Over the past decade, since the Federal Aviation Administration (FAA) first permitted the use of drones for commercial and hobbyist purposes, after the 2012 directive of Congress for the FAA to come up with a “comprehensive plan” for integrating drones into the National Airspace, drone use has grown substantially. However, with that growth has come concerns among lawmakers and regulators, at both the state and federal level, about privacy, smuggling, collisions with manned aircraft, safety, and national security, as well as private property owners looking to protect their privacy and property interests. That’s where anti-drone technology and systems come into play. From sophisticated technologies like jamming and control override systems to more amateur methods like net launchers or simply shooting a drone out of the sky, the law has yet to catch up with the state of technology –on either side. It has left the drone industry and property owners in a state of limbo.
A legal ecosystem for drones will take time and a lot of coordination. Beyond the FAA, the U.S. Department of Transportation, the U.S. Department of Homeland Security, the U.S. Department of Defense, and the U.S. Department of Justice will need to weigh in on security and law enforcement issues; the Federal Communications Commission will need to weigh in on the frequency spectrum issues related to jammer technology; agencies in charge of critical infrastructure like NASA, will need to weigh in on an air traffic control system, and even agencies like the National Park Service will need to be involved. Almost every federal agency will have some input towards creating an ‘anti-drone’ law to protect national airspace and critical infrastructure. Then comes the even more complicated issue—whether states or local authorities should be granted some authority over the airspace. State and local laws typically regulate real property issues, like trespassing, but at the same time, the FAA has control over the low-altitude airspace down to the ground. While the recently proposed Drone Federalism Act (S. 1272) would require drone operators to obtain permission of property owners when flying at 200 feet or lower above ground level (or above a structure), this could lead to a patchwork of state laws that only make legal compliance even more complicated. Even with an anti-preemption clause, the FAA is still likely to view the use of any anti-drone technology by property owners as a problem because to the FAA, a drone is an aircraft –that is, subject to laws preventing drones from being destroyed or having control taken away –it would be considered hijacking. The FAA is unlikely to steer away from a drone as an aircraft under the law.
So with legislation still in its infancy, the legal status of drones and anti-drone technology is likely to remain uncertain for the foreseeable future. Of course, any clarification would be better than none for both the drone industry and property owners alike.