ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
March 15, 2016
1:04 p.m.
MEMBERS PRESENT
Representative Neal Foster, Co-Chair
Representative Shelley Hughes, Co-Chair
Representative Benjamin Nageak
Representative Louise Stutes
Representative Matt Claman
Representative Dan Ortiz
MEMBERS ABSENT
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE CONCURRENT RESOLUTION NO. 17
Supporting the aviation industry; and urging the governor to
make state-owned land available to the unmanned aircraft systems
industry for the management and operation of unmanned aircraft
systems and related research, manufacturing, testing, and
training.
- MOVED CSHCR 17(TRA) OUT OF COMMITTEE
PRESENTATION(S): BALANCING LIBERTY & PRIVACY - APPROACHES TO
THE REGULATION OF PRIVATE DRONE PILOTING IN ALASKA
- HEARD
PREVIOUS COMMITTEE ACTION
BILL: HCR 17
SHORT TITLE: SUPPORT AVIATION INDUSTRY; USE STATE LAND
SPONSOR(s): REPRESENTATIVE(s) HUGHES
01/29/16 (H) READ THE FIRST TIME - REFERRALS
01/29/16 (H) TRA
02/02/16 (H) TRA AT 1:00 PM CAPITOL 17
02/02/16 (H) Heard & Held
02/02/16 (H) MINUTE(TRA)
02/04/16 (H) TRA AT 1:00 PM CAPITOL 17
02/04/16 (H) Moved CSHCR 17(TRA) Out of Committee
02/04/16 (H) MINUTE(TRA)
03/15/16 (H) TRA AT 1:00 PM CAPITOL 17
WITNESS REGISTER
GINGER BLAISDELL, Staff
Representative Shelley Hughes
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the proposed committee substitute
(CS) for HCR 17, on behalf of Representative Shelley Hughes,
prime sponsor,
Sarah Williamson, Juris Doctorate Candidate
Duke University School of Law
Durham, North Carolina
POSITION STATEMENT: Provided a presentation entitled
"Approaches to Regulating Recreational UAS [unmanned aircraft
systems] Piloting in Alaska."
ACTION NARRATIVE
1:04:52 PM
CO-CHAIR NEAL FOSTER called the House Transportation Standing
Committee meeting to order at 1:04 p.m. Representatives Stutes,
Claman, Ortiz, Foster, and Hughes were present at the call to
order. Representative Nageak arrived as the meeting was in
progress.
HCR 17-SUPPORT AVIATION INDUSTRY; USE STATE LAND
1:05:12 PM
CO-CHAIR FOSTER announced that the first order of business would
be HOUSE CONCURRENT RESOLUTION NO. 17, Supporting the aviation
industry; and urging the governor to make state-owned land
available to the unmanned aircraft systems industry for the
management and operation of unmanned aircraft systems and
related research, manufacturing, testing, and training.
1:05:23 PM
CO-CHAIR HUGHES moved to rescind the committee's action in
moving CSHCR 17(TRA) out of committee.
1:05:35 PM
CO-CHAIR FOSTER objected for the purpose of discussion.
1:06:13 PM
The committee took an at-ease from 1:06 p.m. to 1:07 p.m.
1:07:17 PM
GINGER BLAISDELL, Staff, Representative Shelley Hughes, Alaska
State Legislature, on behalf of Representative Hughes, prime
sponsor of HCR 17, reviewed that [on 2/4/16] the committee had
adopted two amendments [to the original version of HCR 17]. She
explained that the first amendment had replaced the word
"aviation" with "unmanned aircraft systems", as well as added a
reference for the economic data within the resolution. The
second amendment had provided a list specifying where copies of
the resolution would be sent. She explained that the latter
amendment had caused a drafting issue with Legislative Legal and
Research Services: It would have changed the status of the
resolution from concurrent to joint, because people outside of
state government were identified to receive copies. She
explained that the Unmanned Aircraft Systems (UAS) Legislative
Task Force could distribute copies to any individuals that they
deemed appropriate. In response to a question from
Representative Claman, she clarified that the appropriate action
would be to rescind the previous committee action [moving CSHCR
17(TRA) out of committee], and adopting the proposed committee
substitute (CS).
