Legal Brief: Drone Regulation in the Spotlight
This article originally appeared in the January 2025 issue of Security Business magazine. Don’t forget to mention Security Business magazine on LinkedIn and @SecBusinessMag on Twitter if you share it.
Drones, drones, drones – as far as the eye can see. Well, maybe that is an exaggeration, but federal, state, and local authorities have received thousands of reports of drone activity in the skies in the northeastern United States since November 2024. This has created some hysteria – with internet conspiracies and misinformation predominating.
Federal government officials have minimized the threat and repeatedly cautioned that the objects do not pose a public safety and national security risk. Indeed, in many cases, the drones are not drones at all but regular commercial air traffic. Nevertheless, complaints of inaction by government officials are growing, and the drama is heightening.
While politicians often promise to take action, what can they really do in these circumstances under current law? Who has the authority to do what? These are complex questions that cannot be fully resolved yet, and they are likely to become more complicated as the drone drama continues to unfold.
Federal Law
Primary legal authority regulating drones rests with the Federal Aviation Administration (FAA) and United States Department of Transportation. As a matter of well-settled law, the responsibility for ensuring the safety of flight, as well as the safety of people and property on the ground as a result of the operation of aircraft, is a federal obligation.
That means the federal government has preemption authority over state and local officials to protect our airspace – including the use of drones.
Federal preemption refers to the power of Congress, derived from the Supremacy Clause of the United States Constitution, to promulgate laws that are the supreme law of the land. Under Supreme Court precedent, federal law can preempt state law in two ways: It can either expressly preempt state law when a federal statute or regulation contains explicit preemptive language, or it can impliedly preempt state law when its structure and purpose implicitly reflect Congress’ preemptive intent – a determination generally to be made by the courts.
In 2012, Congress provided the FAA with a statutory mandate to develop a comprehensive plan to safely accelerate the integration of drones into the national airspace. In subsequent legislation, Congress directed the FAA to develop a means for remote identification of drones and mitigation of threats posed by errant or hostile drones, to develop with NASA a drone traffic management system, and to address other unmanned aerial system (UAS)-related matters.
State and Local Laws Also Exist
This does not mean that legitimate state and local interests in the health and safety of our airspace do not exist. States are generally free to regulate – even by enacting laws that are aimed at or affect aviation – as long as those laws do not conflict with FAA regulations or relate to the prices, routes, or services of commercial air carriers.
Since 2013, at least 44 states have enacted laws relating to drones, addressing issues such as privacy, delivery of prison contraband, firefighting, law enforcement use of drones, and drone registration.
Some jurisdictions have enacted or are considering laws that raise preemption issues – meaning they may unlawfully intrude on federal jurisdiction. Here are three examples that pre-date the latest drone hysteria:
- State regulation of drone operations prohibiting drone operations over a particular state, restricting flight altitude, and other safety restrictions;
- A state law providing for drone interdiction/neutralization – meaning authorizing the shoot down or disabling of a drone within the state; and
- A state law that would have created trespass liability for anyone operating a drone less than 350 feet above real property without the express permission of the property owner.
When State and Federal Laws Conflict
Proposed state and local laws – such as the three examples above – are likely to proliferate in the current climate with heightened interest and worries about possibly nefarious drone activity. State and local elected officials are facing escalating pressure to do something, which could motivate them to advocate for new legislation.
While that may sound good and may provide superficial comfort to many constituents, these may be hollow initiatives if the laws advanced at the state and local level intrude on federal preemptive authority.
For example, a privacy-related ban on drone operations over an entire city would very likely be preempted by federal law, because it would completely prohibit drones from using or traversing the airspace above the city and impede the FAA’s and Congress’s ability to safely and effectively integrate drones into the national airspace.
In contrast, a privacy-related restriction applied to the lower altitudes over facilities where people could likely have an expectation of privacy – such as parks or schools – would more likely be permissible because of its lesser impact.
Similarly, tailored security-related restrictions over open-air water treatment facilities or certain types of critical infrastructure would more likely be permissible where the restrictions were limited to the lower altitudes and still permitted drone overflight at higher altitudes – such as commercial package delivery, for example.
While the constitutional interplay between federal law and state or local law might make for an interesting law school class, most citizens do not really care about jurisdictional questions – they want solutions, and they want them now.
The law is often slow to catch up, and that may be the case here as the drones continue to circle, people continue to worry, and government officials continue to assess what they can and cannot do to regulate our airspace.
