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November 01, 2014

Drones: The Coming of Age of a Not-So-New Technology

By Judge C. Philip Nichols

The law is always the last in line to adjust to technology. Legal research used to be done with a yellow legal pad, in a library, using “key” words. No more. We live in an electronic age where law books on shelves are more for show than anything else.

Today, we are faced with an array of technological advances. With regard to drones, we are a lot like the Amish of Pennsylvania, who allowed the cell phone technology to get ahead of them and then had to rewrite the rules for their use to comply with their religious tenets.1 How we deal with the drone of today and the drone of the future is our responsibility and we should face up to it immediately. A drone is a term of art. The U.S. Air Force calls it a remotely piloted aircraft (RPA) or an unmanned aerial vehicle (UAV). We see them used in Afghanistan and Pakistan frequently. We need a model act that every state legislature can consider when formulating public policy. There are questions such as: Who can use them? The State, private industry, or individuals? Should they be armed? And, if so, by whom? What should we do with the data they collect? How should we store the data? Who should have access? Can you hunt with them? Can you drink while operating one? Should the Boy Scouts develop a merit badge for them?

Having a model act would help streamline and govern their use. Amazon wants to deliver books with them.2 Just recently a fire department in California used one to survey brush fire damage without putting a firefighter in harm’s way.3 A congressman filmed his wedding using one.4 Robert Mueller, then director of the Federal Bureau of Investigation (FBI), testified before Congress in June 2013 and admitted that “the FBI uses drones for surveillance on U.S. soil.”5 He added that this surveillance was minimal and used rarely, but regardless, it has been and is being done.6

Currently, some 13 states have now enacted statutes dealing with drones and 36 are now considering them.7 Moreover, the federal government and the military have already made use of them in the two foreign wars that are about to wind down.8 In those theaters of war are potentially thousands of drones there and many could return home to us.9 Presently, the Federal Aviation Administration (FAA) bans the commercial use of drones, but it does make some exceptions for recreational use of model aircraft in unpopulated areas, in airspace below 400 feet, and where the aircraft stays in sight of a human operator.10 There are presently over 170,000 model aircraft enthusiasts in America.11 However, these aircrafts should not be considered in the same context as the drone, RPA, or UAV. Although the FAA does regulate drones, the regulations are presently minimal at best.

Congress has ordered the FAA to change airspace rules to make it much easier for law enforcement nationwide to use drones and has told the FAA to integrate drones into American airspace by September 2015.12 As such, U.S. law enforcement is greatly expanding its use of drones for surveillance and several law enforcement agencies have acquired them, including Houston, Texas; Miami-Dade County Police Department, Florida; Mesa County Sheriff’s Office, Colorado; Arlington, Texas; North Little Rock, Arkansas; Herrington, Kansas; Gadsden, Alabama; and Polk County, Florida.13 Meanwhile, as the technology is quickly becoming cheaper and more powerful, interest in deploying drones for domestic law enforcement and commercial use is increasing, bringing about concerns over public safety and individual privacy rights.14

First, we will explore the history of drone use going back to World War II, through Vietnam and the Cold War, as well as our current overseas contingency operations that we used to call the War on Terrorism. Then, we will look at the states and their attempts at regulation and why we seriously need a national model act and soon.

World War II and Before

The U.S. military has been conducting aerial surveillance from manned aircraft for decades;15 however, the concept of drones did not gain traction until after World War II. The origins of the modern drone can be traced to the “target drones” used in the early 20th century.16 Over time, the U.S. drone has evolved through three phases: (1) the drone as a “target” (1910s–1950s), (2) the drone as a “sensor” (1960s–1990s), and (3) the drone as a “weapon” (2000s–today).17

Early target drones were used to test and train combat pilots and anti-aircraft gunners.18 The earliest of these drones emerged during the First World War. Developed in 1917, the rail-launched Kettering Aerial Torpedo “Bug” was essentially an unmanned aerial torpedo guided by preset controls.19 After a predetermined length of time, the engine would shut off, the wings were released, and the “Bug” would plummet to the earth, where its explosives detonated on impact.20 The early radio-controlled “Aerial Torpedo” was also developed in 1917 and could carry a 300-pound bomb 50 miles.21 Both the “Bug” and the “Aerial Torpedo” were precursors to modern cruise missiles.22

