Deep Dive Episode 153 – Reboot Conversations: The Future of Drone Policy

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

On October 27, the Regulatory Transparency Project co-sponsored a Lincoln Network Reboot Conversation on the future of drone policy. We hope you enjoy the audio from that event.

 

Alexiaa Jordan:  Hello, everyone. My name is Alexiaa Jordan. I am the Innovation, Cyber, and National Security Policy Analyst for the Lincoln Network. Thank you all for coming. I am really excited to discuss the future of drone policy today.

 

This is an event that’s a bit of a precursor for our annual conference that we have at the Lincoln Network. It’s called Reboot, and this year it’s obviously Reboot 2020. We are going to be bringing together the biggest names in technology and politics and finance to discuss the future of tech in the United States. This year it’s going to be virtual, and it’s going to last for three days starting on November 6, going on to November 9 and November 10.

 

Please head over to rebootconference.org to register.

 

Today, I am really, really excited. We have two of the best in the game regarding drone aviation policy. I want to start by introducing them first, and then we can dive right in.

 

Brent Skorup is a Senior Research Fellow at the Mercatus Center at George Mason University. He knows quite a bit about transportation tech, telecommunication, aviation policy. He currently serves on the FCC’s Broadband Deployment Advisory Committee and on the Texas Department of Transportation’s Connected and Autonomous Vehicle Task Force.

 

He is a member of The Federalist Society’s Regulatory Transparency Project and a host of other things that this man has a lot of time in the day to do. It’s amazing. So, this is definitely the guy we want to listen to on drone policy because tons of people have cited his work: the White House, the Illinois Supreme Court, law journals, economic journals, the FCC. He has been some of everywhere. So very, very happy to have you here, Brent.

 

Our second panelist is absolutely no short stopper himself. He is the former FAA Chief Counsel and one of the architects of the regulatory framework for commercial drone usage that we have today. Before joining the FAA, Reggie Govan is his name — I didn’t even say your name. Here I am.

 

Reggie Govan is the Former FAA Chief Counsel, and before joining FAA, he had spent more than 30 years as corporate counsel. He was counsel to the U.S. Senate, the U.S. House, and he has been on the cutting edge of aviation technology for quite some time. I am super, super excited to have him here.

 

For the audience, I do have questions for the panelists, but I want you all to interrupt me and interrupt our conversation and insert questions of your own. We definitely don’t want you all to just be sitting on the sidelines if you have things that you want to ask. Please just drop your questions in the chat and they’ll be directly added to the conversation.

 

I’m going to go ahead and get started with a quick overview of this. My objective for this talk is to give the public an understanding of drone policy. I want everyone to understand the distinction between military drones, private use drones, commercial drones. I’d like to touch on just a couple of the issues that drone policy brings up regarding data usage, privacy, national security concerns, how you manage traffic in the sky, are we going to manage traffic in the sky—what is it supposed to look like?

 

I’m going to start off with a question for both of you. Real quick bullet points. If you all could give two bullet points of why you think increased drone usage is the absolute best for society—these two reasons are exactly why we should have more drones in the sky and we should increase production—and two of your strongest concerns with the increased drone usage. Reggie, feel free to start, if you’d like.

 

Reggie Govan:  The benefits are long term, like most technological transformation. Ultimately, we will see significant economic growth and increased productivity. And I think one of the byproducts of this particular transformation for drones and aviation, or mobility generally, is the transition from fossil fuels to electric and then, ultimately, some people are beginning to talk about hydrogen. But zero emission propulsion systems. Those are three very long-term benefits.

 

Alexiaa Jordan:  Excellent point. Excellent point. Brent?

 

Brent Skorup:  Yeah. On the pro side, as Reggie said, the economic benefits of a transformative technology. Another way of looking at this, as I see it: low-altitude air space as an asset class, as an underdeveloped asset, often a public resource.

 

I see it similar to petroleum prior to 1850 or radio spectrum prior to 1920. It’s this underutilized or unused asset, but now we have the technology to actually use it. Much like petroleum in the years after and radio spectrum in years after, it’ll create a lot of jobs and services that we can’t even predict. We have some rough idea, which I guess brings me to the next point.

 

Some of the social benefits from these services. Medical delivery is an obvious one. Where you see drone pilot programs throughout the world, you often have medical applications. There’s a few reasons for that. One, just the public will probably accept medical deliveries more than just going in with, say, Amazon deliveries. But medical also—these are small packages. They’re lightweight, but they’re also very valuable and often life-saving, so there’s a better economic case and a business case.

