Eyes to The Sky: Privacy, Property, Innovation, and Commerce in The Age Of The Drone

regulation after regulation regulations that need to be changed 185 000 pages public accountability and transparency there will be no public support is this really the best we can do there's a regulation that doesn't make any sense why do you keep you know who wrote the regulatory laws you must comply with welcome to the regulatory transparency project's fourth branch podcast series all expressions of opinion are those of the speaker [Music] hello and welcome to this regulatory transparency project virtual event my name is jack derwin and i'm assistant director of rtp at the federalist society as always please note that all expressions of opinion are those of the guest speakers joining us today to learn more about our speakers and their work you can visit wrightproject.org to view their full bios after opening remarks and discussion between our panelists we'll go to audience q a please enter any questions into the q a function and we will address them as time allows today we're pleased to host a conversation titled eyes to the sky privacy property innovation and commerce in the age of the drone to discuss this timely topic we have a great panel featuring matthew feeney who is the director of the project on emerging technologies at the cato institute brent scorup who is a senior research fellow at the mercatus center at george mason university gregory walden who is a partner at dentons and our moderator today gregory mcneil who is attending professor of law and public policy at pepperdine university and the co-founder of airmap and with that greg i'll turn it over to you well thank you very much and thanks to everyone who's joined us this afternoon or who's listening uh to the recording after uh after this live presentation it's really a pleasure to host this discussion today uh on what really is a timely topic about drones privacy and commerce especially at this point in time now where drones are really at a tipping point where they're about to become integrated into our everyday lives and we've heard many talk about that for a long period of time i myself as an academic have been working in the field related to drones since at least 2012 and then as an entrepreneur through my company since 2015 and for a long time we've been saying that the era of the drone is right around the corner but largely government regulations have slowed the ambitions of entrepreneurs but it does seem that we are now at a point where the regulatory timelines as they've slogged along have now reached a point where we really are about to see commerce explode and with that a lot of clashes with privacy property rights and then a lot of benefits from this amazing technology starting to deliver commercial goods starting to deliver benefits for businesses through efficiencies and so this is a really timely topic and the book published by cato university press brings together multiple offer authors discussing a variety of different perspectives right from from pro-commerce perspectives to libertarian perspectives property rights perspectives federalism perspectives and it's really a worthwhile read and i would encourage everyone who's here on the call to check out the book and and grab a copy of it so with that introduction out of the way i'd like to begin by having gregory walden start off and kick us off with an introduction to the topic so go ahead greg walden thank you greg and welcome to those on on the on the call we're not quite 10 years from the first action by congress in providing direction to the federal aviation administration on on getting a drone or uas regulatory framework in place uh drones have been here for decades and the fa had fooled around with uh some informal guidance um uh in the um in the in the decades before the 2012 reauthorization act but when congress actually looked at this and said okay fa you have the following directions on on coming out with a rule using uh test sites keep your hands off model aircraft and hobbyists uh for the most part um and that spawned um a uh a bunch of well as i think it was five thousand exemptions to allow drone operate operations before the f actually had a rule authorizing commercial operations that that uh rule came in play in 2016. uh congress also uh put out some other uh requirements in 2016 and then the third big reauthorization bill uh of dealing with drones was in 2018 so what the drone industry started uh by getting exemptions to fly um but until there was a rule in place that exemption process was was protracted for some it was um not even successful but again five thousand exemptions when the rule came in place part 107 uh it it basically obviated um exemptions that is you could operate under the rule beyond uh within the visual ana site under 400 feet above ground level uh at in during the day operating one drone at a time and there were some other limit limitations well okay that rule was good as far as it went and there are tens of thousands of drone operators and drone users that can operate and even make a profit within that part 107 framework but really for the drone industry to to take off and sorry for the mixed metaphor with aviation you really need a widespread beyond visual line of sight operations this is not simply for package delivery but also for say infrastructure inspection or delivery of of vaccines and other medical equipment the fa did say okay we have this commercial rule in place but will allow for waivers under the rule but oh you can't get that waiver to go beyond visual line of sight if you're carrying packages doing anything for a compensation or hire for that you'll need some sort of a certificate an operator certificate and the faas only granted three of those to date they did make progress in coming out with two rules on the same day to authorize operations over people that is directly over people and to operate and to require drones to be equipped with remote identification uh that operations real final rule also authorized nighttime operations the nighttime exam waivers and exemptions became routine so it was just a matter of time before they actually said we can authorize that by rule so where we are right now is is there are um many operations within the visual on the site for uh inspection uh for cinematography or for photography weddings and that sort of thing they're fine but again tax delivery for whatever reason and some infrastructure inspection going under bridges going in tunnels that requires further uh rulemaking and the exemptions that are granted right now in addition to the waivers under part 107 the exemptions are necessary if you are again uh want to operate uh with a uh for package delivery for compensation or higher or if you're operating a drone over 55 pounds what's next well uh the fa has set up an aviation rule making committee for beyond visual on the side operations so eventually we're going to get a rule on beyond visual innova operations but in terms of the timeline it's unclear yes the recommendations of the of the arc need to be submitted to the administrator by the end of this year very very ambitious uh but that that is just the first stage actually a preliminary stage before the ethic would publish