By Arthur Holland Michel
On January 26, 2015, California Senator Hannah-Beth Jackson introduced a short, simple bill to the State Senate. S.B. 142, which was vetoed earlier this month by California Governor Jerry Brown after passing comfortably in the state legislature, sought to restrict the recreational and commercial use of drones over private property. While it was by no means the first bill that proposed to place limits on the use of drones in domestic airspace, if successful, S.B. 142 would certainly have been among the most impactful. California is home to a rapidly expanding commercial drone industry; 3D Robotics, a large commercial drone manufacturer, is based in in Berkeley, and Silicon Valley has seen in recent years the emergence of a variety of drone-based startups developing both software and hardware for commercial and personal use.
The rise and fall of S.B. 142 provides an insight into the way in which state legislatures, concerned about the consequences of expanding domestic drone use for safety and privacy, and unconvinced by the FAA’s efforts to create regulations for drone use, are taking matters into their own hands. It also provides a glimpse at the efforts of the commercial drone industry, which is concerned about the potential of such bills to hinder business growth, to steer states away from restrictive legislation. Here’s what you need to know.
- Senate Bill No. 142, which, in its final form was just 556 words long, proposed an extension to California’s existing laws around trespass, also known as “wrongful occupation of real property”: “A person wrongfully occupies real property and is liable for damages pursuant to Section 3334 if, without express permission of the person or entity with the legal authority to grant access or without legal authority, he or she operates an unmanned aircraft or unmanned aircraft system less than 350 ft. above ground level within the airspace overlaying the real property.” In other words, if a person were to fly a drone over a private property (without the owner’s permission) at, say, 150 ft., that person would be deemed as trespassing that property.
- The Federal Aviation Administration requires recreational drone users to remain below 400 ft. at all times. This bill would therefore have created a 50 ft. window for drones to operate within. Commercial drone users, who must have a Section 333 exemption from the FAA, are forbidden from flying over private property without the consent of the owner. While this restriction may change when the FAA enacts comprehensive regulations for drones next year, until that happens S.B. 142 would not have impacted any commercial drone users currently operating in California. However, in the long-term, a bill like S.B. 142 would have made impossible some of the larger and more ambitious commercial drone applications, such as Amazon’s delivery drone system
- There is a precedent for state bills that limit the use of drones by both the government, businesses, and individuals. There is also a precedent for bills that limit drone use over private property, though not to the extent proposed by S.B. 142. In 2013, Texas enacted a bill that prohibited the use of drones over private property “with the intent to conduct surveillance.” That same year, the Oregon legislature enrolled a bill that prohibited any person from operating a drone over private property if the property owner had already, on a previous occasion, complained about the drone being flown over that property. S.B. 142, however, proposed to ban all unauthorized flights over any private property, regardless of whether the drone user had an intention to invade privacy or whether the property owner was at all bothered by the use of the drone over his or her property.
- S.B. 142 followed another California state bill, A.B. 2306, which Governor Brown signed in September of last year. That bill, which was aimed at paparazzi, did not expressly refer to drones, however it did seek to protect individuals from observation “through the use of any device, regardless of whether there is a physical trespass.”
The Legislative Life of S.B. 142
- In a press statement following the introduction of Bill 142 into the Senate, Hannah-Beth Jackson, its main sponsor, explained, “When we’re in our backyards, with our families, we have an expectation that we have a right to privacy. This bill would extend these long-established definitions of trespassing and privacy, and bring them into the 21st century, by applying them also to drones.” Jackson, who chairs California’s Senate Judiciary Committee, explained in the statement that since drones can easily cross into airspace over private property, they have the potential to “blur long-standing boundaries between public and private space.”
- An analysis of the bill prepared by the Senate Judiciary Committee referenced the ambiguities of aerial property rights: “The Supreme Court has previously held that landowner rights to the airspace over property are limited. In United States v. Causby, the Court concluded in 1946 that the ancient common law doctrine “cuius est solum, eius est usqu ad coelom” (whoever owns the soil, it is theirs up to heaven and down to hell) had no place in the modern world. The Court rejected the unlimited reach above and below the earth established in the common law, but did not define a specific limit. Instead, the Court held that ‘if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere.'” In other words, in the Judiciary Committee’s interpretation of U.S. legal precedents surrounding aerial property rights, the specific extent of a person’s property above their actual property is open to interpretation. This, in theory, means that the law allows for a bill such as S.B. 142 to create aerial property rights.
