Deep Dive Episode 174 – Legal Issues for Commercial Drones: Privacy, Property Rights, and Federalism

Commercial drone technology advanced rapidly in the past decade, and companies like Walmart, Amazon, Verizon, CVS, and UPS are now actively testing drone services like home delivery, medical logistics, and infrastructure inspections. These drones fly in low-altitude airspace, however, which raises pressing questions about property rights, privacy, and federalism. Where does private property end and navigable airspace begin? What role will states and cities have, if any, in allowing or prohibiting drone operations?

In the 2018 FAA Reauthorization Act, Congress asked the GAO to study and report on the roles of federal, state, and local authorities in the regulation of drone operations. That GAO report was released in September 2020 and noted the complicated caselaw surrounding low-altitude airspace. Meanwhile, many states and cities are passing drone laws, including drone no-fly zones. Some recent state bills propose leasing airspace above public roads to drone companies. Many in the drone industry and at the FAA, however, dispute the authority of states to regulate this area.

In this live podcast, experts debate these issues and more.

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Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]

 

Operator:   Welcome to The Regulatory Transparency Project’s Fourth Branch Podcast Series. All expressions of opinion are those of the speaker.

 

Jack Derwin:   Hello and welcome to The Federalist Society’s Fourth Branch Podcast for the Regulatory Transparency Project. My name is Jack Derwin, and I’m Assistant Director of RTP. As always, please note that all expressions of opinion are those of the guest speakers joining us today. 

 

To learn more about any of our speakers and their interesting work, you can visit RegProject.org. After opening remarks and discussion between our panelists, we’ll go to audience Q&A. Please enter any questions into the Q&A or the chat function, and we’ll address those as time allows. 

 

Today, we’re pleased to host a conversation titled, “Legal Issues for Commercial Drones: Privacy, Property Rights, and Federalism.” To discuss this topic, we’re pleased to feature Diana Cooper, Brent Skorup, and our Moderator, Adam Thierer. 

 

Adam, who will introduce our other panelists in just a moment, is a Senior Research Fellow at George Mason University’s Mercatus Center. He specializes in innovation, entrepreneurialism, the internet, and free speech issues with a particular focus on the public policy concerns surrounding emerging tech. And with that, Adam, I’ll turn it over to you.

 

Adam Thierer:   Well, thanks, Jack. And I want to welcome everyone to another episode of The Federalist Society’s Regulatory Transparency Project’s ongoing Fourth Branch Podcast series. Our podcast on tech matters feature leading policy experts debating the major legal issues surrounding various emerging technology sectors. Again, my name is Adam Thierer, and I’m a Senior Research Fellow at the Mercatus Center at George Mason University. And I’m pleased to be your host for today’s discussion. 

 

On today’s episode, we’ll be revisiting the question surrounding drones and more specifically how we should balance federalism, interstate commerce, and technological innovation in our fast-moving tech economy. Some of our loyal listeners will recall that back in late 2019, I hosted another Federalist Society podcast on the same topic with a special guest. It was Senator Mike Lee, who had then just introduced legislation entitled The Drone Integration and Zoning Act of 2019. That bill proposed giving local governments more say in how drones are regulated in the United States, and the bill raised a question: would a little dose of devolution help spur more drone innovation, or do we instead need maybe a single set of rules for the entire nation to get things going?  

 

As I mentioned at the beginning of that podcast, I’ll reiterate it here, I have personally struggled with these questions about how to balance federalism and technology policy throughout my career, going all the way back to my first book which I published 22 years ago when I was still with the Heritage Foundation, which was on this exact topic. Two decades later, however, I’m sad to report, I’m still struggling with how to strike the right balance, especially as it pertains to exciting new technologies like drones as they continue to rapidly emerge.  

 

Luckily, on today’s podcast, I am joined by two of America’s leading experts on drone law and policy, and they are going to help me and you figure all of this out. First, returning to the podcast today is my colleague Brent Skorup, who is a Senior Research Fellow at the Mercatus Center. Brent has written extensively on these issues and most notably published a 50-state drone report card, looking into how prepared states are to roll out drone innovations. And Brent has also authored many essays on this topic including, most notably, one entitled, “To Kickstart Drone Deliveries, Give Cities and States Regulatory Flexibility,” which outlines how to open up more drone innovation at the state and local level. Brent, thanks for joining me again today.

 

Brent Skorup:   Thanks for having me. 

 

Adam Thierer:   I’m also pleased to be joined by Diana Cooper, who is the Head of U.S. Policy for Hyundai Urban Air Mobility. Diana is responsible for working with legislators, regulators, local communities, and industry to foster a forward-looking regulatory and policy framework for drones and unmanned aerial vehicles and to drive public acceptance of these technologies. She is one of the world’s leading experts on this topic, and she has served as president of the Small UAV Coalition and president of the Drone Operators Federation. She’s also served as special advisor to the chairman of the FAA Drone Advisory Committee. Diana, thank you so much for joining us today.

 

Diana Marina Cooper:   Thank you for invitation. Really excited for the discussion.

