Michigan Court of Appeal Issues Strong Decision Restricting Government Drone Use

I learned from Greg McNeal's Twitter thread (and related blog post) of an interesting opinion issued by the Michigan Court of Appeals last week in which the court found that the use of a drone by a township to take aerial photographs of private property violated the property owners' reasonable expectations of privacy.

The case is Long Lake Township v. Maxon. A link to the opinion is here, a link to the dissent is here.

Summary of the Case

The township filed a civil action against the property owners, arguing that their property constituted an "illegal salvage or junk yard" in violation of town ordinances. The township relied on aerial photographs of the property taken in 2010, 2016, 2017, and 2018 that purportedly showed an increase in junk stored on the property. The township had used a drone to take the photos.

The property owners moved to suppress the photos, arguing that they had been obtained through an unlawful search in violation of the Fourth Amendment. In response, the township argued that the drone operator it had hired to take the photos had done so in a manner consistent with FAA regulations--noting that they had maintained a consistent line of site with the drone and that it was lower than 400 feet at all times. (A link to the FAA regulations that the township appears to be referencing is here, an FAA summary of the rules is here).

The court recognized that Michigan has a law that restricts individuals from using drones to capture photos, video, or audio recordings of other people in a manner that would invade others' "reasonable expectation of privacy."

The court first noted that in Kyllo v. United States, the United States Supreme Court had found that the use of a thermal imaging device on a home violated the Fourth Amendment. In Kyllo, the Court concluded:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

The Michigan Court of Appeals took pains to note that Kyllo's holding was not premised on whether the technology used was widely available--noting that other language in Kyllo stated that homeowners should not be "at the mercy of advancing technology" that might be able to see through walls.

The court then considered the cases, California v. Ciraolo (no Fourth Amendment violation where police conducted aerial observation of a defendant's yard from 1,000 feet up) and Florida v. Riley (aerial observation of greenhouse from 400 feet up did not constitute a Fourth Amendment violation). The court emphasized Justice O'Connor's concurrence in Riley, where she recognized that the plurality of the Court relied on FAA regulations governing how high the helicopter could fly, and concluded that compliance with FAA regulations alone does not determine compliance with the Fourth Amendment. Instead she found that "considerable public use of airspace at 400 feet and above" meant that Riley did not have a reasonable expectation that the curtilage of his property was protected from naked-eye aerial observation from 400 feet.

The majority of the Michigan Court of Appeals concluded that the use of the drone by the township was closer to the thermal imaging device used in Kyllo than the aircraft overflights in Ciraolo and Riley. The court noted that FAA regulations were relevant in this case because they demonstrated that drones were "qualitatively different from airplanes and helicopters," as they are smaller, more maneuverable, stealthy, and fly at lower heights. 

The court did not reach the determination of whether a drone overflight was trespassory, finding it unnecessary to do so. Instead, the court found that the determination that the drone use violated reasonable expectations of privacy was enough to establish a Fourth Amendment violation. The court also refused to craft a precise altitude test, instead concluding that "persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement."

In a dissenting opinion, Judge Hood took issue with the majority's blanket distinguishing of Ciraolo and Riley. Recognizing that drones are smaller, Judge Hood noted there was no evidence that the photos captured were different than those that could be taken from a plane or helicopter at that altitude. Judge Hood further noted that the drone was flying in airspace in which the public could use drones, and emphasized that Kyllo involved technology that was not in general public use--not the case with drones which are generally available for people to use.

Analysis

Years ago, I wrote an article surveying state laws restricting law enforcement drone use. One of my main conclusions was that state-level litigation governing how law enforcement agencies could use drones and the evidence obtained from these drones, was necessary. Absent specifically-drafted legislating that put meaningful restrictions in place, the government would likely engage in broad drone use in light of Ciraolo and Riley. Such broad use could be restricted by laws, or by courts who could craft exceptions to the existing Fourth Amendment case law.

I concluded that leaving it in the hands of courts to carve out restrictions for government drone use (either through passing no laws or passing laws that simply reaffirm Fourth Amendment protections) was not the best approach, and that both privacy advocates and law enforcement advocates should support legislation. Legislation would permit evidence-based restrictions on particular types of drone use and leave law enforcement open to use drones in a manner that balanced potential privacy intrusions with the utility of new technology. These restrictions could be amended as technology develops. Courts, however, would not be in a position issue such carefully crafted restrictions, and would likely be faced with the options of broadly permitting government drone use, or stretching Fourth Amendment case law to craft restrictions that could not be amended or addressed by state legislatures.

This case is an example of the latter outcome. As far as I can tell, Michigan law does not restrict its law enforcement agencies' use of drones. Instead, the most the court cited was a law restricting private drone use--a law couched in broad language based on the Fourth Amendment concept of "reasonable expectations of privacy." As I argue in my article, laws like this provide no guidance for courts beyond what is already set forth in the case law, and are therefore have little to no practical impact. 

