An entirely too thorough look at the absurd state of drone regulations in the United States.
Image: Paul Sableman/Flickr
There's no really delicate way to say this, so I'm just going to do it: The vast majority of people have no idea what they're talking about when they talk about drone law.
I've noticed this in comment threads on Facebook, on Twitter, on comment threads on Reddit, in bar conversations, etc. If you've engaged in one of these misinformed debates, though, I forgive you: It's not your fault. Surely there are more complex areas of law than Federal Aviation Administration drone regulations (hello, copyright law), but few are so intentionally misleading, arbitrarily enforced, or regularly misreported by the press.
If you're looking for a simple answer to the question posed in the headline, I'm sorry, I can't give you one. But what I can give you is an exhaustive guide to drone law in the United States.
In order to have any idea what's legal to do with a drone and what's not legal to do with a drone, it's necessary to have paid close attention to the FAA's actions over the last three years or so. Some conversations with actual lawyers help, as well.
After publishing three separate stories about FAA enforcement of drone regulations last week and watching the online conversation about them, it occurred to me that it might be useful to get deep into the weeds on this issue and unpack what the current legal situation actually is.
I've put together this guide after spending the last four years reporting on US drone law. Its sourcing is pulled from my own reporting reading hundreds of pages of legal statutes, FAA enforcement actions and statements, and court arguments and decisions. I've also had dozens of conversations with the nation's top drone attorneys about these issues over the years*. Fair warning: I've tried to keep the article as conversational as possible, but at times it might get a little bit dense.
The most important thing you can possibly know about the current state of drone law is this: THE FAA IS NOT A RELIABLE NARRATOR. If you are taking notes, write this in your notebook and circle it and then put a million tiny little stars all around it.
The mistake I see most often all over the internet (and in many news articles) is people arguing that something is illegal because the FAA said it was illegal, or because it seems like something should be illegal. People will often say a drone pilot shouldn't have done something because he or she was warned not to do it by the FAA. But just because the FAA says something is true does not necessarily make it true, which you'll hopefully see is the case by the end of this article.
The FAA can regulate the airspace of the United States
The FAA "has exclusive sovereignty of airspace of the United States." No one debates whether or not the FAA has the authority to regulate federal airspace (which, thus far, is all US airspace). The FAA can and should regulate the commercial use of drones.
In fact, Congress passed the FAA Modernization Act of 2012, which required the FAA to "develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system." By 2015, the FAA was required to write and implement commercial drone regulations, which would be official, standardized, and legally enforceable rules that would allow drone companies to fly for profit in the United States. As of now, there are still no commercial drone regulations.
This is important. The FAA can regulate commercial drone use, but it missed its deadline and still hasn't enacted the rules. There are proposed regulations, but they have not yet been finalized. They are expected later this year.
We'll cover hobby flights later, but part of the FAA Modernization Act stated that the FAA "may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if the aircraft is flown strictly for hobby or recreational use." In other words, Congress prohibited the FAA from making new rules that are specific to people who just fly drones for fun.
The FAA says flying drones commercially is illegal, but the FAA says a lot of things
As the FAA will tell anyone who will listen, the United States has a really complicated, important, and safe airspace. Drones got popular, the FAA wasn't ready for them, and suddenly a complicated airspace got much more complicated. Regulations are difficult to write and often take many years to pass, and the FAA had no way to slow down the drone revolution. So what did it do? It started a public relations offensive.
The agency said that commercial operation of drones is illegal, even though there is no regulation that says that's the case. It issued "advisory circulars" and "policy statements"—which are not regulations—and attempted to use them as its legal argument for why commercial drone flights were illegal.
The FAA's actions for much of 2013 and 2014 were confusing, and the agency regularly contradicted itself or was chastised by judges in a few different cases. For example: It started saying that posting drone videos on YouTube was a commercial and thus illegal use of drones, a claim that has serious First Amendment implications.
In another interesting saga, the FAA started sending cease-and-desist orders to drone companies, threatening them with fines. These cease-and-desist orders were later tossed out by an appeals court and then, later, the FAA began advising pilots to ignore these orders.