 

Adam Thierer:   Great. Okay. So we’ve got an hour, and I have plenty of questions to ask, but let me begin by asking Brent and Diana to open up with some high level overviews, just about five minutes each if they could, of how they think about drone policy, especially with regard to the role state and local governments might play here. And I’ll start with Brent because Brent, you’ve written extensively about the need for cooperative federalism, as you call it, when it comes to drones. So let me ask you to start us off by explaining your approach to this issue.

 

Brent Skorup:   Yeah. Thanks, Adam, and thanks to The Federalist Society and Diana for putting this group together. 

 

So how I view these things — and my background is telecommunications law and that shapes how I view these things. And like a lot of telecom lawyers, I’ve been doing more drone lately. In the last few years, I’ve been doing drone policy work. And at first, I’d say I probably had what I would consider the default view that aerospace issues, aviation issues are almost totally a federal matter. 

 

As I looked into the law, however, I saw things were not quite that clear. And I’ve been writing about this so that federal and state law makers are prepared for some of these legal issues that I foresee. And just briefly, I’ll go through some of what I’ve written about in my legal research. I put a paper out on this subject about the history of surface air space and the privacy and property interests that will make it a complicated area for federal and state law makers. 

 

So any discussion of legal history of aerospace, you’ve got to talk about the Causby case. And for the lawyers on the call, you may vaguely remember from 1L year, property law, the Causby case. This was the chicken farm case, and just to refresh those former 1L’s, in Causby, this was in 1946 Supreme Court case, During World War II, the U.S. Military had taken over many small airports around the country, and one of these was in North Carolina. 

 

The Causby’s had a chicken farm adjacent to this formerly small airport in North Carolina, but military bomber jets were using this airport during wartime. It destroyed the Causby’s livelihood and their home life. Planes were flying at less than 100 feet above their property, and they sued. They brought a novel case on constitutional takings case against the federal government, and it made it to the Supreme Court.

 

The federal government argued that there can be no takings of airspace, that landowners only own the structures on their land and don’t own airspace. And the Court rejected that argument in the Causby case, and it said that landowners own airspace. They own the surface airspace. And the quote from the case is, “The landowner owns at least as much space above the ground as he can occupy or use in connection with the land.”

 

And critically, in that case, the Court looked to North Carolina law to judge what the property interests are and actually noted positively, North Carolina claimed sovereignty to surface air space, and this is notable, and I think a sign of where courts would go in the future. 

 

There, there was another case called Griggs in the 1960s, a very similar case except that the government’s arguments were a little different in this case. They redefined the glide paths to and out of airports as navigable airspace and again argued, like in Causby, there can’t be a takings of navigable airspace when it’s defined as navigable airspace. And the Court rejected that again saying essentially that navigable airspace yields to property rights. They cited Causby for this, and so under current law, air easements must be compensated whether it’s navigable airspace or not. And this has formed the law for decades. Today, the FAA requires, for instance, airports receiving federal funds must purchase avigation easements from neighboring lands if they can’t acquire as much land as they need. 

 

And courts have informally held that below 500 feet is a per say trespass or a per say invasion of airspace that can be a takings. And that’s where law lies. That obviously has implications for drones. And just briefly, I’ll wrap up by noting that if you don’t follow the drone industry closely, I think you might be surprised at how quickly this has all advanced. And there are many large and small companies wanting to do drone services and are doing drone services around the world. Wal-Mart, Amazon, Google, UPS, and others doing things like parcel delivery, medical deliveries, and inspections. 

 

And you’re starting to see, in the last couple years, states and cities get involved and this is an issue that’s festered for a while. And GAO put out a very informative report in September about these issues of state versus federal authority over surface airspace. And I think we’ll talk about some of those issues in detail in the next 40 minutes or so. But I’ll just conclude by saying I think for this industry to thrive, federal lawmakers need to [inaudible 10:14] what they’re doing informally right now.

 

Adam Thierer:   Great. Thanks, Brent. Excellent starting overview. And let me turn to you, Diana, because I know that the drone industry has been concerned about some of the state and local activity regarding the regulation of drones, so let me ask you to spend five minutes explaining your approach to ins and outs of jurisdictional competition in the drone business.

 

Diana Marina Cooper:   Absolutely. Thank you so much for the invitation to participate in this important discussion today. Federal preemption over airspace regulation is a topic that I and many others in the industry feel very strongly about. I know that the concept of preemption will not sit well with many members of The Federalist Society, but I think it’s important to address the historical context in which it arose.

 

You’ve probably heard a lot of drone industry representatives raise concerns that regulatory patchworks would impede innovation and increase the cost of compliance, making it difficult to build a drone business especially across city and state lines. These concerns are well-founded, but much more worrisome are the consequences of patchwork regulations for aviation safety.

 

You’ve probably heard the phrase that the U.S. has the safest and most complex airspace in the world. This is true, but this wasn’t always the case and it’s not something we can take for granted. We don’t need to imagine what would happen if we had multiple aviation regulators in our airspace. We only need to look at our history and the origin story of the FAA.

 

Before 1958, we used to have two aviation regulators. One had jurisdiction over civil operations and the other one over military flight. And even just having two regulators proved very disastrous. Tomorrow, as it turns out, actually marks the 63rd anniversary of a fatal crash taking place over Las Vegas, which brought to light the dangers of patchwork aviation regulations.