1:10:28 PM
CO-CHAIR FOSTER removed his objection to the motion to rescind
the committee's action in moving CSHCR 17(TRA) out of committee
[on 2/4/16].
1:10:49 PM
The committee took an at-ease from 1:10 p.m. to 1:11 p.m.
1:11:16 PM
CO-CHAIR FOSTER announced there being no further objection, [HCR
17, as amended], was before the committee.
1:11:47 PM
CO-CHAIR HUGHES moved to adopt the proposed committee substitute
(CS) for HCR 17, Version 29-LS1327\E, Wayne, 2/4/16, as the
working draft.
1:12:06 PM
CO-CHAIR FOSTER objected for the purpose of discussion.
1:12:14 PM
MS. BLAISDELL described the changes that would be made under
Version E. She stated that on page 1, lines 13 and 15,
"aviation" would be replaced with "unmanned aircraft systems".
On page 2, line 1, the following language would be added: "as
identified in the McDowell Group's May 2013 report for the
Alaska Center for Unmanned Aircraft Systems Integration at
University of Alaska Fairbanks", which is a reference for the
economic data in the resolution.
CO-CHAIR HUGHES reiterated that that the UAS Task Force would be
happy to send copies to the FAA, to industry associations, and
to [Alaska's] U.S. Congressional delegation.
1:13:22 PM
CO-CHAIR FOSTER removed his objection to the motion to adopt CS
for HCR 17, Version 29-LS1327\E, Wayne, 2/4/16, as a work draft.
There being no further objection, Version E was before the
committee.
1:13:42 PM
CO-CHAIR HUGHES moved to report CS for HCR 17, Version 29-
LS1327\E, Wayne, 2/4/16, from committee with individual
recommendations and the accompanying zero fiscal note. There
being no objection, CSHCR 17(TRA) was reported from the House
Transportation Standing Committee.
1:14:13 PM
The committee took an at-ease from 1:14 p.m. to 1:16 p.m.
^PRESENTATION(S): Balancing Liberty & Privacy - Approaches to
the Regulation of Private Drone Piloting in Alaska
PRESENTATION(S): Balancing Liberty & Privacy - Approaches to
the Regulation of Private Drone Piloting in Alaska
1:16:35 PM
CO-CHAIR FOSTER announced that the final order of business would
be a presentation on "Balancing Liberty & Privacy Approaches to
the Regulation of Private Drone Piloting in Alaska," by Sarah
Williamson, JD candidate, Duke Law School.
1:16:50 PM
CO-CHAIR HUGHES recounted that she and Ms. Williamson had
connected during some drone-related work, but that she had met
her previously when Ms. Williamson was an intern [in Alaska].
She stated that Ms. Williamson is a Juris Doctorate candidate
and related her understanding that since Alaska does not have a
law school, Duke Law School works with the state on the Alaska
Law Review. She said that among Ms. Williamson topics is the
use of drones as relating to liberty and privacy. She posited
that concerns regarding drones have less to do with the aviation
aspect and more to do with the cameras that can be attached, and
due to oversight requirements by the Federal Aviation
Administration (FAA), usage regulation is complicated.
1:18:12 PM
SARAH WILLIAMSON, Juris Doctorate Candidate, Duke University Law
School, paraphrased from the following written document, which
read as follows, [original punctuation provided]:
Slide 1
Mr. and Madam Co-Chairs, Committee Representatives -
Thank you very much for your time today. For the
record, my name is Sarah Williamson. I am a JD
Candidate at Duke University School of Law and an
Executive Editor of the Alaska Law Review, a scholarly
journal based out of Duke Law and under contract with
the Alaska Bar Association to study and publish on
Alaska legal issues.
