FAA Drone Regulations: What’s Left for States?

In mid-December, the FAA issued an interim final rule establishing registration and marking requirements for small unmanned aircraft used recreationally – i.e., drones. Like other drone owners, owners of drones that weigh between .55 pounds and 55 pounds (Ben Wittes, this means you!) must register their drones before operating them in the national airspace. But for these small non-commercial drones, the rule creates a system by which drone owners can register their drones online and pay a $5 fee. In the first two days that the site was up, 45,000 people registered. Owners must also mark their registration numbers on their drones. The expectation is that the FAA will work with local law enforcement to enforce these rules.

The FAA took a long time to issue its rules, and in the meantime many state and local governments enacted drone regulations themselves. These state/local rules include outright bans within city limits, bans on drones over certain buildings or public gatherings, prohibitions on the use of drones to capture images of individuals engaged in private activity or to commit voyeurism, regulating drone use by law enforcement officials, barring people from using drones for hunting, and prohibiting weaponizing drones. Lists of various state and local laws are here and here.

In anticipation of questions about how the federal and state/local rules would interact, the FAA’s Chief Counsel’s office put out a fact sheet on state and local regulation of drones. The Fact Sheet makes clear that, consistent with statute, FAA regulations preempt state and local laws that implicate airspace use, management and efficiency, or safety. Thus, according to the FAA, states and localities may not impose restrictions on flight altitudes or flight paths, and may not impose operational bans within city limits or within certain distances of landmarks. Nor may states or localities mandate safety equipment or training for drones.

Yet the FAA concedes that laws related to state and local police power, which include zoning, privacy, land use, and law enforcement operations, generally would not be preempted by federal law. For example, the FAA Fact Sheet accepts that laws prohibiting drones from being used for voyeurism or for hunting would be acceptable.

It is easy to imagine clashes in the months and years ahead about whether a particular drone regulation falls on the “safety” — and thus federal — or “privacy” — and thus state — side of the line. For instance, could a state enact a law prohibiting the installation of cameras on drones? If not, because that looks like regulating equipment on a drone, could a state enact a rule that individuals may not activate and use cameras that happen to be on drones? This could, in some situations, implicate First Amendment issues. Could a state impose insurance requirements on drone users, just as it imposes insurance requirements on vehicle owners and operators? Could a city invoke its rights to regulate land use and privacy to enact a law prohibiting individuals from flying drones below 200 feet over private property, notwithstanding the FAA assertion of exclusive control over flight altitudes? What about below 20 feet? States and cities are not going to like the answer that any altitude regulation at all, from the tips of the grass on up, is national airspace and thus entirely in federal control.

On the one hand, there is widespread frustration among local lawmakers about the leniency of the FAA interim final rule, which does not include any privacy-related protections. On the other hand, the FAA faces strong lobbying by Google, Amazon, and others to keep drone regulations as lenient as possible. As a result, litigation in this space seems virtually certain, as federal and state governments struggle for regulatory control of the hazy area between safety and privacy.