Drones and The Overcriminalization of America

Filed under: Criminal Law, News by Contributor @ January 3, 2016

droneIn America legislators are elected by voters. The majority of political candidates run on a platform of being tough on crime. Candidates often try to demonstrate to constituents that they are tough on crime by proposing legislation criminalizing something. This creates a ratchet type system of punishment in America. As the ratchet turns punishment for certain types of activities is increased and other types of activities which were not crimes become a crimes.

It is rare to see a legislator introduce a bill which reduces punishments for criminal activity. This would lead to the impression that the political figure did not have an interest in protecting the citizens of their jurisdiction from criminal acts. It sounds great to be tough on crime – very few people support criminal activity.  However, this framework has led to the over-criminalization of America.  Many unnecessary laws have been placed on the books which citizens could not possibly be aware of or comply with. Some examples include a DUI law that makes it a crime to drive while taking any over-the-counter medication that “impairs” the ability to drive, a definition which even covers cold medications. Another example includes a law passed unanimously in Pennsylvania which provides for stricter punishment for drug dealers who offer incentives to children to become hooked on drugs. While the protection of children is a very noble goal, this legislation amounted to chest-thumping that has no impact in Pennsylvania’s courtrooms.  The ability to prove the use of an incentive by a drug dealer would be almost impossible, and any judge in the jurisdiction presiding over the case where a drug dealer allegedly was providing incentives would certainly consider this fact when handing down a sentence under normal drug laws, so there simply is no need for such specialized provisions.

Perhaps the most egregious example of the overcriminalization in America is the recent passage of the Unmanned Aerial System, or drone, registration requirement for any drone over a 1/2 pound (about the same weight as two sticks of butter). The Federal Aviation Administration announced a “streamlined and user-friendly web-based aircraft registration process” for owners of small unmanned aircraft weighing more than .55 pounds (250 grams) and less than 55 pounds (approximately 25 kilograms) including their payload such as on-board cameras.

This requirement applies to all such aircraft, including children’s toys, a result that no one other than perhaps Burgermeister Meisterburger could support. Under this rule, any owner of a small drone who has previously operated an unmanned aircraft exclusively as a model aircraft prior to December 21, 2015, must register no later than February 19, 2016. Owners of any other drone purchased for use as a model aircraft after December 21, 2015 must register before the first flight outdoors. Registration can be accomplished using either the paper-based process or the new streamlined, web-based system. Owners using the new streamlined web-based system must be at least 13 years old to register. Their is a normal registration fee of five dollars, but in an effort to encourage as many people as possible to register quickly, the FAA is waving the fee for the first thirty days (from December 21, 2015 to January 20, 2016).

Registrants will need to provide their name, home address and email address. Upon completion of the registration process, the system will generate a certificate of aircraft registration/proof of ownership that will include a unique identification number for the drone owner, which must be displayed on the outside of the aircraft. Additionally, a public access database will be maintained which will provide the name and address of the drone owner; meaning that there is a potential for a person to come and knock on your door if they’re upset with the way drone was being operated. Failing to register a drone that falls within the weight requirement will come with severe penalties including up to $27,500 in civil penalties, $250,000 in criminal fines, and up to three years in jail.

This means that according to the FAA, it will now be a federal felony for failing to comply with regulatory decree. This is particularly interesting since section 336 of the FAA modernization and Reform Act of 2012 states:

Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems and the Federal Aviation Administration plans and policies, including the subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft[.]

The FAA appears to be attempting to circumvent the Congressional prohibition by making it a requirement to register drones which fall into a weight class capturing them in the definition of an aircraft rather than an aircraft model.

Owners of the drones do need to be aware of the fact that operating a drone within the national airspace system comes with responsibilities of course. For instance, no person should operate a drone within 5 miles of an airport without contacting the airport authority first, nor should they operate the aircraft at altitudes above 700 feet (the floor of Class E airspace), or in traffic areas for aircraft arriving or departing from local airfields.

While it is understandable that no one wants to see an aircraft brought down by the negligent operation of a drone, it seems highly unnecessary for legislation to be passed by an administrative agency which imposes such severe penalties for failing to register what in essence is a toy. Unlike other criminal statutes that have recently been passed, publicity on this issue has been high in an attempt to make the public aware.  So long as unnecessary criminal laws are on the books, it will continue to expose innocent people to arbitrary enforcement, trapping innocent people in the web of overcriminalization.

Drone owners may register their drones through the web-based system at http://www.faa.gov/uas/registration

If you know of a Pennsylvania law that is unnecessary and taking up space on the books please reference it in the comments section below.

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