Renewed interest in remotely controlled vehicles during the late 1930s produced the next generation of “radio controlled” drones.23 Toward the end of the Second World War these drones were used as training targets for the U.S. Army Air Corps, and up to and throughout the 1960s drones remained almost exclusively for use as “targets” for training.24

Vietnam War

The Vietnam War marked the turning point in which drones evolved from being “targets” to remote “sensor” platforms.25 In 1959, the U.S. Air Force, concerned about losing pilots over hostile territory, began exploring the use of reconnaissance drones.26 While they are not highly effective, you see a movement away from drones being used strictly as targets and a transition to sensory or observational tools with the ability to locate and monitor enemies without placing troops in danger.27

Cold War and Beyond

The next period in which drone technology saw progress was the Cold War. In the 1980s, the creation of the “Albatross” drone marked the beginning of the drone as a weapon. The “Albatross” was created by Abraham Karem, born in Baghdad.28 Karem emigrated from Israel to Los Angeles and with the support of U.S. funding for research, he created the modern drone.29 While Vietnam War era drones could stay in the air for only two hours, technological advances enabled the “Albatross” to stay in the air for up to 56 hours.30 The “Albatross” demonstration led to the U.S. military pouring funding into drone research and development.31 During this period the United States developed the “Amber” and later the “GNAT-750,” which was equipped with GPS navigation and infrared and low-light cameras.32 Drone development stalled in the 1990s and the Pentagon was forced to consolidate its research into a single joint program office.33 However, the need for surveillance remerged during the Bosnian War in 1992 to 1995 and the Central Intelligence Agency resumed drone development, resulting in creation of modern drones like the “Predator.”

The “Predator” and the “Reaper” are currently in use in Afghanistan and Pakistan.34 They carry TV cameras, image intensifiers, radar, infrared imaging for low-light conditions, and lasers for targeting and can be armed with laser-guided missiles.35 The data they gather can then be sent instantly via wireless and satellite connection halfway around the world, or to the handheld devices of forces below.36

While traditional methods of military aerial surveillance necessitated that surveillance be conducted from manned aircraft, advances in technology have enabled more powerful methods of aerial surveillance.37 Drones are substantially less expensive to operate and maintain than manned aircraft38 and are often used in situations where manned flight is considered too risky or difficult.39 They have proven quite successful in reducing American casualties40 and technology has made modern drones not only more powerful than their predecessors, but also cheaper to produce.41 Put simply, they are the ultimate cost-effective mercenary. Average crew space on total volume is devoted to crew space.


Their use has, up until recently, been primarily restricted to the military, and the potential benefits are increasing the pressure for domestic deployment.42 Drones are already being used by a number of law enforcement agencies, and the FAA is considering allowing commercial use.43 The FAA selected six drone research and test sites in December 2013, and these sites will continue operations until at least February 13, 2017.44

The FAA recently approved the first commercial drone flights over land to survey roads, pipelines, and other equipment in Prudhoe Bay, Alaska.45 The manufacturer, Aero Vironment, conducted the flight for British Petroleum with a 4½-foot-long aircraft in June 2014.46

Recently, an administrative law judge ruled that the FAA cannot ban from public airspace flying robots or pilotless air vehicles owned by commercial enterprises.47 This decision demonstrates how drones may no longer be restricted to military use but could eventually be a part of daily life. Currently, the FAA is considering a request from movie and television producers to allow drones to shoot “aerial video.”48 Domino’s pizza just recently used the “DomiCopter” to deliver pizzas in the United Kingdom.49

With new technology come new problems. When Henry Ford created a new and affordable vehicle, the Model-T, he never dreamed Clyde Barrow, the notorious bank robber, would send him a letter praising the Model-T for its ability to outrun police cars.50 The common cell phone can now be transformed into a bomb detonator.51 Concerns presented by drones are regulated inconsistently from state to state, and a model act would prove the most effective method.

