The NCSL Blog


By Douglas Shinkle and Mark Wolf

What goes up, must—be regulated.

From left, Mark Kimberling, Amanda Essex, Doug Johnson and Reggie Govan.But the question of who should ultimately regulate drones is, you know, up in the air.

A diverse panel of federal, state and industry experts gathered in a session of the NCSL Capitol Forum on Thursday to discuss and debate what the proper role for states and the federal government is with regards to regulation of Unmanned Aerial Systems (UAS/drones).

NCSL's UAS expert Amanda Essex provided a quick overview of state legislative trends; 38 states considered legislation and 17 states enacted 31 laws concerning drones in 2016.

Overall, 32 states have passed at least one law concerning drones. Notable areas of state action include:

Privacy protections (22 overall, 18 requiring warrants for law enforcement to use). Eight states prohibit weaponization of UAS. Fair chase ethics for hunting are preserved by a few states that ban the use of drones for hunting and fishing.

States have not just been regulating UAS though. Several states, including Alaska, Ohio and Utah, have worked to open their doors to the drone industry. State governments can also benefit from drone use for their own work, inspecting bridges, assisting with search and rescue missions, monitoring wildfires, etc. NCSL released a report on state UAS policy in June 2016.

Last summer, the Federal Aviation Administration released rule 107, which created regulations for small commercial drones. The rules included: no flying above 400 feet, drones must be kept within the controller's line of sight, maximum speed is 100 mph (87 knots), no flying under a covered structure or operating from a moving vehicle (except in sparsely populated areas).

The rules do not consider privacy or apply to noncommercial hobbyist users, although they must register their drones with the FAA, which costs $5.

"The longstanding doctrine is that when the federal government does act, state and local governments can't enact even complementary rules," said Reggie Govan, the FAA's chief counsel, adding that there is a myth that the national airspace starts at 500 feet and the feds have no interest in regulating at lower altitudes.

Mark Kimberling of the National Association of State Aviation Officials said the FAA "shouldn't go too far in pre-empting states. Certain issues might be left to states, including privacy and trespassing. It would be helpful to know what the FAA is doing in that regard. Their emphasis and enforcement actions are typically centered on safety."

"We don't do a lot on privacy," said Govan, adding that he believes states can single out the drone when it's being used for intrusive purposes. He said it was easier to invade someone's privacy and that you can do things with a drone you can't do with a telephoto lens.

Doug Johnson, vice president for technology policy at the Consumer Technology Association, said the drone industry believed existing state laws already cover privacy issues and that some states have added drones to anti-voyeur laws.

"We're trying to avoid technology-specific rules; technology neutral is the approach we're looking for," he said, adding that a camera package on a drone for movie photography is safer than using a helicopter.

Responding to a question about anti-drone violence, Govan said it was against federal law to take down an aircraft "and drones are aircraft," adding that neutralizing and downing a drone by jamming it "is the same as using a shotgun."

Govan said he believes there needs to be a conversation over where state and local governments can put restrictions on low-altitude drone use "so we can get past the issue of what's state and what's federal."

Douglas Shinkle, is NCSL’s Transportation Program director. Mark Wolf is editor of the NCSL  Blog..  

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Douglas Shinkle is NCSL’s Transportation Program Director. Mark Wolf is the editor of NCSL's Blog.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.