Testimony Regarding Unmanned Aerial Vehicles

November 23, 2015

The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony on proposed legislation regarding Unmanned Aerial Vehicles. The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across the state and nearly 50,000 members. The NYCLU’s mission is to defend and promote the principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of New York.

Unmanned aerial vehicles (“UAVs”) are a generative technology that have a broad range of applications and capabilities. UAVs are used in farming, conducting scientific research, monitoring weather patterns, protecting wildlife, filmmaking, performing search and rescue missions, monitoring traffic, investigating crime scenes, delivering consumer goods, and other uses yet to be imagined. It is beyond dispute that certain uses of UAVs may pose a significant risk to public safety, and that regulation of such surveillance technology is needed. However, UAVs also facilitate investigative and expressive activities that are protected under the federal Constitution and the Constitution of New York State. It is the position of the NYCLU therefore that any such regulation of emerging surveillance technology, such as UAVs, must balance government’s interest in protecting public safety with the obligation of government to protect civil liberties.

The City Council seeks to address these competing interests through several legislative initiatives: Resolution No. 57-A, Int 614, proposed Int. 601, and proposed Int. No 589-A. We urge the Council to re-evaluate these proposals in light of our testimony, to ensure that measures to regulate UAV legislation are counterbalanced by equally strong protections of constitutional liberties.

Warrant Requirement for Government Use UAVs

Proposed Resolution No. 57-A calls upon the New York State Legislature to pass, and the Governor to sign, A.2683/S.1841. This bill would amend the criminal procedure law, requiring that government agencies secure a warrant before using a UAV to obtain information or evidence of suspected criminal activity. Similarly, Int. No 589-A, requires city agencies to establish policies intended to ensure that the use of UAVs comport with Fourth Amendment standards regarding search and seizure, and with other safeguards of constitutional rights and liberties. Further clarification is needed regarding the application of Int. No 589-A’s mandate, but it appears to be consistent with the warrant requirements of A.2683/S.1841.

While UAVs are not yet routinely used by law enforcement and other government agencies, it is not merely speculative to anticipate that the unregulated use of UAVs can lead to the invasion of personal privacy. We support proposed resolution No. 57-A and Int. No 589-A because the proposed legislation seeks to protect civil rights and civil liberties while recognizing the government’s interest in utilizing UVA technology to protect public safety. The proposed resolution and bill are also consistent with national legislation regarding UAVs, and with federal guidance from the Department of Justice regarding government use of UAVs.

Regulating UAV Use by Private Actors

Int 614 proposes an UAV identification tag registration process; the legislation also requires insurance for all UAVs. Providing accountability for UAV operators through some kind of registration process may make sense; however, lawmakers must ensure that this process does not violate the First Amendment rights of New York City residents. Media coverage of UAV crashes at airports, sporting events, and wildfire emergencies demonstrate that unregulated use poses a variety of public safety concerns. But this media attention fails to acknowledge the constitutionally protected uses of UAVs that benefit the public. In fact, the registration process outlined in Int. 614 would likely have a chilling effect on constitutionally protected speech. Consider that most photographs and video recordings that document acts of misconduct by government officials – from unreasonable use of force by police to malfeasance by educators to acts of corruption by politicians – are created not by the press, but rather by members of the public. Hence, this type of constitutionally protected conduct may necessitate a level of anonymity that would not be possible under the proposed regulatory scheme. In light of the breadth of this legislation, we encourage the Council to consider tailoring regulations in a manner that protects First Amendment and other constitutional rights.

Criminal Proscriptions for UAV Use

Proposed Int. 601 seeks to criminalize use of an UAV in undesignated areas of the city; use of an UAV with the intent to cause harm to person or property; and use of UAVs to which weapons are attached. Individuals who violate these provisions would be subject to a misdemeanor punishable by a fine no more that $5000 or imprisonment up to a year. While there are legitimate public safety concerns associated with these proscribed uses, we recommend against creating new criminal penalties for conduct that is subject to existing tort and criminal laws, such as harassment, stalking, assault, criminal mischief, invasion of privacy, and intentional infliction of emotional distress.

Federal Preemption of Local Legislation

The Federal Aviation Administration (FAA) has taken an incremental approach to regulating UAVs because of the novel and complex issues presented by this technology and its many applications. The NYCLU recommends that members of the City Council reconsider proposed Int. No 589-A and Int. 614 because both bills are in direct conflict with existing, and forthcoming, FAA regulations.

Proposed Int. No 589-A seeks to regulate commercial use of UAVs by creating a permit scheme that conflicts with existing FAA regulations. Currently, commercial use of UAVs are limited to operations in low-risk, controlled environments. The FAA authorizes such use of UAVs on a case-by-case basis, under Section 333 of the FAA Modernization and Reform Act of 2012. The FAA began granting exemptions under this provision in September 2014, and has since authorized the use of UAVs to more than 2,000 individuals and entities. It is likely that this regulatory scheme will preempt the City Council’s proposal because the FAA has authority to regulate any aircraft, including UAVs, that operate in national airspace. Moreover, even if it were permissible for the City Council to adopt regulatory scheme governing UAVs in New York City, the obligation to comply with state and federal rules would certainly lead to confusion, not to mention administrative red tape.

Int 614 also proposes a local UAV registration process. And this proposal, too, is likely to be preempted by the FAA’s regulations, once adopted, which will require registration of UAVs. Last month, the FAA announced intentions to mandate UAV registration before the end of the year. This past weekend, an FAA task force released recommendations for a national UAV registry to FAA officials. The recommendations, which will be modified by the FAA and released on December 21, will require UAV operators to register and affix a registration number to all devices weighing 250 grams and above.

I thank the members of the City Council’s committees on Public Safety and Transportation for the opportunity to offer testimony today regarding the regulation of unmanned aerial vehicles. We look forward to continuing to work with the Council to ensure that comprehensive regulation of UAVs is done in a measured way that balances public safety and civil liberties.