In the face of this dearth of meaningful restrictions, the court decided to craft a broad restriction of its own--a prohibition on all warrantless drone surveillance of private property. Law enforcement agencies in Michigan must now obtain a warrant before using a drone in this manner, or use a helicopter for such surveillance. This case is based on the Fourth Amendment, so the state legislature cannot write any laws to restrict the scope of the opinion. The only thing the government can do to try to undo this outcome is to appeal to the state supreme court.

Privacy advocates may cite this case as an example of why laws restricting government drone use are unnecessary. That would be a mistake. The dissenting opinion illustrates how courts could just as easily reach the opposite conclusion and permit government drone use. FAA regulations (which have developed since I wrote my article) now permit fairly flexible drone use--including altitude restrictions of below 400 feet--which may permit much closer imaging of private property. I suspect that other courts in similar situations may rely on Ciraolo and Riley to permit similar drone use.

In civil cases, a strong sign that you've reached a fair settlement is that both sides are unhappy with the outcome. The same is the case with drone restrictions. Privacy advocates would likely take a strong view of Fourth Amendment protections and would consider a legislative restriction approach to be a needless compromise. Law enforcement advocates would not want their ability to use new technology to be curtailed by laws or regulations. But using legislation to curtail specific restrictions on government drone use is the only way to balance the nuances of new technology with the blunt instrument of Fourth Amendment decision-making. Long Lake Township illustrates how failing to take this approach can come down against law enforcement interests, but its dissent should be just as much of a warning to those concerned with law enforcement overreach.

Don't Operate Drones While Drunk in New Jersey, and Other Crimes

Through this angrily-titled Reason article, "Good Riddance to Chris Christie," I learned about a recent law in New Jersey that creates several new drone-related crimes. The text of S3370, which Governor Christie signed into law on Monday, is available here.

The bill creates several new drone-related crimes. One of the more widely-reported restrictions is a ban on the operation of drones while under the influence of alcohol, narcotics, hallucinogens, "habit-producing" drugs, or with a blood alcohol level of 0.08% or more. This restriction has led to the publication of several articles that whimsically announce the restriction on "drunk droning" or "drinking and droning." I'm not sure if I'm ready to approve of these publications use of "drone" as a verb, as operating drones does not necessarily involve speaking at length in a boring manner, but the restriction is worth noting.

It's also worth mentioning that federal regulations already place even stricter alcohol-related restrictions on the commercial operation of drones. This concise explainer by Jonathan Rupprecht points out that commercial drone operators can't fly drones within eight hours of consuming alcohol or with a blood alcohol concentration of 0.04% or higher. Rupprecht also notes that hobbyist drone users that operate drones while intoxicated may run afoul of federal regulations if their activity is deemed to "threaten the safety of the national airspace system."

New Jersey bans more than the drunken operation of drones. The law also includes provisions prohibiting people from using drones while hunting, and from using drones to prevent people from hunting. The law also bans the operation of drones in "a manner that endangers the life or property of another," and prohibits people from using drones from conducting surveillance on correctional facilities or "endanger[ing] the safety or security" of these facilities by operating drones on their premises.

But wait, there's more!

The law creates an offense for drone users whose drones interfere with "first responders," (which include law enforcement officers, firefighter, ambulance operators, and others). California has attempted to pass similar legislation that would criminalize operating drones near fires, as this activity has reportedly hindered firefighting efforts. But these crimes have yet to become law in California due to Governor Jerry Brown's reluctance to expand California's bloated Penal Code. Governor Christie, however, appears to have no such qualms.

A final provision of note is a revision to the law governing the penalty of "parole supervision for life" that is imposed on certain sex offenders and those convicted of kidnapping pursuant to N.J.S.A. C.2C:43-6.4. The provision states that the parole supervision for life "may include reasonable conditions prohibiting or restricting the person's operation of an unmanned aircraft system in order to reduce the likelihood of a recurrence of criminal or delinquent behavior." While drones can (and occasionally have) been used to hover creepily outside of people's windows, this is a strangely specific provision to add to the various restrictions that sex offenders face.

I'm generally opposed to imposing restrictions on private drone users, as tortious or invasive behavior with drones could probably be prosecuted or litigated under more general existing laws. I do approve of legislative restrictions on government drone use, but New Jersey appears to have yet to impose such restrictions. The last attempt at doing so failed a year ago when Governor Christie failed to sign off on a bill that would have imposed a warrant restriction (with certain exceptions) on drone use by law enforcement agencies. Perhaps Governor Phil Murphy will act differently should a similar bill make its way through the legislature in the future.

Sweden Effectively Bans Drones with Cameras

From The Verge:

The Supreme Administrative Court of Sweden just ruled that camera drones qualify as surveillance cameras and require a permit under Sweden's camera surveillance laws. The ruling requires owners to cough up a sizable fee in order to get their equipment off the ground, and paying to start the process is no guarantee a citizen will be granted the right to fly. County administrators will have to consider whether use of a "surveillance camera" overrides the public's right to privacy on a case-by-case basis.

