2017 UNMANNED AIRCRAFT SYSTEMS (UAS) STATE LEGISLATION UPDATE

1/17/2018

Introduction

Man flying a drone at dusk.This resource is the second in a series of annual updates to Taking Off: State Unmanned Aircraft Systems Policies. The first update was released in March 2017. This update includes information on all enacted legislation related to unmanned aircraft systems (UAS), also referred to as “drones,” in the 2017 legislative session.

Federal Action

From legislation to litigation, 2017 was a major year for drones at the federal level, across all branches. Starting in the judiciary, a couple of major cases impacted drones in 2017. The first, Taylor v. FAA, challenged the Federal Aviation Administration’s (FAA) registration requirement for all drones, including model aircraft, which Taylor believed violated language in the 2012 FAA reauthorization which prohibited FAA from regulating model aircraft. Subsequently, Congress included a provision in the 2017 National Defense Authorization Act, undoing the prohibition specifically as it relates to a registration requirement and FAA has subsequently reinstituted the requirement. Department of Transportation Secretary Elaine Chao announced in early January that FAA had registered its 1 millionth drone.

The second case, Singer v. Newton, challenged a local ordinance passed by Newton, Mass. that prohibited drone flights below 400 feet without the property’s owner permission. Singer felt that this left no actual way to operate a drone in the national airspace as FAA regulations prohibit operating a drone more than 400 feet above the ground or the top of a building. The court ruled in favor of Singer, noting that the ordinance was in direct conflict with existing federal regulations. However, the court did not rule that the entire field of aviation was preempted, indicating there is some role for states and localities to potentially regulate drone operations. 

Drone flying over crop field.This question of the proper role for states and localities to regulate drone operations was a very popular one in Washington D.C. with members of FAA’s Drone Advisory Committee Subcommittee, of which NCSL was an active participant, spending a considerable amount of time on this topic. Unfortunately, representatives of state and local government and the aviation industry were not able to reach consensus on a full set of recommendations.

However, in November, Secretary Chao announced that FAA would begin a UAS Integration Pilot Program that would focus on bringing together state and local governments with industry partners to pilot new types of authority for drone operations. While the application process is still underway, Secretary Chao announced in early January that FAA will include at least 10 different pilot projects as part of the first round of this program. Additionally, the unveiling of the program was a clear signal from the federal government that it sees a role for state and local governments when it comes to regulating drone operations, especially when compared to manned aviation, where both levels of government are mostly preempted.

A similar effort to grant states and local governments additional authority to regulate drone operations is ongoing in both chambers of Congress. In the House, Representative John Lewis (R-Minn.) introduced the Drone Innovation Act while in the Senate, Senator Dianne Feinstein (D-Calif.) introduced the Drone Federalism Act. While not companion bills, both aim to provide statutory authority to states and local governments to issue reasonable, time, manner, and place restrictions on drone operations. Neither bill has received a vote, but they are likely to be included in the debate when Congress takes up a reauthorization of the FAA later this spring. 

State UAS Legislative Action

US map graphicAt least 38 states considered legislation related to UAS in the 2017 legislative session. Eighteen states—Colorado, Connecticut, Florida, Georgia, Indiana, Kentucky, Louisiana, Minnesota, Montana, Nevada, New Jersey, North Carolina, Oregon, South Dakota, Texas, Utah, Virginia and Wyoming—passed 24 pieces of legislation. Three states—Alaska, North Dakota and Utah—adopted resolutions addressing UAS.

Preemption

States continue to pass legislation preempting localities from enacting their own drone regulations. At the time of publication, 15 states have enacted legislation preempting localities from regulating UAS in some way—Arizona, Connecticut, Delaware, Florida, Georgia, Louisiana, Maryland, Michigan, Montana, New Jersey, Oregon, Rhode Island, Texas, Utah and Virginia. Eight of those laws were enacted in 2017, with the laws in Connecticut, Florida, Georgia, and Texas including exceptions when localities can regulate.

