are an increasing feature of our governmental, commercial, and personal
Landscape -- and Lawmakers are scrambling to keep up.
It has been estimated that an average person walking,
working and driving in a medium-sized city in the United States is
captured on video 100 times a day. Until recently, these cameras were in
fixed, visible locations such as banks, government offices, police
vehicles, at stop lights, in parking garages, and in people’s
hands. You can locate the camera, their owner and their apparent
use. But now mobile cameras, flown overhead by unknown entities
with unknown intentions, are becoming more prevalent.
called “drones,” but technically defined as "Unmanned Aircraft Systems”
(UAS), these flying machines were initially designed for military
reconnaissance purposes. As the technology has advanced and hardware and
software costs fall, civilian day-to-day uses of drones are developing
Private and government drone activity has
caused, and continues to cause public outcry over potential violations
of privacy rights, claims of trespass, or unauthorized commercial
exploitation of activities or property captured surreptitiously by
drone-based video. Some have advocated the right to shoot down a
UAS over their private airspace. This is illegal. It is a federal
felony to shoot at an aircraft, model, unmanned or
So what are the rules? As it happens, the
rules for legal use of UAS, recreational or commercial, have been in
limbo for a number of years, and continue to be in limbo thanks in part
to delays by the Federal Aviation Administration (FAA) in enacting
regulations covering drones.
Pending Federal Law
Forecasting that drones would have an
increasing presence in our skies, in 2012 Congress passed the “FAA
Modernization and Reform Act,” which tasked the FAA with integrating
drone flight into the National Airspace System (NAS). The Act specifies
that the FAA must have their rules and procedures in place by September
Pursuant to the Act, on February 15, 2015, the
FAA issued proposed rules that would impose certain requirements for
operation of drones:
• The drone must weigh less than 55 pounds, fly not faster than 100 mph, nor higher than 500 feet;
• Drone flights can only occur during standard daylight hours and within visual sight;
• The pilot of the drone must be at least 17 years and have passed an FAA knowledge test; and
• The drone must be registered with the FAA. (An airworthiness certification is not required.)
The FAA also indicates that it is considering
issuing separate regulations for drones weighing less than 4.4
pounds. The final FAA rule is due out this September. The
proposed FAA rules seem primarily focused on regulating flight in
federally controlled airspace rather than addressing the manner and
intention of recreational and commercial use.
New North Carolina Law
In the absence of final FAA rules, in 2014
North Carolina enacted a law (SB 744) imposing regulations on the
public, private and commercial use of drones.
SB 744 allows law enforcement to use drones –
pursuant to a warrant – to counter an act of terrorism, to oversee
public gatherings, or to gather information in a public space.
It also authorizes infrared and thermal imaging
technology for certain commercial and private purposes including the
evaluation of crops, mapping, scientific research and forest management.
Under the law, all agents of the state who operate
drones must pass a knowledge and skills test developed by North
Carolina’s Division of Aviation.
In addition, SB 744 creates several new
crimes. It is now against North Carolina law to use a drone to
interfere with manned aircraft; to possess a drone with an attached
weapon; to fish or hunt with a drone; to harass hunters or fisherman
with a drone; to unlawfully distribute images obtained with a drone; and
to operate a drone for commercial purposes without a license.
SB 744 makes it unlawful to take a photo or video of a
person, without their consent, with the intent, or for the purpose, of
distribution; it prohibits drone surveillance of a person or private
property; and it provides a civil cause of action against persons who
have violated another person's privacy.
Because federal law generally preempts state
law in matters involving airspace, it will be interesting to see how
well North Carolina’s attempt to regulate drones will stand up in the
face of FAA regulations when they are finally enacted.
And of course drone technology will continue to
advance. Smaller, lighter, bumblebee-sized drones for private use
are on the drafting table, if not yet in flight. The manner and
intent of their use will continue to test our theories of personal
privacy, public access, freedom of the press and the limits of
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