Understanding Privacy Legislation

By Kevin Pomfret, PDC General Counsel.

There are several reasons why it is important for companies operating UAS to understand the differences in the types of UAS privacy legislation.

First, companies operating in more than one jurisdiction must understand which, if any, laws apply. A company should not assume that the laws will be the same as there is still a wide variance among jurisdictions. Moreover, the laws are being written so that they apply even if images can be taken and made publicly available from other platforms.

In addition, some types of UAS privacy legislation are so broad that they may go beyond the authority of a state or local government to enact. The U.S. Constitution grants the federal government powers under the Constitution to make laws and regulations that states and localities are not allowed to supersede, making any such state or local law “without effect.” This concept is known as federal preemption. The potential for federal preemption over state and local laws pertaining to UAS is particularly relevant. According to the Federal Aviation Administration (FAA):
Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this “patchwork quilt” of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow.

Unfortunately, it is not always clear as to whether a federal law preempts a state or local law or whether the two laws can coexist. As a result, courts are often asked to decide the issue. The issue of federal preemption has been raised in a number of cases involving state or local laws that pertain to aviation. In many cases, courts have found that the authority of the FAA to protect the national airspace preempts the power of states and local authorities to regulate aircraft or aircraft operations. Since UAS are considered aircraft by the FAA, some believe that the FAA should have jurisdiction over all privacy issues associated with UAS. However, thus far the FAA has been more concerned about maintaining the safety of the national airspace than directly addressing privacy issues.

There are likely several reasons why the FAA has not asserted its authority on UAS privacy. First, since historically the FAA has not had to address these types of privacy concerns with respect to manned aircraft, it is not well-suited to address these complex and dynamic issues. Moreover, privacy in the U.S. has traditionally been addressed at the state or local level. In fact, the FAA issued a fact sheet in December 2015 which states in part:
[l]aws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. (emphasis added), citing Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002).

As a result, state and local laws that are related directly to privacy or trespass are likely to be upheld by the courts. However under the existing legal and regulatory framework regarding the national airspace, laws that only relate indirectly to privacy or trespass and that the courts believe infringe upon the right of the FAA to regulate the national airspace and/or flight operations may be struck down by a court.

Kevin Pomfret is a thought leader in geospatial technology with almost 30 years of experience. He brings valuable insight to companies that both generate and use geospatial technology and data. His service in the U.S. government and knowledge gained in private practice enable him to provide comprehensive advice to businesses and governments on the risks and opportunities associated with the fast-growing area of location-based technology and Big Data. Follow Kevin on Twitter: @kpomfret 

Author’s Note: This article contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Individuals with particular needs on specific issues should retain the services of competent counsel.