 

In this accident, it involved a mid-air collision between commercial flight and a military jet, which were operating under different flight rules under the purview of two separate aviation regulators supported by their own air traffic controllers. All 49 people onboard the aircraft died including a dozen passengers that happened to be key personnel working on the U.S. missile ballistics program. 

 

The historical records from the accident actually indicates that their deaths set back our Cold War efforts. A month later, we experienced a very similar crash in Maryland, and the House of Representatives ended up establishing a committee to study these accidents. They ultimately recommended that a single agency must be created to manage our airspace safely, and there came the birth of the FAA.

 

So the legacy of this Nevada crash led to this really important change in aviation safety, the unification of airspace under the FAA’s exclusive authority. Less relevant to our talk here today but for any history lovers out there, this crash also led to the critical mass rule that prevents key personnel within a certain defense company or government agency from flying together on the same aircraft in case there’s an accident.

 

So all this is to say that our own history has shown us the consequences of having two regulators, and so we should be very alarmed when we think about the prospect of having 50 or more in this country. And so we should keep this history top of mind when we see proposals that threaten to take away the FAA’s exclusive jurisdiction over airspace including Senator Lee’s Drone Integration and Zoning Act as well as state and local bills that conflict with the FAA’s authority including bills we are currently seeing introduced in Texas, Mississippi, Louisiana, West Virginia, and other parts of the country. These proposals have to be rejected principally because they threaten our strong safety record. 

 

I’ll note, Brent, you are a co-author on the Mercatus Report which we have recently looked at. It actually seems to give states points based on how many laws they introduce in place for drones including airspace lease laws, avigation easements, and vesting air rights in property owners. I respectfully disagree with that approach. I think the best way to drive innovation, prepare states for drone operations, and to ensure safety in flight is to maintain the FAA’s jurisdiction. And so if you ask me, I would prepare a very different score card, but thank you again for having me on here today. I’ll turn things back over to Adam and I’m really looking forward to our discussion. 

 

Adam Thierer:   Well, thank you, Diana. That was a wonderful opening overview. And I want to follow up quickly with you and ask you to help me drill down a little bit because Brent started us off by talking about some important historical legal cases in this area, and he mentioned the Causby case and I know that’s something you’ve given some thought to. And then also, of course, there’s also the Second Restatement of Torts which affects the development of aerial trespass law. And then second, I want you to maybe discuss the Uniform Law Commission and the American Law Institute, which both each recently took up aerial trespass issues and maybe give us an update on how that work by those committees is going and how it’s relevant here. 

 

Diana Marina Cooper:   Absolutely. Thank you. So I obviously have taken a close look at the Causby case as well as all aviation lawyers do. The important fact about this case, as Brent noted, it is a Fifth Amendment takings case under the U.S. Constitution. So often times, we hear of property rights proponents incorrectly try to expand the scope of this ruling to suggest that property owners have the right to exclude other private actors from flying over the immediate reaches of their property. Now, that would be an inaccurate interpretation of that case. 

 

Again, even in Causby, there was no right to actually exclude the overflight by the military. There was only a right to get damages for a government taking, and I think that’s an important nuance to remember. Now, that said, the concept and the discussion in that court case have been imported into other areas of the law and other court cases. So we have seen some mission creep, I think, beyond what that particular court intended.

 

As you mentioned, the Second Restatement of Torts does recognize aerial trespass. It is committed if the aircraft enters into the immediate reaches of the airspace, it’s unclear exactly what that is, but there’s also interference with the use and enjoyment of the land as one of the factors. Moving forward to present day, we’ve seen a couple of committees of lawyers try to take up aerial trespass law and really revamp it in ways that I don’t think trespass laws should be revamped for the context of drones. 

 

Uniform Law Commission first took this up, I believe, in 2015, and they did recognize that drones tend to not cause the type of injury that traditional aircraft do because of their small size, the short duration of flight. You don’t see wind noise, dust, threat of injury, and those factors that you might see with larger aircraft. But instead of recognizing that they don’t actually cause very much harm typically, they decided to redefine the tort so that no impact or interference would be required at all to make out a case. So the mere presence of a drone within 200 feet of property would cause a per say injury.

 

Now the effect of this if it would’ve been adopted would’ve been that property owners would have had the right to exclude drones within 200 feet. That was the line in the sky that they’ve drawn that we’ve also seeing in Senator Lee’s bill and other proposals at the state and local level. Luckily, industry was able to successfully fight that effort and ULC chose to shelf it, but we’ve again taken up this discussion under the American Law Institute over the last year where they’ve also similarly attempted to rewrite aerial trespass law. And their draft would give property owners air space rights as well and the ability to seek injunctions to prevent people from flying over their air space as well as damages. But due to a lot of widespread industry concern, ALI has just recently decided that they will not take up the aerial trespass section of the tort in the upcoming meeting in June. 

