Keeping the Skies Open for Drones

A Pro-Market Approach to Privacy and Airspace Management


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“Kentucky man shoots down drone spying on 16-year-old daughter.”

“Goodbye, privacy: ‘Selfie-drones’ will hover over vacationers.”

These recent, attention-grabbing headlines illustrate the sorry state of the current public discussion on the use of civilian unmanned aircraft systems (UAS).

Not only are UAS, particularly small unmanned aircraft systems (sUAS), often portrayed in a negative light, these reports and commentaries are often riddled with factual inaccuracies and glaring omissions. For example, the Kentucky man who claimed he was protecting his daughter’s privacy may not have been entirely truthful to his arresting officers. In the days following the incident, the sUAS operators released data and video footage seemingly contradicting the man’s claims.

The notion that we face a binary choice between privacy and enjoyment of UAS services ignores the adaptability of existing privacy and harassment law to deter and hold operators accountable for the breaches that worry so many.

This paper addresses two major concerns often cited by supporters of more government intervention into the emerging UAS market: privacy and air traffic management. Contrary to claims that the only solution to UAS challenges is more government, the private sector and existing laws are well equipped to handle the future deployment of UAS technology.

In any discussion of potential costs, it is important to keep in mind the potential benefits. UAS offer great potential benefits in improved precision agriculture, aerial surveying and photography, infrastructure inspection, disaster response, parcel delivery, and other applications. The commercial UAS market is expected to grow substantially in coming years, with a 2013 industry forecast suggesting total nationwide economic benefits of $82.1 billion by 2025. Policy makers should recognize that misguided policy can have dire consequences for a nascent technology and proceed with caution.

According to the National Conference of State Legislators, as of October 8, 45 states have considered 166 bills related to UAS in 2015. Of these, 20 states passed legislation and four adopted resolutions related to UAS operations. This brings the total number of states with UAS statutes on the books to 26. In addition, numerous municipalities have attempted to codify UAS operations as either permissible or impermissible.

The aims of UAS-related legislation vary widely. State and local governments have sought to address real or perceived UAS problems associated with critical infrastructure, agricultural use, voyeurism, law enforcement applications, and hunting and fishing, among other concerns. Maryland stands out in that it has explicitly preempted counties and municipalities from regulating or prohibiting UAS operations.

The motivations behind these bills appear sincere. However, other than the Maryland bill preempting localities and attempts to define appropriate law enforcement uses, UAS legislation is at best unnecessary. At worst, it will excessively burden UAS developers and operators in those states.

The Federal Aviation Administration (FAA) is in the process of developing national rules for sUAS. Before proceeding with potential legislative remedies to real or perceived problems associated with civilian UAS operations, state and local governments should at the very least wait until the FAA finalizes the basic sUAS regulatory framework, which the agency is expected to promulgate before the end of the decade.