Either as a weapon or a tool, drones are becoming more prevalent. Small drones are now sold in major department stores. Therefore, like automobiles, a drone is susceptible to accidents and collisions. Therefore, the law must address the civilian use of unmanned aviation systems (UAS) such as drones. The Federal Aviation Administration (FAA) is the federal authority over aircrafts. 49 U.S.C.A. § 40103 (2016). However, the FAA is solely a regulatory body, not an enforcement body. Thus, there has been uncertainty regarding which government entities respond to UAS issues.
Congress has given the FAA the power to regulate air space and traffic to:
“[navigate], [protect], and [identify] aircraft; [protect] individuals and property on the ground; [use] the navigable airspace efficiently; and [prevent] collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.”
The FAA’s power to regulate is superior to states and communities that have attempted to regulate air space and traffic on their own. City of Burbank v. Lockheed Air Terminal, Inc., 93 S. Ct. 1854, 1859-61 (1973). When there is a conflict between the two, the FAA guidelines prevail. Id. at 1861-62 However, this relationship is only about regulation. There are no provisions about criminal acts. The states can follow FAA suggestions, but criminal penalties would still be assessed under state statutes. Federal Aviation Administration, Office of the Chief Counsel, State and Local Regulation of the Unmanned Aircraft Systems (UAS) Fact Sheet (2015).
The FAA has also released Small UAS Rule (Part 107) which details the FAA guidelines for work and recreational UAS flying. Getting Started, https://www.faa.gov/uas/getting_started/ (last visited Nov. 21, 2016). Under the new rule, people who are flying a UAS must register with the FAA and the UAS has to be under 55 lbs. Id. People operating a UAS have to register with the FAA; registering with a state authority is not sufficient. FAA, Office of the Chief Counsel, State and Local Regulation of the UAS Fact Sheet (2015). People flying a UAS for recreational purposes also have to fly their UAS at least five miles away from an airport unless they have notified air traffic control. Getting Started, https://www.faa.gov/uas/getting_started/ (last visited Nov. 21, 2016). However, people flying a UAS for work purposes are entitled to class G airspace. Id. The FAA defines Class G airspace as 1,200 feet or less from the ground. FAA Online Course: ALC-42: Airspace, Special Use Airspace, and TFRs, https://www.faasafety.gov/gslac/ALC/course_content.aspx?cID=42&sID=505&preview=true (last visited Nov. 21 2016).
Under this new rule there is no mention of consequences of operating a UAS while intoxicated. However, states can legislate criminal and some civil actions for UAS operation. FAA, Office of the Chief Counsel, State and Local Regulation of the UAS Fact Sheet (2015). Currently, there are no criminal charges under state statutes for operating a UAS while intoxicated. The state statutes are more concerned with people using their UAS to watch people without their consent. Del. Code Ann. Tit. 11 § 1480 (West 2016); LA. Stat. Ann. § 14:337 (2016); Tenn. Code Ann. §39-13-903 (West 2016). An example is detailed in the Delaware code:
(b) Prohibited Acts–Except as provided in this section, no person shall knowingly operate, direct, or program an unmanned aircraft system to fly:
(1) over any sporting event, concert, automobile race, festival, or other event at which more than 1500 people are in attendance; or
(2) over any critical infrastructure; or
(3) over any incident where first responders are actively engaged in response or air, water, vehicular, ground or specialized transport.
Del. Code Ann. Tit. 11 § 1480.
As mentioned in the Delaware code, the other major concern is people using their UAS over important infrastructure or interfering with emergency services. Del. Code Ann. Tit. 11 § 1480; LA. Stat. Ann. § 14:337; Tenn. Code Ann. §39-13-903.
From the same section as the excerpt, “critical infrastructure” is defined as “petroleum refineries, petroleum storage facilities, chemical storage facilities, chemical manufacturing facilities, fuel storage facilities, electric substations, power plants, electric generation facilities, military facilities, commercial port and harbor facilities, rail yard facilities, drinking water treatment or storage facilities, correctional facilities, government buildings, and public safety buildings or facilities.
Del. Code Ann. Tit. 11 § 1480.
An unmanned aircraft system is regulated by the FAA and to a lesser extent by the states. Even though susceptible to human error, criminal liability is not currently centered around the person operating the UAS. Criminal liability for a UAS is focused on where the UAS is flying, not how the UAS is being flown. A recent example is of Paul Skinner from Seattle, Washington. During the Seattle Gay Pride Parade of 2015, Skinner lost control of his drone. It hit a bystander and gave that person a concussion. City Attorney’s Office Prevails in Drone Case, https://news.seattle.gov/2017/01/13/city-attorneys-office-prevails-in-drone-case/ (last visited Jan. 16, 2017). From that incident, Skinner was charged and convicted of reckless endangerment. Id.
A criminal act is not committed if someone flies their UAS while being intoxicated. The prevailing concern, as stated previously, is a UAS interfering with essential infrastructures or emergency services. Del. Code Ann. Tit. 11 § 1480; LA. Stat. Ann. § 14:337; Tenn. Code Ann. §39-13-903. At the time of publishing, there does not appear to be any cases yet regarding tortious acts related to drones. However, due to the increased accessed to drones this may change soon enough.