  • Montana’s HB 644 preempts local regulation specifically regarding the use of UAS in relation to a wildfire.
  • Connecticut SB 975 prohibits municipalities from regulating UAS. It allows a municipality that is also a water company to enact ordinances that regulate or prohibit the use or operation of UAS over the municipality's public water supply and land. 
  • Florida HB 1027 generally preempts local regulation of UAS, but specifies that localities may enact ordinances relating to nuisances, voyeurism, harassment, reckless endangerment, property damage or other illegal acts.
  • Georgia HB 481 defines unmanned aircraft systems and preempts localities from adopting UAS regulations after April 1, 2017. However, local governments may adopt ordinances that allow or prohibit the launch or intentional landing of UAS on public property except for UAS operated for commercial purposes. 
  • Texas HB 1643 prohibits localities from regulating UAS except during special events and when the UAS is used by the locality. Special events are defined as festivals, celebrations or other gatherings that involve: (1) the temporary use of some or all of a public park, road, or other public property and (2) entertainment, the sale of merchandise, food or beverages, or mass participation in a sports event.
  • Louisiana SB 69 and Utah  SB 111 preempt local regulation of UAS. 
  • New Jersey SB 3370 preempts localities from regulating UAS in any way that is inconsistent with the newly enacted legislation.

Privacy

Since 2013, 26 states—Alaska, Arkansas, California, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nevada, New Jersey, North Carolina, North Dakota, Oregon, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin—have passed legislation that falls within the broad category of privacy. This includes legislation related to warrant requirements for UAS use by law enforcement agencies and protection from privacy violations committed by non-government operators, including peeping toms. 

Warrant requirements

Legislation requiring law enforcement agencies to obtain a search warrant to use UAS for surveillance or to conduct a search is in place in 18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin. New warrant requirements were not enacted in 2017.

Protection from non-government operators

Drone flying.At least 19 states—Arkansas, California, Florida, Idaho, Indiana, Kansas, Louisiana, Michigan, Mississippi, Nevada, New Jersey, North Carolina, Oregon, South Dakota, Tennessee, Texas, Utah, Virginia and Wisconsin—have passed legislation providing privacy protections from other citizens that are specific to drones.

Six states—Indiana, New Jersey, Oregon, South Dakota, Utah and Virginia—enacted laws addressing protection from non-government operators in 2017.

  • Indiana SB 299 makes it a class A misdemeanor to commit “remote aerial voyeurism.” This offense becomes a level 6 felony if the person publishes the images, makes them available on the internet or shares them with another person. 
  • New Jersey SB 3370 applies the operation of UAS to limitations within restraining orders and specifies that convictions under the law are separate from other convictions such as harassment, stalking, and invasion of privacy.
  • Oregon HB 3047 prohibits the use of UAS over private property in a manner that intentionally, knowingly or recklessly harasses of annoys the owner or occupant of the property. A violation of this provision is a class B violation. It is a class A violation if it is a second conviction and a class B misdemeanor if it is a third or subsequent conviction.
  • South Dakota SB 80 modifies the crime of unlawful surveillance to include intentional use of a drone to observe, photograph or record someone in a private place with a reasonable expectation of privacy and landing a drone on the property of an individual without that person’s consent. Unlawful surveillance is a class 1 misdemeanor.
  • Utah  SB 111 modifies the offense of criminal trespass to include drones entering and remaining unlawfully over property with specified intent. Depending on the intent, a violation is either a class B misdemeanor, a class A misdemeanor or an infraction. The law also specifies that a person is not guilty of what would otherwise be a privacy violation if the person is operating a UAS for legitimate commercial or education purposes consistent with FAA regulations. It also modifies the offense of voyeurism, a class B misdemeanor, to include the use of any type of technology, including UAS, to secretly record video of a person in certain instances. 
  • Virginia HB 2350 makes it a Class 1 misdemeanor to use UAS to trespass upon the property of another for the purpose of secretly or furtively peeping, spying, or attempting to peep or spy into a dwelling or occupied building located on such property.

Hobbyists

Regulation of UAS operation by hobbyists continues to be limited, beyond laws addressing privacy protections and criminal offenses for misuse. Three states enacted legislation addressing hobbyist operation in 2017.
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  • Georgia HB 481 allows local government regulation of the launch or landing of UAS on public property and these regulations would likely apply to hobbyists due to the fact that the legislation specifically exempts UAS operated for commercial purposes from the regulation.
  • North Carolina HB 337 removes the exemption that specified that certain model aircraft were not unmanned aircraft, making UAS flown as model aircraft subject to regulations covering UAS in the state. However, the law exempts model aircraft from training and permitting requirements for UAS.
  • Utah  SB 111 defines safe operation of unmanned aircraft, specifying operational requirements for recreational operators. The operator must maintain visual line of sight, cannot operate within certain airspace, cannot operate in a way that interferes with operations at an airport, heliport or seaplane base, cannot operate from specified locations, and must operate below 400 feet unless it is within 400 feet of a structure. Any operator who violates these requirements is liable for any damages and law enforcement shall issue a written warning for the first violation. A second violation is an infraction and any subsequent violations are class B misdemeanors.