a proposed rule the fa is also uh i would say not moving with dispatch with regard to type and airworthiness certification certification there there are 10 companies that have drones that are in the certification process at least to the point where the faa has published awareness criteria but none of those 10 have a type in your worthiness sort of certificate and under the law you can't operate without an without your aircraft having an air worthiness certificate unless of course you have a waiver or exemption as as i discussed um and then now finally there is the unmanned traffic management or utm system that is being um worked on right now and developed uh nasa was in the vanguard the fa uh came in with a pilot program directed by by uh by congress and uh we expect that utm will be stood up within the next couple of years maybe not you know flip a switch and utm is everywhere but it will be at many places utm beyond digital line of sight type in a worth certificate and detect and avoid technology uh which i just briefly touched upon right now these are the big a big things that need to be resolved not going to be in six months not going to be a year via several years before these things are mature great thanks greg and thanks for the setup a lot of activities occurring and what it sounds like there is that the greatest amount of progress happened between 2012 and 2016 at least uncertainty with regard to regulations and then a lot of other activities and waiting for more concrete regulations since 2016 as we get almost to the 10-year anniversary of the faa modernization and reform act of 2012. i'm going to circle back greg with some questions for you and just a comment for all of our participants we will have a q a function that's enabled in uh in zoom you can see on the bottom of your screen there's a not in the chat but over on the right a q a function and you can t up your questions in there and after we get through all of the panelists we will then have some questions from the moderator me to the panelists and then we'll go to q a from uh from our callers and so next i'd like to bring in brett scorum uh for a little bit of a discussion and sort of uh going into some federalism and property issues and so i'll go ahead brent why don't you kick us off there yeah thanks craig and i want to thank matthew feeney for putting the book together bringing bringing these experts together and it was uh it was an honor to contribute my chapter so i'll talk a little bit about my chapter in the book eyes to the sky uh which which is a great resource uh for anyone working this area uh my chapter is who should govern the skies and uh this this is a a an important question as as greg walden uh indicated things have moved fairly slowly and i think um i think the framework i i have in my chapter helps explain how how things could move more quickly and and the how time consuming and costly for industry would be if we if we choose the wrong approach um and so how i set up the chapter i said there there's two two clean categories and everything in real life is a spectrum uh but there are two clean categories for who regulates public assets you can have federal regulation organic state regulation and and also two approaches to regulation of public assets you can have market rationing or administrative rationing and you can kind of think of this in kind of four ideal categories again in real life it's spectrum but so you can have federal market uh that would be something like uh radio spectrum which is leased or auctioned for 10-year periods now the federal government gets its revenue from private companies you can have state market that would be something like timberland leasing in state forests you can also have federal administrative something like airport slots which are administered by the federal government the efa to private uh commercial airlines and and state administrative rationing something like taxi medallions which are awarded to private companies um and i know and these latter two uh the administrative ones the airport slots and taxi medallions these are awarded by regulators but then there's an active secondary market of private companies which indicates that regulators are are giving away for free something that has pretty substantial market value um drones and largely because of inertia largely because the federal regulators have regulated traditional aviation for for decades drones have fallen into the federal administrative uh framework i would say and and this this presents uh well there are some possible problems with this with this inertia one is just practical realities the day-to-day of the agency which has a lot of tasks not not related drones um and relatedly as craig walden i think kind of alluded to it doesn't drone regulation doesn't seem to be a major priority for the faa is this this agency that regulates uh manned flights and commercial airlines drones have kind of fallen through through the cracks and one indication of this congress strikes the faa in 2016 five years ago to uh identify drone no-fly zones across the nation for sensitive infrastructure theme parks and so forth uh congress later gave them a deadline of early 2020 to get this done identify these drone of fly zones so the instructions came from congress five years ago they had deadline in in 2020 and and they haven't even started this process this uh 2209 process there's not even an mprm out which if if you're an industry this is really discouraging you're you're spending cash every year and it's another year of of no revenue so um so this is a problem you can't have an industry based on regulatory waivers that can be revoked at any time which has been the process so far um but there is there is progress but um but there are also some legal issues as well with this kind of federal administrative uh category that we find ourselves in surface airspace is private property um and by surface air space i'm talking about the airspace below 500 feet which the faa is not classified as naval airspace to date but at some altitude surface airspace is private property and this has been held by the supreme court in airline cases in the past where it can be in takings if you're flying frequently through uh through low altitude airspace you also have the issue that a related issue because air surface airspace is property you run into safe sovereignty questions uh states typically of sovereignty over and and and determine how property rights are shaped and laura donahue in the book has a great chapter about this topic so i won't belabor it but um but i will say this is a potential threat and and could create complications with this federal administrative program we have for drone policy and proposal i talk about in the book and my other writing is is a system of cooperative federalism given the fact that drones involve uh not only interstate commerce and and safety of traditional aviation but also interested commerce and questions of property rights and trespass and nuisance and takings that the states will have to deal with um and i i also propose a system of an aerospace market much like spectrum auctions or offshore oil leases or timber leases um so that regulators are not gifting this valuable public asset um to private