 

Those two things—low-altitude air space as an asset class and just opening up a whole new resource for jobs and services, and then some of the medical services that I think we’ll see.

 

Reggie Govan:  On the concern side, my concerns are twofold. One is that I think the tech industry generally has done itself a slight disservice by not being more forthcoming about the very significant technology research and development challenges.

 

All too often, the default criticism about the pace of the realization of the full benefits of the drone economy have been that the federal regulatory structure is too slow; it’s mired in bureaucracy; if only they would establish the proper regulatory regime, we’d be off to the races. I think that really oversells the current state of R&D and where significant work that still needs to be done in order to perfect these technologies so that we can operate them at scale so that businesses can actually make profits.

 

The other is I think that there is a criticism of the federal regulatory structure, and it’s simply that relying on the default, which is the FAA only, a federal-only regulatory structure, for the new autonomy infrastructure, the economy, is not going to work. It’s simply inappropriate to the task, and we need to develop a new regulatory framework that very significantly involves state, local, and tribal governments.

 

Brent Skorup:  Yeah, and Reggie covered — on the commercial side, I share those concerns. I would just highlight concerns on the non-commercial side, which are military use of drones and domestic surveillance. When it becomes easier to do and cheaper to do surveillance, I think we’ve seen throughout history that governments around the world will use those tools.

 

I’m not sure we’ve thought through some of the military and surveillance ramifications from that. But on the commercial side, I think Reggie put it well.

 

Alexiaa Jordan:  I’m really glad that you brought that up because I do think that those are some of the concerns that we’re hearing a lot out of tech manufacturers and the innovators that want to get going in the states. They’re just, “The federal government is slow. You guys are annoying, and you’re not helping us. But at the same time, we lack any type of state guidance.”

 

Brent, I know you created a very, very interesting 50-state scorecard on drone policy. I’m wondering if you would like to talk just a little bit more about that so you can help people understand where the nation — Reggie was saying just a little bit about where the nation is with federal drone policy. If you could talk just a little bit about your research to help us understand where different states are on drone policy, and specifically if you could talk about some of the things that you guys hit on in scored states off of on your scorecard. Specifically, air space, lease laws, and avigation easement laws.

 

Brent Skorup:  Yeah, yeah. I could talk for hours about my research, but I’ll try to be succinct. There is a common view—and frankly, I had this view for a while—that aviation is dominated by federal regulation and federal policy and states and cities don’t have much role to play.

 

As I looked at the law and the policy and thought through some of the pragmatic issues that drones raise, I’ve come around. It’s my view, and many others’ who are looking into this, including — the GAO had a report last month about this very issue, about drone federalism and what will be breakdown be between federal and state regulation.

 

I’ve come around to the view that states and localities and private property owners will have a say about drone aviation. When drones are in surface airspace, low-altitude airspace, you run into state, local, and private property issues that, I think, there’s no getting around it.

 

We put out this report in the spring, as you noted, Connor Haaland, my research associate, and I, and we put this out. For one, many states have not done too much in the drone space, and I think, for many states, they also have this view that this is a federal issue; it’s not really our issue. I think, whether they want it or not, this will become their issue, state and local issue.

 

We’re trying to, with the report, raise some of the issues that we anticipate will be popping up, things like trespass, nuisance, privacy issues, and also property rights issues. I’ll just close with — you mentioned we talk about this airspace leasing policy. This, in my view, is a way for states, cities, and the FAA to avoid the inevitable lawsuits which trespass, nuisance, and takings would be to lease airspace above public roads and public right of ways.

 

Cities and states and counties often own this airspace, and may states—I think about 21 by our count— have airspace leasing laws on the books. They can do airspace leasing. This is done in traditional real estate—building a high rise above a highway, for instance—but these laws would apply equally to drone airspace leasing, and we would like to raise the profile of these issues at the state level. Hopefully our report card, and I’ve worked on a paper on this, will do that.

 

Alexiaa Jordan:  I definitely think that it did that. I had a very good time reading it, but I’m also pretty nerdy, so it is what it is.

 

Brent Skorup:  Yeah, a small sample of people, for sure.

 

Reggie Govan:  Can I say that Brent’s work is very detailed and very thorough. It does raise some policy-related questions and issues that have yet to be explored and developed, one of which is simply the potential distraction from having drone operations at low altitude immediately above our road networks or our highways.

