Wing

Kittyhawk

PrecisionHawk

United Parcel Service

____________________________________________________________________________

Industry Groups Academy of Model Aeronautics (AMA)

Aerospace Industries Association

Association for Unmanned Vehicle Systems

International (AUVSI)

Commercial Drone Alliance

Consumer Technology Association

Appendix VI – List of Interviewees

B-330570 Current Drone Legal Issues Page 2

CTIA

Small UAV Coalition

____________________________________________________________________________

Public Safety Groups National Council on Public Safety UAS

____________________________________________________________________________

Attorneys and Consultants Baker & McKenzie LLP

Cozen O’Connor

Crowell & Moring LLP

DLA Piper LLP

Reginald C. Govan

Hogan Lovells US LLP

Holland & Knight LLP

JHW Unmanned Solutions

LeClairRyan

David E. Schaffer Associates LLC

Steptoe & Johnson LLP

Wiley Rein LLP

Wilkinson Barker Knauer LLP

____________________________________________________________________________

Academics Loretta Alkalay, Adjunct Professor, Vaughn College

of Aeronautics and Technology

Stuart Banner, Professor of Law, University of

California, Los Angeles

Troy A. Rule, Professor of Law, Sandra Day O'Connor

College of Law, Arizona State University

____________________________________________________________________________

State-Law Drafting Advisory Robert A. Heverly, Associate Professor of Law, Albany

Organizations Law School, Union University; Reporter, National

Conference of Commissioners on Uniform State

Laws (Uniform Law Commission), Tort Law Relating

to Drones Drafting Committee

D. Joe Willis, Commissioner, Conference of

Commissioners on Uniform State Laws (Uniform Law

Commission); Member, ULC Uniform Tort Law Relating

to Drones Act Drafting Committee

____________________________________________________________________________

Public Interest and Cato Institute

Public Policy Groups Electronic Frontier Foundation

Electronic Privacy Information Center

Future of Privacy Forum

____________________________________________________________________________

Federal Government Agencies Department of Commerce, National Telecommunication

and Information Administration

Department of Justice

One of the individuals we interviewed speaking on behalf of the Small UAV Coalition is a former Chief Counsel of

the Federal Aviation Administration.

One of the individuals we interviewed is a former Chief Counsel of the Federal Aviation Administration.

Former Chief Counsel of the Federal Aviation Administration.

Appendix VI – List of Interviewees

B-330570 Current Drone Legal Issues Page 3

Department of Transportation

Federal Aviation Administration

Federal Trade Commission

____________________________________________________________________________

State Government Agencies Alabama Department of Transportation

and Entities Kansas Department of Transportation (DOT

Integrated Pilot Program Lead Participant)

National Conference of State Legislatures

National Governors Association

North Carolina Department of Transportation (DOT

Integrated Pilot Program Lead Participant)

North Dakota (Policy Advisor to the Governor)

Rhode Island House of Representatives (Senior Deputy

Majority Leader)

____________________________________________________________________________

Local Government Agencies Burbank, California (City Attorney)

and Entities San Diego, California (DOT Integrated Pilot Program

Lead Participant)

California League of Cities

Fort Collins, Colorado (Mayor)

Pinecrest, Florida (Councilmember)

Springfield, Illinois (Mayor)

National League of Cities

Stone Harbor, New Jersey (Borough Prosecutor)

New York City Police Department (Chief of Department;

Deputy Commissioner of Intelligence and

Counterterrorism)

United States Conference of Mayors

Spokane, Washington (Council President)

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Tribal Government Entities Cherokee Nation

Choctaw Nation of Oklahoma (DOT Integrated Pilot

Program Lead Participant)

National Congress of American Indians