BB&K attorney Jordan Ferguson writes about the criminal side of drones for the California District Attorneys Association’s Prosecutor’s Brief.

Over the next few years, the skies are likely to get much more crowded. Unmanned aircraft systems, colloquially known as drones, are increasing their prominence in domestic airspace as hobbyists dabble, researchers collect data, local governments explore the possibilities, and commercial operators take to the skies for everything from photography to delivery services. Drones are subject to regulation by the Federal Aviation Authority to ensure safety of flight, and safety of people and property on the ground. With the proliferation of domestic drone ownership and use, 2015 saw a corresponding increase in efforts to regulate drones, and to prosecute those who violate drone regulations. Approximately 45 states have considered restrictions on UAS in the last year, and local governments also frequently contemplate enacting their own regulations. Yet, the FAA, as a federal agency, may exercise its authority to preempt state or local regulations — whether or not they conflict with its regulations.

As drone use continues to rise throughout California and across the United States, prosecutors will increasingly have to charge and prosecute violations of drone regulations imposed by every level of government. To prepare for drone mainstreaming and the increase in drone-related violations that will ensue, it is important to understand the current state of the law at all levels, the likely misuse of drones prosecutors should be prepared to face, and the ways this technology and the law surrounding it are likely to change going forward.

Rules from Above: Preemption and Drone Regulations

Congress has vested the FAA with authority to regulate airspace use, management, and efficiency, as well as air traffic control, safety, navigational facilities, and aircraft noise at its source.[1] In section 333 of the FAA Modernization and Reform Act of 2012, Congress directed the Secretary to determine whether UAS operations posing the least amount of public risk and no threat to national security could safely be operated in the national airspace system and, if so, to establish the requirements for the safe operation of those systems.

On Feb. 15, 2015, the FAA proposed a framework of regulations that defined permissible hours of flight, line-of-sight observation, altitude, operator certification, optional use of visual observers, aircraft registration and marking, and operations limits.[2] The proposed rules limit operators to flying drones during daylight hours, at speeds less than 100 mph, and below 500 feet altitude. They also require operators to maintain visual line-of-sight with the drone at all times. In December 2015, the FAA began requiring federal registration of drones to operate them in domestic airspace.[3] The FAA has determined that federal registration is the exclusive means of registering UAS for purposes of operating an aircraft in domestic airspace, which means that no state or local government may impose an additional registration requirement on the operation of drones in their airspace without first obtaining FAA approval.[4]

The FAA has made clear that substantial air safety issues are raised whenever state or local governments attempt to regulate drones. The agency has expressed concern over the creation of a “patchwork quilt” of differing restrictions that could limit the flexibility of the FAA in controlling airspace and flight patterns.[5] Courts have held that a navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.[6] However, courts have gone even further, indicating that, where the federal government occupies an entire field, even complimentary state and local regulations are impermissible.[7] This greatly limits the potential regulatory options available at the state and local level, and may leave prosecutors limited in the charges they can bring against drone violations.

However, questions of preemption do not stop at the federal level. The FAA has laid out areas in which state and local government should avoid regulation entirely, but it has also demarcated areas where state and local laws will govern.[8] Any regulations restricting flight altitude, flight paths, or regulating the national airspace may be preempted entirely.[9] For example, the agency has specifically indicated a city ordinance banning anyone from operating drones within the city limits, within the airspace of the city, or within certain distances from landmarks would likely be preempted, or at least require consultation with the FAA prior to being adopted. Similarly, the FAA has indicated that mandating equipment or training for drones, such as geo-fencing, would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework.[10]

The agency has also indicated several areas that remain within state and local government police power. The FAA specifically indicates that land use, zoning, privacy, trespass, and law enforcement regulations are not subject to federal regulation and, thus, are not preempted by the FAA’s regulations.[11] Among the examples the FAA has specifically indicated remain in state and local hands are: 1) requirements for police to obtain a warrant prior to using drones for surveillance; 2) regulations specifying that drones may not be used for voyeurism; 3) prohibitions on using drones for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing; 4) prohibitions on attaching firearms or similar weapons to a drone.