companies that that there's a return for the use of this valuable public asset in particular the the public rights of way or or airspace about public property would be a good place to allow drone operators more freedom to operate at low altitudes and in fact many states over 20 states allow airspace leasing above public roadways these laws have not been used for drones but i think it's a pretty good way and a pretty quick way of granting uh millions of miles of uh up to millions miles of airspace uh uh to drone operators for them to deploy and and and deploy commercial services but i'm sure we'll talk more about some of this but that's that's uh what my chapter covers great thank you brent and uh now we'll go to uh our editor matthew feeney um to talk a little bit about privacy surveillance and some of the law enforcement aspects related to drones and so i'm going to hand it off to you now matt matthew great thank you um and i want to uh you know thank all of you uh listening live and those of you listening um after the recording uh but you know a special thanks of course to um greg walden and brent for writing uh two of the the seven chapters in this book uh i think anyone interested in uh ongoing drone policy issues whether it's uh privacy commerce uh federal regulation will get a lot out of it uh bren brandt already alluded to a chapter by professor donahue from georgetown and um if you want to learn about what you know the ninth crusade and um king edward the first um have to do with drone drone law um this is the book for you uh i thought given that uh greg and brent had spoken about some of the issues about uh commercial uh regulation of drones or their applications i would discuss some of the concerns that are towards the end of the book and these deal with uh survive surveillance and and privacy many many people are already familiar with the fact that the federal government certainly uses drones to patrol the northern and southern borders and state and local law enforcement agencies are increasingly interested in using aerial surveillance devices those of you who pay attention to news in the surveillance world will know that it's not uncommon for large federal predator drones to be used for surveillance um but smaller assets like airplanes with um with certain uh cameras that can keep cities under surveillance have been used perhaps most notably in baltimore and the uh this i think raises interesting uh fourth amendment issues but the supreme court has yet to take a aerial surveillance case associated with drones um there are a number of cases from the 1980s uh dealing with aerial surveillance where the court held that you do not have a reasonable expectation of privacy to the contents of your private property being observed from an airplane or a helicopter and these kind of issues are what uh the two authors uh jake vlad peru from the project on government oversight and jay stanley from the aclu tackle and i thought it would be worth me uh just outlining at least um some of um their concerns and proposals before turning to a case uh that came out earlier this year from the the fourth circuit which i think um may uh showcase how courts will deal with these kind of issues in the future um the the first chapter that i want to briefly discuss is uh jake clark rooks uh where he outlines six rules that he thinks the legislature should be implementing one is uh i won't go through all in exhaustive detail but i do want to mention a couple i mean one is the uh mandatory use of probable cause warrants uh although the supreme court has held that there isn't a fourth moment violation for warrantless searches uh we've seen that at least a dozen states have um imposed warrant requirements for uh for drone surveillance uh which is something that that jake recommends and there's also uh requirements for disclosing certain details about the technology how it's used and when it's used uh also an exhaustion requirement that this is not a go-to or routine piece of surveillance kit that law enforcement use on on an everyday basis um and also the introduction of some some sunset provisions uh something that that jake also discusses uh that i want to highlight is the importance of definitions here uh part of his chapter discusses uh that miami police tried to get around certain prohibitions on using drones by using a blimp with a camera attached to it because under the definition of drone uh such a blimp attached to to a vehicle did not did not fit the the definition j stanley from the sou writes a lot about the current use of the federal use of of drones for surveillance but goes on to discuss some of the more disturbing uses of technologies such as automatic tracking and things such as that nj also does a good job i think of um emphasizing that we should really think of drones as platforms for a range of surveillance devices obviously cameras being the most notable but there are others that can be attached and i'll wrap up before turning to q a and maybe taking the conversation further by noting that uh earlier this year the fourth circuit did hold that um baltimore's aerial surveillance program did violate the fourth amendment what i think is interesting here is that the the court did not rely on cases from the 1980s uh dealing with aerial surveillance which i suppose you might expect but actually relied on a more recent case uh carpenter which uh deals with um self-site location information where the supreme court did hold that uh people do have a reasonable expectation of privacy in uh the whole of your physical uh movements and that i think is a an interesting um approach to it so uh those of you who are uh fourth amendment nerds or keeping an eye on the state of the surveillance um may see more and more courts when they're thinking about the fourth amendment and aerial surveillance actually reaching not back to the 1980s to helicopter and airplane cases but dealing with uh fourth amendment cases that are associated with uh different technologies namely cell phones uh so with that i'm happy to um talk talk further um and to take your your questions thank you uh matthew so let me uh let me start with uh my own question uh it's actually going to begin uh with moderators privilege to set it up with a with a statement as you all know i have strong opinions about this and so i'm going to riff a little bit off of greg's setup from the regulatory timelines right so if we think back in 2012 when congress passes the faa modernization and reform act the thing everyone was talking about at the time were predators and reapers on the battlefield and i remember when the when congress passed the its legislation the phone calls i got from uh journalists were you know battlefield technology is coming to the united states and i think many people believed that the faa's focus on integration was going to be about these large uas that matthew just referenced the types that are presently patrolling the uh the borders of the united states and sometimes are used in the interior of the united states and law enforcement actions but the agency's focus shifted um and my thought is it shifted because the explosion of uh recreational or what we might call prosumer or light sort of commercial drones the the manufacturer of them