In the Age of Drones, Who Owns the Sky?

June 25, 2015 Updated: June 28, 2015

In the second decade of the 20th century, the world witnessed the transformation of the sky—previously the exclusive domain of birds—into a playground for man-made machines.

In the second decade of the 21st century, a similar revolution, albeit of lesser importance, has occurred: The skies have become home for unmanned aerial vehicles, popularly known as drones.

With the emergence of any new technology comes a game of catch-up played by regulators who are tasked with coming up with the best way to govern something previously unknown to the entire world. The Industrial Revolution saw more than a century of unbridled pollution before it was reined in by the modern environmentalist movement.

The pendulum has since then swung toward the other extreme, with regulators frequently attempting to outlaw any innovation that could, because so little is known about them, have harmful consequences. A service as innocuous as allowing people to hail cabs from their smartphone—Uber and Lyft—has been banned from numerous cities around the country because of their departure from the existing taxicab business model.

On paper, the federal government has taken a laissez-faire approach to drones, at least those used by hobbyists. The Federal Aviation Agency (FAA) has been unable to come up with timely drone-specific regulation, so it has taken a two-fold approach: Commercial use of drones are banned except when special exemptions are granted to specific companies; noncommercial use of drones is essentially regulated as another aircraft under existing law.

The problem with the latter is that the existing body of aircraft regulation was written with airplanes—large, hulking, hundred-thousand pound behemoths—in mind, not drones. Those rules forbid aircraft from being operated in a way that endangered people, and private planes have to be kept a certain distance from airports.

There are obvious gaps in the existing regulation—drones could cause noise pollution by flying above someone’s home or spy on people, hovering outside someone’s bathroom and videotaping what’s inside. What’s more, federal law prevents states and municipal governments from coming up with their own drone regulations, since airspace regulation is suppose to be the exclusive domain of the FAA, which has had trouble completing its regulation proposals on time.

Thus, the—technically illegal—burden of regulating drones fell onto the shoulders of states and city councils, which, too dispersed to be the target of concentrated lobbying by the drone industry, have cracked down harshly on the devices.

Cities across the country have come up with creative applications of existing laws to confiscate drones they deem improperly flown, and others, like New York City, have made proposals to outlaw drones entirely, apart from use by law enforcement. More than a dozen states have already passed drone regulations, especially to combat the invasion of privacy, and many more states have pending legislation.

Once the FAA does come out with comprehensive drone regulation—which will take years, even in the most optimistic timetable—federal regulations should supersede local ones.

The contents of what the federal regulations will be are not clear: the FAA has mostly focused on crafting regulation for the commercial application of drones, which will have a decisive influence on the fate of the drone industry in the United States. For now, fly your drones while you may, a local regulation may outlaw that very soon.