I have been conducting legal research to support the
mission of the UAS Legislative Task Force under HCR 15
to "identify potential privacy concerns associated
with unmanned aircraft systems" (UAS) and to recommend
to the legislature a "comprehensive state policy for
unmanned aircraft that protects privacy and allows the
use of UAS for public and private applications." While
the term "drone" has captured the public debate, I
will use the term UAS because, as defined by the
Federal Aviation Administration (FAA), these craft are
indeed aircraft under federal law, no matter how
small. This does have significant legal implications
which I'll discuss in more detail momentarily.
I will briefly present my research and then will be
happy to take any questions you may have.
Slide 2
The Task Force has identified citizen concerns and
anxieties about private individuals using UAS to
remotely invade their privacy, from harassment and
stalking to trespass. The scope of my research has
therefore focused on legal implications arising
specifically from recreational uses of UAS that create
privacy concerns.
My research has addressed three key questions. First,
do states actually have authority to regulate
recreational UAS uses creating privacy concerns? This
is the issue of federal preemption of state law. My
conclusion is that states most likely do have the
authority to regulate in this area, allowing
consideration of the next two questions. What
approaches have other states taken in response to UAS
privacy concerns. And what can Alaska learn from the
experiences of other states in developing its own
legislative response to this issue.
1:20:26 PM
Based on the policy goals identified in HCR 15, the
best options to respond to the identified concern will
be those that simultaneously embrace the variety of
UAS uses that could benefit Alaskans and the Alaskan
economy, while not overregulating the fledgling
technology. And those approaches that maximize
privacy protections while not unnecessarily impeding
on those beneficial, non-privacy violating uses.
Now I will move on to discuss my findings on these
three questions.
1:20:58 PM
Slide 3
As I stated earlier, states most likely do have the
authority to legislate in this area without the risk
of federal preemption.
This legal question arises because 49 U.S.C. 40103
declares "[t]he United States Government has exclusive
sovereignty of airspace of the United States." This
power to regulate this airspace has of course been
granted to the FAA. Prior to the widespread use of
UAS, the FAA only regulated airspace 500 feet above
ground level. Now, the FAA has claimed jurisdiction
down to the blade of grass to address the
proliferation of UAS and develop a plan to safely
integrate UAS into the national airspace as required
by the FAA Modernization and Reform Act of 2012.
However, the FAA has only practiced and claimed
exclusive federal jurisdiction over air safety
concerns and licensing requirements. Under this
scheme, any state action on safety, including
restrictions on flight paths, altitude, equipment,
standards, and the like would be preempted.
But states have maintained the ability to act in
limited areas impacting airlines and the national
airspace including taxing airlines and the regulation
of air advertising. Several court cases from state
and federal courts, including the US Supreme Court
support this.
Additionally, the FAA has made several statements
directly stating or implying that it does not want to
tackle privacy concerns and that the states are the
appropriate locus for such laws. In its recent UAS
Fact Sheet, the FAA gave an example of a state UAS
voyeurism law as an appropriate piece of legislation.
The Congressional Bi-Partisan Privacy Caucus, about 40
members strong, also supports strong state privacy
laws. And the FMRA bars the FAA from any regulation
of small "model aircraft" used for recreational
purposes, a provision several scholars believe could
include at least some kinds of UAS. (49 U.S.C. § 40101).
However, the Electronic Privacy Information Center has
challenged the FAA and is before the DC Circuit now to
argue that the FAA must consider privacy in its
rulemakings on UAS. Their argument is based on
portions of a CRS report, that the "plan to safely
integrate civil UAS into the national airspace"
required by the FMRA reasonably includes privacy, not
just safety. This argument lost in the lower court.
Additionally, the National Telecommunications &
Information Administration (NTIA) was directed in a
Presidential Memorandum of February 2015 to look at
UAS privacy concerns with the goal to "mitigate
consumer concerns while promoting growth and
innovation in this exciting sector." NTIA has to-date
been occupied with commercial UAS uses and is
currently running a working group with representatives
of key stakeholders to create a voluntary best-
practice guide. The current draft features high-level
recommendations for recreational users, but it is
clearly not an attempt to regulate the field. So
given the pace of progress in Washington and the
overall supporting evidence, it likely is safe for
states to regulate in this area.
