Drone Regulation Update: California Legislature Proposes Four Bills; FAA Issues Proposed Rules; White House Issues Presidential Memo

The commercial use of unmanned aerial vehicle (“UAVs”), also known as “drones,” is not presently allowed under federal law, while public agency and hobbyist use of UAVs is allowed. Congress has tasked the Federal Aviation Administration (“FAA”) with opening up the federal airspace to commercial UAVs. As a result, a flurry of regulatory and state legislative activity has occurred related to UAVs. These developments are of interest to public agencies desiring to incorporate UAVs into their operations and those agencies that may face pressure to regulate private UAV use. In particular, the FAA proposed rules that would authorize the commercial use of small UAVs (“sUAVs”), those under 55 pounds; the White House issued a Presidential Memorandum to address privacy, civil rights, and civil liberty concerns related to commercial, private, and federal governmental use of UAVs; and California legislators have introduced a number of bills that would regulate public and private UAV use.

To help California’s public agencies navigate the emerging regulatory framework, this client alert outlines these key developments on the state and federal levels. The FAA has chosen not to address general privacy concerns related to UAV use. Consequently, public agencies should expect to be responsible for directly addressing privacy concerns that local residents might raise regarding both private and public UAV use. The Presidential Memorandum is an attempt to begin addressing these concerns at the federal level. Below is a brief summary of the FAA’s proposed rules, the Presidential Memorandum and proposed California laws.

FAA Proposed Rules

• Would authorize operation of sUAVs if certain requirements are satisfied including: obtaining an unmanned aircraft operator certificate; passing an aeronautical knowledge test every 24 months; and making the sUAV available to the FAA for inspection upon request.
• Limitations on sUAVs include requiring operations to be limited to daylight hours; within the line-of-sight of the operator or visual observer; and below 500 feet ground level.
• Would liberalize public agency UAV use by allowing public agencies to utilize sUAVs without obtaining a Certificate of Authorization (“COAs”), which the FAA must approve on a case-by-case basis. Public agencies could continue to obtain COAs for uses beyond that authorized under the rule.

Presidential Memorandum

• Addresses privacy concerns related to federal governmental use of UAVs by requiring federal agencies to: only collect information using UAVs consistent with an authorized purpose; generally retain information for no more than 180 days; and generally not disseminate information outside of the agency.
• Addresses civil rights concerns by requiring federal agencies to have policies that prohibit the collection, use, retention, or dissemination of data that would violate the First Amendment or discriminate against persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity.
• Requires the National Telecommunications and Information Administration to “initiate a multi-stakeholder engagement process within 90 days to develop a framework for privacy, accountability, and transparency issues concerning the commercial and private [UAV] use” but explicitly provides that the “process shall not focus on law enforcement or other noncommercial governmental use.”

California Legislature

Four bills, Assembly Bill 14, Assembly Bill 37, Assembly Bill 56 and Senate Bill 142, were introduced during the 2015-2016 Legislative Session to address privacy concerns regarding public agency UAV use and to create a task force to generate a plan for state regulation of private and public agency UAV use. The Legislature also introduced a bill to extend trespass liability to UAV operators.

• AB37 and AB 56

  AB 37 and AB 56 are nearly identical and address privacy issues related to public agency UAV use. Both bills would require law enforcement agencies to obtain a warrant based on probable cause prior to using a UAV, subject to certain exceptions. Exceptions to the warrant requirement include fires, hostage crises and “hot pursuit” situations. Under AB 37 and AB 56, non-law enforcement public agencies may use UAVs to achieve the core mission of the agency as long as the purpose is unrelated to gathering criminal intelligence. AB 37 and AB 56 would impose other procedural requirements on public agencies including requiring a one-time announcement regarding the intent to utilize the UAV along with a description of the UAV’s technical abilities, the destruction of images or other data obtained from a UAV within one year (subject to certain exemptions), and limits on the dissemination of images or other data obtained from the UAV. AB 37 and AB 56 are essentially identical to last year’s Assembly Bill 1327, which was vetoed by Governor Brown because of his view that it inappropriately imposes requirements beyond constitutional requirements.
   

• AB14

  AB 14 would create a task force to create a plan for state regulation of UAVs, including: (1) reviewing FAA regulations and guidance and incorporating them into a state policy draft; (2) providing written recommendations and suggested legislation for a comprehensive state policy for UAVs that protects privacy while permitting public and private UAV use; (3) evaluating complaints and concerns regarding UAV use; (4) studying private UAV use to encourage private sector development; and (5) studying and making recommendations to ensure UAV users comply with applicable laws.
   

• SB 142

  SB 142 would extend trespass liability to include UAV operation below navigable airspace over private property where the UAV is used to capture an image or recording of an individual in a manner that is offensive to a reasonable person. SB 142 would also extend liability for wrongful occupation of real property to include UAV use below navigable airspace over private property. Neither of the proposed amendments by SB 142 would address the circumstance where a UAV is operated over the operator’s private property or over public property. Thus UAVs could still be utilized to “spy” on individuals from an adjacent property.

For more information about drone regulation, contact Kristopher Kokotaylo at 800.464.3559 or kkokotaylo@meyersnave.com.