Municipalities across Central Pennsylvania and the United States are grappling with the explosion in unmanned aerial vehicle (UAV) or “drone” use among businesses, hobbyists, and other private interests. Regulating this use raises a wide range of issues including invasion of privacy, trespass, nuisance, the proper exercise of municipal police power, and the limits of state and local power to regulate in light of the Federal Aviation Administration’s (“FAA”) broad power to regulate aircraft use. Many municipalities are discovering the benefits drones can provide in inspection and evaluation of infrastructure, traffic safety analysis and accident response, law enforcement and other purposes.
Preliminarily, municipalities may pursue a drone registration process under the applicable FAA regulations. This process is more complicated than the Part 107 regulations applicable to the majority of drone operators – municipalities interested in pursuing this option, which results in the municipality obtaining a Public Certificate of Authorization, are advised to consult with their solicitor prior to beginning the process. Alternatively, municipalities may pursue the same Part 107 registration process open to private citizens and organizations, or a municipality may elect to contract with an outside operator to provide drone services as necessary. The National League of Cities in its guide “Cities and Drones” analyzes the myriad of issues surrounding municipal use of drones.
In any case, municipalities utilizing drones must adopt internal policies governing who may operate drones, how, when, and for what purposes they may be operated, and carefully evaluate any liability exposure that may arise from their use of drones. This is especially important where drone overflight may occur in an area heavily used by the public, such as a sports stadium or a park. For example, a drone operated by a municipality to survey a park or other public venue could inadvertently record activity on a neighboring private property, giving rise to potential liability for invasion of privacy. Regardless of whether the municipality or an outside contractor is operating the drone, municipalities must recognize that video recordings or photographs collected through drone use are likely to be deemed public records subject to the Right-to-Know Law. The municipality’s data retention policy and practices should be reviewed and amended, if necessary, to address these records, and the municipality must take the necessary steps to maintain and safeguard this data.
Police use of drones in criminal investigation raises obvious Fourth Amendment search and seizure issues depending on the nature of the drone use and the location where the drone is operating. Presently, there is little caselaw discussing drone overflight. Additionally, code enforcement activities involving drone use to inspect properties and check for code violations may require an administrative warrant – this is an evolving area of the law. Prior to beginning any municipal drone use, municipalities should carefully evaluate the potential legal issues presented by the anticipated use and review these concerns with their solicitors and liability insurance carriers.