California has also enacted regulation of drones, though many other proposals for regulations at the state level are still being considered and debated by the Legislature. In 2010, California’s “anti-paparazzi” legislation became effective, imposing civil liability for offensive conduct in the process of capturing visual images, sound recordings, and other physical impressions of a private, personal, or familial activity.[12] In 2015, that law was amended to include the obtaining of such images, recordings, or other physical impressions through entry into the airspace above the land of another person without permission.[13] The effect of the revision is to treat entry into the airspace above the property of another for purposes of collecting offensive material as a trespass. Similarly, California law makes it a crime to resist, delay, or obstruct any public officer, peace officer, or emergency medical technician in the discharge of their duties.[14]

Regulation at the local level in California remains sparse, in part due to the unsettled nature of federal and state regulations, both of which would preempt local regulations. However, some cities have already begun creating municipal regulations. Poway enacted an ordinance banning drones outright in all portions of the City vulnerable to wildfire.[15] Though the ordinance bans drones completely, city officials have indicated the ban will only be enforced during emergencies.[16]

The state of the law governing drones is currently in flux at all levels of government. This creates preemption concerns for regulators and complicates efforts by prosecutors to charge and prosecute drone regulation violations or other  drone-related crimes that may not fit cleanly into current categories.

The View From the Ground: Drone Use and Misuse from a Prosecutorial Perspective

With the increasing prominence of drones in domestic airspace, prosecutors should be aware of the many ways drone law violations can lead to charges. Perhaps the most common recent legal issue is the continued interference by drones in firefighting efforts. During at least five fires over the summer, aircraft dispatched to fight growing fires had to pull back to avoid potential collisions after drones were spotted in their flight paths.[17] Drones can complicate things during an already chaotic situation by requiring firefighters to make strategic decisions about whether they can safely fly fire aircraft without additional risk to the pilots or those on the ground. Air tankers and helicopters traditionally fly at low altitudes and the presence of drones can create a substantial risk of collision.

Drones also cause invasion of privacy issues in both public spaces and on private property. A recently filed lawsuit in Kentucky addresses the right to self-help question when a drone invades private property.[18] In that case, an individual saw a drone hovering over his backyard and fired three rounds from a shotgun to ground the drone. The drone’s pilot, a hobbyist endeavoring to take pictures of scenery, sued. He argues the individual lacked the right to shoot the craft down because the government controls airspace. What, exactly, constitutes a trespass when a drone flies over private property remains to be seen, as the FAA and California Legislature have yet to weigh in on exactly what airspace above a property belongs to the property owner.

While hobbyist invasions of privacy are certainly an issue, prosecutors should also consider the current Fourth Amendment jurisprudence and how it effects shifting views on privacy in public. The idea of aerial surveillance that is cheaper, less time-intensive, and requires fewer man hours to get off the ground leads immediately to concerns about the development of a surveillance state, where individuals can be monitored around the clock, and every public action can be recorded for posterity. Current Fourth Amendment jurisprudence indicates this might not be constitutionally problematic — the U.S. Supreme Court has twice held that the Fourth Amendment does not require police to obtain a warrant before observing what any other member of the public could with the naked eye, even when that observation takes place in the public airspace.[19] Yet a few recent decisions indicate the law may be shifting to address the privacy concerns addressed by law enforcement use of drone technology.

In 2014, the U.S. District Court for the Eastern District of Washington granted a defendant’s motion to suppress evidence collected as a result of 24/7 video surveillance.[20] In United States v. Vargas, police officers installed a video camera on a utility pole more than 100 yards from Vargas’ rural home and continuously recorded activity in the front yard of Vargas’ home for more than six weeks. The camera observed only what any passerby might have seen, yet the court determined this violated Vargas’ Fourth Amendment right to be free from unreasonable search, holding that the Constitution permits law enforcement officers to remotely and continuously view and record an individual’s front yard only after obtaining a search warrant to do so. The court distinguished the case from California v. Ciraolo, where the Supreme Court permitted “plain view” observations by an officer’s naked eye, pointing out that the surveillance was conducted both electronically and continuously.

Though Vargas is a district court decision that may be revealed to be an outlier, it joins a growing list of recent cases that indicate increased judicial anxiety with pervasive surveillance, and may lead to changes in Fourth Amendment jurisprudence aimed to contend with modern complications to the old framework. In United States v. Jones,[21] the Supreme Court held that the government’s attachment of a GPS device to a vehicle constitutes a search under the Fourth Amendment, and in Riley v. California,[22] the Supreme Court held that the police may not search a cell phone seized during an arrest without a warrant. Though the Supreme Court has yet to address drone surveillance and its Fourth Amendment implications, these cases shed light on what that case may look like when it arises.

