Tech & Science

How the Government's Drone Registry May Have Broken the Law

03_11_Drones_01
03/11/16
In the Magazine
The U.S. House Energy and Commerce Committee heard testimony in November on whether and how to regulate unmanned vehicles. Jay Mallin/ZUMA Press/Corbis

Update | As a heat wave swept across California this past summer, a fire broke out on the parched hills of northeastern Los Angeles and roasted several vehicles along a major highway. Firefighters initially struggled to contain the blaze, and peeved U.S. forestry officers said their efforts lagged because people kept flying drones nearby, which interfered with their planes. “You’ve got people in areas where they think it is cool,” California Department of Forestry and Fire Protection spokesman Daniel Berlant told The New York Times. “But they don’t realize the implication of what they are doing.”

They’re not the only ones. Over the past five years, drones have become not only cheap and easy to fly, but also a public nuisance—slamming into infants, drifting close to airports and crashing onto the White House lawn. Now, after years of leaving the industry alone, the Federal Aviation Administration (FAA) is trying to force owners to register their aircraft.

Late last year, the FAA and the Department of Transportation—with the drone industry’s support—quickly created an online registry for hobbyists. Its goal is to track down law-breaking owners and hold them accountable. The penalty for not registering: up to three years in prison and a $250,000 fine. There’s no way to know what percentage of drone hobbyists have followed the new rules. But as of February 8, the FAA says 329,954 owners have signed up for the registry. “Make no mistake: Unmanned aircraft enthusiast[s] are aviators,” U.S. Transportation Secretary Anthony Foxx said in a statement in December, “and with that title comes a great deal of responsibility.”

Not everyone is pleased about the requirement. Some drone owners say it’s illegal, and they’re challenging the FAA in court. Leading the fight: John Taylor, an insurance attorney and drone hobbyist in Silver Spring, Maryland. When the registry launched in December, Taylor says he waited for an appropriate lawyer to file a suit. When that didn’t happen, he did it himself. “I truly believe,” he says, “the FAA has no real defense.”

Taylor bases his argument on a half-page clause in the FAA’s Modernization and Reform Act, which explicitly prohibits the agency from making new rules and regulations regarding model aircraft. In launching the registry, Taylor claims, the FAA has technically created a regulation as well.

The FAA disagrees. It argues the registry isn’t new, but rather an extension of a paper-based program for regular aircraft that was codified during the Eisenhower era.

Either way, drone registration may have another problem. Under a separate piece of legislation, signed in 1946, all regulations from federal agencies need to go through a public notice period so nongovernment entities can offer feedback. The FAA circumvented this process, however, saying the registry was too important to wait.

In doing so, the agency betrayed the public trust, argues Jonathan Rupprecht, an aviation attorney in West Palm Beach, Florida, who is working with Taylor on the lawsuit. “Instead of the FAA being seen as an agency here to help and educate the people,” he says, “they look like dictators who say, ‘You must obey, or you get a few years in jail.’”

Drone enthusiasts have other concerns as well—namely, privacy. The FAA says it will make the registration numbers in its database open to the public. But as Taylor cites in his lawsuit, several drone owners claim they’ve received other people’s information after completing an application. A spokesperson for the agency declined to comment on the matter because of the pending litigation.

It’s unclear when there will be a ruling on the lawsuit, but the FAA doesn’t seem to have a backup plan. If a judge declares the registry illegal, the agency may be forced to wait on a fractious Congress to establish drone regulations.

Taylor is optimistic and eager to stop what he calls federal overreach. So is Rupprecht, who seems to be enjoying the fight. “I’m here,” he says, “to blow the registry up.”

An earlier version of this article referred to the Federal Aviation Administration as the Federal Aviation Authority.