Evolving Law on Airport Implications by Unmanned Aerial Systems (2017)

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40 and above city airspace.333 This inaction may reflect the well-established legal principle that cities have the authority to make reasonable time, manner, and place restrictions on airport and aircraft operations. Under a 1940s-era statute in Florida, for example, the placement of airports is a matter of state regula- tion as is the “area of land or water used for, or intended to be used for, landing and takeoff of air- craft, including appurtenant areas, buildings, facili- ties, or rights-of-way necessary to facilitate such use or intended use.” 334 Similar regulatory schemes exist in California,335 Illinois,336 Minnesota,337 New York, 338 Oregon,339 and Texas.340 But, how and whether these laws originally designed for manned aviation can or should coexist with emerging federal law respecting unmanned aviation is an indefinite and evolving legal issue ripe for further rulemaking and research. A. UAS and Invasions of Privacy Even some of the simplest toy drones sold at con- venience stores are equipped with powerful high- definition cameras. Perhaps it was just a matter of time before headlines such as “Neighbors Complain of Drones Flying over Backyards” appeared in VI. UAS AND TORT LAW: STATE POLICE POWERS Notwithstanding the preemption issues discussed in the previous sections,329 the FAA has acknowledged the well-established principle that local authorities have “police powers” in five areas that are generally not subject to federal regulation: land use, zoning, pri- vacy, trespass, and law enforcement.330 In this context, many states and local governments have their own sets of laws available to discipline careless or reckless or criminal UAS flight, not least of which are reckless endangerment laws, a requirement for police to obtain a warrant prior to using a UAS for surveillance, a pro- hibition on the use of a UAS for voyeuristic purposes, a ban on UAS for hunting or fishing, and a disallow- ance on the weaponization of UAS.331 However, in other areas such as law enforcement, local interests overlap with federal enforcement powers, raising the more complicated question of who, as among federal, state, and local authorities, has jurisdiction and control over the airspace above airports with respect to UAS operations.332 Indeed, the proliferation of UAS has forced airport sponsors to question how federal and local jurisdictions can or should work together while also staying in their own proverbial sand box. To date, the FAA has neither taken any legal action against any city or state’s drone-related laws nor has it historically ever taken preemption action against decades-old city ordinances governing the flight of remote controlled aircraft within city limits 329 In 2016, Section 2152 of the Senate’s proposed Fed- eral Aviation Administration Reauthorization Act set out to broadly preempt both states and cities from enacting laws related to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of UAS, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification. See also nAt’l leAgue of Cities, Cities And drones: WhAt Cities need to knoW About unmAnned Aer- iAl VehiCles (UAVs), 2016, at 17 (citing H.R. 636, https:// www.congress.gov/114/bills/hr636/BILLS-114hr636eas. pdf). The proposed law also sought to prohibit states and cities from including drones in laws related to nuisance, voyeurism, privacy, data security, harassment, reckless endangerment, wrongful death, personal injury, or prop- erty damage. Id. Although this preemption language was not included in the final reauthorization act approved by Congress, Congress may revisit the issue in the future. Id. 330 Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,194 (June 28, 2016). E.g., Skysign Int’l, Inc. v. City and Cty. of Hono- lulu, 276 F.3d 1109, 115 (9th Cir. 2002). 331 timothy m. rAViCh, CommerCiAl drone lAW: digest of u.s. And globAl uAs rules, poliCies, And prACtiCes (AmeriCAn bAr AssoCiAtion 2017), at ch. 10. 332 See Section V, infra. 333 nAt’l leAgue of Cities, Cities And drones: WhAt Cities need to knoW About unmAnned AeriAl VehiCles (UAVs), 2016, at 5. 334 flA. stAt. §§ 330.27, 330.30. 335 CAl. pub. util. § 21663 (“It is unlawful for any politi- cal subdivision, any of its officers or employees, or any per- son to operate an airport unless an appropriate airport per- mit required by rule of the department has been issued by the department and has not subsequently been revoked.”). 336 620 ILS 5/42(b)(2) (authorizing the state to “classify and approve airports and restricted landing areas and any alterations or extensions thereof” where an “airport” means “any area of land, water, or both, except a restricted landing area, which is designed for the landing and take- off of aircraft…and all appurtenant areas used or suitable for airport buildings or other airport facilities, and all appurtenant rights of way.”). 337 hAm, minn. Ord. 9-470 (“It shall be unlawful for any person operating a Regulated Aircraft to take-off from or land upon any land in the City of Ham Lake except as pro- vided herein.”); hAm, minn. Ord. 9-470.1 (“Regulated Air- craft are prohibited from landing or taking off in the R-1, R-2, R-M, ML-PUD, PUD, RS-1, and RS-2 zoning districts.”). 338 N.Y. gen. bus. lAW § 249 (“[n]o person shall…estab- lish a privately-owned airport … except by authorization of the governing body of the city, village or town in which such airport or any part thereof is proposed to be estab- lished or improved” where “airport” means “any locality… which is used or intended to be used for the landing and take-off of aircraft…”). 339 or. reV. stAt. § 215.416. See also Skydive Oregon, Inc. v. Clackamas Cnty., 857 P.2d 879, 881–82 (Or. Ct. App. 1993). 340 tex. Code Ann. § 24.021 (penalizing anyone who “takes off, lands, or maneuvers an aircraft, whether heavier or lighter than air, on a public highway, road, or street, except [in emergencies].”).