. . .

The ruling targets recreational and commercial users alike, and makes zero exceptions for journalists. Sweden's leading drone company Unmanned Aerial System (UAS) said up to 3,000 people may lose their jobs as a result of the court's decision.

Engadget suggests that even if people manage to pay the application fee, most applications will be denied as surveillance cameras are only permitted to prevent crime or accidents, and most people use drones with cameras for different purposes. ABC also reports that this is the case.

This is not the most extreme instance of countrywide drone restrictions. I previously blogged about India's ban on drones -- a ban that is still in place. While the Swedish Supreme Administrative Court's ruling is limited to the use of cameras attached to drones, the ruling will likely restrict a great deal of drone use.

Normally I would not place this much faith in secondary sources reporting on a ruling, but language barriers prevent me from investigating further. I think that the opinion is here, and any readers out their who know Swedish can feel free to flag any mistakes I have made in this post.

Does California Need a Law Prohibiting Drones Near Wildfires?

Ars Technica reports:

Firefighters working to contain a wildfire in the San Gabriel Mountains of Southern California were temporarily thwarted this weekend when pilots for the Monrovia Fire Department (MFD) spotted a few private drones in their path. For low-flying fire-fighting planes carrying fire retardant and smoke jumpers, an errant drone could mean life or death for the pilot and any crew. As such, the fire department decided to temporarily ground all aircraft on Saturday morning.

ABC News has further coverage on drone interference with efforts to combat wildfires in California.

Additionally, Ars Technica reports on the first arrest in California for flying a drone too close to a wilfire:

Law enforcement officers working for the California Department of Forestry and Fire Protection (Cal Fire) arrested Eric Wamser (PDF), a 57-year-old Placer County man, last Friday [July 19, 2016] for flying his drone too close to a wildfire burning north of Sacramento, California. 

Wamser’s arrest is the first of its kind in the state. 

The incident occurred on the evening of June 28 when the Trailhead Fire broke out. A drone was spotted above the fire, so authorities temporarily grounded firefighting aircraft for about 30 minutes. 

. . .

Wamser was not charged with flying a drone specifically, nor has he been penalized by the Federal Aviation Administration (FAA), but rather he was charged with a more general misdemeanor for “interfering with firefighting efforts.” He was discovered as the drone pilot after he posted some images from the drone on social media. Cal Fire and Placer County law enforcement did not say how they discovered the social media posts, but a Cal Fire spokesperson speaking to Ars suggested Wamser had posted a video and that it had been publicly available. Local news outlet KCRA reports that Wamser had posted a video on Facebook.

One might point to this coverage of drone interference with wildfires as examples of why a law prohibiting drone flight near wildfires is necessary. Utah passed such a law (which also authorizes firefighters to shoot down or otherwise neutralize offending drones). And proposals for this type of law are not new to California. Indeed, I wrote a post about such a law that Governor Jerry Brown vetoed last October. As I noted in that post, Governor Brown's reason to veto that bill, among others, was that it added an unnecessary crime to an already bloated Penal Code.

In light of all the reports of drone interference with firefighting in 2016, was Governor Brown wrong to veto the bill outlawing flying drones near wildfires?

The short answer is no. California Penal Code section 148.2 prohibits the willful interference with the lawful efforts of firefighters in the discharge of their official duties. This is the statute under which Wamser is being prosecuted. Any reasonable drone pilot should know that flying a drone near a wildfire will interfere with firefighters' ability to combat the fire from the air. With all the coverage of drone interference and statements by various agencies regarding obstacles to firefighting, this should be common knowledge. Adding a drone-specific law would be redundant, since section 148.2 is already sufficient to prosecute those whose drones interfere with firefighting efforts.

The best response to this that I can think of is that while a drone-specific law would be redundant, it might draw more attention to the problem of drone interference with firefighting. A drone-specific law would likely attract media coverage -- particularly coverage by outlets directed towards drone users. Drone operators may not be aware of Penal Code section 148.2, but they would likely take notice of a drone-specific criminal law.

Ultimately, I don't think it is worth adding a redundant crime to the Penal Code simply out of hope that it will draw more attention than existing laws. Instead, officials should continue to emphasize that even though there are no laws specifically banning drones near wildfires, flying a drone near a wildfire will likely interfere with firefighting efforts and therefore violate Penal Code section 148.2.

Moreover, governments can act to prevent drone-related offenses before they happen, rendering prosecution unnecessary. Of particular note are efforts toward an alert system warning drone pilots of no-fly zones. Between warning systems and emphasizing existing criminal laws, it hopefully will not take too many more instances of firefighting interference and arrests before drone pilots get the message.