Drone case law is small for the moment, yet the issues drones pose for prosecutors are growing by the day, as new uses of the technology arise, and new public safety risks become apparent. Prosecutors should keep a close watch on the developing body of law surrounding drones to understand the parameter of their authority and to anticipate new potential drone violations they may be required to charge.

Eyes on the Horizon: Future Developments in the Use of Drones

Drones are still relatively new to domestic airspace, and the issue is far from settled from a legal perspective. The FAA’s proposed rules are yet to be finalized, and state and local regulations are sure to follow to fill in gaps in the FAA’s authority. Beyond that, legal issues surrounding those regulations, and the use of drones more broadly, are only now beginning to find their way to the courts, and resolution of issues surrounding use of drones in public spaces, drone invasions of privacy, and Fourth Amendment concerns are all forthcoming. For now, prosecutors should pay close attention to the development of regulations at the various levels of government, and for the ways those regulations will shape their approach to charging and prosecuting drone misuse.

This technology has the opportunity to change our lives from the ground up, to remake the way we think about crime, and to alter our thoughts as we look to the skies. Drones present opportunities for positive change in personal lives and in law enforcement investigations, but drones also come with their own attendant challenges from regulatory and enforcement perspectives. Determining a legal framework within which to prosecute misuse of drones is just one issue to consider, after which prosecutors will be confronted with the challenges of catching and charging those who violate those laws. The jurisprudence and regulatory structure surrounding drones is constantly developing and changing, and prosecutors should be prepared to adapt to dynamic situations to ensure they are prepared to face the challenges of mainstream use of drones. It’s a crowded sky out there, but the right set of eyes can still see through to the sun.

[1] 49 U.S.C. §§ 40103, 44502, and 444701-44735.

[2] 14 CFR Parts 21, 43, 45, 47, 61, 91, 101, 107, and 183, available at https://www.faa.gov/regulations_policies/rulemaking/recently_published/media/2120-AJ60_NPRM_2-15-2015_joint_signature.pdf

[3] Registration and Marking Requirements for Small Unmanned Aircraft, available at https://www.federalregister.gov/articles/2015/12/16/2015-31750/registration-and-marking-requirements-for-small-unmanned-aircraft

[4] State and Local Regulations of Unmanned Aircraft Systems Fact Sheet, Federal Aviation Administration Office of the Chief Council, December 17, 2015, available at https://www.faa.gov/uas/regulations_policies/media/UAS_Fact_Sheet_Final.pdf

[5] Id.

[6] See Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French v. Pan Am Express, Inc., 869 F. 2d 1 (1st Cir. 1989)

[7] See Arizona v. U.S., 132 S. Ct. 2492, 2502 (2012) (“Where Congress occupies an entire field … even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards”); see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386-87 (1992).

[8] State and Local Regulations Fact Sheet

[9] Federal courts strictly scrutinize state and local regulation of overflight. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of Hempstead, 398 F. 2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F. 2d 1306 (6th Cir. 1969).

[10] See Med-Trans Corp. v. Benton, 581 F. Supp 2d 721, 740 (E.D.N.C. 2008); Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn. 2007)

[11] See Skysign International, Inc. v. City and County of Honolulu¸276 F. 3d 1109, 1115 (9th Cir. 2002).

[12] California Civil Code §1708.8

[13] Id.

[14] California Penal Code §148(a)

[15] J. Harry Jones, Poway passes ban on drones, San Diego Union Tribune, Sept. 1, 2015, available at http://www.sandiegouniontribune.com/news/2015/sep/01/drones-poway-ordinance-ban/

[16] Id.

[17] Jennifer Medina, Chasing Video With Drones, Hobbyists Imperil California Firefighting Efforts, The New York Times, July 19, 2015, available at http://www.nytimes.com/2015/07/20/us/hobby-drones-hinder-california-firefighting-efforts.html?_r=5?login=email

[18] Andrea Peterson and Matt McFarland, You may be powerless to stop a drone from hovering over your own yard, The Washington Post, Jan. 13, 2016, available at https://www.washingtonpost.com/news/the-switch/wp/2016/01/13/you-may-be-powerless-to-stop-a-drone-from-hovering-over-your-own-yard/

[19] See California v. Ciraolo 476 U.S. 207 (1986); see also Florida v. Riley 488 U.S. 445 (1989)

[20] See United States v. Vargas, 2014 U.S. Dist. LEXIS 184672 (E.D. Wash. Dec. 15, 2014)

[21] United States v. Jones (2012) 132 S. Ct. 945

[22] Riley v. California (2014) 134 S. Ct. 2473

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