By Ross Coker
The popularity of consumer-grade multi-rotor or quadcopter devices, the unmanned aerial vehicles commonly referred to as “drones,” has skyrocketed over the last several years. While previously a niche product for aviation and remote controlled vehicle (“RC”) enthusiasts, the buzzing contraption is now commonplace at weddings, beaches and scenic overlooks across the United States.
Consumer demand for and use of drones has, however, outpaced regulation. The Federal Aviation Administration’s regulations for similar products have heretofore contemplated mostly hobby-grade RC planes, loud, expensive, and uncommon devices that also mostly lacked the ability to record pictures and video. (See “A Brief History of Drones” at droneblog.com.)
Current drone technology, by contrast, allows for sometimes shockingly effective (and potentially invasive) capture-and-control technology at low enough prices for even non-enthusiasts to give them a try. For example, best-selling DJI Phantom models are priced at a few hundred dollars, available at major retailers like Best Buy and allow for precise remote control, and better than 1080p HD-quality video recording.
This has raised questions about if and how these devices should specifically be regulated in Georgia and elsewhere, given their potential to damage and pry. In Manhattan in February month, a consumer-grade drone crashed through an apartment window and almost struck its occupant.
Given the potential for drones snooping, crashing or interfering with passenger aircraft, some level of regulation or government oversight may be appropriate. At the very least, most defenders of individual civil rights would argue against law enforcement and other government agencies using drones as a carte blanche means of peeking over and into private property without a warrant.
While the U.S. Supreme Court has addressed Fourth Amendment limitations on airborne searches before, the closest governing case (Florida v. Riley) ruled in the case of a helicopter what was fair game for observation from public airspace without a warrant. When the aircraft in question is a fraction of the size of a helicopter, however, and can fly undetected and much closer, the issue might need to be reexamined.
A Cato Institute Policy Analysis by Matthew Feeney, “Surveillance Takes Wing,” examines still more Supreme Court precedent as well as opinions from legal scholars and commentators. The analysis points to possible scenarios involving drones that poke holes in existing judicial precedent on the issue and will require new jurisprudence.
Such situations need not be limited to cameras, however. Previous issues that have been considered and perhaps now altered by the ubiquity of drones also include collective GPS-tracked movement data, and even thermal camera imaging, which detect heat anomalies that could reveal drug-growing operations indoors, undertaken without a warrant.
Feeney notes that state lawmakers need not wait for action federal agencies or the Supreme Court: He points out that even the Supreme Court left the door open for the states to act, in Riley v. California, in which the court ruled it unconstitutional to search and seize the digital contents of a cell phone during an arrest without a warrant.
In that vein, the Georgia House of Representatives has voted to clarify definitions that would allow the state to more explicitly regulate drones. HB 481 would place “drones” within established categories, preempting any conflicting municipal regulations, to lay the foundation for a consistent treatment of drone use in the state.
The legislation, now under consideration by the Senate, does not prescribe exact regulations that might go beyond what the FAA or courts have already made clear. There is certainly good reason to take the Supreme Court at its word in Riley, and treat the states as a regulatory laboratory regarding such new and exciting technologies as they develop.
Ross Coker is Director of Research and Outreach of the Georgia Public Policy Foundation. The Foundation is an independent think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the view of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.
© Georgia Public Policy Foundation (February 7, 2017). Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.