And many states have. To date, 45 states have
considered over 200 bills broadly relating to UAS use
at the state level. 25 of those states have
considered nearly 100 bills relating to the privacy
implications of UAS uses by private citizens. So I
come to the second key question of this research which
is "what approaches have these states taken?" And the
approaches have been quite literally all over the map.
There is certainly no uniform bill in the UAS area.
However, state approaches to date can generally be
grouped into three categories. These are:
1. Common law approaches or the "leave it to the courts"
approach
2. UAS-specific civil or criminal code approaches
3. State privacy law integration approaches
Now I will review each approach and its benefits and
challenges. My recommendation is that Alaska should
take the last approach, integration with existing
state privacy laws.
1:26:08 PM
Slide 4
First, the common law approach. This approach does
not necessarily require statutory language. It leaves
most of the burden of determining reasonable standards
of operation to the courts within existing tort law.
The State of Alaska recognizes three broad privacy
torts: intrusion upon seclusion, defamation, and false
light and of course the property torts of trespass and
nuisance. It is difficult to get a count of states
taking this approach because suits have been filed in
some, but not in others. States also recognize
different names and elements of these torts. At least
CT and IL have considered privacy tort cases. 15
state courts have considered trespass or nuisance
cases, but most have considered only one or two.
Since this type of litigation can occur independent of
legislative action, many of those states are
considering other bills as well.
1:27:38 PM
This is one of the key weaknesses of solely relying on
this approach. Enforcement of this approach
essentially requires a civil suit by harmed
individuals. While this approach is flexible and
could provide protection against overregulation of
this fledgling technology, it is not at the moment
going to be a good approach for developing a norm and
preventing harm before it occurs. The remote-piloting
features of UAS introduce accountability and
attribution challenges for citizens trying to identify
precisely who is encroaching on their space. The lack
of clearly identifiable airspace boundaries between
properties implicates issues of consent to trespass on
the one hand and intent to trespass on the other.
Reasonableness requires citizens to undertake a sort
of cost-benefit analysis that may demand too much or
rely on value judgments that aren't yet commonly held.
And it will necessarily be limited by people being
unable to know the particular capabilities of any
given UAS - it may have a camera, it may not.
Citizens may also be tempted to disable or capture UAS
on their property in self-defense rather than file a
lawsuit. This type of self-defense is currently
prohibited by FAA guidelines because again, UAS are
aircraft and could result in even greater damage from
what could be an unintentional or relatively harmless
action.
Privacy torts are also relatively rare creatures. The
doctrine in most states, including Alaska is not
frequently applied.
1:30:19 PM
Slide 5
Moving on to the second approach, UAS-specific civil
and criminal code provisions. By this, I mean a piece
of comprehensive legislation targeted at regulating
UAS. I have given a few examples on the slide of
states that have enacted such laws, again each one
different from the last. Texas' is to date one of the
most comprehensive, laying out lawful uses and
unlawful uses which are criminal, but also allow
citizens to recover civil damages.
Idaho's current law is similar to the general
permissive use policy in Alaska, allowing UAS use to
be generally lawful except where it interferes with an
owner's property or is imminently dangerous. However,
it also prohibits gathering images or recordings of
individuals or property without explicit written
consent. This might be troublesome as I'll explain in
a moment.
TN on the other hand, has been very specific in its
laws, only making it a criminal offense to use footage
of a hunter or angler without their consent. A couple
other states have passed a similar provision and it
appears to have been in response to tactics used by
PETA.
So what are the benefits and challenges. Obviously
these laws are very specific, which can be very good
for creating clear and consistent expectations of
lawful behavior by the public. These laws are also
directly responsible to citizen concerns, indicated by
their very targeted nature. However…as with the Idaho
law, many likely prohibit activities that are
protected by the First Amendment as "news gathering."
Federal Circuit Courts have been in agreement that the
First Amendment permits a private citizen to at least
record the actions of people in a public space.
So such specific written consent laws would be in
great jeopardy if challenged.