 

Adam Thierer:   Okay. Thank you. Well, Brent, let me turn back to you and you can of course feel free to elaborate upon anything that Diana had to say. But I also want to tee up another question for you which is that many legal experts state that aviation and air space is exclusively under federal authority. Texas, for example, was sued by drone operators for creating drone no-fly zones last year in a case of NPPA v. McCraw.  Maybe you could talk about the state of that case and then develop more broadly this question about drone trespass. 

 

Brent Skorup:   So the McCraw case, it was an interesting one. Texas, like probably about a dozen states, has started creating drone laws including drone no-fly zones, so excluding drones from so-called sensitive areas. And it depends on the state, but these typically include areas like jails and schools and infrastructure, power lines and so forth. And so Texas has this law, and it creates civil and criminal penalties for flying over these sensitive locations and doing photography with intent to conduct surveillance, is the phrasing they use.

 

This law — some drone operator sued on several grounds and including that states cannot create drone no-fly zones, that aerospace laws are purely a federal matter and that only federal government can exclude drones from areas. And I think it was a bit of a surprise for many in the industry, around Thanksgiving six months ago, the federal district court rejected — dismissed with prejudice the claims of conflict and field preemption when it comes to states creating drone no-fly zones.

 

This is something I anticipated. If you look at the legal history again, you do see pretty powerful evidence that states and private property owners have property and privacy interests in surface air space. But it is one case. It’s one federal district court, but I think it’s pretty persuasive in the fact that the preemption claims were dismissed with prejudice shows how sure the court is of their legal standing on this. 

 

And the plaintiffs, in fact, the drone operators, conceded that states have authority when it comes to things like trespass and privacy. And I think for the court, that was an admission that states can regulate in this area. So it’s not quite as simple as air space is purely a federal matter. According to this case and a few others, and I think if you look at legal history, there are state property interests here.

 

And I’ll just add, the state that the case is still ongoing, the preemption claims were dismissed, I think that Texas might have some First Amendment issues with some of it, but the preemption issues were dismissed. 

 

Adam Thierer:   Well, thanks. And let me turn back to Diana, and as I do, I want to ask both of you to elaborate and explain something about the current state and local efforts that are out there or being proposed because we’re already getting some questions from the audience coming in and one of them has to do with the question of are we talking about state and local rules that are actually more restrictive than what we might expect out of a federal preemptive standard, or are they actually more flexible and allowing for more drone innovation and integration into airspace? Because it strikes me that if it’s a patchwork, we could go in both directions. And, Diana, what’s your, just, rough feel on this sort of lay of the land about the nature of these restrictions? 

 

Diana Marina Cooper:   Thanks for the question. If you look at the current legislative session, we already have 162 state and local bills introduced this year that are focused on drones or urban air mobility. Often, we hear proponents of state and local air space regulation that if we give cities and states the power to regulate, we’ll have laboratories of innovation, competition. I wish that was the case, but unfortunately, when you actually look at the reality of what these laws look like, they’re overwhelmingly restrictive. They’re not trying to allow operators to do things beyond what the FAA permits like the on visual line of sight or package delivery or so forth. They’re just tacking on additional restrictions. 

 

A good example is the Texas bill that’s currently being considered which would make it a crime for unmanned aircraft to operate beyond visual line of sight, outside of any avigation easements established by Texas DOT. This bill would also allow Texas to regulate operations within the easements and then to impose fees on operators as well as criminalize any operations above 400 feet, even if those are authorized by the FAA. 

 

So, look, I mean, is it possible to have good positive industry welcoming, thoughtful regulation? Absolutely. We supported a bill recently in Arizona. That was just signed into law by the governor that would create a task force for the state to look at how to prepare for Urban Air Mobility. So there are good opportunities out there, but they are few and far in between. 

 

Adam Thierer:   Okay. Brent, you want to follow up on that real quick? 

 

Brent Skorup:   Yeah. Yeah. So you have tendency states — I mean, it’s typical law at the state law of air space would be a drone no-fly zone. And I think some of this is responding to local interest, police, jail facilities, schools, and so forth. Part of this is FAA has acknowledged that states have a role when it comes to things like privacy and trespass. And so this is how you protect privacy and trespass. So I think that’s one reason.

 

I’m not quite as negative about states and cities. I think there are many — well, I know there are many. They reach out to me frequently about how do they bring — they want to know, how do they bring drones, drone industry, drone services to their state or city. And I think there was a lot of analogs with discussion and policies around autonomous vehicles, say, five years ago. Even states falling over themselves to have autonomous vehicle companies come to their states and try out their services. And these are one-ton vehicles out on public roads, and I think you see a lot of that with drones. States and cities want — many of them want these services, and they want to be involved. 

 

As far as — so you do have these drone no-fly zones, and federal law recognizes that there will need to be no fly zones. On the avigation easements, I have a different view. It might be a half full or half empty kind of thing, but my fear, and I think many who are in this area fear, if states and the federal government don’t collaborate on creating avigation easements—these are essentially drone highways in the sky—if they don’t collaborate and create these away from low altitudes above households, that the industry will be tripped up in constantly fighting in litigation for trespass takings and nuisance lawsuits. 