at the time was was a chinese company called dji and an american company called 3d robotics these were the remote-controlled drones that someone could buy at best buyer on amazon fly them essentially like a remote control helicopter and use them for a variety of of uh recreational or or commercial purposes and these exploded right uh hundreds of thousands if not millions of sales of these and the agency as a safety agency became very concerned about these and used the legislative mandate under the faa modernization and reform act to pass its first set of regulations that greg talked about that were proposed in 2015 and finalized in 2016. and then largely the agency could say look we addressed our problem we're a safety agency we addressed a problem and now anything new like what industry pumped all its money into for uh package delivery drones beyond visual line of sight drones the the really the millions of drones conducting billions of daily flights well that's something new and safety agencies don't like new because as one uh bureaucrat at the faa told me the safest day in modern aviation history was the day after the worst day in modern aviation history which was september 11th the safest day was september 12th because all of the aircraft were grounded so no accident could happen that's what someone at the faa actually told me so with that sort of setup uh let me start with uh with brent right now my sense is that a bunch of you know 100 000 or less people walking around with their drones flying within line of sight are just a bunch of remote control helicopter operators and we don't have a lot of property issues or matthew we don't really have a lot of privacy issues your local police department doesn't have a lot of predators and reapers and if they have a drone in the trunk of their police car they can only fly it within line of sight and so to brett first what are we going to face when this beyond visual line of sight thing comes online and drones can operate autonomously beyond visual line of sight from a police station they can take off and respond to a 9-1-1 call they can patrol streets on their own but what are the issues matthew with that or brent when drones can conduct package delivery operations or you know land use survey operations at low altitudes at high scale so brett on the property stuff first high scale and then matt so brett go ahead with with that thought high scale operations not the kind of stuff we're dealing with today yeah yeah and i the way i try to think of this of drones is it's much like kind of traditional vehicles today where if if you're on your property i you know uh you should have a lot of freedom to use uh vehicles as you see fit you know i think of like four-wheelers and snowmobiles and dirt bikes on your own property um you know there's not there's not a huge government interest in what's going on um with within reason once once you're on public roadways uh you so to speak with drones once you're flying at high altitudes um not on your own property uh uh there's uh there's pretty substantial government interest in what happens and and i think i think you see that with some of the drone regulations and kind of purpose behind remote id so that police and landowners and others can know who's who's flying in case uh something goes awry the the issues the property issues and legal issues are pretty substantial once you are doing long distance flights or a mass delivery service of some kind um i have a long journal article in akron law review coming out about aerospace's property and it's actually a pretty old idea um you have legal treatises 150 years ago discussing uh the idea of separating airspace from the land beneath it um and aerospace sales have been going on for for decades airspace surface airspace is property it's treated by quartz's property and for that reason these long distance drone flights if you're flying residential areas there are and you are seeing issues of trespass to property and nuisance lawsuits if if it's authorized by the government you run into taking these issues and and in all of these uh um you know i i wrote the law journal article and i've read about this topic because if if lawmakers and in the industry don't don't uh proceed with these in mind it could create a lot of problems uh every every land owner every every piece of land you fly over is potentially a trespass or nuisance lawsuit or a taking lawsuit to a local government or federal government and so it's important to get ahead of this and that's why at least in the short term i see this idea of drone easements above public roadways as a way of avoiding a lot of the tricky trespass nuisance and takings issues that uh and privacy issues that you know not to mention privacy issues that you might see uh brent on a related point we do we have a question in the uh in the q a that's actually related to this so i'm going to insert it now what about drone highways and tollways right so if you're saying people have property and easements then can they charge for overflights of their property like sure you can fly over my property but i'm gonna it's gonna cost five bucks is that that's why i like to use the roadways using existing rights of way that gives a company i mean just like ups today on the ground by using roadways you have access pretty much every regional property without using private property without driving of course across private property and so i you can avoid uh you know the potential of people um uh holding out for for uh you know egregious rates for flying over over the property you use the public roadways um and in the airspace the public rights of way because uh uh yeah having absent legislation and a revolution supreme court uh positions on this topic uh you do run into the trespass and uh and the payment issue really quickly in residential areas but uh yeah i think there are other models again uh kind of drone easement approaching it much like spectrum auctions you know a 10-year lease uh where private companies have a property interest to it so brent doesn't that then run into the problem that let's say let's say there's a distribution facility to use a dc example in bethesda maryland and it has to deliver to uh columbia maryland to use an example um the advantage of a drone would be that it can fly line of sight a to b i mean sorry as the crow flies from a to b asking it to follow the roadways you know the the beltway or roadways doesn't that ruin the all of the advantages of this technology that make it so wonderful you know it essentially becomes just a truck in the sky and it's no faster so why would we bother with this technology at that point well i think a lot of the cost benefits come more from autonomy and and having a you know a remote operator handling multiple uh deliveries at once uh more than the distance i've looked into the distance question because i've been asked about this before and there's not much on the topic but if you're using roadways uh generally adds about 40 um compared to as a crow flies so uh for for what that's worth uh you know yeah i mean and there is another approach it's it gets very costly if you're hit with trespass nuisance and taking these lawsuits for every uh for every flight as a crow fly so i'm not