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Thursday, July 24, 2014

Obama's Upcoming Executive Order on Drone Privacy: Some Thoughts on Preemption

Politico reports:

President Barack Obama plans to issue an executive order to develop privacy guidelines for commercial drones operating in U.S. airspace, POLITICO has learned. 
The order would put the National Telecommunications and Information Administration, an arm of the Commerce Department, in charge of developing the guidelines. NTIA would bring together companies and consumer groups to hammer out a series of voluntary best practices for unmanned aerial vehicles.

The Federal Aviation Administration (FAA) has been working on drafting rules and regulations governing the safe use of domestic drones. But Politico reports that critics are concerned with the agency's failure to draft rules governing drone surveillance.

While there are no federal laws or rules that restrict the use of drones to invade other people's privacy, several states have enacted or proposed legislation that would restrict intrusive drone use by private parties. Idaho, Texas, and Wisconsin have passed laws that restrict private drone use that infringes on the privacy of others. A law that would criminalize drone use that intrudes on the privacy of others has been proposed in California. Tennessee has passed legislation that restricts private actors from using drones to interfere with hunters. Other states, including Iowa, Indiana, and Florida have passed laws that restrict government use of drones.

While there are not many details available about the contents of the executive order, Politico reports that the NTIA would not enact rules that would restrict government drone use. While this would leave the majority of state drone laws unaffected, President Obama's order and the ensuing federal regulations could have a substantial impact, preemptive on state laws that concern the use of drones to invade privacy.

The NTIA's rules could end up preempting state legislation governing the private use of drones. In Hillsborough County v. Automated Medical Laboratories, the Supreme Court summarized how federal laws and regulations may trump state laws:

Under the Supremacy Clause, federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). In the absence of express pre-emptive language, Congress' intent to preempt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. 
. . . 
We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes.
If there are conflicts between the NTIA's regulations and state laws, the NTIA's regulations will preempt the state laws. And if the NTIA ends up developing a "sufficiently comprehensive" regulatory scheme regarding drone use and privacy, the federal regulations may preempt even those state laws that do not expressly conflict with the federal regulations. (For more on how federal regulations may preempt state drone laws, I recommend this essay by Margot Kaminski).

Does this mean that it is futile for states to pass laws restricting the invasive use of drones?

Probably not. For one, the NTIA may not want its regulations to preempt state legislation, and it may issue a statement to this effect. If that ends up happening, courts will not be likely to find that the regulatory scheme is comprehensive, and state laws will not be preempted in situations where there is not an express, contrary federal law (this is what ended up happening in Automatic Medical Laboratories).

But even more importantly, President Obama has not even issued the executive order yet, and the NTIA will need to take time drafting and hearing comments regarding any proposed privacy regulations. During that time, state regulations will not only remain valid, but may have a substantial impact on the rules the NTIA ends up adopting.

Drone regulations, especially those governing drone surveillance and invasion of privacy, are getting a lot of attention, and any new laws in this area will probably be picked up by the media. Those involved in the NTIA rulemaking process will probably end up hearing about state laws as they are passed and may consider these laws when they are shaping the federal regulations.

Moreover, state laws on drones and privacy give states an opportunity to indirectly lobby the NTIA. Regulating drone privacy would be a fairly novel undertaking for the federal government, and the NTIA will probably rely on input when shaping its rules. While a comment submitted to an agency may have a small chance of impacting the rule the agency ultimately adopts, a regulation that gets enough support to make it through a state legislature will probably carry a bit more weight in the debate over what privacy rules are ideal.

This is an early stage in the rulemaking process, and the issue of preemption will become clearer once President Obama issues the executive order and as the NTIA begins to develop the regulations. But the potential for federal preemption is something that states should take into account as federal drone privacy regulations begin to take shape.

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