1:33:01 PM
These laws are also often duplicative of other state
laws, which can create challenges for courts
interpreting the intent of the legislature. Are the
same standards supposed to apply or are UAS slightly
different, very different? Overall, it creates a
consistency problem.
Such specific laws are also likely to produce
unintended consequences. For instance, what if
someone capturing video from a UAS in a public place
happens to catch footage of a crime in progress on
private property? What if the collection of an image
of private property using a UAS piloted by a 7 year
old he got for Christmas is purely incidental? Such
standards of written consent would also be less
feasible for commercial operators where flying over
private property may be necessary in some cases.
These are the types of targeted laws that could impede
the development of beneficial uses of UAS technology.
1:34:18 PM
Slide 6
So now for the final type of state approach,
integration with existing state privacy laws. At
least 10 states have either enacted or are considering
bills in this category. This is my recommendation for
AK.
Most prominently is California which amended its
paparazzi statutes to include use of UAS to capture
images as an unlawful behavior. The California
governor has been reluctant to create any standards
for UAS so far, but even this was one he considered
necessary and targeted enough at the specific
troublesome behavior to not have unintended
consequences. Arkansas has enacted a similar law,
integrating UAS-specific language into its voyeurism
and video-voyeurism statutes.
I have included some of the Alaska Code provisions
that could be surgically amended to prohibit UAS as a
means through which to commit these offenses. These
focus on state laws already implicating a sense of
privacy, but others could be included like reckless
operation of aircraft or even to change the definition
of assault and battery to include fear of bodily harm
from a drone.
The benefits of this approach capture those of the
UAS-specific holistic legislation, but are much less
duplicative, integrate UAS into existing state law and
standards, and still send a clear message that using
UAS for certain purposes will not be accepted. These
provisions would not force citizens to rely on their
own resources to bring a civil lawsuit, but could be
enforced by the police and the attorney general.
Prohibiting UAS use in this fashion for specific
offenses is also much less likely to have unintended
consequences because such legislation, as I said
earlier, targets the undesirable behavior not the
machine itself.
Of course the challenges are that many scattered code
sections will require amendment under this approach,
somewhat of a piecemeal approach. But a complete
survey for the appropriate places should not be
difficult, just potentially a bit time-consuming. And
finally, there may be some question here with the
Alaska constitutional right to privacy. As the right
has been interpreted by the courts in Ravin [Ravin v.
State, 537 P.2d 494 (Alaska 1975)] (especially in
combination with the First Amendment) may somewhat
ironically force the state to place more emphasis on a
citizen's right fly a UAS without limits in his
backyard, no matter what the neighbor thinks. But
those rights are likely to be implicated in such a
targeted approach looking at offenses that are already
on the books.
1:37:30 PM
REPRESENTATIVE ORTIZ confirmed that the subject matter of the
presentation was exclusive to UAS devices used for recreation,
and asked whether necessary safeguards for privacy and similar
concerns were already in place for commercial drone use.
1:38:31 PM
MS. WILLIAMSON replied that there has been some action at the
federal level regarding the commercial use of drones. She said
that it would be more likely for the state to run into
preemption issues regarding actions relating to commercial uses,
which was the driver for her decision to limit this presentation
to recreational and hobbyist use by private citizens.
1:39:02 PM
REPRESENTATIVE CLAMAN asked whether the federal regulation is
pursuant to commerce clause powers exercised by congress.
MS. WILLIAMSON replied affirmatively and said regulation is also
based on the FAA's authority over airspace.
REPRESENTATIVE CLAMAN inquired whether regulatory authority is
tied to anything beyond the commerce clause.
MS. WILLIAMSON replied that to some extent it could be related
to "necessary and proper," as that is the basis of having one
national airspace and [the federal government] having the power
to make the necessary regulations for governance.
REPRESENTATIVE CLAMAN asked for clarification that the
commercial regulation is being defined by the FAA, but the
federal government is allowing the states to regulate
recreational use.
MS. WILLIAMSON explained that the difference is primarily with
action that is occurring at the National Telecommunications and
Information Administration (NTIA). She related that NTIA is
creating a voluntary set of best practices for commercial users.