 

The real question is what’s the role of state and local government versus federal government in working through those types of issues? We clearly need more research. There are a couple of initial studies about distraction, just like there are a couple initial studies about the energy efficiency of electric engines and drones today compared to fossil fuels.

 

The early results are contrary to what we would expect, but that’s because we’re simply at the first stage, the first inning, of developing these new technologies, just like we may be at the first inning of developing this new regulatory framework using drone public right of ways that state and local governments already have over public roads.

 

Alexiaa Jordan:  Yeah. I think that reading just general reports on drone policy in the U.S., different state reports, mainly the ones that came out of Mercatus, but then, also looking at drone policy and how they’re thinking about this in Europe, in the EU. The host of problems that state and local officials are going to have to deal with are just going to be insane.

 

I kind of pair that — I come from a government background, and I kind of pair that with the thought of the fact that elections, for some people, are every two or four years. When you think about the type of longevity thinking that it’s going to require to get some of these policies hammered down, it definitely is worrisome, and it’s going to require a lot of research for people to refer to when they get in office and they have to make these decisions and make these choices.

 

Reggie Govan:  Right. One of the premises of a hostility to having a state and local, tribal governmental role in drone regulation is the notion that it would result in a patchwork of regulations that would significantly impede interstate commerce or commerce generally, whether interstate or intrastate.

 

I don’t think that there’s any validity, ultimately, to that objection. The reason I say that is twofold. First, if you think about the experience to date with respect to autonomous vehicles, state and local governments have been at the forefront of supporting very robust testing, research, and development, both in dedicated states but also on public roadways, and there is simply no evidence that state and local governments are hostile to this new technology, or to any new technology, that promises significant benefits to the citizens and promises to be an engine of economic growth within the communities in which those businesses are located.

 

So simply using the autonomous vehicle model suggests that this patchwork quilt fear is simply exaggerated if not implausible and invalid.

 

Secondly, it seems to me that the very nature of commercial drone delivery is to use low-altitude airspace, which is the exact opposite paradigm of what we have today in aviation, which his we have a few dedicated corridors of airspace in low-altitude that are designed to get very heavy aircraft to the upper atmosphere.

 

Commercial drone operations are, by design, going to occur very close to the ground, and it seems to me that there’s such a myriad of interest to be adjudicated and resolved that, in our federal structure, state and local government and tribal governments are exactly the form in which those interests ought to be adjudicated, both in the name of commercial operations and privacy but also adjudicating property rights.

 

I think that the opposition is flawed on several counts, and hopefully my friends in the industry will eventually come around and realize that they have to engage with state, local, and tribal governments on drone policy in the same way that they have to engage with respect to air taxis.

 

Alexiaa Jordan:  You guys just got a couple really good questions in the chat. I’ll start in order. One says—this is for Reggie—”As one of the early architects of the UAS IPP, one of its objectives was to test and evaluate various models of state, local, and tribal government involvement in the development and enforcement of federal regulations for UAS operations. Do you believe that IPP provided new clarity on this issue, or do you think that IPP dropped the ball?”

 

Reggie Govan:  Well, that sounds like a set-up question. It is true that I was very supportive of the IPP. I actually published a column supporting the Trump administration’s initiative. I thought it was exactly the right thing to do. I think it quickly became overwhelmed by the magnitude of the task at hand.

 

And secondly, there were some institutional constraints and political considerations so that we started with an IPP of ten, and it was designed to stay at ten, when I think what really needed to happen is we had to go from ten to 50 to 100 so that, after three years, we would develop a robust body of experience with sensors, with traffic management systems, with operating in different weather conditions and different flight operation concepts of operations and the like. The promise was never realized.

 

One of the things that didn’t happen, I don’t believe, is that I don’t think we got a very good understanding of — while state and local government collaborated with industry in order to put on these, I think it’s eight, IPPs, at the end of the day, I don’t think we got much understanding about, and learning, that we can use to develop future regulations. And that’s particularly true with respect to the state, local, and tribal role for drone regulation. That is an underdeveloped area throughout the last three years of the IPP.

 

Alexiaa Jordan:  Understood. We are now getting lightly flooded, which is exciting because they think that we are not as nerdy as we are. They actually think we’re interesting, so this is awesome.

 

First question, then. Reggie, could you tell us. The operation of autos is state regulated — regulation of automobiles is state regulated today. Why is state regulation of drone operations more onerous? I know you spoke a little bit about how some people, like from The Federalist Society, are just antsy about working with the state. Actually, Brent, you might be able to speak to this, too. Why are some states resisting regulating this when they already do other types of automobiles?

