While the drone market continues to expand, the legality of operating them continues to be more up in the air than ever before. Earlier this month, the FAA released a new directive to local law enforcement agencies on how to handle encounters with drone operators.
While I am a lawyer, I am not your lawyer and this is an editorial commentary on newsworthy issues rather than legal advice. Unless you’re paying a lawyer, you aren’t really getting legal advice, and what you are getting on websites, blogs and forums is worth just what you paid for it. If you are busted by the FAA for violating its regulations, get an aviation lawyer who knows their way around the administrative process. Do not solicit legal advice online. That free advice will be the most expensive you ever take.
The guidance offered in the 12-page document specifies six suggested steps for police officers who arrive on the scene of a possible illegal drone piloting incident, which are summarized as follows:
- Identify and interview witnesses for later follow-up by the FAA.
- Identify the operator of the drone.
- Recording the location of the event with written descriptions or photos.
- Identify sensitive locations, events or activities.
- Notify the FAA immediately.
- Collect evidence such as public or private surveillance recordings and obtain other evidence such as craft ID numbers, if applicable.
Local Police are Now Drone Police?
All of these steps are logical and would be relevant to any FAA investigation; however, the concern begins to build as we consider a police officer, who may be in between a traffic stop and a domestic assault call, suddenly being thrust into a situation involving the unsettled aviation law and FAA regulations concerning the (potentially lawful) operation of a drone.
The FAA knows that it does not have the manpower to respond to every complaint or informational piece about drone operation. It also doesn’t have power to arrest someone at the scene of a drone operation that is a violation of the FAA’s regulations. Now its recruiting free manpower with arrest powers but doesn’t want them to make arrests.
Limitations of Power
As it notes the FAA’s own limitations of power, the memo states, “We simply wish to emphasize that work products intended for FAA use generally should involve conventional administrative measures such as witness interviews, “stop and talk” sessions with suspected violators, consensual examination of vehicles and equipment, and other methods that do not involve court orders or the potential use of force by law enforcement personnel.”
By the FAA’s own admission, unless there are local laws that prohibit the operation of drones or other hobby aircraft, there is little that a local law enforcement agency can make you do as long as you are not endanger other people or property, or otherwise violating someone’s privacy rights (also a local jurisdiction thing).
Flying as a Hobby
If you are flying a drone for non-commercial use (i.e., hobby or recreation flying), you do not have to have the prior consent of the FAA; however, you do have to follow safety guidelines. It is the FAA’s position that it has the ability to restrict ALL commercial operation of aerial drones. I still think this topic is murky, but the FAA has a bigger team of lawyers than you or I. So, fly commercially at your own risk.
As for recreational flying, the FAA offers some pretty clear “Dos and Don’ts” to follow in order to stay safe and legal.
- Do fly a model aircraft/UAS at the local model aircraft club
- Do take lessons and learn to fly safely
- Do contact the airport or control tower when flying within 5 miles of the airport
- Do fly a model aircraft for personal enjoyment
- Don’t fly near manned aircraft
- Don’t fly beyond line of sight of the operator
- Don’t fly an aircraft weighing more than 55 lbs unless it’s certified by an aeromodeling community-based organization
- Don’t fly contrary to your aeromodeling community-based safety guidelines
- Don’t fly model aircraft for payment or commercial purposes
Below is an infographic put out by the FAA that describes these guidelines and contains web addresses for the FAAs website. If you are flying drones, I would recommend saving this image to your phone for reference if you are stopped by police.
How to Handle a Local Police Encounter
While you have no obligation to talk to the police if you are stopped for flying a drone, sometimes an ounce of prevention is worth a pound of cure. If you come across as brash and uncooperative, you are probably going to draw a lot more attention by local law enforcement that is likely quite ignorant of the FAA regulations. If you are conversational and accommodating to officers who likely know a lot less about FAA regulations than you, there is probably a better chance that your info won’t get passed along to the FAA. I think we all can agree that no one wants to get a visit from the FAA.
Right or wrong, First Amendment, Fourth Amendment, or whatever, it’s not going to be easy navigating these uncharted waters as technology continues to outpace the development of the law. I’ve found that being friendly and cordial can get you out of more problematic situations than not. Take that for what it’s worth.