S 1608 Introduced – Regulation of Consumer Drones

Last week Sen. Feinstein introduced S 1608, the Consumer Drone Safety Act. The bill would require the Administrator of the Federal Aviation Authority (FAA) to issue new regulations for the operation of consumer drones. Those regulations would address two major topics:

Safety requirements for operation of consumer drones; and

Safety requirements for manufacturers of consumer drones.

Consumer Drone Definition

Section 6(4) of the bill would define a ‘consumer drone’ as a civil unmanned aircraft or a civil unmanned aircraft system, weighing 55 lbs or less that is intended for commercial distribution and is {§6(4)(A)(i)}:

∙ Equipped with an automatic stabilization system; or

∙ Capable of providing a video signal allowing operation beyond the visual line of sight of the operator.

Operation of Consumer Drones

The FAA would be required to establish regulations concerning the safety requirements for the operation of consumer drones within 18 months of this bill being enacted. Those requirements would include {§2(c)}:

∙ A maximum altitude above ground level for flight of consumer drones;

∙ Circumstances or areas where flights are restricted because of the risk of unsafe interactions with manned aircraft, such as within an unsafe distance from an airport or in the flight path of a manned aircraft;

∙ Circumstances or areas where flights are restricted because of the risk to persons or property on the ground, such as within an unsafe distance from urban areas, residential areas, electrical infrastructure, transportation infrastructure, amusement parks, or public areas where spectators are present;

∙ Conditions that may require limitations on flight, such as weather or time of day; and

∙ Any other requirement that the Administrator determines is necessary to minimize the risk that a consumer drone will collide with a manned aircraft or otherwise endanger the safety of the national airspace system or persons and property on the ground.

Manufacturers of Consumer Drones

Section 3 of the bill would require the FAA to establish regulations governing manufacturers, importers and sellers of drones. These regulations would establish requirements for consumer drones. These requirements would include {§3(b)}:

∙ Limitations on altitude for consumer drones, whether through software or other technological means;

∙ A means of preventing unauthorized operation within an unsafe distance from an airport or in protected airspace;

∙ A system that, through sensors and software or other similar means, enables avoidance of collisions;

∙ A technological means to maintain safety in the event that a communications link between a consumer drone and its operator is lost or compromised, such as by ensuring that the drone autonomously lands safely in a particular location;

∙ A requirement that a consumer drone be detectable and identifiable to pilots and air traffic controllers, including through the use of an identification number and a transponder or similar technology to convey the drone’s location and altitude;

∙ A means to prevent tampering with or modification of any system, limitation, or other safety mechanism required by the Administrator under this section or any other provision of law, including a means to identify any tampering or modification that has been made;

∙ Educational materials to be provided to a consumer who purchases a consumer drone; and

∙ Such other requirements as the Administrator considers necessary to ensure the safety of the national airspace system.

There are provisions for the Administrator to allow operation of consumer drones that cannot meet the above requirements because meeting the requirement for that specific type of drone “is technologically infeasible or cost-prohibitive” {§3(d)(1)}. The Administrator must still ensure that the operation of the exempted drone “does not create a hazard to users of the national airspace system or the public or pose a threat to national security” {§3(d)(2)}.

The bill also contains a requirement that manufacturers update consumer drones (at the manufacturers cost) to the above standards that were “commercially distributed before the publication of the rule so that, to the greatest extent practicable such consumer drones meet the requirements prescribed under the rule” {§3(c)(1)}. If the consumer drones cannot be modified the Administrator may apply the exemption described above.

Moving Forward

Feinstein and her cosponsor, Sen.Schumer (D,NY), are both influential Democrats, but neither are on the Senate Commerce, Science and Transportation Committee to which this bill was assigned. It is unlikely that they will be able to convince the Committee leadership to take up this bill.

Commentary

I am not sure (nor am I really qualified to judge, something that I am willing to admit) that the current crop of consumer drones could be modified to include all of the requirements outlined in this bill.

I am concerned about the ex post facto requirement for manufacturers to upgrade previously sold drones to meet these new requirements. I seem to recall that Article I, Section 9, Clause 2 of the Constitution prohibits the passage of ex post facto laws. Section 3(c)(1) certainly seems to violate that principal.

Ignoring both of those deficiencies in this bill, I am even more concerned about its lack of discussion about prohibiting the flying of consumer drones over critical infrastructure (beyond the basic undefined mention of “electrical infrastructure, [and] transportation infrastructure” in §3(c)(3). The use of these remotely controlled aerial devices in surveillance preparatory to an attack or use as a weapon delivery device (okay probably much less of a hazard) in the execution of an attack is something that there is a legitimate need to prevent. Especially since the armed forces of the Islamic State are gaining experience in using exactly these types of drones in combat operations in Syria and Iraq.