 

Brent Skorup:  In my talks with state regulators, there’s a few things going on. State governments, I think, have more financial constraints than, say, the federal government. State departments of aviation, they have what they do and this is a whole new, and frankly, a big thing that they just don’t have the personnel or experience to really do.

 

There’s another thing, which is they — in my conversations with some in the industry and some state regulators, they’re being told by others in industry, or perhaps government advisors, this is a federal issue; stay out of it, basically. As I said, I think it’s inevitable. Whether they want it or not, this will be in their laps in the next few years.

 

As these programs expand, which I hope they will, if you have any complaint about a drone flying overhead or one in your yard or something else, the FAA isn’t really going to help you. That’s a local issue. If you have a nuisance problem or damage to your property, I think — for instance, in Ohio, I think there are three FAA employees doing drone enforcement policy for the whole state.

 

And FAA also has a lot on its plate. It’s not just drones, obviously. So, I think that’s what’s going on on the state level. Either they believe or they’re being told that this is a federal issue; stay out of it. My view is this will become their problem very soon whether they want it or not.

 

Alexiaa Jordan:  I couldn’t agree more. I come from state government, and I didn’t even think about — I was kind of thinking about it from the perspective of an elected official whereby they just have a lot on their plate and this is just hard and it’s very technical, but I didn’t think about the maybe misleading influence that might be coming from industry trying to keep them from being regulated. That’s definitely something that I’m sure is clouding this scenario.

 

Brent Skorup:  Yeah. And I just wanted to say I don’t think it’s — I think it’s well-intentioned. I think they’re not telling the full picture, and they might not be aware of all these issues that are coming down the pike.

 

Alexiaa Jordan:  Makes sense. We have another question. It touches a bit on what you just spoke about, Brent. A participant asked, “What are the insurance ramifications of drones losing packages, damaging packages/property, or harming a person?”

 

I read in an FAA report and also in another private report—I don’t think this one came from you, Brent—but it did talk about adding in the insurance component to policy regulations for commercial drone usage versus private drone usage. If you guys, either of you, have any comments on where that is, I’d love to hear it. Also, this person would too.

 

Reggie Govan:  There are several areas of regulation today that are quintessential state government functions. With respect to aviation, one of them is the sighting of airports—the takeoff and landing of aircraft—at airports. That’s state and local government. It’s only after those decisions are made that the FAA “gets involved.” It’s a little bit of an exaggeration, but it is a state and local governmental power.

 

The same thing is going to be true with respect to drones except drones can take off and land from everybody’s backyard. So, there is necessarily going to be a role for state and local governments.

 

The other quintessential state governmental function is insurance regulation, and that’s true today. Just as states set minimum insurance requirements for you and I as operators of automobiles, it seems to fit that state and local governments would be setting insurance requirements for operating drones whether it’s for commercial or private/pleasure use. It is simply a state governmental function because it’s so related to the protection of property and people.

 

Now, with respect to aviation, the federal statute does give to the FAA — one of its statutory missions is the protection of people and property on the ground as a result of the flight, which means the plane’s not going to fall out of the sky and harm and injure passengers on the plane or property on the ground. But that’s related to the safety of flight.

 

Here, we’re talking about just general insurance requirements for the operator, and it seems to me that there’s no reason why a state wouldn’t have that authority.

 

The other thing I want to say about state and local governments, unrelated to insurance, is state and local governments today set all the rules of the road for the operation of the automobile. The only thing the federal government does is set the safety requirements for the design and manufacture of the automobile. Once it complies with those safety requirements, the operation of that automobile is purely a state and local governmental function.

 

So, if you envision the drone economy as creating in low-altitude airspace that which exists on the roadway for cars, it necessarily should be a state and local governmental function.

 

Brent Skorup:  I would just add briefly—Reggie covered it well—a proposal I’ve become fond of and have promoted are states creating these drone advisory task forces, which a few states have, but it is because there are a lot of these state and local issues not just on the operation side but things like liability insurance, which I know some insurance companies actually are creating new products, insurance products, for drone companies and drone hobbyists. So, we’re seeing that.

 

But I think drone advisory committees are a good thing because this is new for all of us, and just get lawmakers and policymakers at the state and local level informed about some of these emerging issues, whether it’s insurance or navigation easements, airspace leasing, or expanding the Department of Aviation’s capabilities and personnel.

