The Obama administration is far behind schedule integrating drones into the national airspace and lawmakers on Capitol Hill are struggling to move legislation governing the craft, but a dozen states already have enacted regulations and laid out in detail how drones can and can’t be used by law enforcement agencies and other entities.
Florida, Virginia, Montana, Texas, Oregon and other states have directly addressed concerns that drones, expected to become common in American skies over the next few years, represent a unique and grave threat to Fourth Amendment rights.
Legislation in each state differs, but the most common theme among all laws enacted or bills under discussion is that police departments must obtain specific warrants before any evidence gathered by a drone can be used in court.
In many cases, the legislation also sets limits on how long data gathered by drones can be retained.
“There’s a concern about the use of drone technology for surveillance, the gathering of evidence. In any of those states, there’s a warrant requirement for the use of that technology, even if the drone was used in the same area as a manned aircraft” such as a helicopter, said Brendan Schulman, a lawyer with Kramer Levin Naftalis & Frankel LLP in New York.
Kramer Levin was one of the first law firms in the country to launch a specific unmanned aircraft systems practice group.
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Although the states’ legislation is well-intended, Mr. Schulman said, it could carry unintended consequences. Most bills lay out specific requirements that apply only to drones, meaning police departments or other agencies would need to take extra steps if they want to use an unmanned vehicle rather than a helicopter or a street-level camera.
“There’s a deep bias, or discrimination, against the technology, even though in many respects this is equipment that is going to save taxpayer dollars,” he said. “If you have a car accident and the police want to take a picture of the scene as they reconstruct what happened, why shouldn’t they take a picture from a few feet up in the air? Why would they need a warrant to get that done?”
The reason, privacy advocates argue, is that drones’ ever-advancing technology means the old rules of the road aren’t sufficient. Drones are able to fly lower to the ground, often undetected, through tighter spaces. They also are equipped with more powerful cameras than could have been imagined even a few years ago.
But the lack of a clear federal standard is causing confusion and hesitation in some states. The Federal Aviation Administration has been tasked with addressing drone privacy issues as it works to integrate commercial drones into the national airspace by September 2015 — a deadline that looks increasingly unrealistic.
Sen. Edward J. Markey, Massachusetts Democrat, and other lawmakers have introduced drone privacy bills on Capitol Hill, but none has gained traction. In the House, none of the bills introduced has advanced even to the full committee level.
The uncertainty in Washington has led legislators in Louisiana to scrap a drone privacy bill.
“We should wait on federal [lawmakers] to do their job,” said Louisiana state Rep. Barbara M. Norton, a Democrat, as quoted by The Advocate newspaper.
Ms. Norton made her comments the same day a state House committee voted down a drone privacy bill.
Similar bills also have fallen by the wayside in Maryland, Minnesota and other states.
Meanwhile, lawmakers and analysts say the FAA is woefully behind the schedule mandated by Congress to integrate drones into airspace alongside planes and helicopters by September 2015.
As the agency continues its complex task, the legal status of civilian and commercial drones is in doubt.
A National Transportation Safety Board judge ruled in March that no enforceable regulations under current FAA rules prohibit the use of drones for commercial activity.
The FAA has appealed the decision.
Lawmakers, drone manufacturers and industries looking to take advantage of the craft — including agriculture, aerial photography, filmmaking and media — are looking to the FAA to issue firm rules and clear up the growing confusion.
The hopes of that happening by September 2015, however, are dimming by the day.
“Sometimes government bureaucrats are too cautious in the way they hold people back,” Rep. Frank A. LoBiondo, New Jersey Republican, said in May at the drone industry’s annual trade show in Orlando, Florida. Mr. LoBiondo chairs the House Transportation Committee’s subcommittee on aviation.
“We’re going to find ways to convince the FAA that they need to speed up the process. If we are too cautious through this whole process, we’re going to miss this whole opportunity that may never come back again,” he said.
• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.
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