The question of whether or not a drone is an aircraft in a strict legal sense is still unanswered
The FAA is using manned aircraft regulations to punish drone pilots
Because the FAA has no drone regulations, it has used a general manned aircraft regulation called 14 CFR Section 91.13(a) to go after drone pilots. This regulation was written for and is normally used against private and commercial airplane pilots.
This regulation states that "no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." This regulation was first used to fine a drone pilot in 2012, when the FAA told Raphael Pirker he owed $10,000 for videographing the University of Virginia, Charlottesville as part of a 2011 ad shoot for the university's medical school.
Pirker fought this proposed fine before an Administrative Law Judge, and for a good portion of 2013 and 2014, one of the biggest questions in the drone world was whether drones are "aircraft." The FAA argued that basically anything that flies through the air—maybe even paper airplanes—are "aircraft." Come with me a little deeper into the weeds for a moment, please: A federal administrative law judge initially ruled that drones are not "aircraft," which created a few months of chaos for the FAA. The agency eventually got that overturned on appeal.
Case closed, right? Not quite. This case was heard by the National Transportation Safety Board, an independent government agency that investigates "every civil aviation accident the United States and significant accidents in other modes of transportation – railroad, highway, marine and pipeline." The NTSB is not a federal district or appeals court. Rather continuing to fight the case, Pirker settled the case with the FAA. Under the terms of the settlement, he "does not admit to any allegation of fact or law herein."
Because the case was not decided by a federal appeals court, the question of whether or not a drone is an aircraft in a strict legal sense is still unanswered. There have been no other cases that have progressed further than Pirker's did, and the NTSB's decision is only binding on cases brought before it. For our purposes, this means drone pilots fined $50,000 or less, or whose manned aircraft certificates are suspended or revoked. The NTSB decision would have no effect on cases brought a federal district court.
The NTSB decision in the Pirker case emboldened the FAA, however. It has cited 14 CFR Section 91.13(a) every time it has fined any drone pilot. Pirker's case was a multi-year saga, and as far as I know, no one else has challenged the FAA on this "aircraft" definition. This does not mean, however, that it's settled law. It just means that paying a slap-on-the-wrist fine is easier than months or years of litigation.
The FAA has also used related manned aircraft regulations in addition to 91.13(a) that prohibit the use of aircraft in what's known as "Class B airspace" without permission from an air traffic controller. Basically, this regulation is used when drone pilots fly near many major airports.
The problem with using manned aircraft regulations to go after drone operators is that the wording of the statute is fundamentally at odds with how the FAA is enforcing it. For instance: The statute defines one type of "careless or reckless" flight as the operation of an aircraft below an altitude of 500 feet in populated areas. Meanwhile, the FAA says that drone operators must fly at an altitude below 400 feet. Read strictly, that means most drone operations in the United States would be "careless or reckless."
It's easy to look at highly publicized incidents of drone idiocy—such as the time an allegedly drunk government employee crashed a drone onto the White House lawn—and think that of course such behavior should be fined. You'd be right, but by retrofitting a statute rather than making a new one that is clearly written for drone pilots, the FAA has given itself wide latitude to define "careless or reckless." Take, for instance, the time two men were fined for crashing their drones into ocean off the coast of Puerto Rico, or the time a man in Boston was fined even though the FAA's files show that there was no reported crash or incident.
The FAA has taken this self-given authority to use manned regulations to go after drone pilots to the extreme. The agency has fined companies for flying drones that do not have "transponder" equipment or radios that are able to communicate with air traffic control, but it has left that fine off of most of its enforcements. The FAA says these are violations of 14 CFR Section 91.131, a manned aircraft regulation that, in part, requires "navigation equipment." Kind of nuts when you consider that really no drones have transponders or the other equipment the FAA has cited, and such equipment is not required in the proposed regulations that the agency has released.
One final note on fines: The FAA does have proper regulations in place to fine anyone who flies in Washington DC or within a 15-mile radius of the nation's capital, thanks to special airspace restrictions put into place as a precursor to the US invasion of Iraq in 2003. The DC "Special Flight Rules Area" was made permanent in 2008.
