by Ryan Morton (Winter 2018)
At a recent high school homecoming game as the teams battled for field position, a small machine with a bright, green light floated 15 feet in the air. The remote-controlled drone traveled circles around the track, taking photos of the players and the crowds alike. No one seemed caught off guard by this UFO-like device, as such technology has quickly become a regular presence at community events.
At one time, drones, or unmanned aircraft systems (UAS), were viewed mostly as military or commercial devices. Today, these systems are cheaper and easier to operate, leading many people to purchase them for recreational use. While drones offer many opportunities for entertainment, information, and service, they also create safety and privacy concerns for the government. In a recent example, a drone taking pictures of forest fires in California forced firefighters to land their own aircraft, to avoid a dangerous collision. The frequency of these encounters has made UAS regulation a concern for many governmental bodies.
Until recently, recreational users of unmanned aircraft needed to register their devices with the Federal Aviation Administration (FAA). The FAA created the “Registration Rule” in 2015 under its authority to regulate air traffic safety. The rule provided that all “model aircraft” owners needed to pay $5 and affix an FAA ID-number to each drone. Last year, though, the U.S. Court of Appeals for the D.C. Circuit threw out that regulation in Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. 2017). The court held that the rule conflicted with legislation passed by Congress in 2012, which prohibited the FAA from creating model aircraft regulations. Drone hobbyists no longer need to register their UAS with the FAA.
Although the Taylor case dealt a blow to federal regulations on personal drone usage, states and local governments still have the freedom to enact reasonable restrictions. In 2015, the Illinois General Assembly created a task force to study and propose unmanned aircraft regulations. The task force released its report the following year, recommending several measures to ensure safety while respecting individual freedoms.
The task force’s overriding recommendation was that UAS activities should be allowed as long as they do not create a safety hazard, do not infringe on the rights of others, and do not violate any FAA rules. The task force also suggested that the Illinois General Assembly create its own regulations to avoid a patchwork of different local ordinances that could create confusion or conflict with federal aviation laws. As of yet, though, no statewide regulations have been proposed.
The task force also recommended that criminal statutes generally do not need to be updated to reference drones. Instead, drones could simply be considered an “extension of oneself,” so that if a drone trespasses or causes injury, the operator would still be held liable. This same approach would work on a local level, meaning municipalities do not need to update their ordinances just to add UAS language.
The federal government is primarily concerned with commercial drone usage, where regulation is allowed and extensive. State and local rules regarding commercial UAS would risk being preempted by these federal rules. Similarly, the FAA heavily regulates governmental use of UAS technology, requiring agencies to obtain specific licenses and follow strict standards. Currently, only one Illinois law provides similar restrictions, prohibiting law enforcement from using unmanned aerial surveillance to gather information, except in limited circumstances. (725 ILCS 167/1).
Where the federal government does not have much say is with private, recreational use of drones, as explained in Taylor. States and municipalities generally could enact restrictions without worrying about federal law conflicts. In Illinois, the only current law dealing with private drone usage is one that makes it a criminal offense to use a UAS to interfere with hunting or fishing. (720 ILCS 5/48-3).
Certain municipal ordinances could run afoul of the FAA, though. For example, if a city attempts to limit the altitude at which drones can fly, or the distance from certain landmarks, the FAA would claim that interferes with their federal regulation of airspace. Similarly, requiring certain training or equipment connected to aviation safety would be in the FAA’s exclusive realm. Local governments can create UAS restrictions if they are connected to traditional areas of local governmental authority, such as law enforcement, property rights, and privacy protection.
If your municipality is considering an ordinance regulating drones, be sure to ask your attorney about the best way to draft that ordinance to avoid a federal conflict. The FAA also recommends contacting it to see if the regulations can coexist in some way. We also recommend that you check neighboring communities to see how their UAS ordinances would interact with yours.