Flame-throwing Drones: Can the FAA Intervene?

While many drone hobbyists attach cameras to their devices, two creative Connecticut men decided to aim higher with their drone accessories: handguns and flamethrowers. The two men flew their weaponized drone in their backyard and uploaded two videos of the flights to YouTube in 2015, including a holiday themed turkey roasting tutorial. This type of activity might naturally arouse suspicion at the local sheriff’s department, but the pair’s viral videos also attracted the attention of Federal Aviation Administration investigators. This summer, a federal judge ordered the enforcement of FAA subpoenas against the two, raising questions about the scope of the FAA’s authority to regulate drone use for personal or recreational purposes.

Under federal law, the FAA can investigate matters when there is a reasonable ground that someone is violating an FAA statute or a reasonable ground for investigation of “any question that may arise” under the statute.

Moreover, federal administrative agencies generally have broad power to subpoena relevant information from individuals pursuant to a legitimate investigative purpose. With these limited constraints in mind, a district court judge recently agreed to enforce the FAA’s subpoenas for information relating to the weaponized drones.

Although the judge sided with the FAA regarding subpoenas, he expressed skepticism that the FAA may ultimately penalize this type of drone use. First, the judge noted that the FAA’s authorizing statute limits its rulemaking authority. For example, a rule regulating this sort of drone use arguably might qualify under the FAA’s authority to maintain “safety in air commerce and national security,” but interpreting that power so broadly might run afoul of the relevant statute. Secondly, the judge suggested that the Constitution may limit Congress’ power to allow the FAA to regulate private drone use of this sort. Congress lacks a general police power under the Constitution, and FAA regulations of this sort, if constitutional, would likely fall within the commerce clause of the Constitution. But the judge remained skeptical that the commerce clause would grant that broad of a power. Finally, the judge noted that FAA’s regulation of private drones may raise constitutional property issues. In a famous case from 1946, the Supreme Court held that a landowner must have property rights to “the immediate reaches of the enveloping atmosphere” above his land. Consequently, the FAA’s regulation of personal drone use on one’s own land could plausibly constitute an impermissible taking under the Constitution.

Because the judge did not have to rule on the FAA’s authority to penalize the drone hobbyists, his skepticism of the FAA’s authority was not necessary to decide the issue at hand and has little precedential effect. Nevertheless, his skepticism suggests that there may be some contentious court battles ahead between drone hobbyists and the FAA depending on the extent to which the FAA chooses to regulate personal drone use. As drones continue to proliferate, the courts will likely have to grapple with to what extent the FAA and Congress can regulate personal drone recreation.

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