Criminal Charges Against Man Who Shot Down Drone Dismissed

So reports the Wall Street Journal Law Blog, taking note of this story from Wave 3 News about a Kentucky man who shot down a drone that he claims was hovering over his property.  From the Wave 3 News report:

The man who calls himself the "Drone Slayer" called a judge's decision a victory. 

Bullitt County Judge Rebecca Ward on Monday dismissed the case against William H. Merideth, who admitted to shooting down a drone he said was hovering over his home last July. 

"I think it’s credible testimony that his drone was hovering from anywhere, for two or three times over these people’s property, that it was an invasion of their privacy and that they had the right to shoot this drone," Ward told the courtroom. "And I’m going to dismiss his charge."

John David Boggs, the owner of the drone "appeared stunned."

Boggs had posted this video of the drone's last flight, making clever use of the soundtrack and less-than-clever use of emojis:




Based on the video, the drone seemed to be so high that Meredith's claim that the drone was hovering over his property is a bit strained. While the drone did indeed appear to be flying and hovering over multiple people's properties, it seems high enough that Meredith's claim that his property was being violated is weak.

There are several gems in this story. First, there is this intriguing point:

Merideth also was facing a charge for firing his gun in a residential neighborhood. That charge was dismissed as well.

The WSJ Law Blog reports that this gun was a "12-gauge, short-barreled shotgun loaded with birdshot." This birdshot was fired high into the air over what appears to be a fairly well-populated suburban area. And yet the charge was dismissed.

Finally, on a completely unrelated note, all of this took place in a county called "Bullitt."

Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

California Governor Vetoes Drone Bills; Denounces Creation of New Crimes

The Los Angeles Times has this report on California Governor Jerry Brown's veto of several bills that would criminalize flying drones over wildfires, schools, and prisons and jails.  Governor Brown vetoed all three (and several other) bills with a veto message denouncing the creation of new crimes.

Of all of the drone-related bills mentioned in the article, the most notable is the bill prohibiting drone flights over wildfires.  I have not looked very much into coverage of the bill, or other laws restricting wildfire observation and interference with firefighting efforts to know if there are indeed pre-existing laws that would neatly apply to flying drones in the vicinity of a wildfire.  Moreover, the bill prohibiting drone flights near wildfires would immunize firefighters who disabled the drones -- a helpful provision that, again, I am not sure already exists in other laws restricting interference with fire fighting.

The intricacies of the drone-wildfire bill aside, Governor Brown's veto message makes a refreshing point about California's vast penal code. Here is the veto message:

Each of these bills creates a new crime -- usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. 

Over the last several decades, California's criminal code has grown to more than 5,000 provisions covering every almost conceivable form of human misbehavior. 

During the same period, our jail and prison populations have exploded. 

Before we keep going down this road, I think we should pause and reflect how our system of criminal justice could be made more human, more just and more cost-effective.

Sincerely,
Edmund G. Brown Jr.

I have blogged about some of California's stranger criminal laws here and here. I think that Governor Brown is correct to criticize the creation of new crimes that may already punished under existing statutes. Hopefully more legislators take heed of this message and maybe (just maybe) some of them will take up the thankless task of clearing up some of the chaos that already exists.

California Governor Vetoes Drone Trespass Bill

So reports the LA Times:

Gov. Jerry Brown on Wednesday vetoed legislation to restrict the use of drones over private property.

The legislation would have made flying a drone lower than 350 feet above private property without consent a trespass violation.

"Drone technology certainly raises novel issues that merit careful examination," Brown wrote in his veto message. "This bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.

Additional reporting on the bill (SB 142) and the veto is available here, here, and here.

The California bill was proposed in light of privacy concerns raised by low-flying drones. Supporters argue that drones may be equipped with cameras and by flying low over private property, they may capture invasive images or video of people on that property. Opponents of the bill note that the bill is difficult to enforce and may curtail people's freedom to operate drone technology.

A notable impact of this bill's veto is that law enforcement agencies will not be curtailed in their use of drones. As I blogged previously, Governor Brown vetoed a bill that would have required warrants for law enforcement drone use back in 2014. In vetoing that bill, Governor Brown noted that the bill's protections went beyond Fourth Amendment restrictions on government searches and surveillance -- a justification that does not really mean much, since if the bill had not gone beyond Fourth Amendment protections, the bill would not have added anything to the legal landscape of government drone use.

The most recent drone trespass bill would have effectively limited government drone use had it been passed. Under United States v. Jones, the government carries out a Fourth Amendment search when it trespasses on somebody's property. Had SB 142 passed, it would have been trespass for drones to fly less than 350 feet above private property without the consent of the property owner. Law enforcement agencies would therefore be restricted from flying drones in such a manner, because the resulting trespass would constitute a Fourth Amendment search. Gregory McNeal advocates a similar approach for restricting law enforcement drone use in this paper.

Governor Brown's veto message noted his wish to avoid unnecessary causes of action against hobbyists. While the focus of much of the debate over this bill has been on private actors, it is worth noting that a significant restriction on government drone use has just been vetoed as well.