 

And you’ve seen this in traditional aviation in the past, and drones are distinct from traditional aviation where typically, the airport or the plane, you’re only dealing with the immediately adjacent neighbors. That’s where the takings lawsuits come from or nuisance lawsuits. With drones, they are quieter; they are smaller. But they are flying in surface air space 100 to 400 feet above the ground. And so every household potentially has a property interest or a privacy interest. 

And so I think the litigation risk is much larger than for traditional aviation. So I see avigation easements. I’ve written about it frequently as a pretty elegant idea. I didn’t invent this idea, but I’ve probably written about it more than anyone, but this idea of having avigation easements above public roads just so you can avoid the nuisance trespass and takings lawsuits. And some states are looking at this, I think, hoping to avoid the nuisance, trespass, and takings lawsuits from landowners. 

 

Adam Thierer:   Diana, I’m going to turn back to you to answer that, and as I do, I want us to start maybe getting into a little bit more detail about the Lee bill, the Drone Integration and Zoning Act, at some point. So feel free to respond to what Brent had to say but also let’s start to introduce our listeners to a little bit more of the details about how the Lee bill would handle all of these questions. 

 

Diana Marina Cooper:   Sounds great, thank you. In terms of easements over public roads, I’ll say a couple things. Obviously, battery life is very short for a lot of small drones, 20 minutes or so. So being able to complete your mission by only flying over public roads is pretty restrictive. What happens from a practical perspective if I want to have my roof inspected so that I could process an insurance claim for hail damage or something like that. Would I have to get permission from my neighbors? Pay them a fee in order to do that? I don’t think that’s right or makes sense.

 

I’ll also say that limiting operations to only public roads or specific highways in the skies, some people call them, it’s very limiting for us to be able to actually see all of the benefits of this type of technology in things like inspection, agriculture uses, there’s a lot that needs to happen outside of transiting over public highways. 

 

Let’s turn over to the Lee bill. It’s the Drone Integration and Zoning Act which he again reintroduced this session. I jokingly called it the Drone Patrick Act on Twitter. I think it worked well because you guys invited me on this podcast, so thank you for that. His bill would, again, redefine navigable airspace for drones so that this would not include the area within the immediate reaches of airspace, which the bill defines as 200 feet above the ground over property.

 

It would also restrict the FAA from authorizing any drone operations up to this 200-foot line without the property owner’s permission. So essentially, it would give the owners the right to create these no-fly zones, really creating a patchwork over the United States, really severely hampering where you could operate and how.

 

It would also allow state, local, and tribal governments to create restrictions below 200 feet. So, again, you would see a lot more patchwork. And then it would allow governments to create designated takeoff and landing zones as well as designated commercial drone routes. So I’d say from a practical perspective, drone operations do not require traditional zoning like for airports. So this piece just doesn’t really speak to the realities of the industry.

 

Some popular drones are so small, you can take off from the palm of your hand. So is the city going to regulate when and how and how much I have to pay a fee to take off from the palm of my hand with a small drone? I don’t think that makes sense.

 

Drone operations also don’t need designated routes. They’re not like helicopters, right? It’s very rare that one drone even encounters another drone, so I just don’t think that the bill speaks to the realities of the industry. Overall, the provisions would severely impact innovation. I believe it would carve up airspace very arbitrarily and compromise both efficiency as well as safety. 

 

Adam Thierer:   Okay. That was good overview. I’m going to ask Brent to elaborate in a second, but I do want to ask you one follow up, Diana, because it’s something we’re already getting some questions about from our audience, which is what is it about this 200-feet level number? How did we get to that number? What’s magical about it or bad about it? And are there other industry concerns arising from proposals that would create a line in the sky at 200 feet as a matter of law? 

 

Diana Marina Cooper:   Now, we’ve seen this number of 200 feet come up in different discussions with the Uniform Law Commission, with the Lee bill, with the former Feinstein bill. We’ve seen it come up a lot. I really don’t know where it came from. My best guess is typically, under Part 107, which is the first rule the FAA put out for commercial operations, you can fly up to 400 feet, so maybe someone said let’s cut that in half. 

 

It’s certainly — 200 feet is even well beyond the best interpretations of Causby case and trespass and things like that. In addition to these proposals being preempted, they threaten to shut down really important drone operations that need to take place at lower altitude including a lot of search and rescue missions, first responder activity, as well as inspection. 

 

It would also create a huge safety hazard, not just from the patchwork of the rules below 200 feet because as you can imagine, you can’t just magically start your mission at 200 feet and fly to 400. You have to somehow get to that 201 foot, but it would also push all of the drone operations to flying at a higher altitude than what may be required, causing more congestion closer to manned aircraft, therefore increasing the risk of the operation unnecessarily. So there is a big safety concern.

 

I’ll say on the privacy side of things, with the right lenses and things like that in technologies, we’re not really addressing the privacy harms by pushing operations to 201 feet because perhaps the technology onboard can easily still capture what’s going on on the ground as it would if it were flying just one or two feet below that. So I think it’s important to address real harms like privacy, trespass, but generally, the laws on the books do a pretty good job of that and I don’t think the line in the sky is the answer here. 