State Drone Legislation

A survey of the 13 states with enacted drone legislation reveals that drones’ threat to privacy is of the utmost concern to legislators. Among the various issues addressed are weaponization, restrictions on the information drones may gather and what that information may be used for, data retention limitations, third-party drone use, and the private use of drones.52


  • The Freedom from Unwarranted Surveillance Act53 took effect on July 1, 2013.
  • Prohibits law enforcement from using drones to gather evidence or information.54

Example: Drones may gather evidence in a criminal investigation if a warrant is obtained or in cases involving “imminent danger to life or serious damage to property,” to counter “a high risk of a terrorist attack,” and to prevent the imminent escape of a suspect or the destruction of evidence.55

  • Criminal exclusionary rule for evidence obtained in violation.56


  • Restrictions on Use of Unmanned Aircraft Systems57 took effect on July 1, 2013.
  • Restricts both governmental and private use of drones.58

Exception: Model airplanes, rockets, and drones may be used in “mapping or resource management,”59 for emergency response for safety, for search and rescue (SAR), or for controlled-substance investigations.60

  • Restricts drone photography or recording of any individual for the purpose of publishing or disseminating the image or data.61
  • Restrictions are so broad that it may violate the First Amendment.62


  • The Freedom from Drone Surveillance Act63 took effect on January 1, 2014. However, new legislation to update the bill is pending and would cover law enforcement access to information gathered by third-party drones.64 Applies only to law enforcement agencies and generally prohibits law enforcement from using drones to gather information.65

Exceptions: If a warrant is obtained, for countering a high risk of a terrorist attack, for preventing imminent harm to life, for forestalling the imminent escape of a suspect or the destruction of evidence, for SAR, solely for crime scene and traffic crash scene photography, and with consent.66

  • Evidence gathered by a drone in violation of this statute is presumed inadmissible unless a judicially recognized exception to the Fourth Amendment exclusionary rule applies.67
  • Where the data collected by a drone are not evidence of a crime or relevant to an ongoing criminal investigation, a 30-day data retention limit applies.68


  • Indiana’s law69 took effect on July 1, 2014.
  • Law enforcement must obtain a search warrant in order to use a drone.70

Exceptions: Law enforcement may use a drone without obtaining a search warrant in limited exigent circumstances including for preventing a likely terrorist attack, for SAR, in response to a natural disaster, for geographical mapping, or with consent.71

  • It is a misdemeanor for any person who is not a law enforcement officer or government entity to place electronic surveillance equipment that records images or data unattended on another person’s private property without consent.72


  • Drones can be used to “capture, receive, or disclose, an image,” but the admissibility of the evidence obtained, in either a criminal or civil proceeding, is prohibited unless it has been obtained by a valid search warrant.73
  • Drones may also be used in emergencies such as imminent threat to the life or safety of a person.74 However, within 48 hours of that emergency, a supervisory official of that agency must file a sworn statement with the court that details the reasons for using the drone.
  • A drone cannot be used for traffic law enforcement.75


  • Montana’s drone law76 took effect on October 1, 2013.
  • Prohibits the admissibility of information obtained from a drone “in any prosecution or proceeding within the state” unless obtained pursuant to a warrant or in accordance with judicially recognized exceptions to the warrant requirement.77 Applies to all operators and local law enforcement agencies because it focuses on the activity, not the actors.78

North Carolina

  • North Carolina’s Senate Bill 402,79 effective July 1, 2013, places a two-year moratorium on drone use by state and local personnel unless the chief information officer for the Department of Transportation (CIO) approves the use exception.80
  • If the CIO decides to plan for a drone program, a proposal for the implementation of the program must be provided to the Joint Legislative Oversight Committee on Information Technology, the Joint Transportation Legislative Oversight Committee, and the Fiscal Research Division by March 1, 2014, and must include, at minimum, (1) the governance structure to include the appropriate use at each level of government, (2) guidelines for program implementation to include limitations on unmanned aircraft systems (UAS) use, (3) potential participants, (4) costs associated with establishing a program, (5) potential sources of funding, (6) issues associated with establishing a program to include limitations on entities that may already have purchased UAS, and (7) recommendations for legislative proposals.81


  • Use of Drones by Law Enforcement Agencies Act was enacted in 2013.
  • Prohibits law enforcement agencies from operating, acquiring information from, or disclosing information acquired through a drone, except in specifically enumerated circumstances.82

