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Drone Operation Is Ripe for Regulation in New York, Lawyers at State Bar Meeting Say

The Federal Aviation Administration’s rules on drone operation leave plenty of latitude for state and local governments to set their own policies, experts told a gathering Thursday at the New York State Bar Association’s annual meeting in Manhattan.

The FAA guidelines, finalized in August 2016, leave a host of areas where the federal agency has not pre-empted local and state officials, and even appears to welcome their input, Goldberg Segalla partners Joseph Hanna and Dennis Glascott told the state bar’s local and state government law section.

The state bar has been holding its annual meeting this week at the Hilton Midtown in Manhattan.

“Right now, this area of the law is gray,” Glascott told the state bar members, many of them local and county government unit attorneys around the state.

The FAA set general rules that say recreational and commercially operated drones must not be flown more than 400 feet above the ground, or within five miles of airports. There are special speed and weight allowances for commercial drones and owners of all drones over 0.55 pounds must be registered with the government.

Glascott said that by themselves, the federal guidelines put lawyers in New York and in many other places in a “tough spot, because you’re going to have to advise your clients in an area where the law’s not clear.”

The attorneys said several states, chief among them California, Missouri, Mississippi, Texas, Washington, Utah and Kansas, have been among the most active in adopting legislation regulating some aspects of drone operation.

Mississippi enacted a law, for instance, amending its “peeping tom” statute, adding drones as another type of voyeurism or trespass under the public morals code. California adopted a law classifying the operation of drones over people’s properties without their consent as trespassing.

Locally, in New York, Glascott said Rockland County, north of New York City, has adopted a law making the unauthorized operation of a drone over private property trespassing. In western New York, the town of Orchard Park outlawed the operation of drones over the stadium where the Buffalo Bills of the National Football League play during game times and for one hour before and after their games, the lawyers said.

Several bills regulating the operation of drones were introduced before the state legislature in last year’s session: One bill would have prevented the use of drones without search warrants, except for such emergencies as missing children (A1247/S411); another would have forbid the use of a drone to photograph another person without his or her consent when the subjects have a reasonable expectation of privacy (A10544/S6597). Yet another would have made it a felony to put a weapon on a drone (A10102/S6335). None of the bills was approved by both houses of the legislature last year, but their reintroduction and the filing of others is expected in 2017.

Hanna said privacy concerns are issues that should and must be addressed at a level other than the FAA, which is silent about the use of drones for unauthorized photography. Using one example, he said many people would consider it an invasion of privacy for a person to hover a drone over his own property while taking pictures of sunbathing neighbors, but state law does not appear to prohibit it.

Gov. Andrew Cuomo has dedicated $5 million to explore whether several upstate areas, including Syracuse and Utica, will lend themselves to the development of drone technology in an effort to make New York a leader in the field. The cities have existing aviation and computer research facilities.

“The technology is moving faster than the legislation can,” Glascott said.

The final full day of the week-long state bar meeting at the Hilton Midtown concludes Friday.

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