41 • Moreover, there is substantial, ongoing debate among policymakers, industry, advocacy groups and members of the public regarding the extent to which UAS operations pose novel privacy issues, whether those issues are addressed by existing legal frameworks, and the means by which privacy risks should be further mitigated.350 • Recognizing the importance of addressing privacy con- cerns in the proper forum, the FAA has partnered with other Federal agencies with the mandate and expertise to identify, develop, and implement appropriate mitigations.351 For the time being, Part 107 does not say whether federal law preempts state or local law in the area of UAS operations. In fact, the FAA considered whether to include privacy provisions in Part 107, but opted against doing so in that particular rule- making process.352 Nevertheless, section 332(a) of the FMRA requires the FAA to develop, in consultation with representa- tives of the aviation industry, federal agencies that employ UAS technology in the NAS, and the UAS industry, a comprehensive plan to safely accelerate the integration of civil UAS into the NAS.353 The mandate included specific direction regarding the contents of the plan, which addressed the safe and efficient integration of UAS into the airspace, but did not require the consideration of privacy implica- tions.354 Under the FAA’s reading of the FMRA, none of its UAS-related provisions directed the FAA to consider privacy issues when addressing the inte- gration of small UAS into the airspace, or mandated newspapers across the nation.341 Indeed, several states have exercised their police powers to confront reported use of UAS to invade personal privacy rights (see Figure 7). The laws arise from state rights to safeguard public health, safety, and welfare: • Arkansas, for example, prohibits the use of drones to commit voyeurism.342 • Under anti-paparazzi rules, California prohib- its entering the airspace of an individual to capture an image or recording of that individual engaging in a private, personal, or familial activity without permission.343 • Florida prohibits the use of a drone to capture an image of privately owned property or the owner, tenant, or occupant of such property without con- sent if a reasonable expectation of privacy exists.344 • Using a drone to commit “peeping tom” activi- ties in Mississippi is a felony.345 • Virginia requires law enforcement agencies to obtain a warrant before using a drone for any pur- pose, except in limited circumstances.346 While the FAA has not analyzed these laws, com- ments in the Preamble to Part 107 suggest that these (and perhaps other) state laws are consistent with recently enacted and forthcoming federal UAS laws: • State law and other legal protections may already provide recourse for a person whose individual privacy, data privacy, private property rights, or intellectual property rights may be impacted by a remote pilot’s civil or public use of a UAS.347 • In light of the FAA’s long-standing mission and authority as a safety agency, it would be overreaching for the FAA to enact regulations concerning privacy rights.348 • Although the FAA regulates the safe and efficient operation of all aircraft within the NAS, the FAA has never extended its administrative reach to regulate the use of cameras and other sensors extraneous to the airworthiness or safe operation of the aircraft in order to protect individual privacy. 349 341 See, e.g., Tara Evans, Neighbors Complain of Drones Flying over Winter Park Back Yards, WKMG Orlando, (May 7, 2015), http://www.clickorlando.com/news/florida/ orange-county/neighbors-complain-of-drones-flying-over- winter-park-back-yards. 342 Ark. stAt. § 5-16-101 (“Crime of Video Voyeurism”). 343 CAl. CiV. Code § 1708.8. 344 flA. stAt. § 934.50. 345 miss. Code § 97-29-61. 346 VA. Code § 19.2-60.1B. 347 Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,192. 348 Id. (citing Nat’l Ass’n for Advancement of Colored People v. Fed. Power Comm’n, 425 U.S. 662 (1976)). 349 Id. at 42,190. 350 Id. 351 Id. 352 Id. at 42,194 (“The FAA is not persuaded that including a preemption provision in the final rule is war- ranted at this time. Preemption issues involving small UAS necessitate a case-specific analysis that is not appropriate in a rule of general applicability. Addition- ally, certain legal aspects concerning small UAS use may be best addressed at the State or local level. For example, State law and other legal protections for individual pri- vacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.”). 353 Id. at 42,191. 354 Id. Figure 7. Overview of State UAS Privacy Protections (2017)