Exceptions: when obtaining a warrant; when there is probable cause to believe that a person has committed, is committing, or is about to commit a crime;83 with written consent;84 for SAR; when there is an imminent threat to life and safety; in a state of emergency;85 for crime scene reconstruction;86 and for training purposes.87

  • Specially exempts the U.S. Armed Forces from its provisions but does not address the issue of other federal actors.88 It does, however, prohibit “public bodies” from operating a weaponized drone.89


  • The Freedom from Unwarranted Surveillance Act90 took effect on July 1, 2014.
  • Bans law enforcement agencies from using a drone to gather evidence or other information.91

Exceptions: when the agency obtains a warrant; it is used to counter a high risk of a terrorist attack, prevent imminent danger to life, aid in searching for a fugitive or escapee, or monitor a hostage situation; and it is used for SAR.92

  • Contains a criminal exclusionary provision barring the admission of evidence obtained in violation of the law.93


  • Texas recently enacted the Texas Privacy Act,94 which took effect on September 1, 2013.95
  • Enumerates a “nonapplicability” section that outlines 19 lawful uses for drones.96 The law also makes both the illegal use of a drone to capture images97 and possessing or distributing the image98 misdemeanors.
  • Contains evidentiary exclusion provisions and states that an image captured in violation of the bill “may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding.”99 The image is not subject to discovery or subpoena.100
  • Finally, each state, county, or municipal law enforcement agency located in a county or municipality with a population greater than 150,000 that used or operated an unmanned aircraft must submit written reports on its drone use every 24 months to the governor, lieutenant governor, and each member of the legislature.101


  • Government Use of Unmanned Aerial Vehicles Act102 took effect on May 13, 2014.
  • Permits the governmental use of drones in SAR efforts, accident surveillance, and other scenarios where exigency demands the ability to remotely and easily deploy such a device.103
  • Contains provisions for evidentiary exclusion if the information is obtained in violation of this law and is only admissible if the subject gives consent.104
  • Bans weaponized drones and makes it a felony for a private citizen to own or operate one.105


  • Virginia enacted a two-year moratorium on law enforcement drone use, which went into effect on July 1, 2013.106
  • However, Virginia prohibits law enforcement drone use until 2015, except in emergencies such as for SAR, Amber Alerts, or training purposes.107
  • The bill does not apply to the National Guard or to research organizations.


  • Wisconsin’s bill took effect on April 9, 2014.
  • Requires law enforcement to obtain a warrant before using a drone “where one would have reasonable expectation of privacy.”108 Without a warrant, a drone may only be used in public places, for emergency situations, for SAR, for locating an escaped prisoner, or for surveying a place prior to executing an arrest warrant.109
  • Private citizens are not allowed to use a drone “with the intent to photograph, record, or otherwise observe another individual” in a place where one would have a reasonable expectation of privacy.110
  • Prohibits the use of weaponized drones.111

Conclusion: A Model Act

It is clear that no state drone legislation addresses the same issue in the same way. As we move forward, a model act would be helpful and should contain provisions for warrant requirements, weaponization, data collection and retention, and reporting drone use by government. In addition, private or commercial use of drones should be addressed in anticipation of FAA rulemaking. In short, we need “rules of the road” for drones. We need answers for issues as basic as: How old should the operator be? What degree of expertise is needed? Should we test the operator’s skills? Should we have a sentence enhancement for using a drone to commit a crime?

In the 1950s Clinton Riggs of the Tulsa Police Department invented the yield sign to bring order to our roadways.112 A model act would provide order for the states much like the yield sign did for the roads. They both would act as a “guide” for states to follow. We need the Clinton Riggs of today to step forward with good ideas for the future.


1. Ad Crable, Cell Phones, Computers More and More Part of Lancaster County Amish’s Real World, Lancaster Online (May 18, 2014), a4bcf6878.html.