 

Adam Thierer:   Okay. So, Brent, let me turn back to you. There’s two big picture questions here. One is the Lee bill, does it have legs? Is there a chance this is the model? And is it good or bad? And then there’s the broader questions of what about privacy issues? And there have been privacy-related questions raised with regards to drones and even some legislative ideas floated. So maybe you could address both those things in your response? 

 

Brent Skorup:   Yeah. Regarding the Lee bill, and there’s several components to it, I don’t see imminent passage. I think Senator Lee is the only sponsor right now, but there have been other bills in the Senate, in the House that are similar. And my view is if Congress’s states don’t act in this area, courts will do it for them, just like they did in traditional aviation. 

 

So in your view on whether that’s good or not probably depends on what the court says, but courts will act and, in fact, they are acting in these areas. The 200-feet, I wrote a paper, as I said, a few months ago about the history of airspace regulation. And I actually favor something like the 200-foot mark. So for one, this would resemble what we have in traditional aviation which is essentially, courts have said that traditional aircraft flying below 500 feet are per say an invasions of a property interest. 

 

Trespass in aviation is a little different than trespass on the ground. There’s — generally, you have to invade a property interest and it must be disruptive to those on the ground. So you have kind of a mix of trespass and nuisance. So I don’t think 500 feet makes sense for drones, but I think it is clear, drones can trespass. They can invade a property interest, and they can disrupt those on the ground. 

 

And what the Lee bill and these other bills and some of the state bills would do would provide some certainty. And we can quibble with what the right line is, but we have a similar line in traditional aviation. It’s 500 feet. And right now, if you’re a drone company, if you’re a landowner, you don’t know where that line is. It’s not clear, and you have to litigate to find out where that line is. And I don’t think that’s good for landowners or the drone industry to be in this limbo. And I hope lawmakers and courts will provide some clarity soon. 

 

And the 200 feet, it kept coming up. I asked around where this number came from. Best I could tell, this may come from federal law requires if you’re a building developer or cell phone company, if you’re building within three and a half miles of an airport, if you’re building near an airport, you have to give notice to the FAA and the airport if you’re structure is taller than 200 feet. But beyond — so if you’re very close to an airport, if you’re taller than 200 feet, you have to give notice. 

 

And so I think the idea is if you don’t even have to give notice of something below 200 feet near an airport, the federal aviation safety interest is pretty small since you don’t even have to give notice for a building. So I think that’s where the 200-foot line comes from. And, again, we can quibble with it. I think there’s something to it, but I think that’s where it comes from. 

 

Adam Thierer:   Okay, good. 

 

Diana Marina Cooper:   Let’s go over it for a minute. 

 

Adam Thierer:   Yeah, go ahead. 

 

Diana Marina Cooper:   So just because you — you mentioned that if you don’t have to give notice, there isn’t much federal interest, and I completely disagree. The federal interest in aviation is primarily over safety concerns, which, by the way, the remote identification rule, which actually comes into effect tomorrow, will address a lot of the issues about who’s flying where in airspace and also address the privacy concerns and so forth and help with compliance on that front.

 

But, yeah, I fundamentally disagree. I think there’s a huge interest in — federal interest — I think Congress has been clear to bestow full regulatory authority, and the FAA has not been shy to fully regulate drones as well as aircraft. 

 

Adam Thierer:   Good. So I’m — I keep getting deeper and deeper into technical questions here, but I want to also bring up some high-level questions raised by our audience. We’ve got a lot of really great questions rolling in. Thank you all for asking them. 

 

One question that Michael Wiggington (sp) asks that I wanted to ask which is about there are many entrepreneurs innovating with new technologies to break down barriers, especially for things like medical use with drones, medical drones of substantial via proposition to innovative healthcare access especially in rural areas, he says. And that’s something I’ve looked at internationally. This is something that’s catching on, and it raises the question of when we see drone deliveries or medicines or blood to remote parts of remote islands or remote areas of Africa. What’s going on there? Why is it that those countries are out there maybe a little bit ahead of the United States if not significantly ahead? What was their policy framework, Diana and Brent? Were they doing something that we should be emulating or not? Diana, why don’t you go first? 

 

Diana Marina Cooper:   Sure. Absolutely. So I think what you’re referencing is the initial drone-led delivery operations in Rwanda conducted by Zipline. If you look at Rwanda’s airspace, I believe Zipline’s aircraft accounts for more than 50 percent of the aircraft flying at any given time. So while it is true they got there first and started doing deliveries in that foreign market, their airspace is not nearly as complex and densely populated with all types of aircraft as the United States airspace. So I think it’s important to keep that in mind. 

 

Now, the FAA has moved along on package delivery. We, of course, did a lot of testing under the UAS, the Unmanned Aircraft Systems integration pilot program that Congress set up a couple of years ago. Wing, as you know, the Google company that focuses on package delivery has been doing a lot of delivery operations in Blacksburg, Virginia. And so I believe Zipline and UPS, Wal-Mart and others are coming along as well as Amazon. I don’t think we’re that far behind. We just have a much more complicated airspace that needs to be taken into account. 