sure as a crow flies gets you the the cost savings that that you might think let me ask you one last question right before i go to matthew and then i'm going to bring greg in as well i thought i heard your remarks that you start from the premise that the navigable airspace ends at 500 feet i've been a person who's sympathetic to the views that you have of property rights um in airspace you know extending from cosby but i don't know that the 500 foot line is the correct line helicopters have been able to operate below 500 feet at least as far as drones are concerned the faa has said that drones can operate anywhere as the faa's position from zero to 400 feet and that has turned all of that airspace wherever a drone can operate into navigable airspace uh the faa when it comes to charting says that obstacles below 200 feet don't have to be charted but they have to be charted if they're above 200 feet so so isn't the and then in cosby it says as much of the uh airspace above your property as you can use you know in connection with that property and who's really using airspace at 500 or 400 or 300 feet isn't this really like a an 83 feet 85 foot 100 foot thing not a 500 foot thing i mean 500 feet is insanely high and um that's a real the real barrier to this flight from a to b as the crows crow flies and so shouldn't the proposal go lower and if it doesn't don't you run the risk that the faa would come along and just extend that navigable airspace line as a matter of federal rule much lower yeah yeah sorry i i should be precise 500 feet um is is what's what's codified though the faa has you know the kind of a side note by the way uh helicopters taken out from landing and aircraft taking off from landing um that's also naval airspace but they've never codified the view uh that i've heard some drone operators make that all outdoor airspaces in that warrior space they've never codified that view what was second part of your question so could the faa change this uh you know so if it's premised upon where the faa so the cases have largely been promised upon and this is true also as i go to matthew and the premised upon the faa's assertion of what the airspace is where does a person have a right to be if the faa changes that line does that change the property rights and the observational line by dropping that line down in short no uh it what what what you take from the cosby and the griggs case cosby was 1946 an airplane case and griggs in 1962. um the short short of it is that navigable airspace yields property rights at low altitudes um in cosby this was a chicken farm case we all learned about uh in property class and in a plane flying military planes flying frequently above of a farm is the takings uh craig's was similar except in that case um the federal government thought they got clever and they said no well now we're defining it as naval airspace and spring court and greg said no um you can't just define snap water space and then without compensation landowners they own airspace at low altitude so as i said absent a revolution supreme court jurisprudence on this um surface airspace is private property um in fact the fa if you're an airport or if you're trying to expand an airport you're required to gain navigation easements which often means paying landowners for for their air rights uh so there are some substantial legal problems if for the fa which i think is why they haven't done it to just saying all outdoor space is available to drone operators all right thanks brent and greg baldwin i promise i'm gonna come back to you i'm gonna i'm gonna have brent set this up as he did then i'm gonna go to matthew and then i'm gonna come to greg walden and the question of greg walden is going to largely be this looks pretty messy for innovation so i'm setting you up greg i'm going to come to you in a second so matthew let me let me set you up so the question initially that i posed was you know police officers now with these drones operated within line of sight that's not like the baltimore aerial surveillance case with persistent surveillance and so maybe there's an argument here that this changes when drones can start to operate beyond line of sight autonomously but i don't see how that changes with serallo and reilly for example serallo said no reasonable expectation of privacy from aircraft to 1000 feet riley says no reasonable expectation of privacy from what was it a helicopter at 365 or 400 so the police park a bunch of drones operating autonomously between 365 and a thousand um under a new set of regulations how's this changed just the fact that there's no human operator has fundamentally changed the equation i don't see how that changes the the fourth amendment analysis so so what's the central animating concern that you're getting at in your research uh why should we look at this this differently what what how have drones changed the privacy calculus for us i think they've changed the the privacy calculus uh in in a few ways i mean one is that uh it's fair to say that uh many of the um frightening stories people share about drone surveillance concentrate on these multi-million dollar predator drones outfitted with military-grade surveillance technologies and even the the baltimore aerial surveillance case was a um a case in which the surveillance was funded by billionaire philanthropists using technology that had previously been used in afghanistan and you know there i think um the the listeners will be familiar with what the concerns about keeping an entire city under surveillance um are i think those concerns are pretty well grounded um and nonetheless though i think at low altitudes uh police drones um still have the capacity to see um intimate parts of people's uh homes and you know the backyards immediately come to mind we should also remember uh what uh stanley and his chapter emphasized which is that drones can act as a platform for other surveillance tools and at low altitudes i think uh facial recognition is um perhaps the most the most concerning but you can also of course outfit uh drones with license plate scanning technology uh but i i take the point i think the the the actual on fourth amendment analysis there doesn't seem to be necessarily much of a change between uh you know a drone at say 400 feet or an airplane at a thousand certainly i think though the cost of these things means that we should expect more of them if there isn't legislative or judicial um breaks being applied uh the the kind of drones that can be pretty intrusive you can you know private citizens can buy uh drones for only a few thousand dollars that have incredible zoom capabilities and so certainly police um could easily um engage in pretty significant snooping with a relatively cheap drone uh but this is i think one of the concerns i'm motivated uh in his capture to to emphasize the importance of minimization requirements um similar to the kind of requirements you see in wiretapping statutes that uh those um who are the targets of the surveillance are the only um uh are the only ones supplying data that that can be used uh obviously you know it's not hard to imagine if you even if you had a warrant to survey someone's backyard you would nonetheless collect video footage um of other people's backyards uh