Only states have the authority to make homemade gun drones illegal.
Image: Austin Haughwout
Correction: 6/13/16: Nevada, North Carolina, Oregon, Vermont, and Wisconsin have passed drone legislation that contains at least some limits on armed drones. There is no federal regulation against owning an armed drone.
There are currently no federal laws that make putting a gun on your drone inherently illegal, according to the former head of the Federal Aviation Administration's unmanned aircraft office.
The FAA is currently asking a court in Connecticut to compel Austin Haughwout, a teenager in Connecticut who put a gun and a flamethrower on his homemade drones, to comply with a subpoena that would give them more information about his armed drones. The FAA has not formally accused Haughwout of any wrongdoing.
Jim Williams, the former head of the FAA's drone office between 2012 and mid 2015, told me that's because it's likely he hasn't done anything wrong. In fact, while he was with the FAA, his team was unable to find any statute that would have allowed them to pursue a legal case against Haughwout or any other pilots who modify their drones to shoot guns.
"When the guy did his first stunt with the pistol, that's while i was still at the FAA, and we actually looked at it and said, 'Hey, do we need to go after this guy?' and the experts at HQ said, we don't really have anything because he was on his own personal property, he was flying low to the ground in a self-built model aircraft," Williams told me. "He was firing into the ground and it was a remote area and he appeared to have provisions to protect people on the ground."
That means legal analysts at the FAA have determined that there's no regulation or law that prevents an American from putting a gun on his or her drone. This comes in contrast to Williams's statements when he first took over the drone office. In 2013, Williams said that arming a drone is illegal under a statute that bans the "dropping of objects" from aircraft. Williams said he made that statement before understanding the "nuance" of the law, and says that subsequent conversations with FBI officials led the FAA to believe that laws against armed drones must be passed at the state or local level.
In December 2015, the FAA's Office of the Chief Counsel put out a fact sheet for state and local legislators that noted that "prohibitions on attaching firearms or similar weapons to UAS" are "laws [that] are traditionally related to state and local police power." Williams says that Congress hasn't given the FAA authorization to specifically prohibit armed drones.
"That white paper was essentially the FAA saying 'We don't have authority to do that, so states—that leaves it up to you," Williams told me.
After Haughwout's videos went viral, the Connecticut state legislature considered banning armed drones, but the bill wasn't passed.
Correction: 6/13/16: Nevada, North Carolina, Oregon, Vermont, and Wisconsin have passed drone legislation that contains at least some limits on armed drones.
Williams says that he believes the FAA decided to go after Haughwout for the flamethrower drone, in which it could have a more plausible "reckless flight" case against him.
"The flamethrower one came out after I left the FAA, and that's a little riskier because he's carrying flammable liquids on the aircraft," Williams said. "If you had a flyaway, could start a fire, burn someone's house down etc. They did take exception to that one."
Since I wrote a story about Haughwout's case earlier this week, several people have suggested that armed drones would fall under the purview of the Bureau of Alcohol, Tobacco, Firearms, and Explosives under a statute that bans automatic weapons. The argument I saw most often is that if the gun's trigger is software-controlled, it technically becomes an automatic machine gun. A spokesperson at the ATF told me this is not true.
"Generally, attaching an electrical device to the trigger does not make a semiautomatic a machinegun unless it causes it to fire automatic," Ginger Colbrun, public affairs chief for the bureau told me.
Of course, just because it's not illegal to arm your drone doesn't mean you should unless you want widespread media freakouts and investigations. And obviously normal gun laws would still apply to a gun drone—you can't go fire it wherever you want or in a way that endangers people or you could perhaps be charged with reckless conduct.
So if it's not currently illegal to put a gun on your drone, why is the FAA investigating Haughwout? The agency's legal brief suggests that it wants to use the same manned aircraft regulation that it's used in other drone enforcement cases to allege "careless or reckless" flight.
If the FAA internally determined Haughwout's gun drone wasn't a violation of any laws, it looks like the agency might be on a fishing expedition to see if it can get him on a technicality. The legal burden that it must prove to get the teenager to comply with a subpoena isn't very high, and so the FAA might be investigating simply because Haughwout's already lost in the court of public opinion.
"They're going after this because it's a gun on a drone, and people don't like that," Haughwout's lawyer, Mario Cerame told me.