- S.B. 142 was amended three times before being passed along to the governor for his signature. These amendments adjusted the technical language around the definition of trespass, and removed a reference to the notion of “navigable airspace” (airspace that is publicly accessible to anybody with an aircraft). The legal scholar Greg McNeal, in a post on Forbes.com, described the reference to navigable airspace as a “fatal flaw.” McNeal explained that “using navigable airspace as the proxy for when a drone operator in California is violating privacy rights will hinge on so many complex variables that the bill will be almost impossible to implement. An amendment to the bill in April added the provision that excludes law enforcement drones from the bill’s proposed rules.”
- One amendment excised language in the bill’s preamble that referenced existing privacy law, which “imposes liability for physical invasion of privacy, if a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity and the invasion is offensive to a reasonable person.” While the text of the bill itself, unlike the Texas bill, did not specifically target drone users who were trespassing with the express purpose of capturing images or recordings of the property, the removal of this reference in the preamble suggested that the bill was no longer solely intended to target nefarious drone users in particular, but rather any drone user who happened to stray into airspace over private property and who, in doing so, might violate a property owner’s privacy.
- S.B. 142 drew criticism from the commercial drone industry, as well as hobbyists, and commercial drone users. In part as a result of this backlash, the bill received more national attention than other comparable state level drone bills. The story of S.B. 142 is one of the first instances of a wide-ranging and effort by the industry to protect drone users and drone companies from a single piece of legislation. The backlash to S.B. 142 illustrates how the commercial industry will likely respond to any future bills that have the potential to place significant limits on the ability of drone users to operate in the national airspace.
- The Association for Unmanned Vehicle Systems International, the largest trade association for unmanned systems manufacturers, issued numerous statements in opposition to the bill. Because of the difficulty of obtaining the consent of property owners, one statement reasoned, S.B. 142 would “all but ban the operation of any UAV at low altitudes.” That same statement, which was posted on July 14, noted that AUVSI was in direct communication with Senator Jackson in the hopes of adjusting the bill’s language. Specifically, AUVSI was advocating for the bill to exempt from its trespass rule any commercial drone user in possession of an FAA exemption.
- Once S.B. 142 passed both the General Assembly and the Senate, in late August, AUVSI turned its attention to California’s governor, Jerry Brown. The trade association created an online tool for opponents of the bill to easily email or tweet at the governor and call for a veto.
- In an op-ed for the OC Register, Michael Drobac, who is the president of the Small UAV Coalition, wrote “the only standard in the legislation is the altitude at which the UAV flies. Delivery drones with no ability to capture images would even be prohibited despite the tremendous value they provide.”
- In a letter to Governor Brown, the National Press Photographers Association, which in December of last year hired lobbyists to advocate for regulations that would be permissive for the use of drones in journalism, explained that “the bill contains no method of establishing the exact height of a UAS, whether it in fact it [sic] overflew the property, or whether the violation of the statute was intentional or unintentional.”
- The bill also raised concerns in the hobby community. The Academy of Model Aeronautics, the largest association for model unmanned aircraft operators, rallied to urge Governor Brown to block the bill. In a post on its website, the AMA wrote that S.B. 142 “may pose a significant threat to recreational model aviation.” The AMA claims that over 3,000 of its members wrote to Governor Brown calling for a veto.
- While S.B. 142 was being debated in Sacramento, firefighters responding to several wildfires in California were forced to interrupt aerial missions because of nearby drone activity. Many drone industry stakeholders, as well as the AMA, were quick to criticize drone users who were operating in an irresponsible manner. AUVSI and AMA support the FAA’s “Know Before You Fly” campaign, which seeks to educate drone users about how to ensure safety during flights. The basis for most opposition to S.B. 142 was that, by not distinguishing between nefarious and non-nefarious drone flights over private property, it would restrict non-harmful drone use.
- California Governor Jerry Brown, in a letter explaining his veto, stated that his main reason for not signing the legislation was that it could place an unnecessary burden on commercial drone users and hobbyists who unintentionally stray over private property. In the letter, Governor Brown conceded that drones raise a variety of concerns, but stated that the basis for his veto was that it might harm drone users—commercial and recreational—who are not invading anybody’s privacy. This reasoning reflected the principal concern raised by the drone industry in its opposition to the bill. Though S.B. 142 is dead, a similar bill, S.B. 271, which prohibits the operation of any unmanned aircraft at less than 350 ft. over public schools, was passed by both the California State Assembly and Senate earlier this month.
As incidents in which drones raise safety or privacy concerns appear in the news with increasing frequency, it is likely that bills like S.B. 142 will become much more common, especially if the FAA further delays the creation of nation-wide regulations for drone use. As the drone industry grows, these bills will affect an increasing number of drone users. The trajectory of S.B. 142 is an example of how state legislatures seek to significantly limit the use of drones, and how these bills are often met with strong opposition if it is deemed that they place unnecessary burdens on drone users who are acting responsibly.
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