The best practices are specifically related to the privacy
implications and, although not mandatory, have invoked some
actions. She stated that there is also concern at the federal
level related to the press, because of their right to gather
information. The press is pushing for a voluntary code of
conduct, in order to protect their First Amendment right for
gathering news. She explained that there would likely be
similar concerns regarding privacy issues for commercial users,
at the state level, and likely a preference for voluntary
guidelines. She related that there are model aircraft
associations that have always operated under a code of conduct,
and said something similar has been recommended to the state.
She indicated that she has not done as much research in those
areas because she has focused on the recreational side.
REPRESENTATIVE CLAMAN asked for comment on Alaska's
constitutional right to privacy, which provides a greater right
to privacy than the federal constitution. Clarifying, he asked
whether the right to privacy applies more to a person's right to
fly their drone wherever they wish or is it directed to the home
and the curtilage.
MS. WILLIAMSON suggested that the scenario of a citizen flying a
drone in their back yard seemed to be very much in line with the
way the courts have interpreted the privacy provision under the
Ravin [Ravin v. State, 537 P.2d 494 (Alaska 1975)] line of
cases. She said that regardless of whether it creates a feeling
of violation of privacy, on the part of the neighbor whose fence
the user can now see over, the activity of the user might be
more protected, over that of the neighbor, as the device may or
may not have an attached camera.
REPRESENTATIVE CLAMAN requested confirmation that the
constitutional right to privacy pertains more to privacy from
the government than privacy from a neighbor. He gave the
example that if he was throwing a ball for his dog in the
backyard, his neighbor may or may not have a right to know what
he is doing, and pondered whether the constitutional right to
privacy comes into play.
MS. WILLIAMSON concurred with the members understanding, and
said that there are also some interesting intersections with the
Fourth Amendment to the constitution. She explained that many
states have taken up the issue of police warrants and use of
drones to fly over property. She opined that it is a very
interesting question and will be a tricky legal issue as states
move forward, specifically in Alaska, because of the
aforementioned constitutional provision.
1:44:02 PM
CO-CHAIR FOSTER mentioned that there are severe consequences for
tampering with an aircraft, whether it's a jet or a Cessna 172,
which he said he understands because it is a safety issue. He
asked if there was a minimum punishment for destroying or
tampering with a privately owned drone.
MS. WILLIAMSON surmised that the topic would be included in the
FAA regulations. She elaborated that the FAA issued draft
regulations in February 2015, and received substantial
commentary on provisions that were not included in the draft.
She stated her belief that the topic raised by Representative
Foster would be addressed by the revised regulations. She noted
that as of December 21, [2015], users were required to register
their drones and the penalty for not doing so was the same civil
fine for not registering an aircraft. She said that is an
example of [FAA] applying manned aircraft standards to unmanned
aircraft regulations.
CO-CHAIR FOSTER asked if, under current law, a person would
spend as much time in jail for tampering with a drone as they
would for pulling a spark plug on a plane.
MS. WILLIAMSON responded that currently, based on the FAA's
actions, manned and unmanned aircraft tampering would be treated
similarly, and she opined that a lot of people would take issue
with the same standard being applied to both manned aircraft and
UAS. She related her understanding that the FAA has received
comments regarding the issue and which are presumably being
addressed.
CO-CHAIR FOSTER asked Ms. Williamson to elaborate on the third
question on slide 2, "What approach should Alaska take to
increase privacy protections without precluding reasonable non-
privacy violating uses?"
MS. WILLIAMSON stated that her recommendation for Alaska is to
target user behavior to prevent people from flying drones for
stalking or harassment purposes; specific language should be
included in statute that targets behavior rather than the
mechanism. She stated that if the device itself is targeted it
may impede as yet unknown, beneficial applications. She noted
that there is a federal test site located in Alaska, thus making
it important to be open to potential uses, and she reiterated
that the behavior is really the issue.
1:48:15 PM
ADJOURNMENT
There being no further business before the committee, the House
Transportation Standing Committee meeting was adjourned at 1:47
p.m.