The FAA is disorganized and largely decentralized
The FAA is made up of a patchwork of Flight Standards District Offices, which report to regional flight standards offices, which report to FAA headquarters in Washington, DC. The FAA has many safety inspectors at both FSDOs and regional offices, who are the people who send official FAA warning letters and fines to drone operators. They're the ones who call up drone pilots who do things that the FAA ostensibly doesn't like. But the actual law and the actual regulations are so poorly defined that a safety inspector in New York may have a totally different interpretation of what is legal than one in Texas will. This means that some safety offices are lax about drones and others are strict about them.
An official at FAA headquarters told me that it has no centralized database of drone enforcements and thus may not even be sure how many fines it has issued, who has issued them, or what they may have been for. However, Motherboard filed a Freedom of Information Act request with the agency and eventually found that the FAA has proposed 24 distinct drone enforcement actions around the United States.
Almost every drone fine ever issued has been issued out of the Eastern region office, meaning people in many parts of the country can and have been flying more or less with impunity.
333 exemptions, a get-rich-quick scheme for shady law firms everywhere
While all of the aforementioned confusion and fining and threats were happening, rich important companies like Amazon and Google as well as industry groups in Hollywood went to Congress and were like, what the hell is the FAA doing?
Drones are big business, and while you could have probably gotten away with being a commercial drone pilot without running afoul of the agency, lots of bigger businesses were willing to jump through regulatory hoops to get official FAA approval to fly, provided that hoop actually existed. A "Section 333 exemption" is that hoop.
In Section 333 of the 2012 FAA Modernization Act, Congress noted that the "Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by [the rest of the law]."
The FAA now processes individual applications from drone businesses that allow those businesses to fly commercially with express FAA permission, provided the businesses fly under strict altitude, speed, and airspace rules.
At first, these were difficult to get, which led to a bunch of law firms offering to get a 333 for your drone business for thousands of dollars. To show that the process has major flaws, a lawyer in Connecticut named Peter Sachs managed to get the FAA to approve his request for a 333 for a damn PAPER AIRPLANE, and suddenly there were dozens of companies on the internet willing to do 333 paperwork for a couple hundred bucks. (Many of these companies are of dubious quality and do not actually employ lawyers. The 333 exemption filing industry is rife with allegations of scams and fraud.) The FAA has now given out 5,291 of these exemptions.
There are two things we need to talk about with 333 exemptions: First, the FAA started saying that anyone flying commercially without a 333 was flying illegally. But in the nearly two years since it started granting them, the FAA has not fined a single drone company that's operated without one. Again, this is because the FAA does not have any regulations that prohibit commercial drone operations.
Second, some of the best drone lawyers in the country are now recommending drone operators not get a 333 exemption. By agreeing to fly under the FAA's exemption, 333 owners may be subjecting themselves to actually enforceable rules that they otherwise wouldn't have to adhere to.
State and local governments have no authority over the airspace
Drone Registration and hobby drones
In October of last year, the FAA announced that every drone owner in the United States would have to register with the government. In a stunning display of efficiency, the FAA introduced the regulation in October and had it finalized by the end of the year. In this case, the regulation actually is a regulation, which, get this, is why it might be struck down.
Remember the FAA Modernization Act of 2012 I mentioned earlier? It also states that the FAA "may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if the aircraft is flown strictly for hobby or recreational use." There is currently a lawsuit going through the courts that challenges the FAA's registration program on this very issue.
Is the FAA even enforcing its fines?
As I reported last week, the FAA's fines are all over the place. Most of them aren't worth the hassle of hiring an attorney and fighting the case. But the FAA fined a company called SkyPan International $1.9 million late last year. This is a sum that's decidedly worth fighting. It's so large, in fact, that the FAA can't just collect it, it has to pursue the case in US District Court.
The FAA has not yet done this, even though the enforcement was announced in October, 2015.