 

Alexiaa Jordan:  I definitely wanted to take this conversation in a slightly different direction, but you guys are getting a mass of questions on these details between the intricacies between state versus federal regulation. I’m sure you guys see them on the chat, so I will just go ahead and jump in.

 

One of our participants is asking about drone highways over public roadways, and they’re saying that drones today tend to be slower in flight than stable normal highway traffic flows on the ground.

 

Do you guys think that the UAS transit speeds will need to increase to make this work in metropolitan areas? I think he’s just trying to figure out what type of uniformity at all, or if this has been thought about at all, on the federal level or by drone policy analysts about the uniformity of how drones are made and which ones are going to be allowed to be used in public spaces.

 

Brent, when you talked about the positive externalities of drone usage, you were like medical deliveries, commercial deliveries, these types of things. But I think this question hits a bit towards are we going to have any type of say in where they get these drones from and what the minimum requirements for their existence are so that they all rely on the same path?

 

Brent Skorup:  A few thoughts about operationalizing this drone highway idea, which is being discussed. The airspace leasing idea is somewhat unique, but this drone highway idea is — you hear it all around the world because, at least in the medium-term, it will be these dedicated corridors where drones will operate, for a lot of reasons.

 

The world I envision and that I hope to encourage would be one where — my background is [inaudible 00:29:49] communications, so some of this is coming from that background. But I think there are some analogs where the FCC certifies devices, and they have oversight over interstate communications.

 

You can see the analogs for drone policy where the FAA maintains its role as certifying drones, certifying UTM, these unmanned traffic management systems—basically air traffic control for drones—separation minimums between drones. That seems like a good thing for the FAA to take up. Emergency landing procedures, that sort of thing.

 

But, then, the time, place, and manner restrictions would be at the state and local level, and so the FAA would, essentially, whitelist regions in a state where there’s just de minimis risk to manned aircraft or airports and states would manage the low-altitude airspace there.

 

That’s the world where I see this going. I think we’re slowly moving that way as it is, but I hope we can accelerate it.

 

Alexiaa Jordan:  Okay. Another question we have from the group. Traditionally, each locality or city manager, whoever that might be, of road traffic — traditionally, each locality or city managers of road traffic within their boundaries, just kind of this is what they do. As cities begin to manage traffic policies through API, are the mechanics of city airspace management similar enough to be managed with the same tools?

 

This question was for both of you all, so if either one of you feel more comfortable answering this question about APIs and UTM, unmanned traffic management, please feel free.

 

Brent Skorup:  Just briefly. The analog with road traffic, in some ways it’s similar; in some ways it’s different. The reality is the road network is chaotic and dangerous. We have 35,000 deaths on the roads every year. For a lot of reasons, the public and regulators just won’t tolerate that sort of thing in aviation. So, I see it being much more of this defined corridor, many fewer parties involved.

 

On the API thing, I see UTM — I see it working much like telecommunications, wireless telecommunications, where there’ll probably be a handful of UTM providers who have just very good technology that will be deployed at a local level, much like cell towers are deployed at a local level. That’s the model I see, but it’s hard to say how that will shake out.

 

Reggie Govan:  I think at the core that question is maybe to what extent are the technology issues that have to be resolved to realize the benefits of the drone economy are similar to the technology issues for autonomous vehicles. I think they are similar.

 

We’re talking about propulsion systems because we’re going from gas to electric. We’re talking about sensors, the robustness of the sensors, where the data that the sensor collects gets analyzed—Is it edge computing? Is it a computer on the vehicle? Or does it go into a server? What’s the degree of latency in the communication? The materials that are being used. I think the questions are very similar. 

 

The applications may be different for automobiles versus drones, but I think the regulators who are dealing with the introduction of AVs are having to grapple with some of the same technology issues on what the regulatory framework should be for evaluating and certifying those technologies, as is the FAA with respect to the drone industry today.

 

Alexiaa Jordan:  Understood. We have two of the same questions, or they’re similar, which is really exciting because this was also one of my questions, so I guess it’s definitely on the top of people’s minds. The overall topic of it is jurisdiction.

 

We know that FAA, and then later NASA, came in and started trying to take away and lead on this drone policy issue. But later, other agencies had to hop in—commerce, transportation, different members of the IC weighed in; DOJ of course. I’d like to hear your thoughts on how federal leadership, state leadership, whomever the next president may be, could encourage faster interagency or extra agency cooperation on cross-sectional issues like drone policy.