UPDATE: 9/11/2015: Title of post edited to correct misspelling.

XKCD on Drone Regulation

Regular readers of this blog should know that I am interested in state and federal regulation of drones. It therefore shouldn't be a surprise that I am particularly amused by XKCD's take on drone regulation, which a friend shared with me earlier today:

This proposal is notable because it has the potential to please both those who are concerned about the privacy implications of widespread drone use and those who oppose increased government regulation of drones.

New Florida Law Restricting Private Drone Use

Florida's governor recently signed S.B. 766, a bill that expands and clarifies restrictions on drone use listed in section 934.50, Florida Statutes. The full text of the bill is available here. Reports on the passage of the bill are available here, here, and here. 

Prior to the passage of this bill, section 934.50 contained a wide restriction on government drone use. 934.50 prohibited the use of drones by law enforcement agencies to collect evidence except in cases where a warrant was first obtained, there was a high risk of a terrorist attack, or there was a risk of imminent harm to somebody. Those exceptions still exist after the passage of S.B. 766.

S.B. 766 is notable because of the restrictions it places on private drone use. The bill adds subsection 934.50(3)(b), which states:

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

The scope of this restriction is clarified by the new subsection 934.40(2)(e), which defines "surveillance" as:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

A person using a drone violates this law if he or she uses a drone to collect images that are clear enough to identify unique identifying features about a piece of property or people on that property. The incidental collection of such images by a drone that is used for different purposes would not appear to violate the restrictions on private drone use. Additionally, this law does not apply to property that is not fenced-in or vast, since features of this property would likely be observable by somebody on the ground, meaning that the property owner would not have a reasonable expectation of privacy.

The law does not criminalize the use of drones for this sort of surveillance, but it does contain a provision permitting civil lawsuits for those who are subject to drone surveillance that violates the provisions of section 934.50. The prevailing party in such a lawsuit would have the right to obtain attorney's fees, and a person subject to surveillance in violation of this law would have the right to seek punitive damages and/or injunctive relief.

The new provisions in S.B. 766 seem fairly reasonable to me. By requiring an intent to conduct a surveillance and a violation of a reasonable expectation of privacy, Florida's new law permits quite a bit of drone use -- even use that may incidentally capture images of private property. Additionally, the bill does not criminalize private drone use that violates the law's provisions, and instead only provides a civil remedy.

North Dakota's New Law Restricting Law Enforcement Drones

North Dakota's governor recently signed this bill (H.B. 1328) restricting the government's use of drones, which makes North Dakota the most recent state to restrict law enforcement's use of drone technology to obtain information and evidence. The Tenth Amendment Center and The West Wire News note this development and argue that the law is a positive step that will protect privacy and thwart federal surveillance efforts.

As far as state laws restricting government drone use are concerned, North Dakota's is one of the stricter laws I've seen. North Dakota's new law requires law enforcement agencies to obtain a warrant before using drones to gather information. Beyond satisfying constitutional requirements, applications for drone warrants need to specify how long the drone would be used, the locations where the drone would operate, and how long any information gathered would be retained.

Section Two, subsection two notes that prosecuting agencies may still use drone-obtained information "in accordance with exceptions to the warrant requirement." But notably, this subsection does not permit the use of information obtained in accordance with judicially-recognized exceptions to the warrant requirement. Most activities drones can observe could be viewed by the general public, Accordingly, laws that contain exceptions to warrant requirements based on judicially-created doctrine end up having very little effect on what law enforcement agencies can do, as I have argued at length in this article and in posts here and here. By omitting the qualifier "judicially-recognized," the law presumably limits any exceptions to the warrant requirement to the exceptions listed in the statute.

And the exceptions listed in the statute are quite narrow. Section Four states that warrants are not required when national borders are being patrolled, when there is "reasonable suspicion that absent swift preventative action, there is an imminent danger to life or bodily harm," when responding to natural disasters, or when using drones for research and development purposes. Notably, this law does not contain exceptions permitting law enforcement drones in situations where a suspect or inmate is fleeing police custody or to document traffic collision or crime scenes.

I think that some of these missing exceptions could enhance North Dakota's law enforcement agencies' ability to use new technology without having much of an impact on privacy. But unlike some other states that have passed laws purporting to restrict government drone use, North Dakota's law does indeed impose strict limits on law enforcement agencies' use of drone technology.

Prison Security and Drone-Smuggled Contraband

Today's New York Times has this interesting article on the use of drones to smuggle contraband into prisons. It begins:

During the graveyard shift at 1:44 a.m., security cameras at the prison here picked up the blinking lights of an unidentified flying object approaching the facility’s fence. 

A corrections officer was dispatched to investigate, but by the time she got there, all she could see was a man running away into the dense forest that surrounds the prison. 

