Column: California struggles to lead the way on drone regulation
Most Californians have probably never heard of DJI Technology, but legislators in Sacramento are hearing its message.
Over the last year, the company has sharply ramped up its spending on lobbying in the state capital, moving from zero in the third quarter of 2015 to $155,000 since then. It’s also spending about $200,000 on lobbying in Washington.
It’s the largest manufacturer of drones. They’re those buzzy, compact remote-controlled aircraft that have become all the rage among hobbyists and are being eyed by industry and government agencies to perform work that’s too costly, dangerous, or difficult for humans, including the prompt delivery of merchandise, inspection of remote facilities, filming, firefighting and police surveillance. The drone industry emphasizes the potential for expanding the use of unmanned aircraft in arguing for measured regulation or self-regulation.
The overarching themes of these bills are safety, security and privacy.
Drone law expert Steven D. Miller
Fans and critics of drones alike expect the skies to become very crowded in coming years, as the devices become cheaper and acquire greater capabilities. Shenzhen, China-based DJI, which is reported to command as much as 70% of the drone market, sells its camera-equipped products today for prices ranging from $6,500 to less than $500.
Estimates of the drone market vary, but all agree that it’s exploding. At a White House workshop on drone policy Aug. 2, Intel Chief Executive Brian Krzanich, whose company produces control circuits for the units, projected that the consumer drone business will be worth $16 billion by 2020, and the commercial market another $4 billion. The Consumer Technology Assn. expects some 700,000 drones to be sold this year.
Statistics from the Federal Aviation Administration attest to the growth trend: 520,000 of the devices have been registered with the FAA since it began requiring registration at the beginning of this year of any drones heavier than a half-pound. The number of manned aircraft registered with the FAA is only 320,000 — “and it took us 100 years to get there,” FAA Administrator Michael Huerta told the White House workshop.
The popularity of drones poses challenges for policymakers and legislators, not unlike those posed by other new technologies with obvious benefits and possible dangers, such as self-driving cars: How can they minimize the drawbacks of the technology while it’s still under development, without stifling the innovation necessary to make the field grow?
The FAA leaves most drone regulation to state and local authorities, though it does prohibit flying drones higher than 400 feet, within five miles of an airport or after dark, and requires that the devices remain within the line of sight of the users.
But government officials have found it almost impossible to keep up with the mushrooming private drone fleet. Of 921 encounters between drones and manned aircraft reported to the FAA from mid-December 2013 to mid-September 2015, more than a third were “close encounters” carrying the possibility of a collision.
According to an analysis by the Center for the Study of the Drone at Bard College, more than 90% occurred above 400 feet. Most also occurred within five miles of an airport.The stakes in these incidents are enormous. Any “collision between a drone and a manned aircraft could lead to a potentially catastrophic incident,” the analysis observed.
Some locations that are off-limits to manned aircraft have been bedeviled by drones. That includes the Golden Gate Bridge, which has become such a popular subject of high-flying remote videography — including by a drone that crashed onto the roadway in 2015 — that bridge officials had to post signs warning that drone flights are illegal over the bridge and nearby federal land.
More than a dozen bills to regulate drones are awaiting action in the state Legislature. Some resemble three bills that Gov. Jerry Brown vetoed last year that would have prohibited flying the devices over wildfires or other emergency scenes, K-12 schools and prisons or jails.
Brown said he vetoed the measures because they criminalized conduct that was already illegal. But he did sign a measure aimed at paparazzi, prohibiting drone flights over private property to make a recording or snap a photo.
“The overarching themes of these bills,” says Steven D. Miller, an expert in the emerging field of drone law at the San Francisco law firm Hanson Bridgett, “are safety, security and privacy.”
Some, including one measure Brown vetoed, aim to prohibit interference with firefighters or other first responders. They’re a reaction to numerous reports of drones getting in the way of firefighting aircraft; just last month a drone hobbyist was arrested for allegedly flying a drone over the Trailhead fire, which burned 5,600 acres in Placer and El Dorado counties. Other bills aim to grant government officials immunity for destroying or damaging drones that get in their way.
Several aim to limit the ability of law enforcement officials to use drones to conduct surveillance. That addresses a key question not yet specifically considered by the courts, Miller observes: “Do police need a search warrant to fly a drone over your backyard?”
Lobbying disclosures by drone makers and other companies only hint at the breadth of commercial interest in these devices. Both Amazon and Google have lobbyists watching the drone bills in Sacramento. Google has its eye on bills that would mandate insurance coverage on drones and GPS systems that would prevent drones from entering prohibited airspace. Google hasn’t taken a position on those measures yet, although DJI and GoPro, the camera maker whose devices are often attached to drones, oppose them.
California isn’t the first state to ponder drone regulations — 14 states have enacted rules governing some aspect of drone flights. But as a high-tech center, Miller says, “California may be more likely to come up with a creative approach that accommodates innovation.”
So far, however, that prospect still lies on the horizon. As my colleague Jazmine Ulloa reported last month, industry is already flexing its muscles to block drone legislation in California, including a bill that would have placed limits on drone use by law enforcement and another that would have expanded no-fly zones around critical infrastructure, private property and parkland. State Sen. Hannah-Beth Jackson (D-Santa Barbara) who introduced the latter bill, complained that the technology industry hadn’t been willing to work with her to shape a compromise.
The consequence of such blocking-and-tackling is exactly what the drone industry fears most — a patchwork of federal, state and local rules and ordinances to fill what Miller calls “a Wild West void.”
“Our interest is in reasonable outcomes and, most important, consistency,” says Brendan Schulman, vice president of policy and legal affairs for DJI. Generally, he says, DJI doesn’t object to measures that simply extend existing prohibitions to drones.
The industry supports a proposed measure specifying that restraining orders protecting individuals from stalkers applies to drones flown within the prohibited space. “You shouldn’t be stalking somebody, including with a drone,” he says. But the industry objects to rules that single out drones, say, by requiring special permits for activities that would be otherwise legal.
After Brown issued his vetoes last year, the San Diego County community of Poway enacted its own ban on flying drones within the city during emergencies. “Poway has had a bull’s-eye on its back when it comes to wildfires,” Mayor Steve Vaus said then, targeting drone pilots “trying to get footage that they can monetize on YouTube … on the backs of our first responders.”
The Los Angeles City Council last year passed an ordinance that resembles FAA rules by prohibiting flights higher than 500 feet, within five miles of an airport or 25 feet of a person, while imposing local punishments of up to $1,000 in fines and up to six months in jail.
Drones aren’t going away. That buzzing you hear is just the front edge of a tidal wave. Before it arrives, California legislators should have a single, consistent legal regime in place to protect the public from untrained and heedless remote pilots, and the drone industry should get behind reasonable rules. The first time an accident occurs that demonstrates how lax our oversight is of this emerging industry will be the last time it will have the credibility to sit at the table.