Insurance 

As was the case in 2016, states did not enact legislation in 2017 that included insurance requirements for UAS operators, though it remains a topic of discussion and debate among legislatures and the industry. 

Commercial Use

Drone flying over lake at dusk.States have recognized the potential for commercial uses of UAS, and several pieces of enacted legislation have addressed this topic.

In 2017, Texas enacted a law addressing commercial use of UAS and a number of other pieces of legislation specifies that the new laws did not apply to commercial operators in compliance with FAA regulations. Texas SB 840 permits telecommunications providers to use UAS to capture images and allows a UAS to be used to capture images by an insurance company for certain insurance purposes, as long as the operator is authorized by the FAA. 

Governmental Use

Governments utilize UAS for a number of different tasks, from locating missing persons to investigating motor vehicle crashes. States continue to enact legislation addressing governmental use of drones within their borders. In 2017, five states—Colorado, North Carolina, Oregon, Texas and Utah—passed laws addressing governmental use of UAS.

  • Colorado HB 1070 creates a pilot program requiring the deployment of at least one team of UAS operators to a region of the state that has been designated as a fire hazard, where they will be trained on the use of UAS for the above specifies functions.
  • North Carolina HB 337 allows the use of UAS for emergency management activities, including incident command, area reconnaissance, search and rescue, preliminary damage assessment, hazard risk management, and floodplain mapping. 
  • Oregon HB 3047 specifies that UAS may be used by law enforcement to reconstruct an accident scene.
  • Texas SB 840 specifies that only law enforcement may use UAS to captures images of real property that is within 25 miles of the U.S. border for border security purposes. 
  • Utah  SB 111 allows law enforcement to use UAS for purposes unrelated to a criminal investigation and requires law enforcement create an official record when using UAS that provides information regarding the use of the drone and any data acquired.

Criminal Penalties for Misuse

One of the issues most frequently considered by legislatures addresses creating criminal offenses associated with UAS misuse, whether it be flying near an airport, interfering with firefighting operations, using UAS for “peeping tom” activities or other violations.

Twenty-three states—Arizona, Arkansas, California, Delaware, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Jersey, North Carolina, Oregon, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin—have laws criminalizing certain uses of UAS.

Eleven states—Florida, Indiana, Kentucky, Montana, New Jersey, North Carolina, Oregon, South Dakota, Texas, Utah and Virginia—created new criminal offenses in 2017. Legislation in 2017 focused on some of the same areas as 2016, including criminal classification of UAS interference with emergency services, UAS weaponization and a variety of other offenses.

UAS Interference with Emergency Services
  • Indiana SB 299 creates a number of new criminal offenses. The offense of “public safety remote aerial interference” occurs when someone operated a UAV in a way that is intended to obstruct of interfere with a public safety official in the course of their duties. This is a class A misdemeanor.
  • Montana HB 644 prohibits using UAS to interfere with wildfire suppression efforts. Anyone who violates this prohibition is liable for the amount equivalent to the costs of this interference. The law also prohibits local governments from enacting an ordinance addressing the use of UAS in relation to a wildfire.
  • New Jersey SB 3370 makes it a criminal offense to operate a UAS in a way that interferes with a first responder actively engaged in response.
  • Virginia SB 873 specifies that the fire chief or other officer in charge of a fire department has authority to maintain order at an emergency incident including the immediate airspace. Individuals who don’t obey the orders of the officer in charge are guilty of a class 4 misdemeanor. 
Weaponization of UAS

Seven states—Florida, Nevada, North Carolina, Oregon, Utah, Vermont and Wisconsin—prohibit the possession or use of a weaponized drone by anyone. Three other states—Maine, North Dakota and Virginia—prohibit weaponized drones for law enforcement.

