When it comes time to apply the Constitution, our favorite 233-year-old document, to the new technology du jour, the process is likely to be hairy, and the end result is likely to raise eyebrows. Two recent court decisions have shown that unmanned aircraft systems (UAS or drones) are no exception.

Although the Federal Aviation Administration (FAA) has taken strides to shape its regulation of UAS operation in United States airspace, it has not yet updated its 2015 guidance on the preemptive scope of federal law in the UAS context. This lack of clarity has had a number of consequences, some of which are clear and direct—like UAS users not knowing for certain how they may operate their devices in an airspace—while others are slightly less direct—like muddying the waters on the extent of federal preemption in this space.

However, there are also indirect consequences of the FAA’s lack of clarity that are just as concerning as their more direct peers. Chief among them is requiring courts to decide constitutional law issues in a vacuum—an issue that can arise in a number of different ways, as the following two cases demonstrate.

The Cases

NPPA v. McCraw

In NPPA v. McCraw, the National Press Photographers Association, the Texas Press Association, and a Texas reporter brought suit against two Texas state officials, alleging that Texas’s attempts to restrict UAS use ran afoul of the First Amendment. The United States District Court for the Western District of Texas granted in part and denied in part a Motion to Dismiss in November, and both the Plaintiffs and the Defendants have recently filed a Motion for Summary Judgment. Additionally, in a move that seems well outside the bounds of normal civil procedure, a group named East Texas Ranch L.P. has recently filed a simultaneous complaint in intervention and motion for summary judgement on the theory that the Texas UAS restrictions in question constitute a de facto taking of their property for purposes of the Fifth and Fourteenth Amendments.

The Texas Government Code imposes criminal and civil penalties for capturing an image of an individual or privately-owned real property in the state with the intent to conduct surveillance on such an individual or property, and similarly criminalizes the possession or use of such images by the person that captured them. The Code also allows landowners or tenants to bring civil actions against persons who violate either of these prohibitions.

Although the Code exempts certain UAS uses from liability, it does not exempt newsgathering. As such, the Plaintiffs argued that Texas’s anti-UAS surveillance provisions are unconstitutionally content- and speaker-based limitations on speech under the First Amendment, because their exemptions base the legality of UAS use on the user’s purpose for capturing the image in question, the user’s identity, or the content of the image the user captures. The Plaintiffs also asserted that these surveillance provisions are unconstitutionally vague and overbroad given that “surveillance” is undefined.

The Plaintiffs also took issue with the discriminatory nature of certain UAS “no-fly” provisions in the Code. Texas has imposed criminal penalties for flying UASs at less than 400 feet over correctional, detention, or “critical infrastructure” facilities and sports venues. As with all similar state regulations, what constitutes “critical infrastructure” might come as a surprise—for example, Texas includes commercial feed lots in this category, on the theory that drones could be used to attack the nation’s cattle supply. While certain UAS users are exempted under these provisions—including those with “commercial purposes”—newsgathering UAS users are not.

To this end, the Plaintiffs contended that allowing UAS use for commercial purposes but not for newsgathering unconstitutionally singles out photojournalists, and that the “commercial purposes” exemption is unconstitutionally vague and overbroad given the term’s lack of a definition. The Plaintiffs also argued that these “no-fly” provisions were preempted by FAA regulations.

Ultimately, the court found that the Plaintiffs plausibly alleged that the anti-UAS surveillance provisions impermissibly impose content-based restrictions in violation of the First Amendment. Specifically, the court concluded that the Plaintiffs sufficiently alleged that the exemptions to the anti-surveillance provisions discriminate based on the type of speaker, making them content based and thus subject to strict scrutiny. The court then concluded that the anti-surveillance provisions likely would not satisfy strict scrutiny, as the Plaintiffs plausibly argued that these provisions are not narrowly tailored to protect any compelling government interest the Defendants may put forward. Similarly, the court found that the Plaintiffs had sufficiently pled that the anti-surveillance provisions are both unconstitutionally vague and overbroad.

The court determined that Plaintiffs had sufficiently alleged that the “no-fly” prohibitions violate the First Amendment as well, concluding that these provisions failed strict scrutiny by lacking the necessary narrow tailoring. The court similarly found that the “no-fly” provisions’ failure to define “commercial purpose” rendered them unconstitutionally vague and overbroad.

However, the Plaintiffs’ preemption argument against the “no-fly” provisions did not survive the Motion to Dismiss. Finding that the Plaintiffs were unable to sufficiently plead conflict with federal goals for uniform UAS regulation or to integrate UASs into the national airspace, the court concluded that neither field nor conflict preemption barred the “no-fly” provisions and dismissed the Plaintiffs’ preemption claim with prejudice.

Long Lake Township v. Maxon

Not too long after the Western District of Texas’s decision in McCraw, the Michigan Court of Appeals found itself confronted with its own UAS case, raising different constitutional issues. In Long Lake Township v. Maxon, the Township of Long Lake, Michigan brought suit against a couple, contending that they were operating a junk yard in violation of the Township’s zoning ordinance. To support its allegations, the Township submitted aerial photographs of the Defendants' property that were taken by UAS, showing the junk that had accumulated there.