 

Brent Skorup:   Yeah. I agree with what Diana said. There are some nations that have allowed more complex drone services than the U.S., although we are, I would say, catching up. The Rwanda/Ghana cases, the U.S. has somewhere near 20,000 airports. I mean, it’s just far more than any — these are often small municipal airports but it’s far more than any other country. And so as Diana said, we have a more complex system. We have a lot more aviation users. 

 

But because of that, you had countries that wanted drone services, and Zipline said they were not welcomed at the time in the U.S. They were welcomed and they had regulators that wanted to partner with them in other countries, so they went. They’re a U.S. company but they went to other countries and, yeah. So in short, more complex aero system in the U.S. and for that reason, regulators were not quite prepared to allow some of those operations. 

 

Adam Thierer:   Conversely, when we think about jurisdictional regulation, another question we get from the audience and that I often have which is are there other types of sectors or models here in our own country that we should look at for important lessons? A lot of the debate about drones today is also a debate about are we going to have flying cars in this country? 

 

And of course, when you think about cars, we’ve had the dreaded patchwork for many, many years in this country: state and local regulations of automobiles. We have state regulation of insurance markets as well, and a lot of other things. So let me just tee this up for you both to go in the opposite direction of the global question and go down to the local question. What should we learn from the experience in other high-tech sectors about jurisdictional competition? Brent, you want to take that first? 

 

Brent Skorup:   Yeah. This is something I’ve thought about. As I said, some of my views are drawn from my knowledge of telecom law. In telecom, I think there are some useful analogs which is a shared federal and state issue. So in telecom, generally speaking, the FCC certifies devices and so forth, but the FCC is now picking where, say, a cell phone tower goes in a city. They are not permitting a string of wires along main street in a downtown area. That’s delegated, and that’s under the control of state and local authorities where those individual decisions are made just because the FCC just is not able to handle to make all those small local decisions. 

 

And I think there’s some analogs with drone policy. I could imagine a similar system, and I think it’s evolving somewhat de facto. But the FAA certifies drones and certifies drone traffic management systems, but as the FAA said, trespass, issues of trespass, nuisance, privacy, these are local issues. And they’re not — they don’t have authority over those issues. So I think you will see and we are seeing states and cities be involved in drone operations. And I think that will continue. 

 

The problem as I see is it’s very ad hoc. There is no formal legal framework, and as the GAO said, this uncertainty about how states and the federal government will collaborate is an open question and it’s harming the industry. So I hope this will be formalized and similar telecom law or, say, traditional vehicle regulation, there will be some devolution for those very local issues that states and cities are dealing with. 

 

Adam Thierer:   But before I get to you, Diana, Brent, Josh Turner asked a question directly on point here which is isn’t the better telecom related analogy here Spectrum? And we don’t give state and local governments a lot of control. The bands below like five gigahertz, for example. 

 

Brent Skorup:   I don’t — Spectrum doesn’t raise trespass issues. I mean, the law here is clear. Landowners own the immediate reaches above their land. An invasion of that property interest plus disruption to you is, under current precedent, is a takings if authorized by the government and is a trespass if it’s a private party. So aviation is filled with these cases. So, no, I don’t think Spectrum is a useful analog for this because you just don’t have the trespass and takings legal issues that you have when it comes to drones, which are physical objects in a volume of airspace above someone’s land. 

 

Adam Thierer:   Thanks, Brent. Diana, I didn’t give you a chance to follow up on that broad-based question about any lessons for good or bad with regards to other sectors or technologies in terms of jurisdictional patchworks. 

 

Diana Marina Cooper:   Yeah, absolutely. I do think the proper place for drones is within aviation. And so I think the best analogy is to maintain what we’ve done to keep our air space safe, and that’s keep safety regulation fully under the purview of the FAA. Now, as we’ve discussed earlier in this session, obviously, there are state and local government interests over land use, zoning, privacy, trespass, and so forth. 

 

I will say from the perspective of Urban Air Mobility, which is the focus of my current role at Hyundai, our aircraft are much larger. They’ll be carrying passengers in dense urban environments. And so for us, we will require local zoning for vertiports, which are what we call the heliports or the airports for our operations, to be put on top of rooftops and parking lots and help people get in and around cities and rural environments efficiently.

 

And so one of the lessons that we’ve learned in our sector is for micro mobility. So a lot of those companies in that space are really kind of entered local communities without building a dialogue and relationships and really working with the community to understand their concerns and to help mitigate them. And so we’re taking a different approach while we fully support the FAA’s authority over airspace, we are looking to work with a lot of cities like Los Angeles and others to make sure that one, everyone equally benefits in this new technology but also that we actually understand the local concerns, which might differ from different jurisdictions. 

 

And so that’s — our big lesson is really working closely with communities on other aspects despite the fact that the FAA should remain the safety regulator here. 

 

Adam Thierer:   Yeah. And, Brent, Diana mentioned zoning issues and one thing I forgot to ask you is about a recent case in Michigan, I believe a holding that drones operated by a city at low altitudes found that zoning regulations are unconstitutional. This is a case of Long Lake Township v. Maxon. What happened to that case, and what are its legal effects? And we’ve got about 10 minutes here, and I have one more question so if you can keep this one brief, I’d appreciate it. 