  • Florida HB 1027 prohibits the possession or operation of a weaponized UAS.
  • Oregon HB 3047 modifies the law prohibiting UAS weaponization, making it a class C felony to fire a bullet or projectile from a weaponized UAS. It becomes a class B felony if serious physical injury is caused to another person. The law also creates exceptions if the UAS is used to release a nonlethal projectile other than to injure or kill people or animals, if the UAS is used in compliance with specific authorization from the FAA, if notice is provided at least five days in advance to the state police and department of aviation, is reasonable notice is provided to the public regarding the time and location for the specified operation of the UAS, and if the operator maintains at least $1 million in insurance coverage for injury. 
  • Utah  SB 111 makes it a class B misdemeanor to fly a UAS that carries a weapon or has a weapon attached. Exceptions include if a person has authorization from the FAA, the state or federal government.
Other UAS Criminal Offenses
  • Florida’s new legislation also makes it a criminal offense to operate a UAS over or near critical infrastructure in most instances. Further information is included in the security concerns section.
  • Indiana also created a “sex offender unmanned aerial vehicle offense,” which occurs when a sex offender uses a UAV to follow, contact, or capture images or recordings of someone and the sex offender is subject to conditions that prohibit them from doing so. The law also creates the offense of “remote aerial harassment.” All of these offenses are class A misdemeanors. However, if the person has a prior conviction under the same section, it becomes a level 6 felony. As mentioned above, the law also created the offense of “remote aerial voyeurism.”
  • Kentucky HB 540 prohibits operation of UAS in a reckless manner that creates a serious risk of physical injury or damage to property. Anyone who violates these provisions is guilty of a class A misdemeanor, or a class D felony if the violation causes a significant change of course or a serious disruption to the safe travel of an aircraft.
  • New Jersey SB 3370 makes operating a UAS in a manner that endangers the life or property of another a disorderly persons offense. The law also makes operating a UAS under the influence of drugs or with a BAC of .08 percent a disorderly persons offense. Additionally, using a UAS to take wildlife is a criminal offense, as are certain uses of UAS near correctional facilities.
  • North Carolina HB 128 made it a criminal offense to operate a UAS near a correctional facility.
  • Oregon HB 3047 created a new criminal offense related to privacy.
  • South Dakota SB 80 created criminal offenses involving unlawful surveillance and certain drone operations near or over correctional facilities. The legislation in North Carolina, Oregon and South Dakota are discussed further in other sections of the report.
  • Texas HB 1424 prohibits operation over a sports venue except in certain instances. The law defines “sports venue” as a location with a seating capacity of at least 30,000 people and that is used primarily for one or more professional or amateur sports or athletics events. An initial violation is a class B misdemeanor and subsequent violations are class A misdemeanors. The law also prohibits UAS operation over correctional and detention facilities.
  • Utah HB 217 prohibits a person from intentionally, knowingly, or recklessly chasing, actively disturbing, or harming livestock through the use of UAS. Anyone who violates this law is guilty of a class B misdemeanor for the first offense and a class A misdemeanor for a subsequent offense or if livestock is seriously injured or killed or there is damage in excess of $1,000.
  • Utah SB 111 and Virginia HB 2350 create criminal offense regarding privacy violations, as discussed in the privacy section.

Hunting/Fishing

Seven states—Idaho, Indiana, Michigan, New Jersey, North Carolina, Oregon and West Virginia—prohibit the use of UAS for hunting and/or fishing. Seven states—Illinois, Michigan, New Hampshire, North Carolina, Oregon, Tennessee and Wisconsin—prohibit using UAS to interfere with others who are lawfully hunting and/or fishing. New Jersey SB 3370 makes it a criminal offense to use a UAS to take wildlife.

Security Concerns

Prisons

Limiting drone operation near prisons continues to be a topic of significant legislative debate. Ten states—Arizona, Louisiana, Nevada, New Jersey, North Carolina, Oregon, South Dakota, Tennessee, Texas and Wisconsin—prohibit drone operation near or over prisons. Four states passed legislation protecting correctional facilities in 2017.

  • New Jersey SB 3370 specifies it is a fourth degree crime if a person “knowingly or intentionally creates or maintains a condition which endangers the safety or security of a correctional facility by operating an unmanned aircraft system on the premises of or in close proximity to that facility.” Using a UAS to conduct surveillance of a correction facility is a third degree crime.
  • North Carolina HB 128 prohibits the operation of UAS within a certain distance of a correctional facility and specifies that this restriction does not apply to certain people, including someone operating with written consent of the warden. It is a class H felony to use UAS to deliver a weapon to a correctional facility, subject to a $1,500 fine and a class I felony subject to a $1,000 fine to use UAS to deliver contraband. Any other violation of this section is a class 1 misdemeanor, subject to a $500 fine.
  • South Dakota SB 80 prohibits the operation of drones over the grounds of correctional and military facilities, making such operation a class 1 misdemeanor. If a drone is used to deliver contraband or drugs to a correctional facility, the operator is guilty of a class 6 felony.
  • Texas HB 1424 prohibits UAS operation over correctional and detention facilities. An initial violation is a class B misdemeanor and subsequent violations are class A misdemeanors.
Critical Infrastructure

Drone flying over large farm with outbuildings.Legislatures continue to enact laws providing protections for critical infrastructure. The classification of critical infrastructure varies by state, but generally includes facilities such as petroleum refineries, chemical manufacturing facilities, pipelines, wastewater treatment facilities, power generating stations, electric utilities, chemical or rubber manufacturing facilities, and other similar facilities. In August 2016, NCSL published a report with information specific to drones and critical infrastructure. Five legislatures passed legislation providing protections for critical infrastructure in 2017.

