Back in 2018, the Congress tasked the U.S. Government Accountability Office (GAO) with studying the role that state and local governments should play in the regulation of unmanned aircraft and the lower levels of the National Airspace System. After nearly two years of work, the GAO has finally issued its report. The report contains a compilation of the current state of the law regarding privacy, federal preemption, property owners’ rights in the airspace over their land, and related topics, and is supported by a detailed 143-page appendix. Where the law is unclear on a given topic, the report sets forth the competing arguments regarding the law, but draws no conclusions regarding which view should prevail.
Not surprisingly, the report concludes that the unresolved questions are substantial, including:
- Whether Congress may use its power under the U.S. Constitution’s Commerce Clause to regulate all UAS operations, including non-commercial, non-interstate, low-altitude operations over private property, and if so, whether Congress has authorized the FAA to regulate all such operations in the FAA Modernization and Reform Act (FMRA) or other legislation;
- What impact possible Fifth Amendment-protected property rights held by landowners in the airspace within the “immediate reaches” above their property, as recognized by the U.S. Supreme Court in United States v. Causby and other legal precedents, may have on federal, state, local, and tribal authority over low-altitude UAS operations;
- Whether and to what extent Congress intended, in FMRA or other legislation, to preempt states, localities, and tribes from regulating UAS operations at low altitudes;
- What liability UAS operators and the federal, state, local, and tribal governments may have to landowners under state aerial trespass and constitutional takings law precedents for conducting, regulating, or preempting state regulation of UAS operations in low-altitude airspace, and whether landowners may exclude drones from their overlying airspace; and
- Whether existing federal and state privacy laws adequately protect against invasions of physical privacy and personal data privacy involving UAS operations, and what authority the federal, state, local, and tribal governments have to enact additional measures that may be needed.
In putting the report together, the GAO interviewed 66 experts on these topics from government, academia, and the private sector. As one of these interviewees, I was impressed by the GAO’s thoroughness and efforts to come to these issues without any preconceived notions regarding what the outcome of the report should be. The information in the report constitutes a firm foundation for lawmakers and regulators to work together to plan a comprehensive strategy that preserves safety, reassures the public, and balances competing interests in how the National Airspace System should be used.