Last week, a drone and a California Highway Patrol helicopter nearly collided 700 feet above the California city of Martinez. Shortly thereafter, the reckless drone pilot was apprehended by police. The man, a Chinese exchange student, was questioned but ultimately not arrested.
This is exactly the sort of situation the Federal Aviation Administration (FAA) is citing to justify creating a federal “drone registry” by Christmas. Requiring every drone operator to mark his or her aircraft and report it to federal authorities will, according to the FAA, decrease the number of alarming close encounters like this one, and make it easier to track illicit drones back to their owners.
The FAA is wrong on both counts, and the incident in the skies over California is an excellent case study demonstrating why.
Beginning on Dec. 21, merely one week after the FAA announced it was creating a drone registry, anybody in possession of a drone weighing more than 0.55 pounds – about the weight of two sticks of butter – will be required to register as a drone owner with the federal government. The FAA will then issue a unique drone ID number (similar to an aircraft tail number) which the owner will be responsible for affixing to her quadcopter.
If an owner does not register her drone, she is liable for civil fines of up to $27,500 and up to $250,000 in criminal fines and three years’ imprisonment.
Ostensibly, these outrageously steep civil and criminal penalties are designed to secure compliance with the new regulatory scheme. Yet, the FAA’s new registry places the onus entirely on the owner to report his or her drones, making it relatively easy to for bad actors to evade, since the FAA lacks the ability to monitor or track drone purchases en masse. As I have pointed out previously, absent an owner standing directly beneath an unregistered drone, or found in physical possession of one, enforcement of the registry requirement will be all but impossible. Consequently, the people most likely to be trapped by the FAA’s new criminal regulations are the good-faith owners who the FAA is about to turn into federal criminals.
This brings us to the incident in California. In that situation, the drone operator was caught not because law enforcement officers were able to confiscate the drone and use its serial number or other markings to trace it back to an owner. Rather, the helicopter pilot watched the drone land and reported the rough location to the police, who happened upon a man carrying a drone nearby.
Suppose the FAA’s drone registry were already in place. How effective would it have been in this situation? The short answer is, not very, and for several reasons. The FAA restricts recreational drone flights to below 400 feet; the drone in question here was operating at nearly twice that altitude.
If the owner bought the drone with the actual intent to breach that upper threshold and enter airspace populated by manned aircraft, what incentive would he have to mark his drone? The risk of losing a registered drone in an area from which the owner cannot retrieve it, and thus potentially being arrested for violating federal law, is high; the risk of being caught with an unregistered drone is much lower. A rational owner who intends to fly his drone in a dangerous manner has little incentive to comply with the requirement, knowing he is effectively signing his own arrest warrant.
But what if the operator had no ill intent, and was simply being negligent? In all likelihood his drone would have been properly registered, but the only way for law enforcement agencies to make use of the registry would be for officials to physically retrieve the drone. Here, the drone landed and was picked up by its owner without incident. The police only got their man when he was seen carrying a drone. If the owner had simply placed the quadcopter in a backpack or a duffel bag, patrol officers would have been none the wiser and, registry or no, this case would have gone unsolved.
Could the helicopter pilot, or somebody else on the ground, have spied the drone’s ID number mid-flight, allowing officers to determine the drone’s owner without physically retrieving the drone? This seems unlikely. The drone in question, the DJI Phantom 3, measures less than two feet across. Many drones are even smaller. Any FAA-issued ID number will necessarily be small, making it highly unlikely it can be easily read from afar.
The simple fact is that the FAA’s drone registry is incapable of stopping, or even deterring, bad actors in the recreational drone space. More effective policies might include a point-of-sale registry, effectively making registration automatic.
The FAA could also consider requiring drone manufactures to build transponders into their craft that broadcast ID information, making it easier to track them, or incorporate geofencing technology that prevents drones from being flown above certain altitudes or into pre-determined restricted areas like airports.
These solutions would do more to solve the problem of dangerous drone close encounters, but they are also more technically difficult, costly, and burdensome to companies and owners. It would likely take years for such regulations to be developed and vetted, and it would require the FAA to convince Congress to lift its ban on federal regulation of recreational drones, enacted in Section 336 of the 2012 FAA Modernization and Reform Act.
That same provision of the 2012 act would also seem to prohibit the FAA from creating a mandatory drone registry in the first place.
The FAA proffers the flimsy justification that Congress’s regulatory ban does not apply because the registry is not a regulation.
It is plainly evident that the FAA is acting contrary to the will of Congress, pushing ahead with a registry rush job will create, not solve, problems, and potentially turn good faith drone owners into federal criminals. There is still time for the FAA to shift gears, take a more serious look at this problem, and develop public policy the right way. That would be quite the Christmas miracle.