2. Amazon Unveils Futuristic Plan: Delivery by Drone, CBS News (Dec. 1, 2013),

3. Harriet Alexander, Devastating California Wildfire May Have Been Started by Illegal Marijuana Farm, Bus. Insider (Aug. 31, 2013),

4. Dan Friedman, Rep. Sean Patrick Maloney Used Drone at His Wedding—Violating Federal Aviation Administration Rules, N.Y. Daily News (July 14, 2014),

5. Surveillance in the Free State: Electronic Communications, Location Tracking, Automatic License Plate Readers, Drones and Facial Recognition, ACLU, 11 (Feb. 23, 2014) [hereinafter ACLU, Surveillance in the Free State],

6. Id.

7. See Allie Bohm, Status of 2014 Domestic Drone Legislation in the States, ACLU (Apr. 22, 2014) [hereinafter Bohm, 2014 Drone Legislation Status],

8. Jay Stanley & Catherine Crump, Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft, ACLU, 1 (Dec. 2011),

9. Understanding Drones, Friends Comm. on Nat’l Legis., (last visited July 31, 2014).

10. Unmanned Aircraft Systems, Fed. Aviation Admin., (last visited July 31, 2014); Game of Drones, Economist (Dec. 21, 2013),

11. Academy of Model Aeronautics: Questions and Answers, (last visited Aug. 26, 2014).

12. Blog of Rights: Domestic Drones, ACLU, (last visited July 25, 2014); Game of Drones, supra note 10.

13. ACLU, Surveillance in the Free State, supra note 5.

14. Id.; Game of Drones, supra note 10.

15. Stanley & Crump, supra note 8, at 1.

16. Ian G.R. Shaw, The Rise of the Predator Empire: Tracing the History of U.S. Drones, Understanding Empire (2013),

17. Id.

18. Id.

19. Id.

20. Id.

21. Id.

22. Id.

23. Id.

24. Id.

25. Id.

26. Id.; William Wagner, Lightning Bugs and Other Reconnaissance Drones xi (1982).

27. Shaw, supra note 16.

28. Id.

29. Id.

30. Id.

31. Id.

32. Id.

33. Id.

34. Drones: What Are They and How Do They Work?, BBC News (Jan. 31, 2012) [hereinafter Drones: How Do They Work?],

35. Id.

36. Attack of the Drones, Economist (Sept. 3, 2009),

37. Stanley & Crump, supra note 8, at 1.

38. Attack of the Drones, supra note 36.

39. Drones: How Do They Work?, supra note 34.

40. Attack of the Drones, supra note 36.

41. Id.

42. Stanley & Crump, supra note 8, at 1; Game of Drones, supra note 10.

43. ACLU, Surveillance in the Free State, supra note 5; Mike Ahlers, FAA OKs First Commercial Drone Flights over Land—for BP, in Alaska, CNN (June 11, 2014),; Doug Gross, Hollywood to Feds: Let Us Use Drones, CNN (June 4, 2014),

44. Attack of the Drones, supra note 36; FAA Selects Six Sites for Unmanned Aircraft Research, Fed. Aviation Admin., (last visited July 29, 2014).

45. Ahlers, supra note 43.

46. Id.

47. Jack Nicas & Andy Pasztor, Judge Says FAA Lacks Clear Authority on Commercial Drones, Wall. St. J. (Mar. 7, 2014),

48. Gross, supra note 43.

49. Julianne Pepitone, Domino’s Tests Drone Pizza Delivery, CNN (June 4, 2013),

50. Automobile in American Life:Clyde Barrow Letter, Henry Ford Museum, http://www.thehenry (last visited Aug. 1, 2014).

51. FBI: Cell Phones Rigged to Set Off Bombs, USA Today (June 11, 2003),

52. Allie Bohm, The Year of the Drone: An Analysis of State Legislation Passed This Year, ACLU (Nov. 7, 2013) [hereinafter Bohm, The Year of the Drone],

53. Fla. Stat. § 934.50 (2013).

54. The Fundamentals of Counterterrorism law 293 (Lynne Zusman ed., 2014) (hereinafter Fundamentals of Counterterrorism); Allie Bohm, Status of Domestic Drone Legislation in the States, ACLU (Feb. 15, 2013) [hereinafter Bohm, 2013 Status of Drone Legislation],; Joe Sutton & Catherine E. Shoichet, Florida Gov. Rick Scott Signs Law Restricting Drones, CNN (Apr. 28, 2013),

55. Fundamentals of Counterterrorism, supra note 54, at 293; Sutton & Shoichet, supra note 54.

56. Fundamentals of Counterterrorism, supra note 54, at 293.

57. Idaho Code Ann. § 21-213 (West 2013).

58. Allie Bohm, First State Laws on Drones, ACLU (Apr. 15, 2013) [hereinafter Bohm, First Laws on Drones],; Bohm, 2013 Status of Drone Legislation, supra note 54.