It was not until dawn that officers found a package that included a cellphone, tobacco and marijuana tangled in the power lines outside the prison and a small drone that had crashed in the bushes nearby. In the woods, investigators located a makeshift campground, the remote control device used to fly the drone, a bottle of grape-flavored Gatorade and drugs. 

“It was a delivery system,” said Bryan P. Stirling, the director of the South Carolina Department of Corrections, explaining how the drone’s operators had planned to send the contraband into the prison, the Lee Correctional Institution. “They were sending in smaller amounts in repeated trips. They would put it on there, they would deliver it, someone inside would get it somehow, and they would send it back out and send more in.” 

It is the high-tech version of smuggling a file into a prison in a birthday cake, and it underscores the headache that drones are now creating for law enforcement and national security officials, who acknowledge that they have few, if any, ways of stopping them.

The article goes on to explain various techniques that prisons are exploring for stopping drone delivery of contraband. One solution that may hold promise is "geofencing," or software that would render drones inoperable within a certain range of sensitive locations.

I have blogged before about incidents of attempted smuggling of contraband into prisons using drones. It is also worth noting the relatively recent incident where a meth-carrying drone crashed near the U.S. - Mexico border.

While drones may be useful for smuggling contraband over prison walls, flaws in this delivery system include drones' visibility and noisiness. As drone technology develops, however, drones may become a more effective means for circumventing security measures. Prison administrations would do well to explore geofencing technology sooner, rather than later, in order to head off this problem.

Drones Banned Above "Game of Thrones" Set in Belfast

So reports Belfast Live:

Crafty Game Of Thrones fans have been thwarted from getting any sneak behind-the-scenes peeks after a ban on drones above the set. 

Signs erected close to the filming studios in Titanic Quarter, East Belfast, warn of a "no-fly zone" for the mini-crafts. 

And novice pilots are told they could face prosecution for invading the airspace above the studios without permission from the Civil Aviation Authority. 

The move came after sightings of drones above various sets of hit shows being filmed here. 

The security firm behind the signs said the flying of drones in the area poses a significant risk to people below. 

But the clampdown has also hit cheeky fans of Game Of Thrones plotting to catch a glimpse of scenes starring their heroes. 

A source told Belfast Live there were fears top secret plot details could leak out if drones were able to hover above the site.

This drone ban makes sense from a safety perspective. Flying drones over unsuspecting people can lead to injuries should the drones fall unexpectedly (as they occasionally do). And if those on the ground are celebrities, I wouldn't be surprised if people flying the drones end up flying closer to the ground in order to get better footage.

I am, however, a bit confused by the concern that these drones may lead to the leak of "top secret plot details." Game of Thrones is based on books that have already been written. Any details that these drones may reveal have presumably already been revealed to those who simply have taken the time to open the books.

FAA Increasing Enforcement Efforts Targeting Commercial Drone Use

So reports Kathleen Kirby at Weily Rein's media law blog. From the blog:

The Federal Aviation Administration (FAA) has recently stepped up enforcement efforts against Unmanned Aircraft Systems (UAS) operators engaged in unauthorized “commercial” operations. The FAA’s current regulatory scheme permits hobby and recreational use of UAS but requires commercial UAS users to receive FAA authorization before beginning operations. Two recent regional office enforcement actions against UAS hobbyists (prompted by the content on their respective websites) reaffirms the FAA’s commitment to preventing unapproved UAS operations and signals that the agency may be adopting a broad view of what constitutes “commercial” operation.

These two new instances of enforcement include a notification of a potential violation to a drone operator who "advertises his UAS aerial photography services," and a notice of a potential violation to a drone operator who posts drone-shot video to YouTube, where ads are displayed before the videos play. Coverage of the first enforcement action is available here. Coverage of the second enforcement action is available here.

I noted a while back that people who use drone photography for architectural or landscaping purposes, and who advertise their photography services are running a risk of violating the FAA's current ban on the use of drones for commercial purposes. Drones may well be useful, and the FAA has proposed outlines for potential new regulations governing the commercial use of drones. But at this point, those rules are in the early stages of development, and the unauthorized use of drones for commercial purposes may land drone operators in hot water. For this reason, I am not particularly surprised by the first enforcement action.

But the second enforcement action against drone footage on YouTube is notable in its potential breadth. I can see how using a drone to shoot footage that is later posted online and monetized through ads may be construed as being a commercial use of the drone. But in light of existing, widespread use of drones to shoot interesting and often breathtaking footage, this type of enforcement action -- if uniformly applied -- could lead to troubles for a large number of drone enthusiasts, and could result in a drop in drone-shot photography and footage that is shared online.

FAA Releases Notice of Proposed Rulemaking for Drone Regulations

So reports the Washington Post:

Thousands of businesses could receive clearance to fly drones two years from now under proposed rules that the Federal Aviation Administrationunveiled Sunday, a landmark step that will make automated flight more commonplace in the nation’s skies. 

Meanwhile, the White House on Sunday issued presidential directive that will require federal agencies for the first time to publicly disclose where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance. 