 

That same type of question can definitely be applied in terms of how are you guys going to work through jurisdictional issues from the federal to the state level? Either one of you all. The question was posed to both of you all from the two participants, so whoever would like to answer can definitely feel free.

 

Reggie Govan:  I’ll start by acknowledging that the FAA stumbled around some of the security, the national security, the cybersecurity, not so much privacy, but the security-related issues that arise from expanding drone operations. Michael Waechter has spoken about this on a number of panels and has acknowledged that the initial roadmaps that the FAA published are not sufficiently attentive to the many security-related concerns.

 

Those days are over, and the FAA and the security agencies are working hand in glove. The FAA has a very robust security line of business that has excellent leadership. Those agencies work very cooperatively and collaboratively, so I don’t believe any of the security-related issues are not getting the appropriate attention or the desired resolution.

 

It is an area in flux. Privacy was dealt with very early in the way we always deal with privacy with new technologies. We had a set of voluntary standards that get published. With respect to the internet, we still haven’t solved that privacy issue. California has gone out and done something analogous to the EU, but on the national level, we haven’t — maybe we’ve solved the privacy issue by default, but for those who want to see a different privacy regulatory regime, we still haven’t bit the bullet.

 

Around cybersecurity and national security, there are several initiatives that are underway. One is the most written about and that is that the federal government is getting serious about the security-related concerns with the federal government, with governments generally—federal, state, and local governments—using DJI drones for law enforcement operations. I think that’s a very legitimate, perfectly valid set of concerns and appropriate response, and I would hope that nobody questions the integrity or the validity of the assessments that the national security agencies have done in support of the prohibitions.

 

I think they could actually go further. There is some federal legislation out there in the House and the Senate, but that’s specific with respect to the country of origin of manufacture or the country in which data may be located.

 

There’s a whole second. In 2018, Congress enacted an export control statute that now has federal agencies reviewing for a whole variety of autonomy mobility technology for whether it’s appropriate for that technology to be exported because of national security concerns. Essentially, national security, as I understand it, is defined as economic security because you don’t want any foreign nation becoming so dominant with respect to a critical technology that it affects our economic power and therefore erodes our national security interests.

 

A lot of work is presently being done in the last two years with respect to the broad range of national security issues.

 

Alexiaa Jordan:  Amen from my end. I could not possibly agree with you more. If either of you would like to speak to — you did just for a second, Reggie, but I definitely want to open this question up to Brent as well.

 

We know at a federal level, as you mentioned, DJI drone purchases are banned, which I personally agree with. But when we think about how market share should be thought of as state legislatures are taking on more responsibility for this topic, should we be viewing drone increased production from a geocompetitive lens? Especially considering you have all of our people in Silicon Valley yelling at state and federal government: “Hey guys, we just want to innovate, do better, speed up, blah, blah, blah.”

 

Do you guys think that we should be thinking about this form a geocompetitive lens? And I also want to add if you all have ran into any state or local legislators who have thought about data storage for the drone companies that might be in their state and how data storage is its own separate privacy and security issue when it comes to the information that the drones collect.

 

Brent Skorup:  Yeah, I’ll start. The geopolitics, that’s above my pay grade, but I do think in the DJI prohibition — the Department of the Interior. It wasn’t as drastic as I think some of the news stories report. The Department of the Interior said, essentially, “We’re going to pause the use of DJI drones. We’re going to assess what the security risks are, if any.”

 

But they noted that’s only for the nonemergency services. They’ve kind of said that in emergency services situations, like wildfires, they might still use them, which says something about the quality of and the reliance of DJI drones.

 

I think the DJI is caught in these much larger geopolitical issues, and drones are a big part of that. I had a research assistant last year who was fluent in Mandarin, and we looked at the Chinese Civil Aviation Authority’s documents. Like good Party members, they had these five-year plans for the drone industry. China, they view autonomic aviation, including drones, as a major pillar of the future economy, up there with 5G and AI. They view autonomous aviation up there.

 

I think DJI got caught in this crossfire that the U.S. and China have these very bold visions about who will own this space. I don’t know where we go from here, but it can’t be you have to wait until there is a national security incident before you act. But also, I think your concerns have to be grounded in reality.

 

I hope that the Department of the Interior — I hope that’s a good faith assessment and that they’ll follow through on that.

 

Reggie Govan:  Yeah. I think we’ve gone beyond the Department of the Interior. The Department of Justice has just outright banned federal law enforcement agencies from using DJI drones for law enforcement purposes, and the legislation that’s pending in the Congress, at least in one of the House or the Senate, would preclude state and local governments doing it to the extent that they’re using federal funds to purchase or operate the drone.