42 concerns should be addressed, and the FAA’s role in efforts to address these concerns.362 While the FAA has recognized that unique characteristics and capabilities of UAS may pose risks to individual pri- vacy, it contends that these concerns are generally related to technology and equipment, which may be installed on an unmanned (or manned) aircraft, but are unrelated to the safe flight of the aircraft.363 In the final analysis, although the FAA regulates the safe and efficient operation of all aircraft within the NAS, the FAA has emphasized the fact that it never extended its administrative reach to regulate the use of cameras and other sensors extraneous to the airworthiness or safe operation of the aircraft in order to protect individual privacy.364 Moreover, there is significant and ongoing debate among poli- cymakers, industry, advocacy groups and members of the public regarding the extent to which UAS operations pose novel privacy issues, whether those issues are addressed by existing legal frameworks, and the means by which privacy risks should be fur- ther mitigated.365 Recognizing the importance of addressing privacy concerns in the proper forum, the FAA has partnered with other federal agencies with the mandate and expertise to identify, develop, and implement appropriate mitigation strategies to address privacy concerns.366 B. Trespass and Local Law Enforcement UAS Use “If I Fly a UAV Over My Neighbor’s House, Is It Trespassing?” was the tile of an article in The Atlan- tic in 2012.367 Several years later, the question remains interesting as a legal matter not only because the cameras and sensors with which even the most rudimentary drones are outfitted make it possible to trespass without setting foot on another person’s property, but also because the question touches on a potentially intensifying conflict between federal and state authorities with respect to who controls the air- space at various altitudes. As discussed in Part IV.A, supra, decades-old Supreme Court precedent recog- nizes that federal authorities have exclusive jurisdic- tion with respect to the NAS. But, the FAA has increasingly asserted exclusive jurisdiction over all airspace “above the grass,” given that UAS can fly at the inclusion of privacy considerations in the UAS Comprehensive Plan.355 According to the FAA, read- ing such a mandate into the FMRA would be a sig- nificant expansion beyond the FAA’s long-standing statutory authority as a safety agency.356 In the NPRM for Part 107 however, the FAA acknowledged that privacy concerns have been raised regarding the integration of UAS into the NAS.357 Although proposed regulations to address privacy concerns were deemed beyond the scope of its rulemaking, the FAA emphasized its intended participation in the multi-stakeholder engagement process led by the National Telecommunications and Information Administration (NTIA) pursuant to the Presidential Memorandum, Promoting Eco- nomic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (February 15, 2015).358 Pursuant to this Presidential Memorandum, NTIA and its interagency partners, including the FAA, are working with stakeholders to develop best practices concerning privacy, transparency, and accountabil- ity for the broad range of possible UAS platforms and commercial practices. In addition, the FAA conducted a privacy impact assessment (PIA) of Part 107, as initially proposed, in accordance with § 522(a)(5) of division H of the FY 2005 Omnibus Appropriations Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004) and § 208 of the E-Government Act of 2002, Public Law 107-347, 116 Stat. 2889 (Dec. 17, 2002).359 As part of the PIA, the FAA analyzed the impact Part 107 might have on collecting, storing, and disseminating personally identifiable information (PII) of airmen and UAS operators, and the FAA examined and evaluated protections and alternative information handling processes in developing the proposed rule in order to mitigate potential privacy risks.360 The FAA has signaled its intention to continue addressing privacy concerns through engagement and collaboration with the public, stakeholders and other agencies with authority and subject matter expertise in privacy law and policy.361 For now, the FAA contends that a lack of consensus exists regard- ing the extent to which UAS integration poses potential risks for privacy intrusions, how privacy 355 Id. 356 Id. 357 Id. at 42,190. 358 Id. See also 80 Fed. Reg. 11,978 (Mar. 5, 2015); 80 Fed. Reg. 41,013 (July 14, 2015). 359 Operation and Certification of Small Unmanned Air- craft Systems, 81 Fed. Reg. 42,064, 42,190 (June 28, 2016). 360 Id. The PIA reflects the provisions of Part 107 and is available at: http://www.transportation.gov/individuals/ privacy/privacy-impact-assessments. 361 Id. 362 Id. at 42,192. 363 Id. 364 Id. 365 Id. 366 Id. 367 Alexis C. Madrigal, If I Fly a UAV Over My Neigh- bor’s House, Is it Trespassing?, AtlAntiC, Oct. 10, 2012, https://www.theatlantic.com/technology/archive/2012/10/ if-i-fly-a-uav-over-my-neighbors-house-is-it-trespassing/ 263431/.

