Regulatory overkill: How regulations can stymie innovation

Merriam-Webster defines overkill as “a destructive capacity greatly exceeding that required for a given target.” That describes what happened when an ally of the United States shot a consumer Unmanned Aerial Vehicle (UAV, or drone) from the sky using a $3.4 million Patriot missile. Shooting down a drone with a missile is overkill, but it also illustrates a problem federal and state regulatory agencies face when contemplating emerging, innovative technologies.

Regulations have unintended consequences. Occasionally, those consequences arise from a regulatory agency not understanding technology or from the agency’s structure as defined by Congress. Agencies created in the 1930s, 1950s, or similar decades were created long before the technologies they seek to regulate today were developed.

{mosads}Shooting down a drone with a Patriot missile is both a perfect example of regulatory overkill and provides the excuse to examine how just one regulation has both benefits and unintended consequences.

The Federal Aviation Administration (FAA) has jurisdiction over United States airspace. It is the primary agency in charge of integrating drones into the national airspace. It has promulgated rules regarding operator testing, operational limitations, and so on. The FAA has also decided to include drones within the definition of “aircraft.” This means, according to some, that drones are entitled to the same protections of federal law as commercial airplanes, private airplanes, and helicopters.

Defining drones as aircraft for purposes of federal regulations has some benefits. The definition provides consistency across federal regulatory agencies along with signaling to states the areas where they can, or cannot, legislate. States, for example, can determine whether a drone operator commits an aerial trespass when flying over another’s property, whether an operator is violating someone’s privacy, or whether their law enforcement agencies may use drones.

Defining drones as aircraft also has its drawbacks. The definition has led to some interesting allegations in courts and inhibited some categories of innovation.

Most drones operated in the United States are small devices used for recreational purposes. A number of these drones have cameras affixed. One of the leading concerns regarding operation of these drones whether operators are using drones to covertly spy on, or take inappropriate photographs of, their neighbors. What happens when an operator is flying the drone over someone else’s property and that property owner believes the operator is spying on him?

In 2015, a property owner in Kentucky shot down a drone flying over his property. According to various news stories, the property owner believed the operator was improperly photographing his daughter. In January 2016, the drone’s operator sued the property owner in federal court. The lawsuit alleged, in part, that the federal court had jurisdiction because of the FAA’s decision to incorporate drones into the existing definition of “aircraft.”

If a drone is an “aircraft,” according to the complaint, then the FAA has complete jurisdiction over both the drone and the airspace in which the drone was operating. This, in turn, means the property owner violated federal law prohibiting interfering with an aircraft.

Several states, including California, Nevada, and Oregon, have passed laws extending trespass laws to aerial trespasses by drones. Oklahoma is considering a law granting a property owner the authority to shoot down a drone if it is flying over his or her property. If drones are aircraft, these state laws likely run afoul of FAA rules promulgated in the 1960s, 1970s and later.

States and the federal government have vested interests in protecting certain types of buildings. Utilities may not want drones operating near nuclear power plants. Cities may want to restrict flights around stadiums during sporting events. Drones are not allowed near airports without notifying air traffic control. Companies are trying to develop systems to detect drones and protect properties, but have been thwarted by FAA regulations, Federal Communications Commission regulations, and US law.

Because the FAA decided to expand the definition of aircraft to include drones, many of these drone protection programs violate the law. The programs violate the law because they either interfere with aircraft operations or result in the destruction of aircraft.

The FAA is working with a handful of these companies, allowing them to test systems in limited environments. Nevertheless, by extending the regulatory definition of aircraft to include unmanned aircraft, the FAA unintentionally stymied innovation.

Regulations with unintended consequences are not unique to the Federal Aviation Administration. For example, the Federal Communications Commission, founded in 1934, runs into the same problems trying to extend regulations intended for telegraph and telephone systems to the Internet.

Many regulatory agencies are ill-suited to regulate technology. Their approaches are steeped in bureaucratic history and based on laws that could not anticipate technological advances. Innovation looks to the future, and more often than not, disrupts existing interests. As governments, federal and state, wrestle with regulating disruptive technologies, they should be aware approaches borne from the past will have unintended consequences for today’s technology, like shooting down a drone with a $3.4 million missile.

Jonathon Hauenschild, J.D. is a technology policy analyst. He is the founder and principal of Franklin Adams & Co., LLC.

The views expressed by contributors are their own an are not the views of The Hill.