 

I think that’s perfectly appropriate. As I understand, it’s grounded on a realistic assessment of our national security interest. I’m not going to question it. I will say that the FAA has weekly briefings from the National Intelligence Services on a range of national security-related issues in aviation, so I have every reason to believe that any decision would be founded upon a realistic, honest assessment of the national security threats.

 

I will say I do believe this is an area of exclusive national regulation, and I don’t believe it would be appropriate for the various states to be independently coming to their own security risk assessment. This is one where I think it’s appropriate that we speak with a single voice as a country and that the federal government determine what the national security interests are and how best to protect them.

 

Alexiaa Jordan:  Understood. Understood. Brent, you kind of talked about how DJI might’ve just gotten into the crossfire of this geopolitical war and how we probably want to be just a little bit more cautious about how we discuss this.

 

Building off of that, I’d like to ask both of you, but I’ll go ahead and start with Reggie, about how the FAA has collaborated with entities like CFIUS or NTIA in trying to create policy around how different drone manufacturers or drone companies that are moving into the United States, selling to private citizens, how they should be regulated; if they should be regulated more. Has there kind of been an uptick in this, and what y’all at the FAA did on that matter?

 

Reggie Govan:  Yeah. I believe that that’s really covered by the Export Control Reform Act of 2018 that I spoke about a few minutes earlier. I don’t really have much to add to that other than I do think, on respect to privacy, the voluntary standards that the Department of Commerce have promulgated four or five years ago will probably need to be revisited with respect to drones just like I think privacy regulation generally is going to have to be revisited across all these new and emerging technologies because I don’t know that the initial efforts embodied in these voluntary standards are sufficiently robust to respond to the public’s legitimate interest with respect to the privacy of some of their personal information.

 

Alexiaa Jordan:  Understood. We have a couple more questions from the audience. This is for both Reggie and Brent. Do you think that the FAA will ever force a non-cooperative aircraft to participate in airspace control systems? It seems odd that he’s required to turn on the signal for his car but people are flying in the national airspace without transponders and radios. That was the question. I think it just kind of gets a little bit into the granularity of how requirements of drones are going to be laid out per state.

 

Brent, if you wouldn’t mind starting, but of course, either one of you could jump in.

 

Brent Skorup:  Sorry. The question was how will they require non-cooperative aircraft to do what?

 

Alexiaa Jordan:  To participate in airspace control systems. I think just kind of the nature of the question is —

 

Brent Skorup:  Oh, I see.

 

Alexiaa Jordan:  Okay.

 

Brent Skorup:  That seems to be the way they want to head. If you look at the remote ID proceeding, it’s pretty broad. They want essentially all drones to be connected so law enforcement and others can know what drones are in the air.

 

My own view: I think the corridor system, which has its detractors, but I think the corridor system mitigates a lot of the concerns about non-cooperative traffic. If you have dedicated corridors and only approved drones can be in those, then you’ve got large, savvy operators who are cooperating with all the federal and state policies on that.

 

But yeah, it’s an open question. There are a lot of questions about remote ID, UTM, what that looks like, whether a corridor system is permanent or just short term. I’m not sure. My own view is a lot of these problems are solved by a corridor system at low-altitudes for the segregated airspace framework.

 

Reggie Govan:  Yeah. I do think there’s a technology question, and that is today, a pilot can take off without filing the appropriate flight plans with the FAA, the air traffic control. The real question technology is will a drone be able to take off without complying with whatever the equipage requirements are for that aircraft and the FAA? Would it have a kill switch? Would it not be able to enter the airspace without meeting whatever the requirements are for operating in that airspace or in the corridor, as Brent said? That’s a technology question.

 

I think, to go up one level, we’ve talked about cybersecurity; we’ve talked about privacy. Really, at the heart, the question’s asking about counter UAS systems. I first want to say I’m on the advisory board of an Israeli company that manufactures these systems. So first having made that disclosure, my own view is that it’s an area — as we know, the FAA is getting ready to do a second round of testing of these systems at airports and the like.

 

I believe state and local governments could be testing these systems off of airport property. They have lots of critical infrastructure to protect, and their ability to assess the efficacy of these systems outside of the airport environment is wholly unrelated to any FAA approvals or FAA R&D, test sites, etc.

 

But until we have effective county UAS systems and clear concepts of operations as to who’s going to make what decisions about what’s noncompliant, and what are the range of actions that could be taken, who the decision makers have to be, that is an indispensable regulatory regime for realizing the full benefit of the drone economy.