43 Just as it historically has done with other areas of the law that touch on both federal and local inter- ests (e.g., height restrictions, noise and curfew, ban- ner towing, and zoning ordinances to limit the height of buildings and objects around airports), the FAA seeks collaboration with local law enforcement as to UAS operations. To stem an apparent increase in the unauthorized use of small, inexpensive UAS by individuals and organizations, for example, the FAA has produced a guidance memorandum entitled Law Enforcement Guidance for Suspected Unauthorized UAS Operations (see Figure 9).375 The FAA has asserted that state and local law enforcement agen- cies are often in the best position to deter, detect, immediately investigate, and, as appropriate, pur- sue enforcement actions to stop unauthorized or unsafe UAS operations.376 The guidance document identifies a non-exhaustive list of ways in which first responders and others can provide invaluable assistance to the FAA in terms of unauthorized UAS operation: 377 • Witness Identification and Interviews. Local law enforcement is in the best position to identify potential witnesses and conduct initial in- terviews, documenting what they observed while the event is still fresh in their minds. In addition, local law enforcement is in an optimum position to secure all information necessary for FAA safety very low altitudes—even indoors.368 This is not only a concern for airport operators and sponsors as dis- cussed in Part VII.A.2, supra, but it also implicates the law of trespass, which is traditionally a matter of state law and local enforcement. Several states have enacted laws designed to pre- vent UAS operators from trespassing or committing other crimes at low altitudes (i.e., below 500 feet) above private and public property (see Figure 8). For example, Nevada prohibits the weaponization or use of a drone within a certain distance of critical facili- ties and airports without permission,369 Tennessee prohibits the use of drones over the grounds of a correctional facility,370 and Texas makes it a misde- meanor to operate a drone over a critical infrastruc- ture facility if the drone is not more than 400 feet off the ground.371 The question of whether states have the author- ity to enforce these laws exclusively, concurrently with the FAA, or not at all is somewhat in flux. Indeed, the broader question of where federal responsibility ends and state and local powers begin is an issue that likely will be resolved through litiga- tion in courts rather than by legislation.372 (It has been asserted that this is particularly so given that the current presidential administration may be more inclined than its predecessor to be protective of state’s rights.373) For the moment, however, it appears that new UAS laws will not supplant state trespass laws, but that federal authorities will retain the authority to prosecute careless and reck- less UAS operation.374 368 E.g., Michael S. Rosenwald, Prisons Try to Stop Drones from Delivering Drugs, Porn, and Cellphones to Inmates, WASH. POST, (Oct. 13, 2016), https://www.wash- ingtonpost.com/local/prisons-try-to-stop-drones-from-deliv- ering-drugs-porn-and-cellphones-to-inmates/2016/10/12/ 645fb102-800c-11e6-8d0c-fb6c00c90481_story.html?utm_ term=.13bb1b212881. 369 neV. reV. stAt. AB 239, § 18.. 370 tenn. Code § 39-13-902. 371 tex. bus. & Com. Code § 423.002. 372 See Part IV.A, supra. See generally Michael L. Smith, Regulating Law Enforcement Use of Drones: The Need for State Legislation, 52 hArV. J. on legis. 423 (2015) (arguing that “state legislatures should regulate government drone use rather than courts. State laws that do not add to pro- tections already guaranteed by the Constitution or exist- ing laws will leave courts in essentially the same position they would be in without any state law, which in turn may cause courts to seek to expand their Fourth Amendment jurisprudence to regulate government drone use.”). 373 See generally Exec. Order No. 13,132 of Aug. 4, 1999, federAlism, https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/ pdf/99-20729.pdf. 374 See generally fed. AViAtion Admin., Advisory Circu- lar 91-57A. 375 fed. AViAtion Admin., Law Enforcement Guidance for Suspected Unauthorized UAS Operations, https://www. faa.gov/uas/resources/law_enforcement/media/FAA_UAS- PO_LEA_Guidance.pdf, at 1. 376 Some law enforcement officials disagree, claiming that they have no UAS-specific laws to enforce and that FAA guidance is wanting. rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). 377 fed. AViAtion Admin., Law Enforcement Guidance for Suspected Unauthorized UAS Operations, https://www. faa.gov/uas/resources/law_enforcement/media/FAA_UAS- PO_LEA_Guidance.pdf, at 5–6. See also FAA Issues Guid- ance for Law Enforcement, (Jan. 8, 2015), https://www.faa. gov/news/updates/?newsId=81244. Figure 8. UAS Criminal Law State Overview (2017)

