Anti-Drone Ordinance Causes Controversy

On February 16, 2016, East Lansing’s City Council passed an anti-drone ordinance that has since become controversial. Ordinance 1369 restricts ordinary citizens’ ability to fly drones within city limits, especially around police and fire activity.

The ordinance prevents a person from flying a drone over 0.55 pounds and a drone of any weight if it has a camera or microphone and is operating “in such a manner as to observe or record the activities of anyone who, by their location, has a reasonable expectation of being safe from surveillance or observation.” The ordinance also prevents a person from operating any drone “in or over any City park or City-owned land or City-owned buildings unless authorized to do so by the City Manager or by park rules.”

The City is considering allowing the operation of radio-controlled model aircraft over some parks. But this ordinance makes it difficult for private citizens to fly a drone with a camera or microphone, as they risk seeing into neighbors’ yards if they fly over the height of a fence, and they cannot fly over City-owned streets or parks at this time. The way the ordinance is worded makes it almost impossible to fly a drone of the sort people in East Lansing might own.

Some businesses use drones for aerial photography to provide homeowners and business owners with roof and chimney inspections, to provide photographs for realtors, and other similar applications. Researchers, teachers, and students also use drones for learning opportunities in science, engineering, and technology. However, this ordinance prohibits those options as they would also typically involve getting images of nearby private property or being over City-owned property. Drones also show promise as delivery vehicles, but delivery drones would likely weigh over 0.55 pounds.

According to the ordinance, these prohibitions do not apply to the police or any other governmental entity. The language of the ordinance preserved the right for the City government to use drones in the City in any way it deems necessary.

The ordinance passed 5 to 0 despite, according to a response to a Freedom of Information Act (FOIA) request, Mayor Pro Tem Ruth Beier saying to other Council members, “I have a drone. I like to fly it. I am a little afraid of expanding our police state too much…” After the vote, when some constituents complained about the ordinance, Beier responded that she is “sensitive to over-policing” but said that she does not think the privacy concerns are silly.

Both the East Lansing Police Chief and Fire Chief supported the ordinance in memos to the City Manager. In his memo on the matter, Police Chief Jeff Murphy said: “To my knowledge, the East Lansing Police Department has never responded to a complaint about the use of a drone…” He added, “I anticipate we will receive complaints about drones in two main areas: safety, especially over crowds[,] and access into areas where the public has an expectation of privacy.” He also claimed that someone had flown a drone outside of his office window and that “It was a little unsettling to think an unknown person may be viewing me in my office remotely.”

One of the main concerns about the ordinance is that it is legally preempted by Federal Aviation Administration (FAA) regulations. “Preemption” means that if the federal government has written legislation on something, local governments cannot also write a law about it.

This was mentioned as a major issue in Ryan Latourette’s letter to Council objecting to the ordinance. Latourette runs Capital Drones, a local business that provides aerial photography facilitated by drones. As the FAA is tasked with safety of aircraft and drones are classified as aircraft, the FAA has jurisdiction for drone safety, and the ordinance appears to be legally preempted according to an FAA factsheet Latourette sent Council.

The FAA has stated that if a patchwork of legislation occurs due to local and state governments creating laws covering what goes on in their airspace, the general safety for aircraft and for people on the ground will decrease, according to the FAA fact sheet.

Latourette also told Council that some of the privacy concerns are already covered by other laws at the state and federal level. Examples include laws that prohibit trespassing and “peeping Toms.”

In response to questions from ELi, Latourette said, “the top drone attorneys in our nation today are adamant that the City’s ordinance is without jurisdiction and that the FAA has also made clear in their memo to State and Local governments that such patchwork legislation is without merit.”

Latourette also told ELi, “I have yet to hear a single word from any of the elected officials” he wrote to in East Lansing “which is to me both a surprise and a great disappointment…I had hoped that they would reach out to me as a business owner to at least begin a conversation on the effects on commerce created by this ordinance.”

FOIA indicates that Mayor Mark Meadows suggested that his fellow Council members need not be concerned with Latourtette’s statement that federal law legally preempts the new East Lansing ordinance.

Another local business owner, Travis Stoliker, also expresses to Council members some concern about the ordinance’s limitations on innovation and investment. Both he and Latourette have communicated with Council members about their belief that drones have great benefits due to the ease of getting a camera relatively high. This is the cause for the privacy concerns, but also is an advantage where getting aerial photography is useful.

Mayor Mark Meadows did not respond to questions from us, emailed April 5, including why the language of the ordinance specifically restricts citizen-operated drones heavier than 0.55 pounds when the FAA regulations distinguish drones based on whether they weigh more or less than 55 pounds.

We also asked Meadows why he believes FAA regulation does not legally preempt the local legislation, and whether the City of East Lansing consulted with the FAA before passing this ordinance as recommended by the FAA when municipalities are planning to restrict flight paths and/or planning operational bans of drones.

Latourette tells ELi that he is “weighing different legal options” with regard to the ordinance. He notes in his letter to Council that the Ordinance may be unconstitutional in how it seeks to limit the photography rights of journalists, including citizen journalists, especially around police and fire activity.

NOTE: Today, Michigan State University is hosting a roundtable on the laws, ethics, and applications of unmanned aerial vehicles. It is open to the public. Read more.

Disclosures: Kepler Domurat-Sousa owns drones whose use has been restricted by Ordinance 1369. Travis Stoliker is a donor to ELi.