  • As mentioned above, Connecticut’s legislation, SB 975, prohibits local regulation of UAS but provides an exception for a municipality that is also a water company to enact ordinances that regulate or prohibit the use or operation of UAS over the municipality's public water supply and land.
  • Florida HB 1027 defines critical infrastructure to include a number of energy installations and wireless communications facilities. The law prohibits operation of UAS over or near critical infrastructure in most instances, making the offense a second degree misdemeanor, or a first degree misdemeanor if it is a second or subsequent offense.
  • Nevada already had a law regulating the use of UAS near critical facilities. This year, the state’s AB 11 added transmission lines that are associated with the Colorado River Commission of Nevada to the definition of “critical facility.”
  • New Jersey SB 3370 specifies that owners or operators of critical infrastructure may apply to the FAA to prohibit or restrict operation of UAS near the critical infrastructure.
  • Texas HB 1643 adds structures used as part of telecommunications services, animal feeding operations, and a number of facilities related to oil and gas to the definition of critical infrastructure as it relates to UAS operation. 

Studies and Task Forces

Several states have convened task forces or requested studies on the use and implications of unmanned aircraft systems. This year, Alaska continued the state’s task force and Colorado required a study from the center of excellence within the state department of public safety.

  • Alaska SCR 4 continues the Task Force on UAS and specifies additional membership and duties of the task force. 
  • Colorado HB 1070 requires the center of excellence within the department of public safety to perform a study. The study must identify ways to integrate UAS within local and state government functions relating to firefighting, search and rescue, accident reconstruction, crime scene documentation, emergency management, and emergencies involving significant property loss, injury or death. The study must also consider privacy concerns, costs and timeliness of deployment for each of these uses.

Other State Action

A handful of other legislation was passed by states in 2017 that doesn’t necessarily fall under the other categories, but should be mentioned.

  • Kentucky HB 540 allows commercial airports to prepare unmanned aircraft facility maps and specifies that UAS operators cannot operate, take off or land in areas designated by an airport’s map. As mentioned above, it also prohibits operation of UAS in a reckless manner that creates a serious risk of physical injury or damage to property. A violation is a class D felony if it causes a significant change of course or a serious disruption to the safe travel of an aircraft. The law specifies that these provisions do not apply to commercial operators in compliance with FAA regulations. 
  • Minnesota SF 550 appropriates $348,000 to assess the use of UAS in natural resource monitoring of moose populations and changes in ecosystems.
  • South Dakota SB 22 exempts UAS that weigh less than 55 pounds from aircraft registration requirements and Utah  SB 111 exempts UAS from aircraft registration in the state.
  • North Dakota SCR 4014 supports the development of the UAS industry in the state, congratulates the FAA on the first Beyond Visual Line of Sight Certificate of Authorization in the United States, and encourages further cooperation with the FAA to safely integrate UAS into the national airspace.
  • Utah's resolution, HCR 21, supports the building of a NASA drone testing facility and Command Control Center in Tooele County, Utah.

This report focuses on state legislation regarding small unmanned aircraft and Wyoming enacted legislation in 2017 specifying that “unmanned aircraft” as regulated by the state’s law excludes small UAS.

However, it’s worth noting what the state’s legislation does. Wyoming SF 170 requires the Wyoming Aeronautics Commission to develop rules regulating where unmanned aircraft can take off and land. The commission is also permitted to develop reasonable rules regulating the operation of unmanned aircraft through coordination with the unmanned aircraft industry and local governments. The law specifies that the commission does not have the power to regulate unmanned aircraft operation in navigable airspace. It also makes it unlawful to land an unmanned aircraft on the property of another person, but operators can pilot an unmanned aircraft over their own property.
 

Additional Resources

NCSL Report Drones and Critical Infrastructure

State Unmanned Aircraft Systems (UAS) | 2017 Legislation