Legal Brief

Special Districts and Drones

What Public Officials Need to Know About Unmanned Aerial Vehicles

By Nicole Witt, Attorney, Hanson Bridgett LLP

In the past few years, you have probably heard a distinctive buzzing sound overhead that signals a drone is operating nearby. That is because drone use in the United States is booming. As of January 2020, over 1.5 million drones have been registered in the United States.

You have also likely heard of the impacts of drone use on special districts. Drones have been used by districts for a multitude of beneficial purposes. For example, a district may find that it is safer to use a drone to inspect a bridge rather than sending an employee up in a crane. However, districts have also borne the brunt of potentially dangerous or prohibited drone use, including flights over sensitive infrastructure or flights that interfere with emergency services. These issues have left many public officials wondering – what can my district do with drones?

There are generally three major topics that arise when a district is considering drone use: 1) proper regulation of drone use; 2) use of drones by the district; and 3) detection or mitigation of potentially dangerous drone use. Highlighted here are some important points on each of these topics.

Regulating Drone Use: • Preemption: Special districts are in a particularly challenging position when it comes to regulating drone use because districts generally do not have police powers. This makes districts particularly vulnerable to challenge under the legal theory that the federal government may regulate drone use and local regulations are therefore preempted by federal rules. In considering the proper regulation of drones by a district, keep the following in mind: • Focus on privacy and security—areas that are traditionally left to local government. • This is a complicated and largely untested area of the law. Consult with legal counsel to determine if your ordinance is permitted by existing case law and guidance from the FAA.

• Enforcement: Once your district adopts an ordinance regulating drone use, there are practical issues regarding the enforcement of any ordinance. The majority of drones are small and fast, which means that, even if a drone is properly identified with the required registration markings, it can be impossible to link a drone with its operator in order to hold an individual accountable. • Update: the FAA has issued its Remote Identification of UAS notice of proposed rulemaking. Once finalized, the rule could impact enforcement challenges. Read more at www.hoverlaw.com/new-year-newrulemaking/

Using Drones: Before your district uses a drone, there are a number of important issues to consider. • Be sure a district employee is properly licensed or contract with someone who is. • Be aware of any restrictions related to your proposed flight path and comply with all State and federal laws and regulations. • It would be prudent for the district to adopt a drone-policy to which its drone operations are subject. The policy should address privacy rights in particular. Failure to consider such a policy could lead to public-perception issues even if the district is only using drones to inspect trees in local parks. If your district is contracting out drone operations, a tailored contracting approach that considers the following is advisable. • Who will provide the equipment and be responsible for airworthiness? • Privacy issues • Intellectual property issues • Insurance • Indemnification

Detecting or Mitigating (i.e., impeding) Drone Use: A few key considerations to be mindful of related to drone detection and mitigation efforts: • Drones are technically considered aircraft and many FAA regulations treat them as such. • If you wouldn’t do something to a plane, don’t do it to a drone. • Drones often use radio communications and interfering with these communications may violate the law. • Consult with legal counsel before engaging in any active drone detection or mitigation efforts. Active drone detection efforts are those that interact with the drone by pinging the communications between the drone and its operator. Drone mitigation efforts can include disrupting control of a drone, interrupting its GPS communications, or even hacking into a drone.

Drones are still on the cutting edge of the law and many issues are unresolved. In particular we will need statutes and judicial opinions to clarify many privacy-related issues that apply to the new platform represented by drones. Stay tuned!

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