It Turns Out that Using Drones to Smuggle Drugs is Illegal

In an innovative use of existing criminal statutes, the US Attorney for the Middle District of Georgia has secured a guilty plea from a man accused of planning to use an unmanned aircraft system (UAS or drone) to smuggle marijuana into a state prison.  The crime?  A federal charge under 49 USC § 46306 (b)(6) and (c)(2), which makes it unlawful to “knowingly and willfully operate[] or attempt[] to operate an aircraft eligible for registration knowing that” the aircraft is not registered, and which imposes a five year prison sentence if the offense is “related to transporting a controlled substance by aircraft.”

In this case, Eric Lee Brown was found sitting in a parked car near the state prison in Autry, Georgia with a consumer drone (a DJI Phantom IV) and two bags of marijuana, weighing approximately 294 grams. Search warrants turned up “detailed conversations about using the drone to drop drugs into the prison,” according to the U.S. Attorney’s Office.  Mr. Brown had not registered the drone.  Although he did not actually smuggle any drugs into the prison, the facts were enough for him to plead guilty to a crime “related to” transporting controlled substances.

Section 46306 is not a drone-specific law.  In fact, the statute dates back to the early-1990s, well before the current interest in consumer drones, and it appears to have been intended to target smugglers using manned aircraft to transport drugs. At the time, civilian aircraft modified to carry large quantities of drugs were making headlines across the country, some involving planes whose “identification numbers were forcibly removed.”   

But this application of Section 46306 illustrates one of the natural consequences of integrating unmanned aircraft—even small, lightweight examples—into the National Airspace System (NAS).  By recognizing that consumer drones are “aircraft,” federal law imposes a variety of rights and responsibilities on operators of those machines, from the right to access the NAS under Section 40103 to protection from interference or destruction under Title 18’s criminal provisions.  Prosecuting a UAS operator for not registering his drone and for attempting to use the drone in drug smuggling are novel but wholly logical applications of these broad, general principles.  It’s also a continuation of a trend we’ve written about before—a shift from emphasizing the ways in which UAS are different from traditional aircraft and need their own legal frameworks to a focus on how to leverage existing regulatory frameworks and processes and apply them to UAS.  We’ve seen this shift in the context of how to expand the lawful use of UAS, but the innovative use of existing statutes to prosecute problematic UAS operations is another manifestation of this change.   

It’s also worth noting that Section 46306 was likely inapplicable to Mr. Brown’s conduct just two years ago.  As we’ve previously discussed, the FAA Modernization and Reform Act of 2012 included a provision (Section 336) that prohibited the FAA from adopting regulations that applied to recreational UAS operators or “hobbyists.”  When the FAA attempted to adopt registration requirements for all UAS, the D.C. Circuit invalidated the rules as applied to hobbyist drones because of Section 336.  Following the court’s decision, drones used for non-commercial purposes were not “aircraft eligible for registration” and thus, ostensibly, Section 46306 did not apply.  This was remedied several months later when Congress reinstated the registration rules for hobbyist UAS in the 2017 National Defense Authorization Act, and then acted to further prevent any similar mishaps by reforming Section 336 to give the FAA more authority over hobbyist UAS, including the ability to adopt rules in the context of “maintaining the safety and security of the national airspace system.”  As a result, all drones are “subject to registration” for purposes of Section 46306.  While bringing drones under the purview of a criminal statute that hinges on drone registration may not have been among the reasons Congress reinstated UAS registration rules, it is a potentially beneficial side effect of aligning UAS with traditional manned aircraft.

Many states have grappled with whether and to what extent they can or should impose specific regulations on unmanned aircraft.  In many cases, such restrictions are wholly unnecessary; here, for example, Mr. Brown’s attempt to smuggle drugs into a state penitentiary led to federal prosecution and a guilty plea to a substantial federal felony with significant potential consequences.  Moreover, the Department of Justice’s actions here may signal a new focus on enforcement of unlawful UAS operations at the federal level, which will be helpful given that a perceived lack of federal enforcement is one factor that has animated local governments to take matters into their own hands.  At the same time, there may still be occasions where drone-specific laws and regulations at the federal level are necessary or desirable—for example, in the FAA Reauthorization Act of 2018, Congress enacted a number of drone-specific provisions designed to ensure that problematic conduct could be sanctioned, like a $25,000 penalty for equipping a drone with a dangerous weapon (Section 363), criminalizing knowing or reckless interference with wildfire suppression or emergency response activities (Section 382), and imposing criminal penalties for interfering with manned aircraft or operating in close proximity to airports (Section 384). But decades of careful regulation of manned aviation have established a thoughtful, comprehensive system that provides incentives and penalties for the careless and the clueless and stiff punishments for the criminal.  Creative applications of these existing rules and regulations will be a key method for ensuring the safety of the NAS (and people on the ground) going forward.