59. Idaho Code Ann. § 21-213(1)(b).

60. Idaho Code Ann. § 21-213(2)(a).

61. Idaho Code Ann. § 21-213(2)(b).

62. Bohm, The Year of the Drone, supra note 52.

63. 725 Ill. Comp. Stat. Ann. 167/1–35 (2014).

64. Id.

65. 725 Ill. Comp. Stat. Ann. 167/10.

66. 725 Ill. Comp. Stat. Ann. 167/15.

67. 725 Ill. Comp. Stat. Ann. 167/30.

68. 725 Ill. Comp. Stat. Ann. 167/20; Bohm, The Year of the Drone, supra note 52.

69. H.B. 1009, 118th Gen. Assem., 2d Reg. Sess. (Ind. 2014), available at

70. Id.; Bohm, 2014 Drone Legislation Status, supra note 7.

71. H.B. 1009.

72. Id.

73. H. File 2289, 85th Gen. Assem., Reg. Sess. (Iowa 2014), available at

74. House Democratic Research Staff, Unmanned Aerial Vehicles/Drones HF 2289 (Feb. 25, 2014),

75. H. File 2289; Unmanned Aerial Vehicles/Drones HF 2289, supra note 74.

76. Mont. Code Ann. § 45-5-109(1) (2013).

77. Fundamentals of Counterterrorism, supra note 54, at 295; Bohm, 2013 Status of Drone Legislation, supra note 54.

78. Fundamentals of Counterterrorism, supra note 54, at 296.

79. S.B. 402, 2013 Gen. Assem., Reg. Sess. (N.C. 2013), available at

80. Id.

81. S.B. 402 § 7.16(f).

82. Or. Rev. Stat. Ann. § 837.310 (2013).

83. Or. Rev. Stat. Ann. § 837.320.

84. Or. Rev. Stat. Ann. § 837.330.

85. Or. Rev. Stat. Ann. § 837.335.

86. Or. Rev. Stat. Ann. § 837.340.

87. Or. Rev. Stat. Ann. § 837.345.

88. Fundamentals of Counterterrorism, supra note 54, at 296.

89. Or. Rev. Stat. Ann. § 837.365.

90. Tenn. Code Ann. § 39-13-609 (2013).

91. Tenn. Code Ann. § 39-13-609(c).

92. Tenn. Code Ann. § 39-13-609(d).

93. Tenn. Code Ann. § 39-13-609(g)(2).

94. Tex, Code Gov’t Ann. § 423 (West 2013). See also H.B. 912, 83d Leg., Reg. Sess. (Tex. 2013), available at

95. Bohm, 2013 Status of Drone Legislation, supra note 54.

96. Tex. Code Gov’t Ann. § 423.002; Fundamentals of Counterterrorism, supra note 54, at 297.

97. Tex. Code Gov’t Ann. § 423.003.

98. Tex. Code Gov’t Ann. § 423.004.

99. Tex. Code Gov’t Ann. § 423.005(a)(1).

100. Tex. Code Gov’t Ann. § 423.005(a)(3).

101. Tex. Code Gov’t Ann. § 423.008(a).

102. Utah Code Ann. §§ 63G-18-101–63G-18-105 (West 2014).

103. Bohm, 2014 Drone Legislation Status, supra note 7.

104. Utah Code Ann. §§ 63G-18-101– 63G-18-105.

105. Id.

106. Bohm, 2013 Status of Drone Legislation, supra note 54.

107. H.B. 2012, 2013 Gen. Assem., Reg. Sess. (Va. 2013), available at; Bohm, First Laws on Drones, supra note 58.

108. S.B. 196, 2013–14 Leg., Reg. Sess. (Wis. 2013).

109. Id.

110. Id.

111. Id.

112. Kristi Eaton, The Father of the Yield, This Land Press (Dec. 9, 2010),