 

Remote ID is the first step, but we have to have some county UAS system beyond what the federal law now provides. The federal law that was enacted several years ago—in lightning speed for which the DOJ and the other federal agencies should be congratulated—but the county UAS authority is limited to five federal agencies, and that’s simply inadequate if we are really envisioning drone operations around the country, in every community and neighborhood, in every county and state in this country.

 

Alexiaa Jordan:  Okay. Thank you for all of you all’s questions. Reggie, Brent, thank you all for staying with us and answering all of these very detailed inquiries. I’ve definitely enjoyed myself.

 

In the last literal couple minutes that we have, I want to give you all an opportunity to speak about — because both of you all have alluded to state government needs to step up, federal government needs to work more with state government. We’ve talked about this, what I feel to be, at length.

 

I think a good closer for us might be if you all have any last suggestions to the audience, any last suggestions to industry leaders out there, any last suggestions to state leaders out there that might be trying to figure out how to operationalize their policies. If you could just wave a magic wand and allow states to enforce different sandbox policy practices between them, at their own level, so that we can speak to the FAA’s guidance regulations so that states can try these independent things that you spoke about earlier.

 

If there is any type of sandbox regulation you’d like to see the federal and state engage in, what would it look like? And how could everyone work together in the most harmonious way until we start finding things that work for all 50 states?

 

Brent Skorup:  Yeah. I’ll go. In that GAO report about drone federalism last month, it was revealed that U.S. DOJ and U.S. DOT have a task force meeting to decide what is the U.S. policy about drones and states and what their role will be. I hope they’re aware of all these legal and practical realities that we’ve discussed.

 

What I would like to see at the state level — you need FAA’s cooperation with this, obviously. This is aviation safety. You need to work with the FAA on this. States can’t go off and start going on their own. But what I would like to see is them working together. The FAA, as I said, whitelisting regions where there is de minimis or no risk to manned aircraft, and then, states saying to U.S. — or any drone operator, “Come test your services. It’s whitelisted by the FAA. Come test. Come try to create a drone company, a drone services company,” and letting a thousand flowers bloom.

 

Unfortunately, right now, we’re letting five flowers bloom, and I hope we’ll let a thousand flowers bloom.

 

The other is I hope states will start setting up drone advisory committees. This is modeled much like the AV advisory committees, the autonomous vehicle committees, that are out there because there are a lot of just novel issues about insurance, electrification, public perception that states will be better positioned. But they first need to get stakeholders and experts together on this.

 

Reggie Govan:  As a good Democrat, I’m not going to use the phrase “let a thousand flowers bloom.” I will say that state and local governments should be the laboratory of experimentation, both for industry and for government processes.

 

I think two things should happen. One is those of you that are in industry and technology should be coming to state and local governments with your R&D that needs to be field tested. And secondly, state and local governments ought to be doing what New York and a handful of other states have done; I think Utah and others. That is, create the biggest swath of airspace that you can. In New York, it’s a 50-mile corridor.

 

Together, the companies ought to be coming with the state and local governments. Forget about whether there’s an IPP program in the next few years. Come to the FAA with what needs to be field tested. How are you going to do it? What’s the safety case for it to happen? Flood the FAA.

 

I’m not saying this because I have anything — I love the FAA, and I think Earl and others are doing a great job at the UAS Integration Office. But the FAA is resource constrained, and so we need to bring to the FAA all the ideas that we know need to be worked through and vetted for which we need results in order to feed the next development of regulation. At the end of the day, expanded operations only happen with new regulation.

 

A, I’d like to see industry stop with the shibboleth about the patchwork quilt and state and local government animosity and hostility to technology and enter into true working collaboration, cooperative relationships and bring them to the FAA. Then, I’m sure that we will accelerate the pace of progress, and we will accelerate the development of the regulatory regime and authorizations necessary to realize the full potential of the drone economy.

 

Alexiaa Jordan:  You guys both ended this on a fantastic note. I agree with what you all said. This just made me very happy. Thank you, guys, so much for coming on. We had a really engaging conversation. Everyone just stuck on to the end, which is just — it gives me so much hope for the future of drone policy in the U.S.

 

Thank you all, and thank you to all of the audience members. I hope everyone has a safe and productive day. Don’t forget to join us for the rest of our Reboot series. Check us out at rebootconference.org. See you guys.

 

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Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

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This has been a FedSoc audio production.

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