The (New) State of Drone Law

In a quiet Connecticut town on Long Island Sound, an unusual father-son duo took a stand against the Federal Government this summer in defense of a right most people hardly imagine they might have—the right to design and test armed drones on private property

Last year, an engineering student at Central Connecticut State University caught the attention of local police and state politicians after his YouTube videos went viral. Austin Haughwout, who configured a quadcopter drone to fire a handgun remotely (and later to roast a turkey with a flamethrower), faced FAA inquiries into the design and legality of his armed drones. Police in Haughwout’s hometown of Clinton decided not to pursue the matter, as nothing in Connecticut law spoke precisely to the issue. The FAA, however, was not satisfied, and continuously issued subpoenas to the Haughwouts, which went ignored until this summer. The Federal Prosecutor argued that the Haughwouts must submit to FAA investigation into their devices, videos, and any related gains. The Haughwouts argued that the FAA had no jurisdiction over their “backyard hobby”.

The United States District Court for Connecticut disagreed with the Haughwouts, and for somewhat obvious reasons—the Haughwouts’ case was not an ideal test case. Austin Haughwout’s flame-throwing drones fell far beyond the scope of a normal hobbyists’, and it was therefore not particularly difficult for the Federal Prosecutor to convince the District Court Judge that the breadth of FAA jurisdiction is unambiguous enough to warrant inquiry into new aircraft such as Austin Haughwout’s. Judge Meyer’s decision, though, follows in a trend of drone law developments limiting the rights of hobbyists and normal citizens in ways that may affect freedoms for years to come, and in ways we may not be able to anticipate.

In January 2015, after a protracted legal battle over his dangerous flight of a quadcopter drone around the University of Virginia, Swiss drone enthusiast Raphael Pirker settled with the FAA for $1,100, putting to rest more than a year’s worth of confusion over the FAA’s jurisdiction over personal drones. Pirker claimed that the FAA had no right to fine him for his reckless flying, as his drone was not an FAA-governed aircraft. A National Transportation Safety Board (NTSB) judge initially ruled in Pirker’s favor, but following an appeal the NTSB found in the FAA’s favor. After continued proceedings Pirker settled for just $1,100, a fraction of the FAA’s original $10,000 fine. While Pirker got off easy, the FAA’s win gave the agency power to potentially declare jurisdiction over any craft it seeks to regulate.

With these broad rulings, the NTSB and the District Court effectively gave the FAA authority to limit the rights of drone enthusiasts at will, and to investigate (and potentially confiscate) new technology as it sees fit. As a result of the NTSB’s ruling, the FAA is now allowed complete jurisdiction over all model aircraft, including drones. The FAA’s jurisdiction over hobbyists is now as great as that over actual pilots, and the agency has already begun issuing new regulations for hobbyists. Moreover, though the District Court’s ruling probably made sense with respect to drones as dangerous as Austin Haughwout’s, its language does not reflect the uniquely dangerous nature of Haughwout’s drones. Judge Meyer perhaps deliberately used the case as an opportunity to expand Federal regulatory power. Citing United States v. Morton Salt, Judge Meyer bolstered the Federal Agency’s “‘power of inquisition’ akin to that of a Grand Jury,” (4). While most Americans do not own drones, we should all be worried by this language.

These two cases set a precedent that may affect future technologies and situations in ways we cannot anticipate. Drone regulation itself is neither silly nor counterintuitive; many have voiced concerns that personal drones pose potential threats—from reckless piloting, peeping toms, and perhaps even terrorists. But, as with judging and legislating any new issue, government must tread lightly. The consequences of over-regulation and jurisdictional expansion could be dangerous for commerce and civil liberties alike.

Picture the consequences: If tomorrow I set out to photograph all of Hyde Park-Kenwood using a camera equipped drone, I could face a $10,000 penalty. FAA guidelines issued last month prohibit drones from climbing higher than 400 feet. Reasonable flight restrictions may not strike someone as unduly cumbersome, but this means, for example, that a hobbyist could be summarily restricted from flying drones if the FAA decides he is not healthy enough to fly a 10-inch quadricopter. Moreover, the Federal Government may now prosecute drunk drone operators with the same penalties that apply to drunk pilots. The FAA is now allowed to expand on these rules as they wish, and apply them to whatever airborne hobbies they wish.

A less obvious consequence of the rulings falls on potential drone entrepreneurs. The FAA’s new guidelines prohibit drone operation where the drone flies beyond the operator’s visual line of sight. This means that the FAA may now prosecute aspiring aerial photographers, drone racers, and businesses seeking to break into drone-delivery. The rulings almost completely closes the door for individuals to capitalize on the new technology without extensive permits and licenses. Raphael Pirker’s $1,100 dollar settlement certainly put a dent in his amateur drone photography profits; the FAA’s new guidelines might destroy the amateur drone photography industry altogether. Even worse, the rulings do not just proscribe drone services. With Judge Meyer’s ruling in Connecticut, the FAA can now confiscate innovative new drones as well.

Americans will likely settle into the new state of drone law without much issue. These developments do not weigh on the daily life of most Americans, and the likelihood that an amateur flying a 10-inch drone will be arrested and prosecuted for flying too high is still rather low. But this issue and these cases capture a new trend in government and technology: as new technologies present themselves, it is the citizen, and not the government, on the defensive. The Federal Government almost unilaterally declared that flying drones was a privilege—indeed, in the eyes of the Federal Government even designing them is now a privilege. The language of the opinions and the regulations on drones in the last two years will have an impact not only on drone law to come, but on the rights of Americans to technologies that do not exist yet.

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