Virgina Drone Laws – Preempted?

Recently the Virginia General Assembly passed a number of bills related to privacy and new technology. Among the bills is one requiring police to obtain a warrant before using a drone for surveillance. As technology increases and privacy has the potential to decrease, it is telling that the Virginia General Assembly realizes this danger and enacted legislation to restrict drone use by government agencies.

The legislation could have far reaching effects as the Federal Aviation Administration (FAA) considers new regulations. There is more to the Virginia legislation than just protecting privacy, however. It gives certain local governments the power to restrict anyone, including hobbyists, from flying drones, regardless of the weight. This could create huge issues in the future when the FAA allows drone use by commercial operators. Currently the FAA allows hobbyists to fly drones that weigh less than 55 lbs provided they follow safety guidelines. Would the local government ban on drones apply to commercial operators that the FAA has specifically allowed to fly? Would the local law be pre-empted by federal law? We think, yes, the local laws will be preempted by Federal law.

Preemption, by virtue of the Supremacy Clause of the U.S. Constitution, states that when activities are considered more national than local in character then the federal laws related to them preempt, or take precedence, over state laws. To the extent the Virginia law purports to outlaw conduct that Congress or a federal agency with subject matter jurisdiction, here the FAA, has specifically held is or should be legal, there is conflict preemption and the state law is invalid. We expect a challenge to the Virginia state law restricting drone use sooner rather than later, but certainly when the FAA approves the proposed regulations. Further, if the FAA grants a Section 333 exemption to a Virginia operator, that law may get challenged soon.

One of the Antonelli Law Firm’s attorneys lives (and is licensed) in Virginia and is keenly watching the legislation and the associated privacy concerns. While privacy does need to be protected, it seems there are better ways to protect it than a blanket law restricting all drone use. As far back as 2011, privacy concerns were in the news as Texas police used drones in high risk operations. The ACLU had comments then stating they did not disapprove of drones, absolutely. They went on to say that they object to the pervasive use of drone surveillance on the general public. There are many good uses for drones including searching for missing persons and even high risk police operations.   These activities do need to be tempered with privacy protections. However, local laws cannot and should not be those protections.

Something to watch especially for our Virginia residents and clients.

Today guest blog was written by attorney and airline pilot Kate Fletcher who is of counsel to Antonelli Law’s Drone/UAS Practice group. Kate’s aviation experience, along with special counsel Mark Del Bianco’s federal rulemaking and privacy issues experience, greatly add to the firm’s capabilities.

If you would like more information or would like to speak with the firm’s Principal Jeffrey Antonelli call us at 312-201-8310 or use the contact form below.