so i i i think in before we have um a a really significant change in the the supreme court um which i i don't think is going to happen anytime soon i think it is probably um something that um states or the or congress will have to take up when it comes to imposing wire warrant requirements or these kind of minimization uh regulations all right thanks matthew all right greg so i imagine you might be chomping at the bit here to respond a little bit this sounds like a mess to me how is um an entrepreneur or one of the companies that you represent ever supposed to get off the ground so to speak when the faa creates a bunch of regulations for frankly a bunch of people operating remote controlled toys that they're using for professional purposes you've got um brent and some pretty sophisticated people who take an approach that say aircraft laws don't really necessarily fully apply here it's really a cooperative federalism approach you have folks um like matthew and the civil liberties oriented coalition who say when these things come online we've got some serious uh privacy and fourth amendment concerns and in that environment you have a risk-averse agency like the faa who says any new technology that comes on any new aircraft will pose a problem here so you have a an interagency problem uh you have an interagency problem related to the property rights aspect where doj is going to have to uh weigh in um and you have this multitude of of federalism problems and we've seen for a while um industry as i might label uh the some of the coalitions that you've worked with hasn't wanted to yield on a lot of the policy positions because oftentimes when you yield a little bit um you can lose a lot of ground so how do how does industry get any traction after almost a decade of these back and forth largely having the same conversations what's the path forward after 10 years of a bit of stagnation i don't think the path forward is bifurcating airspace creating a line in the sky or auctioning airspace there are causes of action that have existed in common law reflected also in state statutes that provide for a remedy for invasions of privacy and aerial trespass and nuisance uh and i think we'll maybe muddle through that for a number of years on the occasional transit transitory drone passage over someone's property i really think that brett's right i think that the major savings um for a company that is operating a drone rather than a a truck may be in the fact that you don't need a driver but from someone who's except who's asked for the package to be delivered and they're told no it's not going to go it come in two minutes it's going to go the same time it would take for a car then all of a sudden the interest in using a drone um drops down i i don't know that that that there is a surface air the surface air space sounds like an oxymoron it there is private property rights in airspace above private property i don't know that that means that someone owns airspace i think the justice douglas said okay yes you you own as much as airspace as you can use and enjoy from the virtue of of your property but there's no city airspace or state air space and cosby the takings case which again it's fine at where it is um who recovered why was the recovery because the drones were i'm sorry the aircraft was operated so low and so frequently as to deprive cosby's of the use of enjoyment of their property so low and so frequent it wasn't just a simple transit uh transient passage over over property i think the the the pathway forward is yes the fa has to have a a rule making framework that will be accepted by the public that the drones up there are uh safe and reliable that they're as as safe and reliable as manned aircraft that are operating at ten thousand feet or twenty thousand feet with respect to operations that are at low altitude and and of some frequency there's going to have to be cooperation and a good neighbor policy from corporate uh operators of drones and um and neighborhoods and and other uh areas i i maybe the fa has not put in a rule that they that they have the navigator space goes down the ground i don't think they need to say that because it's right there in the amended federal aviation act land necessary for takeoff and landing and as long as drones are aircraft then that's navigable airspace uh now having said that the other has jurisdiction down to the ground is not does not displace state and local [Music] police powers those two can coexist but it will it may take some time to again muddle through on on what that what that law is or whether there really is some sort of a line or or a confluence of uh of a mix or analysis of factors that would support an aerial trespass or invasions of privacy but again bifurcating airspace is is not something that i think that the industry wants to see greg um uh you you were the chief counsel of the of the faa um and so as part of that job your office had to draft legal opinions and so you're no doubt familiar with the uh body of legal opinions that the office has put out with regard to the authority of states to regulate takeoff and landing for traditional aircraft and so i'm wondering if uh if a fact pattern came to you like this um let's say the city of santa monica takes a look at um its ordinances and on the third street promenade which is a pedestrian walkway in the city of santa monica where the city presently prohibits bicycles and scooters and skateboards and rollerblades the city decides to pass an ordinance that has two components the first or part of the ordinance says that you know no one standing upon the land in the city of santa monica may let's say it has three components no one standing upon the land in the city of santa monica may take off or land an unmanned aircraft from the third street promenade may not operate a unmanned aircraft while standing upon the land uh within the borders of the city of santa monica and finally no unmanned aircraft may operate at skateboard altitude so two inches above the ground within the city of santa monica how would your office walk through that is that a police powers type issue or is that the faa's navigable airspace extends down to the ground and such a local law would be preempted entirely or the takeoff and landing parts might not be and then we've got this question about the operator standing upon the land because we we have a unique sort of set of factual circumstances here like how would you reason through it you know i have my own thoughts i'm curious how someone with your background and then also uh given the clients that you work with how would you work through that um that fact pattern i'm not sure that i can channel uh the current thinking it's a tough one right yeah but you start with takeoff and landing is something that the fa has recognized um even in the context of drones that it is a province of uh state and local regulation uh they will caution the caution is though that if a jurisdiction said no takeoff and landings at all in our jurisdiction you might have a dormant commerce clause type of of uh argument that that is in um something that the fa would not cater to because we've seen i've seen letters from the faa that that support a local restriction on say aerial advertising but if you