The Defendants moved to suppress these photographs on the grounds that the UAS photographs of their property and the surrounding area constituted an unlawful search in violation of the Fourth Amendment. Specifically, the Defendants argued that, while a person can reasonably anticipate being observed from the air by a piloted aircraft, aerial surveillance from a UAS flying over private property and taking photographs is not a reasonable expectation. The trial court denied the Defendants’ Motion to Suppress, finding that the Defendants lacked a reasonable expectation of privacy. However, the Michigan Court of Appeals ultimately accepted the Defendants’ arguments and reversed the denial. An appeal to the Michigan Supreme Court is pending.

Likening UAS to the infrared imaging device at issue in the Supreme Court’s decision in Kyllo v. United States, the court concluded that low-altitude, unmanned, specifically-targeted drone surveillance of a private individual’s property is qualitatively different from the kinds of human-operated aircraft overflights that the Supreme Court has previously found pass constitutional muster. Thus, according to the court, this form of surveillance implicates the Fourth Amendment and is illegal without a warrant or one of the traditional exceptions to the warrant requirement.

The court opined that FAA regulations—which require UAS operators to keep a constant line of sight with their devices, fly no higher than 400 feet, refrain from flying over human beings, and obtain a certification—are relevant to a person’s reasonable expectations of privacy, as one may reasonably expect the law to be followed. According to the court, these regulations also demonstrate that a UAS is necessarily more intrusive into a person’s private space than an airplane overflight would be.

The court further explained that UASs are inherently more targeted and easier to deploy than airplanes, and—like thermal imaging devices—can drastically exceed the limitations on human capability that the Framers would have expected (though frankly this seems true of all heavier-than-air-flight). According to the court, because UASs fly below what is usually considered public or navigable airspace, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass. Ultimately, the court believed that any reasonable person would have expected a low-altitude UAS to be trespassory and exceptional, be it flown 100 yards in the air or up to an open bathroom window.  

The court concluded by emphasizing that the Supreme Court has held that the development of new means to violate a person’s privacy should not dictate whether that person retains a legitimate expectation of privacy and whether society should continue to recognize that expectation as reasonable. As such, opting not to craft a precise altitude test for cases like this, the court determined that one has a reasonable expectation of privacy in their property against all UAS surveillance, meaning that a governmental entity must obtain a warrant or satisfy a traditional exception to the warrant requirement before conducting UAS surveillance.

Significance

So, what does a court do when it has to decide a UAS case in the absence of FAA guidance? As both McCraw and Maxon demonstrate, it does the best that it can.

Both McCraw and Maxon clearly involve fascinating constitutional issues and could very well have significant impacts on the UAS industry going forward. Yet, more practically, these cases are trenching into these constitutional issues partly because of a lack of definitive guidance from the FAA on the scope of the agency’s authority over UAS operations.  Both cases demonstrate the need for clarification from the FAA as to the scope of the navigable airspace and the importance of having a single federal entity regulate all aircraft in flight. Clear statements and regulations on this point would reduce the need for state regulation and could mitigate—or at a minimum, inform—constitutional challenges to those state restrictions.

As the Maxon court observed, there are FAA regulations in place that by and large require the safe operation of UASs. However, in the court’s view the FAA has neither been clear on what actually constitutes safe operation in the context of these regulations, nor on the extent to which these regulations preempt state laws restricting UAS usage.

Without clear guidance from the federal government, state and federal courts are required to guess at the importance of specific FAA regulations to air safety, and to try and map decades-old precedent developed for manned aviation onto new technologies without the benefit of the FAA’s expertise. As more and more courts decide cases like these, the risk of building a cumbersome patchwork of case law (which may have to be revisited if and when the FAA does speak more definitively on the scope of their regulations with regard to UASs), will only grow. Regardless of the source of law, patchworks make no one’s lives easier—we need look no further than the privacy law space to confirm this.

If the FAA had been clearer about the scope of the federal rules’ preemption, and emphasized how important it is from a safety standpoint for UASs to be subject to the FAA’s regulations, the McCraw court likely would have allowed the Plaintiffs’ claims to survive the Motion to Dismiss across the board. As for Maxon, the court would have been able to at least base its decision on what constitutes a reasonable expectation of privacy in this context on a more refined understanding of the nature of the technology in question. The Maxon the court was certainly right to conclude that the law as it currently exists will impact upon what constitutes a reasonable expectation of privacy. However, this assumes that the law as it currently exists accurately reflects the technology that it is regulating. Like so many technologies before it, the law has not kept up with the development of UASs, leaving courts without the benefit of agency expertise on how the regulations designed with different technologies in mind should be applied to innovative uses.

At the end of the day, cases like McCraw and Maxon are going to raise constitutional law issues no matter what, and the FAA can’t snap its fingers and make those issues go away. But what the FAA can do is be clearer about what the federal and safety equities in this area are and ensure that courts know what the FAA’s stance is on operations in a given airspace. Doing so will allow courts to come to better conclusions when they must contend with these thorny constitutional issues, rather than requiring them to do so with one analytical hand tied behind their backs.