Table Of Content$24.95 U.S.
Drones are among the most exciting and
promising new technologies to emerge in the
“The future of drone policy is as up in the air as the technology itself.
last few decades. Photographers, fi refi ghters,
The timely essays in this book provide a roadmap for how to advance drone
MATTHEW FEENEY fi lmmakers, engineers, and retailers have all
is the director innovation while addressing the many concerns holding back acceptance
of the Cato Institute’s Project on Emerging both among the public and regulators.” used drones to improve public safety, inno-
Technologies, where he works on issues —ADAM THIERER senior research fellow, Mercatus Center vate, and enhance creativity.
Yet drones pose unique regulatory and
concerning the intersection of new tech- at George Mason University
privacy issues, and lawmakers at the federal
nologies and civil liberties. Before com-
ing to Cato, he worked at Reason magazine “The emergence of drones presents tremendous opportunities as well and state levels are adopting policies that both
P R I VA C Y A N D C O M M E R C E
as numerous risks. Eyes to the Sky takes these opportunities and risks head ensure the safety of our national airspace and
as assistant editor of Reason.com. He has
on—putting forward policies to realize the commercial potential of drones as restrict the use of warrantless aerial sur-
also worked at The American Conservative,
well as address the real risks posed by government drone surveillance. This
veillance. At a time when low-fl ying drones
the Liberal Democrats, and the Institute of I N T H E A G E O F T H E D R O N E
book is a vital addition to understanding the way forward for drones
are affordable and ubiquitous, how useful
Economic Affairs. His writing has appeared
in our national airspace.”
are the airspace regulations and privacy
in the New York Times, the Washington Post,
—JERAMIE D. SCOTT senior counsel,
laws designed for traditional airplanes and
HuffPost, The Hill, the San Francisco Chroni-
Electronic Privacy Information Center
helicopters? Is there a way to build a regu-
cle, the Washington Examiner, City A.M., and
latory and legal environment that ensures
others. Feeney received both his BA and MA
“Drones are rapidly becoming part of our everyday lives, and society will soon
entrepreneurs and hobbyists can safely use
in philosophy from the University of Reading. need to grapple with profound issues related to property, privacy, and nuisance.
drones while also protecting us from intru-
While drones are aircraft, the laws governing aircraft may soon be challenged
as drones operate closer to the ground and in airspace never before occupied by sive aerial surveillance?
manmade fl ying objects. The unique fl ying capability of drones is what makes In Eyes to the Sky: Privacy and Commerce
them so valuable and is exactly what will challenge settled laws, individual in the Age of the Drone, experts from legal,
rights, and liberties. This book tackles these issues head on and is essential regulatory, public policy, and civil liberty
reading for anyone who wants to understand how we will balance rights and
communities tackle these pressing prob-
innovation as this transformational technology begins to occupy our skies.”
M lems. The chapters in this volume highlight
—GREGORY S. McNEAL professor of law and public policy at A not only what we can learn from the history
T
Pepperdine University and cofounder of AirMap T E of drone regulation but also propose policies
H D
E IT that will allow for an innovative and dynamic
W E
drone sector while protecting our privacy.
D
F As drone technologies rapidly advance, Eyes
E B
@m_feeney
E Y to the Sky offers readers the current state
N
E of drone capabilities and regulations and
Cover design by Faceout Studio, Molly von Borstel $24.95
Y
Cover Imagery by Shutterstock. ISBN 978-1-952223-08-2 a glimpse at exciting and disturbing uses of
52495>
drones in the near future.
Join the conversation on
E D I T E D B Y M AT T H E W F E E N E Y
@CatoInstitute
9 781952 223082
#CatoBooks
EEyyeess ttoo tthhee SSkkyy--DDJJ--MMEECCHH33__EEddiitteedd..iinndddd 11 66//2233//2211 11::4455 PPMM
160-97859_ch01_5P.indd 1 19/06/21 2:38 AM
160-97859_ch01_5P.indd 2 19/06/21 2:38 AM
160-97859_ch01_5P.indd 3 19/06/21 2:38 AM
Copyright © 2021 by the Cato Institute.
All rights reserved.
Print ISBN: 978-1-952223-08-2
eBook ISBN: 978-1-952223-09-9
Cover design: Molly von Borstel, Faceout Studio
Imagery: Shutterstock
Library of Congress Cataloging- in- Publication Data
Feeney, Matthew, editor.
Eyes to the sky : privacy and commerce in the age of the
drone / edited by Matthew Feeney.
pages cm
Washington, DC : Cato Institute, 2021.
Includes bibliographical references and index.
ISBN 9781952223082 (hardcover) | ISBN 9781952223099 (ebook)
1. LCSH: Drone aircraft— Industrial applications. 2. Micro air vehicles—
Government policy— United States. 3. Aerial surveillance— Government
policy— United States. 4. Privacy, Right of— United States. 5. Air traffic
rules—U nited States.