44 As that bill was unsuccessful, law enforcement con- tinues to be guided by FAA guidance documents relating to airports and drones, as follows: 379 inspectors to contact these witnesses in any subse- quent FAA investigation. • Identification of Operators. Law enforcement is in the best position to contact the suspected opera- tors of the aircraft, and any participants or support personnel accompanying the operators. Identification and interview of suspected operators early on will help immeasurably to advance enforcement efforts. • Viewing and Recording the Location of the Event. Pictures taken in close proximity to the event are often helpful in describing light and weather conditions, any damage or injuries, and the number and density of people on the surface, partic- ularly at public events or in densely populated areas. • Identifying Sensitive Locations, Events, or Activities. Law enforcement agencies should become familiar with the steady-state airspace re- strictions active within their area of responsibility, along with as-needed TFRs, which could be insti- tuted to help protect sensitive events (e.g., major gatherings of elected officials) and activities. • Notification. Immediate notification of an incident, accident or other suspected violation to one of the FAA Regional Operation Centers located around the country is valuable to the timely initia- tion of the FAA’s investigation. • Evidence Collection. Identifying and preserv- ing any public or private security systems that may provide photographic or other visual evidence of UAS operations, including video or still picture security systems can provide essential evidence to the FAA. In 2015, Senator Sheldon Whitehouse (D-RI) pro- posed a Drone Operator Safety Act, which would have made it a crime (i.e. a fine or imprisonment) to operate a UAV “within the arrival or departure flight path of any airport without the permission of the airport operator or airport traffic control tower.” 378 378 Drone Operator Safety Act, S. 2249, 114th Cong. (2015–2016). See also Senate Passes Whitehouse Drones Bill as Part of FAA Reauthorization, Apr. 19, 2016, https://www. whitehouse.senate.gov/news/release/senate-passes-white- house-drones-bill-as-part-of-faa-reauthorization. Though beyond the scope of this report, the use of drones by law enforcement agencies raises important Fourth Amendment considerations. See generally Part IV.B, supra. Thirty years ago, in Florida v. Riley, 448 U.S. 445 (1989), the U.S. Supreme Court found that local police had triggered a Fourth Amend- ment search when it conducted surveillance over private property without a warrant from the vantage point of a heli- copter flown in the navigable airspace. In a dissenting opin- ion, however, Justice William Brennan presented a hypothet- ical situation prophetic of modern drone operations: Imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generat- ing any noise, wind, or dust at all—and, for good mea- sure, without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their green houses, but also what books they were reading and who their dinner guests were. Suppose, finally, that the FAA regulations remained unchanged, so that the police were undeniably “where they had a right to be.” Would [the Court] assert that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” was not infringed by such surveillance? [T]hat is the logical consequence of [current law:] so long as the police are where they have a right to be under air traffic regulations, the Fourth Amendment is offended only if the aerial surveillance interferes with the use of the backyard as a garden spot. Unquestionably, drones fit the description of “miracu- lous tool” that Justice Brennan imagined decades ago though perhaps without the live-streaming imaging sen- sors and high-definition cameras that are common today. Whether and how the use of drones by law enforcement agencies is consistent with the Fourth Amendment’s pro- tection against unreasonable searches and seizure is an open question for further research if not legislation and litigation. See, e.g., Michael J. Schoen & Michael A. Tooshi, Confronting the New Frontier in Privacy Rights: Warrant- less Unmanned Aerial Surveillance, 25 no. 3 Air & spACe L. 1 (2012). 379 See https://www.faa.gov/uas/resources/law_ enforcement/media/FAA_UAS-DRONE-LE_reference_ card.pdf. Figure 9. FAA UAS Guidance to Law Enforcement Agencies