North Carolina is famous for being home to the world's first powered flight, but more than a century after the Wright brothers’ fateful voyage over Kitty Hawk, the state may be dropping the ball on drone legislation. Civil rights supporters and free-press advocates are voicing concerns about what they say are vague new regulations that restrict the use of unmanned aerial vehicles (UAVs or drones) for private citizens but provide a number of exceptions for law enforcement.
Critics say the regulations, which went into effect in December, are overly broad and a recipe for abuse, limiting drones for legitimate uses while allowing the government to spy on the public. What's more, critics say, the new law could be a sign of things to come elsewhere in the nation as state lawmakers grapple with regulating drone technology in the absence of federal standards.
With its wide-open spaces and low corporate taxes, North Carolina is seen as fertile ground for drone manufactures looking to lay down roots, and lawmakers there had been trying to pass regulations that would appeal to the industry. But a drone bill that passed the North Carolina House of Representatives over the summer died in a state Senate committee.
That was’t the end of it, though. A similar bill was later tucked into the state budget, where it passed in August without a single hearing in the Senate. The legislation recently became law, despite the fact that many North Carolinians had no idea it was even being proposed.
“It’s a little bit unusual that such a lengthy bill that never even got a hearing in the Senate managed to work its way into the budget,” said Sarah Preston, policy director for the American Civil Liberties Union of North Carolina, which opposes the legislation.
In a phone interview, Preston said the bill was rushed through the legislature without adequate thought as to how it might curtail both civil liberties and free expression. It bans, for instance, the use of drones to conduct surveillance of individuals or their private property, but it offers no definition of what actually constitutes surveillance.
“Even a person in public trying to take pictures of things happening on public property, from a public vantage point -- for example, in a park -- could conceivably be accused of surveillance,” Preston said.
Preston said the law contains numerous exceptions for law enforcement. For instance, police may use drones to conduct surveillance in an area that is within an officer's plain view, so long as the officer is standing where he or she has a legal right to be. Furthermore, the rules allow law enforcement to use drones in counter-terrorism measures and to photograph public gatherings on public or private land. Drones are also allowed in cases where "swift action" is needed to prevent imminent danger or serious property damage, or to prevent the escape of a suspect. Additional types of searches may be conducted with drones if a warrant is obtained.
The law also contains implications for journalists and photographers, making it illegal to use a drone to photograph anyone without his or her consent for the purposes of publishing or otherwise disseminating the photograph. Although the law makes an exception for “news-gathering” and “newsworthy events,” free-press advocates say those are subjective terms.
“It’s an ambiguous situation if you have somebody on the ground determining what is and what ism’t a valid news story,” said Mickey Osterreicher, general counsel for the National Press Photographers Association. “What might be newsworthy to one person, might not be newsworthy to another.”
Osterreicher has been down this road before. Last year, he was among the press advocates criticizing the U.S. Forest Service for a proposal that would have required media outlets to secure pricey permits before they could film in federal wilderness areas. That proposal, too, made an exception for “breaking news,” but critics said it was an unnecessary restriction on First Amendment rights. Following the criticism, the Forrest Service later claimed the rule was only meant to apply to commercial activities.
Osterreicher said drone technology is evolving fast, and as state lawmakers try to play catchup, the Federal Aviation Administration has been dragging its feet in proposing rules that would clarify what is and isn't allowed. “The real question here is going to be, whenever the FAA gets its act together, will federal pre-emption will override all of these state laws?’” he said.
According to the National Conference of State Legislatures, 20 states have passed some sort of legislation addressing the use of drones. Osterreicher called the laws a “patchwork” with little consistency from state to state. He said fear and misinformation about drones is fueling overreach in some states.
“We look at the use of drones in the same way that we would look at the use of various kinds of lenses, whether you’re using a wide-angle or a telephoto,” he said. “It’s just another tool to be used for news-gathering, just as when you decide if you want to take photos from a plane or a helicopter in order to best tell the story.”
Back in North Carolina, the local ACLU is working to educate the public about the new regulations. Mark Devries, a filmmaker who used drones last year to investigate factory farms in eastern North Carolina, told International Business Times last week he had only become aware of the regulations in the last few days, when he received an email about them.
Currently there is a temporary statewide moratorium on the use of drones for law enforcement that extends until December of this year, so don't expect police drones to flood the skies of North Carolina anytime soon. But given their cost-saving potential (drones cost a fraction of what law enforcement agencies would pay for a helicopter), it's only a matter of time.
Given the vagueness of the new regulations, Preston said she wouldn’t be surprised if they were ultimately challenged in court, and the state that prides itself on being "First in Flight" could find itself entangled in far more earthbound matters.
“I think you certainly could see lawsuits over it,” she said.