 

Brent Skorup:   Yeah. So this Maxon case came out last month and a very interesting drone case. There’s a lot here, but in short, this town for years had been citing this property owner for having an unpermitted junkyard for violating zoning regulations. In the citation, the City was using aerial surveillance photos from a drone operator. They had contracted out to a drone operator and used some of the photographic evidence in the citation. 

 

The landowners objected and said that the photos should be suppressed because it was a warrantless search of their property. And the appellate court in Michigan reversed the trial court and said yes, this was a warrantless search and noted that landowners have a privacy expectation, that drones will not be flying at low altitudes above their land. And so they cited trespass and Causby and these other cases and held that this photography should be suppressed. 

 

So it’s a privacy case, but it draws on these trespass expectations. And the court even had language suggesting that even as high as 300 feet, landowners have some sort of expectation that they will not have drones in that airspace. So, again, I think Congress and state law makers need to act in these areas because courts will draw lines for them if lawmakers don’t. And I think this Michigan case is a good example. 

 

Diana Marina Cooper:   I think on the Michigan case, it’s true about the court of appeals agreed that the drone invaded the defendant’s reasonable expectation of privacy, but they didn’t actually explain any of the relevant facts that you would actually have to address to make out this type of a case. Instead, it seems like just because a drone was used and drone is new technology, you wouldn’t reasonably expect it to be flying over your property.

 

So I think it’s important to read the dissent in this case which noted that just the presence of the drone itself doesn’t violate Fourth Amendment rights. You have to look at the factors. I believe the City is appealing this decision so hopefully more to come on that front.

 

Adam Thierer:   Well, that’s an interesting case. I wish we could talk that in more detail about it. But I only have a few minutes left with both of you, and I do want to ask you one last important question which some other people in the Q&A are asking which is we’re just a couple of months into a new administration here and the question is what’s going to happen now with this administration? Do they have a new approach that’s different than what the Trump administration did on this front? Can we expect big, bold action, or is it steady as she goes on this front? Diana, I’ll start with you on that. 

 

Diana Marina Cooper:   Yeah, absolutely. We’ve got some rules that are coming out including remote identification, operations over people, and night operations that actually go into effect tomorrow. Now, obviously, the FAA has been working on these, and industry has participated in the last few years so it’s more of a continuation there. 

 

In the future, we’re going to be seeing rules to enable beyond visual line of sight, unmanned traffic management, package delivery, and Urban Air Mobility. I will say with the new administration’s focus on equity and using transportation to right historical wrongs as well as their focus on clean technology and clean transportation technology in specific, I think there are a lot of great opportunities for Urban Air Mobility in the new infrastructure bill to really help reshape society in ways that are in line with the administration’s objectives, which is really exciting to see. 

 

Brent Skorup:   Yeah, I agree with Diana. The FAA is, I think, eager to see more drone services out there. As far as the question of what will state and local role be, I hope this administration will bring some clarity. Four years is a long time, especially for a startup, to have uncertainty about these things like the Texas case and like the Michigan case which talks about this expectation of privacy above peoples’ households. So the uncertainty for the industry is not good. I hope the federal — I hope that U.S. DOT and FAA will weigh in.

 

In that GAO report I keep mentioning, they did say that the Trump administration had started — there was a U.S. DOT/U.S. DOJ joint task force that was looking at this issue of drone federalism and what will the state and local role be relative to the federal role. And in September, they said that report’s coming out soon. It hasn’t come out yet. I hope the change in administration hasn’t changed things because this lack of clarity is not good for a fast-moving industry. But, no, I think this administration will want to see more drone services and have a permissive approach. But this ad hoc system of working with states and localities, it’s not good if you want a national industry. 

 

Adam Thierer:   Well, thank you both. We’ve spent an hour on this. I feel like we just scratched the surface, and we can continue this conversation. Hopefully, I can get both Brent and Diana to come back on maybe in another couple months or at least the next year and follow up on this. But in the meantime, I want to encourage everyone who listened in and asked questions to continue to engage with Brent and Diana on social media. If you follow both of them on Twitter, in fact, you’ll find daily conversations about this stuff, sometimes heated but mostly friendly. And I think you’ll be really engaged and educated by what they have to say in those discussions.

 

In the meantime, I also want to ask our audience to remember to subscribe to this podcast on whatever podcasting platform you enjoy using. And Brent and Diana, thank you so much for being the guests on today’s show. I really appreciate it. 

 

Diana Marina Cooper:   Thank you so much. It’s been great fun, and I’m looking forward to doing this again soon. 

 

Brent Skorup:   Yeah, thank you, Adam. Thank you, Diana. Have a good one. 

 

Adam Thierer:   Great, and thank all of you for listening in, and until next time, we’ll see you later. 

 

[Music]

 

Operator:  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 regproject.org. That’s R-E-G-project.org. 

 

This has been a FedSoc audio production.

Diana Marina Cooper

Head of U.S. Policy

Hyundai Urban Air Mobility


Brent Skorup

Senior Research Fellow

Mercatus Center, George Mason University


Adam Thierer

Senior Research Fellow

Mercatus Center, George Mason University


Emerging Technology

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