Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

Drone Regulation: Too Little, Too Late, or Too Much?

Adam Banner - Thursday, November 26, 2015

New technology is often a problem for legislators who operate a step behind the innovations. With our laws founded in a constitution written centuries before the advent of computers, internet, GPS capability, and drones, it can be difficult to ensure that these advances are utilized in a manner that does not erode those rights.

Currently, state and federal lawmakers are pushing for regulation of drones, or unmanned aircraft that have become popular for governmental, law enforcement, and private use.

Drones have many valid uses: border patrol, crop surveillance, law enforcement, and more. They are also popular for private citizens, simply for entertainment value. But despite valid uses for unmanned aircraft, there are also valid concerns.

Privacy concerns include the use of drones by law enforcement to conduct warrantless searches in violation of the Fourth Amendment and citizen use of drones as a high-tech "peeping tom" device.

Safety concerns include the risks of unmanned aircraft--often operated by people with know knowledge of FAA rules--with airplanes and helicopters. Several "near-misses" have been reported as commercial and general aviation pilots have reported at least 920 drone sightings this year. In one case, a drone had a close call with a commercial passenger jet carrying 154 people approaching JFK airport in New York.

And there are also concerns that drones could be used for criminal activity--not only in the spying example listed above, but also for delivery of drugs and other contraband. Late last month, a drone crashed into prison wire at the Oklahoma State Penitentiary in McAlester. The drone allegedly contained hacksaw blades, marijuana, methamphetamine, heroin; a cellphone, battery, and hands-free device; cigarettes and cigars; and Super Glue.

So how are legislators attempting to combat these issues?

As for constitutional concerns, the Justice Department issued policy guidance for the use of Unmanned Aircraft Systems (UAS). The Department instructed its agencies, including the FBI and the DEA, that "UAS may only be used in connection with properly authorized investigations and activities." it addressed constitutional concerns as follows:

"As with all investigative methods, UAS must be operated consistent with the U.S. Constitution. The Fourth Amendment protects individuals from unreasonable searches and seizures and generally requires law enforcement to seek a warrant in circumstances in which a person has a reasonable expectation of privacy. Moreover, Department personnel may never use UAS solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution and laws of the United States."

Legislators are addressing concerns about safety risks and use of drones in criminal activity by pushing for the registration of unmanned aircraft. But there is a catch: a 2012 law places a general prohibition on FAA regulation of recreational drones.

Ted Leonsis, investor and owner of the Washington Wizards and Capitals, says that drones have the capacity to "revolutionize" industry, but that government regulation is lagging behind the technology, which could prove disastrous:

"We're one major accident away from basically the government saying, 'We're shutting down the drone industry.' And that would be bad for the economy. That would be bad for all of the people that will one day work in this industry."

He continues, "The technology right now is moving ahead of what government thinks and is doing"--which seems to be par for the course as technology evolves and changes beyond the speed of legislation. 





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