Together, the FAA regulations and the White House order provide some basic rules of the sky that will govern who can fly drones in the United States and under what conditions, while attempting to prevent aviation disasters and unrestrained government surveillance.

The notice of proposed rulemaking is here. A list summarizing the proposals can be found here. These rules would include requirements that drones not be operated recklessly, that drones be operated within the line of sight of the person controlling the drone, and that people who operate drones obtain licenses.

Notably, the second to last proposal is that "Proposed rule would not apply to model aircraft that satisfy all of the criteria specified in Section 336 of Public Law 112-95." Here is the text of that section:

(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—

(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes.

This suggests that the drone-licensing and other requirements suggested in the notice of proposed rulemaking would not apply to hobbyist drone use.

While hobbyist use may not be affected very much if this proposal remains, these regulations would throw a wrench into the plans of companies like Amazon that have suggested that they may use drone technology to make deliveries. Prohibiting the operation of drones out of the sight of the people controlling drones would render these business models implausible. Other types of drone use like land and real estate surveys may become more widespread under these rules.

It is good to see that the FAA has finally released these proposals. I suspect that there will be a great deal of debate in days to come over these rules, and I look forward to seeing what rules end up being adopted once comments on these proposals are submitted.

FAA: Superbowl Stadium is a "No Drone Zone"

I just came across this video released by the Federal Aviation Administration (FAA) that declares the Superbowl Stadium a "No Drone Zone."



Frank Bi at Forbes writes about the video here, and notes that the FAA has declared a 10-mile no-fly zone around the Superbowl stadium. This ban applies to unmanned aircraft systems, and therefore applies to drones.

This sort of public service announcement is an indicator of the rise in drone use and popularity. And I think that while it may come across as a bit corny, it sends the right message, since people may do many stupid things with drones near stadiums.

Drone Carrying Meth Crashes Near US - Mexico Border

So reports U-T San Diego. The article begins:

A small aerial drone crashed about two miles from the U.S. border in Mexico carrying several pounds of methamphetamine, Mexican police said Wednesday. 

The discovery at a shopping mall parking lot in Tijuana, within walking distance of the U.S. border crossing, raises the prospect of a new, high-tech front in the struggle between drug gangs and law enforcement.

In a previous post, I highlighted how drones have been used in attempts to smuggle contraband into prisons.

Politicians may use this incident to call for increased regulations on drones, but this would probably be an overreaction. The article goes on to note that drones are a poor choice for would-be drug smugglers:

Amy Roderick, a spokeswoman for the U.S. Drug Enforcement Administration in San Diego, said drones provide little economic incentive for smugglers. 

“This method will only allow a small amount of drugs to be flown at a time,” she said. “That coupled with the ease of detection, does not make this method very profitable to these drug trafficking organizations whose motivation is money.”

It will be interesting to see if drug-carrying-drone incidents become more commonplace. Drones are indeed easy to detect and incapable of carrying heavy loads. But drone technology is becoming increasingly popular, and I suspect that there are at least several dim-witted, trendy drug smugglers who will turn to this technology.

Iowa Department of Public Safety Releases Report on Drones

Iowa's Department of Public Safety recently released a report on drones. The full text of the report is available here. A bill passed back in May called for this report, which would survey whether Iowa's laws should be modified to account for drones and to develop guidelines for drone use.

I think that the report's position on private drone use is sensible. The report notes that drone safety regulations are covered by Federal Aviation Administration (FAA) regulations. The report continues, pointing out that existing laws against trespass and invasion of privacy can restrict invasive drone use by private parties. The report also notes that it may be best to restrict drones "as regulation is needed rather than in a preemptive matter." This sort of approach will help drone technology develop without complicated or repetitive laws that may hinder the free use of drone technology.

I do think that the report misstates Iowa's legislative restrictions on government drone use. Iowa's law governing drones is a bit strange, since it is a mix of restriction and deregulation of government drone use. Section 321.492B of the Iowa Code prohibits the government from using drones in "traffic enforcement" situations. As I have previously argued, it is unclear how far this prohibition extends. While officers may not use drones to spot traffic violations, are they prohibited from using drones to document the scene of a traffic collision or hit and run after the collision has taken place?

In non-traffic enforcement situations, agencies can use evidence obtained through drones whenever an exception to the Fourth Amendment search warrant requirement exists. As I have pointed out several times on this blog, this sort of exception essentially permits law enforcement agencies to use drones without any meaningful restrictions, since drones can still be used to observe people's public movements and the exterior of their homes.

The report, however, claims that this law "contemplates that a search warrant must be obtained, or that evidence that the government has gathered with an unmanned aircraft would be suppressed." While Iowa's law calls for a warrant when the government uses drones, the exception to the warrant requirement is so broad that the warrant requirement does not meaningfully restrict government drone use.

The report is worth reading in full, and its discussion of FAA regulations and state trespassing and privacy laws will likely apply to other states that are contemplating drone regulation.

