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.
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.
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
At 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.
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.
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.
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
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.
NCSL Report Drones and Critical Infrastructure
State Unmanned Aircraft Systems (UAS) | 2017 Legislation