ever get to the point of making it a categorical prohibition throughout a whole jurisdiction at all times then you've got a problem i think when you get into regulating of operations uh not notwithstanding that someone is standing on the pier but the operating above i don't think you can kind of say oh well because you're because you're standing there then we can regulate operations well at what altitude and what what type of operations that gets becomes dangerously close to uh state and local regulation of of flight paths which the fa i think has discouraged um even if they haven't put out an opinion to that uh effect um so i think they're they will they're not putting out much in the way of interpretations right now on on this um on these issues um we might see something in the next year or so there was a project at the end of the trump administration uh to get something in terms of guidance more guidance out but that has um stalled and with the new administration it's going to take some time for the new folks we need a new general counsel and a new chief counsel at dot and fa respectively uh to look at this issue and then decide what type of guidance is is appropriate thank you thanks greg thank you for me are you good brent this is brent um yeah it's not entirely hypothetical it was a very similar case in federal district court for a few years you know i mentioned the faa is supposed to create these toronto fly zones above sensitive infrastructure but hasn't states have been i think 13 states have been creating journal fly zones above utility lines and jails and schools and so forth and and some drone operators through texas because of their law on this topic and last year in november um and drone operators argued many things including that there there was uh conflict and field preemption that states cannot create no-fly zones above sensitive infrastructure and and the default district court dismissed those arguments prejudice uh those preemption arguments so um you know to me that's a signal that there is at least in this court in texas um this district court federal court in texas there is a state role to play here and so it's not entirely hypothetical and states are acting on this they are creating drone off no fly zones uh which implies uh a power over operations or at least exclude operations i think i should say that texas law i think has first amendment issues for for other reasons but it could could fail but um but on the preemption issues the court dismisses prejudice well that's one district court and they'll they'll be more um i will will say that i think on the uh the question of skateboard height um that is probably something that the fa would not um object to in again if it were that if it was a you can't operate below 10 feet anywhere in the city of santa monica different story different story um but in your hypothetical greg it's um something i think the ethic would probably not object to i think you're right greg and the the interesting cases for the listeners would be on the one end of the spectrum i think brent you're referring to uh national press photographers association versus mccraw in uh and in texas then the other end of the spectrum would be city of newton versus or singer versus city of newton would be the other district court case where so where a city regulation or ordinance was uh was found to be preempted and that ordinance was very broad zero to 400 feet prohibiting and is essentially the entire city was a no-fly zone so these are two ends of the spectrum right versus small delineated no-fly zones versus the entirety of the of the city one of the interesting collateral questions that comes up here too is that if the conclusion is that the city can't create one of these ordinances and this is germaine to greg's point the lack of guidance what then does a police officer on the beat do because most state and local police officers have a mandate only to enforce local laws in fact some state constitutions don't allow like connecticut don't allow local law enforcement officers to enforce federal law we saw this in the immigration context so if you're a police officer walking up on the beat and there's a drone hovering at windshield altitude or something over a roadway or at eyeball altitude over a sidewalk you have to sort of scramble to figure out what's my authority here maybe reckless endangerment in a jurisdiction that has reckless endangerment although only about 14 states have a reckless endangerment statute maybe a careless operation of aircraft under a state statute if the officer knows that that statute exists or ordinance exists and so it presents difficulties of the officers and you'll hear police officers say what am i supposed to do to act to enforce here which also sort of circles back to matt's point which is that the law enforcement associations are in these interesting positions where they when these bills come up they want special authorities to go after people who are operating drones while at the same time they frequently want unlimited authority to operate the drones on their own um we have a question from the audience here and i i think i'm going to bring this one to uh matthew which is uh which is somewhat related to your points which is uh is there anything to prevent an uninfighted drone perhaps a spy drone from hovering over my property what's the penalty if a property owner dispatches dispatches the uninvited drone this might be a little related to brent's uh work as well is there any legislation to cover this situation um and so related to this is further on this question the facts that this questioner is raising her that they the client dispatched the drone and and local prosecutors are now threatening criminal action so privacy implications private actors and then maybe tying it to greg greg if i may interject just briefly if yeah means disabled or destroyed yeah i'm thinking shooting from an aircraft craig you've got a federal law it's felony right i i was going to to mention that you know local prosecutors might be the least of your worries if you actually shot it yeah so the question is is there anything to prevent an uninvited drone um to spy on you well federally uh there is no warrant requirement for federal use of um drones for that purpose um as i mentioned before there are some states that do have warrant requirements um that may provide um some protection there um if you're talking about a non-law enforcement if you just have a nosy neighbor or someone else then i i think there are potential avenues that you can take actually you know greg walden in his chapter of the book does discuss that there are um you know that there are nuisance some privacy uh claims that that you can make as far as legislation i'm not familiar with any legislation dealing with the actual dispatching of a drone with firearm but i i think the federal law on that is pretty clear and um probably ill-advised but what we're seeing though is at least when it comes to state and local which is of course the law enforcement agencies um affecting uh most people is that um it's going to be up to the states to to figure out if there's going to be a warrant requirement for that kind of behavior or not right we're nearing the end of the hour and so this is