If the FAA takes on SkyPan, it will have to again make the legal argument that a drone is an "aircraft" to which manned aircraft regulations apply (the main argument point in the Raphael Pirker case referenced above). If the FAA loses that argument before it has its commercial drone regulations in order, it would open up a Pandora's box in which the FAA would have little or no recourse against any drone pilots.
What about state and local laws and regulations?
We're coming close to winding down here, but I'd be remiss not to mention that many states and cities have passed their own laws and regulations to ban or restrict drones. To be clear, state and local governments have no authority over the airspace. Remember this? The federal government "has exclusive sovereignty of airspace of the United States." All navigable airspace is overseen by the FAA and no other entity.
One major issue that needs to be litigated is whether or not people have a "personal" or "private" airspace that extends above their own property
State and local governments do have the authority to regulate land and water use, so laws restricting where drones may take off or land seem to have firm legal standing. Any regulations or laws that restrict where drones can actually fly would likely not stand up to court scrutiny and would likely be preempted by FAA authority.
Shooting at drones
Again, we have to look at whether or not drones are "aircraft." Shooting at aircraft is a violation of federal code 18 §32, which carries a maximum sentence of 20 years in prison. If drones are not "aircraft," then there are destruction of property laws that should come into play if a drone is flying in a public area.
One major issue that needs to be litigated is whether or not people have a "personal" or "private" airspace that extends above their own property. "Navigable airspace" is often defined as being anything above 500 feet, but that is a definition that only considers manned flight. The actual definition is much more complicated in the age of drones—in the Pirker case, the FAA claimed that basically anything above your shoelaces is federal airspace, thus shooting at a drone even if it's on your property is potentially a federal offense.
This particular issue hasn't really come up much before, but we can look at the 1988 Supreme Court case Florida v. Riley, which held that police are allowed to perform aerial searches from "public airspace" without a warrant. Public airspace, in this case, was from 400 feet above a marijuana grow operation. The Supreme Court did not set a specific height limit for what constituted "public airspace," and many experts believe courts will eventually decide that there is some sort of personal airspace above private property. The question is how high that distinction will ultimately be. If this is a pet issue of yours, there's a nice legal rundown here. Keep in mind that there are more sane ways of dealing with a pesky drone pilot than blasting away at a drone with a shotgun.
The purpose of this article isn't to defend anyone and everyone who flies a drone however they want regardless of the circumstances. There are bad drone pilots, there are ignorant drone pilots, and there are people who are flying in unsafe ways. These people should probably be fined.
For the vast majority of people, little of what I wrote here matters at all. Fly safe and stay away from people and you're likely to never have any sort of trouble.
If you do find yourself in legal trouble from the FAA or state or local law enforcement, knowing the law helps, but it's not necessarily going to get you out of trouble. Challenging the FAA or even a local regulation in court is a time-consuming and expensive process, which is one of the reason the FAA has had little trouble collecting on most of its fines. In that sense, the FAA's actions have had the agency's desired effect of limiting drone use until it can sort out the actual regulations it wants to enact.
Just because the FAA has had success with its strategy doesn't make it right, however. The FAA should follow the same process that every other agency in the United States has to follow when it creates new regulations. The agency should write clear regulations, open them up to public review and comment, and then enforce them in a way that makes sense and is uniform across the country. To its credit, the FAA is finally, after several years working on them, getting ready to do that. In the interim, however, it should not rely on retrofitting a patchwork of regulations that were written for manned aircraft. Misinforming the public and using public relations, scare tactics, and potentially unenforceable fines to cover up the failures of the agency aren't going to do anyone any favors in the long run.
*Over the years I've had dozens of discussions with the nation's top drone attorneys. Special thanks to Brendan Schulman, who fought some high profile cases against the FAA and is now vice president of policy and legal affairs at DJI; Peter Sachs, a Connecticut-based drone attorney who runs the Drone Law Journal and is highly involved with the UAV Legal News & Discussion Facebook group; Loretta Alkalay, a drone law professor who spent 20 years heading up the FAA eastern region legal team; Lisa Ellman, a drone attorney at Hogan Lovells; and Jonathan Rupprecht, an attorney who runs the Drone Law Blog. Alkalay and Sachs helped me fact check specific parts of this post.