Since the War on Terror began in the early 2000s, unmanned aerial vehicles (“drones”) have been useful tools in eliminating terrorists, but the use of drones has been a hot button topic since its beginning. A number of drone strikes have killed innocent civilians abroad, and the procedure for ordering and carrying out drone strikes is murky at best. Last summer, the Campbell Law Observer published an article on drones and their uncertain future here in America. There has been little progress on the national level since then, but progress has been made in a handful of states to tackle some of the major issues surrounding drone use within our borders.
On the home front, the regulation of drones may be even murkier than it is abroad.
There has been a lack of enacted legislation or substantive court decisions on the use of drones either at home or abroad. Abroad, the United States Government previously relied on laws enacted before the advent of drones to justify using them in the War on Terror. On the home front, the regulation of drones may be even murkier than it is abroad. Before 2012, drones were used almost exclusively by government agencies in the skies over America, but it was not until June 2013 that the FBI even admitted to the use of drones in America. Private individuals who wanted to use drones had to apply to the Federal Aviation Administration (FAA) to get a permit, and cases were considered individually. During that period, the FAA granted only around one hundred permits to individuals.
Early in 2012, however, legislation was enacted forcing the FAA to open the skies to private drone use and to develop regulations, which would take effect by 2015 at the latest. The legislation also further opened the skies to government use of drones. In response, Senator Rand Paul introduced a bill in June of 2012 entitled “Preserving Freedom from Unwarranted Surveillance.” Its goal was to protect the privacy of Americans from unwarranted intrusions by the government.
The bill explicitly banned drone usage by the government without a warrant, though it did include several exceptions. Paul’s bill would have gone a long way in affirming Americans’ right to privacy. The bill was referred to committee, however, and died there without any further action being taken.
Senator Paul re-introduced the bill on May 22, 2013. It has been referred to the Senate Judiciary Committee, but no further action has been taken on the bill. Govtrack.us, a government transparency site, gives the bill only a four-percent chance of passing through committee and an even smaller (one-percent) chance of being enacted. As Congress has not been able to create any federal legislation on the use of drones, states have stepped up to try and fill the void.
Forty-four states have at least introduced legislation on drone use within their borders.
States and some municipalities are picking up the slack left by legislative inaction at the federal level. Forty-four states have at least introduced legislation on drone use within their borders. Idaho, Florida, Tennessee, Virginia, Montana, Texas, and Illinois have all enacted laws limiting the use of drones. In April of 2013, Virginia was the first state to enact drone legislation, passing a law that created a two-year moratorium on drone usage, with emergency situations being the only exception. Virginia legislators are hoping the moratorium will allow them time to make a concerted, reasoned attempt to put into place legal limits on drone use in the state.
Idaho and Texas, of the states that have addressed drones, have taken the toughest stance on the issue. Idaho’s law followed shortly after Virginia’s and is much wider reaching. The law bans government agencies from using drones, except in emergency situations, unless they have a warrant or the written consent of the owner of the property being monitored. The law also prohibits the private use of drones, except for resource management or mapping uses, unless the landowner gives written consent.
Similarly, Texas’s ban prohibits most public and private uses for drones. The Texas ban includes over a dozen exceptions, however, and would force the state’s legislature to amend the statute every time another beneficial use of drones was conceived. Both laws also provide individuals whose privacy rights have been infringed a civil right of action to pursue damages against either the government agency or the individual responsible.
Some have criticized the approach taken by Idaho and Texas, but many believe it is the best of the possible solutions at this point. This trial and error method of legislating should, over time, bring about better laws attuned to the issues drones create. Once laws are enacted, individuals will be able to challenge these laws in the courts. It will then fall to the judiciary to weigh the freedoms of the First Amendment with those of the Fourth Amendment, helping to shape future laws on drones and giving legislators a better understanding of what is proper in curtailing drone usage.
Drones are too inexpensive and efficient to be withheld from use, so proper precautions must be taken.
With or without action from the federal government, drones will only continue to proliferate in both the public and private sectors. The great value that can be found in drones, born out of their being relatively inexpensive and efficient, means they are very unlikely to be prohibited. Proper precautions must be taken. The FAA will need to finish its regulations to provide users with guidelines for the use of drones once they are airborne.
In addition to the FAA regulations, every state will need to enact, not merely propose, laws providing guidelines for drone use by law enforcement (i.e., requiring a showing of probable cause or an emergency). Private use of drones must also be regulated, and as cases are litigated, more clarity should emerge on what can and cannot be prohibited.
Attempts have been made at the federal level to regulate the use of drones, mostly by Senator Paul, but both of his attempts to pass meaningful legislation on this issue have been stymied in committee. Time will tell whether members of Congress on both sides of the aisle in Washington can agree on meaningful legislation to protect against unwarranted intrusions into the lives of Americans from drones.