our last question and it's an interesting one the question is is it possible for states to establish drone incubator programs that comply for blanket operational waivers from the faa and this way states could streamline the waiver process for applicants to their programs instead of the faa having to specifically review every applicant and so um let me expand on the question a little bit we saw in the early days of the legislation greg will remember this that uh or legislative proposals sort of um uh drone test beds we saw the drone name immigration pilot program then my uh former air map colleague who now works for an air taxi company has written about the idea of sandboxes regulatory sandboxes and then others have written about using uh for example at the heritage foundation have written about um using federalism uh you know permissive approaches to federalism so rather than having the states regulate drones have the states be laboratories of democracy like you see in the autonomous vehicle space let the drones go out and operate just like the vehicles operate on the roadway so we can have some learnings about operations to accelerate drone adoption and so is it possible to establish this and and i guess i would riff on this why hasn't it happened so greg walden what is it possible why hasn't it happened is this federalism approach a good idea or a bad idea so this would be a innovation-oriented federalism approach what do you think greg walden uh well i liked the idea um and we pushed uh for approv the smallyview coalition pushed for an idea um in the 2018 uh bill on on testing remote id technologies at and giving blanket waivers at certain places as determined by the faa in cooperation with state and local governments blanket waiver authority for those test beds so we would support that um that authority but i think there's probably something that needs to be done i think that legislation probably is sufficient it was in the context of the utm it to grant actually blanket waiver authority you might need some more more statutory authority all right and then uh matthew what about what about this idea what about blanket operational waivers from the faa so let's take drones to uh maryland and let them operate autonomously beyond visual line of sight over the city of baltimore and uh see what happens um i understand the downside might be there's a privacy implication but wouldn't the upside be that we would accelerate a series of cases uh and fact patterns that might prompt legislative responses right we would go from the hypothetical dystopian boogeyman to is this real and maybe prompt a response so it isn't possibly accelerating this even though it might trigger short-term privacy implications perhaps a good thing because it'll get us to reform more quickly or is it once we let the no camel's nose under the tent we've we've forever enabled the panopticon i mean what's your what's your sense matthew no i certainly you know obviously um have have concerns about privacy but i'm inclined towards the foreman that um the the more we can experiment with this new and emerging technology and a variety of jurisdictions i think the quicker that will learn the lessons we need to to to ensure that we have a a vibrant entrepreneurial uh space where people feel like they can use drones for commerce and hobbies while also ensuring that we protect privacy uh i think privacy is a difficult question but it's not um impossible to to answer and i think uh seeing um how many jurisdictions can treat these issues in a variety of ways there's one way to do that but of course beyond the current regulatory regime i think that's going to be a little difficult great thanks matthew and then brad what are you what are your thoughts on this federalism-based approach yeah in short i think it is possible to establish a drone incubator program or a drone sandbox you know the efa you know there are many within fa who want to see this industry succeed and and their i think if state had a well-crafted plan for this that that they would be on board you know they have this beyond program working with states and cities and tribal governments um i don't know if that's closed but frankly the afa's agreements are pretty ad hoc i think if there's compelling examples it would favor that and i'll leave you with one last example that i think is useful the faa recently gave bnsf the railroad company a nat i believe it's national waiver to have drones below 500 feet using the rail company's property they're above their property including the railways um and so i think if you combine these ideas this kind of uh waiver which can be revoked any time for for bnsf they can they can operate drones below 100 feet above their property and railways uh nationwide um with this idea of of states getting involved i think you you come close to the approach that i've urged which is working with state and its and its subdivisions and allowing these kind of linear operations using uh state uh rights away and federal rights of way uh which is throughout the nation great thanks brent and so uh as we begin to bring the program to a close let me uh let me do this and so we've exhausted all of our questions but if people listening on the podcast would like to get in touch with uh any of our panelists let's uh share our personal or organizational twitter accounts and so if you want to reach out to me or shout at me you can reach me on twitter at gregory mcneil and then we'll just go on the order in which everyone presented and so greg walden what's the best way to reach you or your organization on twitter well there's there's twitter addresses but i just prefer gregory.waldem at densons.com that's d-e-n-t-o-n-s without apostrophe and that's walden uh within the en great thanks gregory.waldon dentons.com great and then uh brent yeah i'm brent scorup at the mercatus center and you can find me on twitter uh at be score up b-s-k-o-r-u-p thank you wonderful and then matthew i am on twitter at m underscore feeny f double e n e y um you can visit uh cato.org cato.org to read more of my work and pick up a copy of eyes to the sky which is also available on amazon fantastic so um as we wrap up here want to thank everyone for for turning out for the podcast and please take a look at the other podcast for the regulatory transparency project and also follow the regulatory transparency project on twitter thanks everyone for attending the program and thank you for the questions thanks greg for moderating thanks so much greg and to all our panelists and also thank you to our audience for tuning in you can check out our website at reggieproject.org and follow us on all major social media platforms at fedsoc rtp to stay up to date with that we are adjourned [Music] [Laughter] on behalf of the federal society's regulatory transparency project thanks for tuning in to the 4th branch podcast to catch every new episode when it's released you can subscribe on apple podcasts google play and spreaker for latest from rtp please visit our website at regproject.org that's regproject.org [Applause] this has been a fed sock audio production

Channel: The Federalist Society

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Length: 66min 42sec (4002 seconds)

Published: Mon Sep 20 2021