Dealing With Drone Mischief

Every day there seems to be a new story about trouble being caused by a drone somewhere. We’ve seen stories of drones flying over crowds at sporting events, a drone crashing into Kentucky’s Commonwealth Stadium before a football game, a drone crashing into the grandstands at the U.S. Tennis Open, as well as the alarming increase in near misses with airliners and other aircraft. Drones are peeping into backyards and windows with their high resolution cameras. At least two drones have made surprise visits to the White House grounds or the immediate area.

Last week an angry Louisiana man made headlines for shooting down a drone which he claimed was snooping on his wife. The drone owner said he was doing his neighbors a favor by using the drone to take photographs of their Ascension Parish properties and not charging them. The neighbor with the shotgun who stalked the drone before blasting it out of the sky didn’t quite see it the same way and put an end to the drone.

In August, a Los Angeles Police Department helicopter had to maneuver to avoid colliding with a drone which was being flown in the helicopter’s path. According to the LAPD, the drone was attempting to interfere with the search for a criminal suspect that was being conducted by the helicopter and vehicles on the ground.

Who responded to each of these drone incidents? Who dealt with the drone operator? It was local authorities. Where was the Federal Aviation Administration? The FAA was nowhere to be found. Why? Let’s take a closer look at the problems with drone mischief.

For decades, the FAA has been responsible for policing pilots and aircraft operators for violating federal regulations in the operations of conventional manned aircraft. A great deal of the FAA’s enforcement work occurs within the cozy confines of their district offices around the country or at airports or facilities operated by airlines. It is civil in nature, not criminal. The FAA isn’t a street beat outfit. The FAA has exercised its exclusive enforcement authority over pilots and operators by imposing fines or imposing civil penalties or restrictions on the offender’s certificate. Because a license or certificate is required to operate a manned aircraft, the FAA’s enforcement system has a built-in deterrence feature and deals with problematic pilots by taking away their licenses or grounding them. The risk of possibly losing a license to the FAA is what keeps a lot of pilots behaving and in compliance with the FAA’s extensive and complex regulations.

For openers, the FAA hasn’t gotten around to adopting rules which give it effective enforcement authority over the kind of drones that have been causing the trouble. The drones making the news and creating mischief are hobby drones. In February of 2015, the FAA finally got around to proposing regulations which would give the FAA formal enforcement authority over small drones weighing less than 55 pounds, including hobby drones. Those regulations, which address hobby drones as well as drones used for commercial purposes, have not been formally adopted.

But even the FAA’s proposed rules won’t solve the problems with mischief caused by hobby drone users. The FAA calls drones “unmanned aircraft systems” or UAS and wants to treat these objects like baby airplanes. Technically, a hobby drone is considered an aircraft by the FAA. But hobby drones are very different from full-scale manned aircraft. Hobby drones operate in a very small area. They are inexpensive and you can buy one at a hobby shop. They don’t fly large distances like larger manned aircraft. They aren’t registered and carry no identification like conventional aircraft. With no registration or identification, a drone perp just abandons the drone and runs to escape the law. The pilot of a manned aircraft has to be properly licensed to fly. Not so with a hobby drone operator who just needs a pulse and a place to recharge the drone. Drones are hard to see. They are virtually impossible to see from the cockpit of an airliner until the drone is dangerously close, and they can’t be seen by air traffic controllers because they don’t have transponders or devices to signal their altitude and identity. Even though hobby drones should be operated only in daylight, hobby operators fly their drones at night and in low light conditions, making it even harder for the operator to keep track of the small drone and, more importantly, harder for others to see and avoid the drone.

The real problem for the FAA and local authorities is that drone mischief is a local problem. It occurs out of the sight and awareness of the FAA. Reports of drones behaving badly are made to 911, not the FAA’s 800 number. Do you really think there is an FAA person waiting to take a call on a drone shoot-down in rural Louisiana on a weekend? Think again.

Add to this the lack of deterrent. Why would the operator of a hobby drone worry about the FAA? The hobby operator doesn’t need a license to fly the drone and doesn’t have plans to get a license. There is nothing for the FAA to get other than a used hobby drone. There is a good chance that many of the operators of hobby drones have never heard of the FAA. They certainly aren’t concerned about the FAA or anyone else given the explosive growth of incidents that have been occurring with these toys.

Drone mischief is a 24/7 problem. The FAA is 8-to-5 weekdays. Hobby drones are constantly flying and causing trouble above our city streets and in our neighborhoods. Hobby drones are everywhere the FAA is not. The absence of meaningful local regulation and enforcement is causing folks like the guy in Louisiana to grab the family shotgun, jump on the four-wheeler and go drone hunting. They are flying when the FAA sleeps. The FAA’s blind spot is that it can’t do anything to deter mischief that it doesn’t know about. Local authorities can’t do anything if they don’t have any rules or guidance on how to handle these situations. On paper, the FAA may have the right to go after the hobby drone thugs, but it won’t be able to do so in practice.

If you call your local 911 to report a drone problem, the chances are that the operator won’t know what a drone is and won’t have the time nor the interest to find out. Even if a cop is dispatched to look into a drone caper, there will be no local ordinances in place for authorities to file charges, make an arrest or prosecute. Given the demands on local law enforcement authorities, why would they even deal with a drone situation when they’ve got bigger problems down the street?

Essentially, hobby drones and their operators fall into a huge enforcement “donut hole.” The spectrum of mischief caused by drones is not being enforced, and can’t be enforced by anyone until this problem is figured out. These problems are far too local for the FAA to be effective in its traditional role, and the local authorities have no local rules or regulations and no guidance from the FAA about what they are supposed to do.

Dealing with aircraft problems has been the FAA’s responsibility until now. But the landscape needs to change. Cities, counties and state officials are going to have to collaborate with the FAA and identify the specific safety, security and privacy needs of their jurisdictions and pass local ordinances and statutes that effectively deal with drone mischief. Every city will have a different set of needs and concerns when it comes to drone problems. Local authorities from 911 operators to law enforcement have to be educated on how to respond to and deal with drone mischief. The education component won’t be cheap. Ultimately, the FAA will need develop a working arrangement with cities, counties and states to integrate its surveillance and enforcement system with local governments to close the enforcement “donut hole.” If not, drone mischief will continue to proliferate.

We know we have a growing problem with drone mischief. The problem is growing faster than the solutions being contemplated and offered by the FAA and local governments. Unless something is done soon, drone mischief will escalate from annoying to tragic. It will get out of hand. A hobby drone carrying a high definition camera and snooping on neighbors is one thing. It is an entirely different matter if the hobby drone is carrying an explosive. It is time to close the “donut hole.”

This article, written by Michael Slack, was featured in Law360 on October 13, 2015.

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