August 29, 2016 | Commentary on Property and Economic Rights, Regulation

Give States the Freedom to Regulate Drones

In late June, a drone nearly collided with an aircraft carrying 500-gallon buckets of water to douse a wildfire in southern Utah. Incidents like this have been used to feed the narrative that drones are so dangerous that they must be regulated by the feds, leaving no room for states to act on their own.

Utah has disproved that claim.

Within weeks of the near collision, Utah Governor Gary Herbert signed into law a bill dealing with drone interference in emergency firefighting operations. Utah’s prompt action shows that states can and do act to protect the public without prodding from or preemption by Washington.

The New Law

The new law makes it a crime, punishable by imprisonment or a fine of $2,500, to enter airspace designated as a wildland fire scene by a federal, state, or local government entity. There’s an exception for individuals operating unmanned aircraft systems (UAS) “with the permission of, and in accordance with the restrictions established by, the incident commander.”

The law also imposes a term of imprisonment or up to $5,000 in fines for “recklessly” operating a UAS in “an area under a temporary flight restriction” and interfering with any aircraft carrying a “water or fire retardant.” If the UAS makes physical contact with a manned aircraft, it would constitute a third degree felony, punishable by imprisonment or a fine of up to $10,000. And if the UAS causes a manned aircraft to crash, the charge rises to a second degree felony, punishable by imprisonment or a fine of up to $15,000.

And the cost of drone interference could go far, far higher. The law authorizes judges to require a convicted person to repay “damages to person or property, the costs of a flight, and any loss of fire retardant.” According to Gov. Herbert, the costs of fighting the small wildfire in Utah would have been several million dollars, but wound up going "north of $10 million because we had to ground aircraft all because of a drone."

Finally, the Utah law authorizes the incident commander to “neutralize” a drone by “disabling or damaging it” or by “interfering with” or “otherwise taking control” of the drone.

Unfortunately, however, according to the FAA, drones of all shapes and sizes are treated no differently under federal law than full blown aircraft, such as firefighting jets and helicopters, which Utah’s law aims to protect. As a result, a private party who willfully damages a UAS by any of those means may be committing a federal crime under 18 U.S.C. § 32, with penalties of up to 20 years in federal prison and over $250,000 in fines. (In some circumstances a valid claim of defense of self or property may absolve private parties who have damaged a drone from civil or criminal liability, but the rules are far from clear.)

A Novel Harm

Lately, there have been numerous reports of drones interfering with firefighting operations. To the extent that such reports are reliable, they suggest that drones pose a novel harm to pilots engaged in risky, low-altitude firefighting operations. Given the uniqueness of the threat, and the apparent lack of any prior law addressing it, lawmakers are well within their authority to protect public safety to respond by passing new laws as Utah has done.

It’s worth noting, however, that such interventions differ dramatically from efforts to, for example, impose drone-specific criminal penalties for peeping Toms who use quadcopters to invade the privacy of others. That invasion could just as easily take place in other ways, by climbing a tree and snapping a picture on a smartphone. In situations like these — where the underlying harm is technology-agnostic — legislators should refrain from passing duplicative criminal laws and should, instead, punish the conduct regardless of how it is performed.

Federal Preemption

Earlier this year, the U.S. Senate considered an FAA reauthorization bill that would have barred states and localities from “enact[ing] or enforc[ing] any law, regulation, or other provision… relating to the …operation…of an unmanned aircraft system.” Had that provision been enacted, federal preemption in the drone space would have been effectively universal.

Utah demonstrates why such drastic expansion of federal authority is neither warranted nor desirable. Not only are states able to deal with any truly novel dangers posed by drones, they can do so far more quickly — and in a manner more reflective of their particular local concerns and interests — than Congress or federal regulatory agencies.

Last October, Senator Jeanne Shaheen (D-N.H.) proposed a bill making it a federal crime to use a drone to “interfere with fighting fires affecting Federal property or responding to disasters affecting interstate or foreign commerce.” That bill has gone nowhere, so far; if federal lawmakers had passed the aforementioned preemption provisions, Utah would still be waiting for federal action.

Utah is pioneering the establishment of reasonable laws that criminalize or otherwise sanction dangerous conduct possible only because of the rise of drone technology. In doing so, Utah is proving that the nation does not need a single set of federal rules in the drone space.

Jason Snead is a policy analyst in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, where John-Michael Seibler is a legal fellow.

About the Author

Jason Snead Policy Analyst
Edwin Meese III Center for Legal and Judicial Studies

John-Michael Seibler Meese Center for Legal & Judicial Studies: Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

This piece originally appeared in RealClearPolicy.