TL685.35 .E94 2021
629.133/39— dc23 2021017826
Printed in Canada.
CATO INSTITUTE
1000 Mas sa chu setts Ave nue NW
Washington, DC 20001
www. c ato. o rg
160-97859_ch01_5P.indd 4 19/06/21 2:38 AM
CONTENTS
ABBREVIATIONS AND ACRONYMS vii
INTRODUCTION 1
Matthew Feeney
CHAPTER ONE 5
“Crawl, Walk, Fly”: A History of UAS Regulation in the United States
Sara Baxenberg
CHAPTER TWO 53
Who Wants a Drone Anyway? The Law Develops to
Accommodate the Promise of Commercial Drones
Gregory S. Walden
CHAPTER THREE 75
Reframing Drone Policy to Embrace Innovation in Amer i ca
James Czerniawski
CHAPTER FOUR 111
Who Should Govern the Skies?
Brent Skorup
160-97859_ch01_5P.indd 5 19/06/21 2:38 AM
CHAPTER FIVE 131
Who Owns the Skies? Ad Coelum, Property Rights,
and State Sovereignty
Laura K. Donohue
CHAPTER SIX 165
Legislative Rules for Use of Drones by Law Enforcement
Jake Laperruque
CHAPTER SEVEN 181
Drone Capabilities and Their Uses by the Federal Government
Jay Stanley
ACKNOWLE DGMENTS 209
NOTES 211
INDEX 273
ABOUT THE EDITOR 287
ABOUT THE CONTRIBUTORS 289
160-97859_ch01_5P.indd 6 19/06/21 2:38 AM
ABBREVIATIONS AND ACRONYMS
AAM advanced air mobility
AGL above ground level
AI artificial intelligence
ALI American Law Institute
ANPRM Advance Notice of Proposed Rulemaking
ARC Aviation Rulemaking Committee
ASTM American Society for Testing and Materials
ATC air traffic control
ATF Bureau of Alcohol, Tobacco, Firearms and Explosives
ATM air traffic management
BVLOS beyond the visual line of sight
CAA Civil Aeronautics Authority
CBP U.S. Customs and Border Protection
COA Certificate of Waiver or Authorization
COW cell on wheels, cell on wings
DAA detect and avoid
DHS U.S. Department of Homeland Security
DJI Da- Jiang Innovations
DOJ U.S. Department of Justice
DOT U.S. Department of Transportation
FAA Federal Aviation Administration
160-97859_ch01_5P.indd 7 19/06/21 2:38 AM
viii Abbreviations and Acronyms
FCC Federal Communications Commission
FOIA Freedom of Information Act
FRIA FAA-recognized identification areas
GAO U.S. Government Accountability Office
GSD ground sample distance
ID identification
IG inspector general
IPP Integration Pi lot Program
LAANC Low Altitude Authorization and Notification Capability
LEAP Long Endurance Aircraft Platform
NAS National Airspace System
NIMBY not in my backyard
NPRM Notice of Proposed Rulemaking
NTIA National Telecommunications and Information
Administration
OIRA White House Office of Information and Regulatory Affairs
OOP operations over people
PSS Per sis tent Surveillance Systems
sUAS small unmanned aerial system
UAS unmanned aircraft system
UAV unmanned aerial vehicle
ULC Uniform Law Commission
UPP UTM Pi lot Program
UPS United Parcel Ser vice
USS UAS ser vice supplier
UTM UAS traffic management
VADER Vehicle and Dismount Exploitation Radar
WAMI wide- area motion imagery
WASS Wide Area Surveillance System
160-97859_ch01_5P.indd 8 19/06/21 2:38 AM
INTRODUCTION
MATTHEW FEENEY
For many years, the word “drone” prompted Americans to consider the
multimillion- dollar weapon platforms used in the United States’ on-
going and seemingly endless war on terror. More recently, drones— often
referred to as “unmanned aerial vehicles”— have become a more common
feature of civilian life, with a range of industries using them for in-
spections, photography, mapping, and much more. Law enforcement
agencies have also expressed an interest in drones. The Department
of Homeland Security has flown predator drones on the northern and
southern borders for years, but as drones have become smaller and less
expensive, they have become increasingly attractive to state and local
law enforcement agencies. The commercial applications of drones have
prompted lawmakers and regulators across the world to seek policies
that allow for the innovative and potentially life- saving applications of
drones while also protecting civil liberties from intrusive eyes in the sky.
This volume, which brings together writers from academia, public policy,
law, and civil liberties advocacy, explores such policies.
Although the Fourth Amendment protects against “unreasonable
searches and seizures,” the Supreme Court’s treatment of aerial surveil-
lance does not prohibit warrantless drone surveillance. Nonetheless, Jus-
tice William Brennan asked his colleagues to consider such devices in
his dissent in a case from the 1980s considering warrantless surveillance
160-97859_ch01_5P.indd 1 19/06/21 2:38 AM
