House Blocks Localities from Regulating Drones

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Matt Chaney | Capital News Service

RICHMOND – The Virginia House of Delegates on Tuesday unanimously passed a bill to prohibit local governments from regulating unmanned aircraft, as Charlottesville tried to do in 2013 when it declared the city a “No Drone Zone.”

Del. Terry Kilgore, R-Gate City, said the goal of his legislation is to have uniform rules about drones across the commonwealth – and not different regulations in each locality. He said the House Courts of Justice Committee will explore the issue.

“What the bill says is that no locality may regulate this until … the courts committee comes up with a way to make sure that we have an across-the-board way to regulate drones,” Kilgore told delegates during a discussion of House Bill 412 on Monday.

Kilgore noted that Virginia operates under a legal principle called the Dillon Rule, which stipulates that local governments have only the powers specifically authorized by the legislature.


“This bill directs what is already understood under the Dillon Rule,” Kilgore said. “In other words, no locality could promulgate local law restricting the use of airspace by aircraft because they have not been given such authority by the General Assembly.”

But at least one locality in Virginia has attempted to promulgate such a policy – the city of Charlottesville.

In February 2013, the Charlottesville City Council adopted a resolution urging Congress and the General Assembly to prohibit the use of drones for surveillance. The resolution put a two-year moratorium on the city’s use of drones.

Moreover, the resolution stated that the City Council “declares Charlottesville a No Drone Zone, and instructs the City Attorney to perform the necessary legal tasks to transform this declaration into an Ordinance wherein drones are hereby banned from airspace over the City of Charlottesville, including drones in transit, to the extent compatible with federal law.” (However, the council never actually passed such an ordinance.)

According to the Kilgore, the Charlottesville City Council acted illegally by banning drones. In an email, he said his bill would expressly prohibit other local governments from adopting such ordinances. At the same time, Kilgore said HB 412 was “not necessarily” a reaction to the Charlottesville situation.

But some citizens say Kilgore’s bill does not address the issues that prompted the Charlottesville City Council’s resolution. Those issues include fears of government surveillance and an invasion of privacy from unmanned aircraft equipped with cameras.

“The question is, should there be some limit on the information that can be collected, and who’s going to do it?” said John Whitehead, a civil liberties activist who wrote the resolution to ban drones in Charlottesville. “If the state legislative body isn’t doing it, and the federal government’s not doing it, then who is?”

Whitehead is the founder of the Rutherford Institute, a nonprofit civil liberties organization based in Charlottesville. In an interview Monday, he said drones raise constitutional concerns: They can be used to violate people’s Fourth Amendment right to privacy. He also expressed concern about drones being used to suppress peaceful protest and the public safety hazards they might create.

“The biggest fear I have with drones is them being armed and people being afraid to go out on the street corner and hold up a picket sign – their right, according to the First Amendment,” he said. “It’s a field of technology that’s so awesome, it demands some kind of protection.”

That is why Whitehead is worried about prohibiting local governments from regulating this technology.

“If you don’t have some kind of law and order here, what’s going to happen, I’m afraid, is that people are going to start taking the law in their own hands,” Whitehead said.

As of Monday, five of the seven pieces of legislation proposed this year to regulate drone use had been tabled or otherwise killed. Only two bills are still alive: HB 412 and Senate Bill 729, which would make it a Class 1 misdemeanor to use a drone to commit a crime or to interfere with police or emergency medical services personnel. SB 729 was endorsed by the Senate Courts of Justice Committee and is awaiting consideration by the full Senate.

“Technology is outstripping our ability to regulate it. I don’t think we can regulate it effectively,” Whitehead said. “With these drones, if you film somebody in their front yard, that information should be deleted or made only accessible to police by a search warrant, or there’s no privacy.”