NTSB Rules that FAA Regulations Apply to Drones

The National Transportation Safety Board (NTSB) ruled yesterday that the Federal Aviation Administration's (FAA's) aircraft regulations apply to drones. Bill Chappell from NPR has the story here. Additional reporting from The Hill is available here. The full NTSB ruling is available here.

Specifically, the NTSB ruled that a regulation prohibiting the reckless operation of aircraft (14 C.F.R. § 91.13(a)) applies to the operation of drones -- despite the FAA's release of circulars and other notices specifically discussing model aircraft operation.

This opinion overturns an earlier administrative law judge's ruling that the FAA's regulations do not apply to drones. That earlier decision is available here. I blogged about the previous decision here.

From the NTSB's ruling:

[T]he Administrator’s application of § 91.13(a) to respondent’s aircraft is reasonable. Section 91.13(a) states, “Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” As discussed above, neither the plain language of § 91.13(a) nor the definitions of “aircraft” applicable to regulations in 14 C.F.R. part 91 exclude unmanned aircraft. The Administrator’s interpretation of this text—that it applies to respondent’s operation of his Zephyr to prohibit careless or reckless operations—is reasonable, given the broad language of the section. In addition, the Administrator’s preamble text in its Notices of Proposed Rulemaking, published in the Federal Register under the Administrative Procedure Act for promulgation of § 91.13(a), do not contain any language indicating its application of § 91.13(a) to respondent’s aircraft is an unreasonable reading of the regulation’s text and purpose. The Board has affirmed the Administrator’s application of § 91.13(a) as an alleged independent violation in other cases in which, presumably, no other regulation would have explicitly prohibited the alleged conduct. (footnotes omitted).

And as to whether the FAA's 1981 Advisory Circular on "model aircraft" operation exclude these aircraft from other regulations:

Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.

While drones are generally quite different from traditional aircraft, the NTSB's conclusion seems correct, given the broad language of the regulation and the non-exclusive language of the advisory circular.

The NTSB cites statutory and regulatory definitions of "aircraft" as "any contrivance invented, used, or designed to navigate, or fly in, the air" (49 USC § 40102(a)(6)) and as "a device that is used or intended to be used for flight in the air." (14 C.F.R. § 1.1). While this language covers a great many devices (possibly even including paper airplanes or "toy balsa wood gliders" as the administrative law judge's ruling warns), the language is nevertheless clear.

It is worth adding that even though I think the NTSB's reading is correct, that does not mean that I necessarily agree that regulations applying to full-sized, manned aircraft ought to be applied to drones. I think that the administrative law judge was correct to note the broad definition of "aircraft" for purposes of federal law and regulation -- but I don't think that the law's unintuitive breadth is a sufficient reason to disregard the plain meaning of the text.

The NTSB's ruling will almost certainly accentuate the need for specialized drone regulations. And it may have a secondary effect of prompting awareness and criticism of how far a broadly-worded federal law may extend.

FAA Criminalizes Flying Drones Over Stadiums During Games

So reports the Associated Press. From the article:

Operators who fly drones or model planes near or over large sports stadiums and auto racetracks are breaking the law and can be fined and imprisoned for up to a year, the Federal Aviation Administration warned in a notice posted on the agency's website. 

The notice marks the first time the FAA has sought to criminalize the use of drones and model planes, attorneys representing drone users said. 

The notice, posted on Monday, updates a previous notice to pilots warning that aircraft are prohibited from flying below 3,000 feet and within 3 miles of a Major League Baseball, National Football League and NCAA Division I college football game for national security reasons. The NSCAR Sprint Cup, Indy Car and Champ series auto races are also included. The prohibition extends from one hour before the events until one hour after. 

The original version of the notice was issued shortly after the Sept. 11, 2001, terrorist attacks and has been previously updated. The original and most recent prior version of the notice, issued in 2009, make no mention of drones or other remotely controlled aircraft.

The article points out that officials and sports teams are concerned that drones could be used to film games and that drones could crash into players or spectators. The article quotes Brendan Schulman, who argues that this law would not add any meaningful protections against terrorism.

I think that this law is sensible, and I think that it is important to acknowledge the law's limits before rushing to criticize it. The law only applies to stadiums that seat 30,000 people or more, and Schulman states that this covers about 150 stadiums in the United States. Moreover, the law only prohibits drone use near sports stadiums during sport events, and for a one hour window before and after the events. That means that even stupid drone use like this would not be covered by the law, since that drone use did not take place during (or right before or after) a game.

Additionally, while I agree with Schulman that this law might not do much to prevent terrorist activities, I think that the risk of drones falling and striking spectators or players warrants this restriction. Any fan of Iowa football will tell you that football players already have enough to worry about when it comes to mechanical devices falling onto the field. And with the dense traffic that precedes and follows sport events, and the large crowds of people present during these events, the risk of a falling drone crashing into somebody is multiplied.