Grounding Innovation How Ex-Ante Prohibitions and Ex-Post Allowances Impede Commercial Drone Use

Abstract

Unmanned aerial vehicles—”UAVs” or “drones”—are increasingly becoming a mainstream commercial phenomenon and tool for a vast range of commercial consumer, prosumer, and professional activities. Given advances in automation and miniaturization generally—and flight control stability and autopilot systems specifically—anyone can now fly in any airspace at any time by operating hand-held fixed-wing aircraft or quadcopters with little more than an ordinary smartphone or tablet. As such, sales of store-bought drones number in the millions, corresponding to the wide range of civil applications and value propositions that UAVs offer.

Though civil drones are an attractive business investment, substantial regulatory headwinds confront the drone industry as startups endeavor to get to market and scale quickly. This is so notwithstanding—or perhaps even because of—the celebrated abilities of most small UAVs to fly boundlessly and collect and record information from nearly any vantage point. Drones are a classically disruptive technology of social, economic, and legal norms. Their operations raise novel and valid concerns in many of these areas, particularly in terms of safety and privacy. Consequently, regulators have responded—and they should. But federal, state, and local lawmakers alike have responded with policy interventions that are too often premature (or untimely) and overly rigid, discouraging the many beneficial uses of UAV technology. In fact, on the basis of ephemeral fears rather than data, regulators initially put in place overbroad and permission-based restraints that were tantamount to a de facto ban on all drone operations.

This Article critiques the underlying thinking and approach that federal regulators have taken with respect to civil drones and argues that commercial UAVs should be a “permissionless innovation.” This Article posits that a better alternative to a top-down, ex-anteregulatory scheme is to broadly allow commercial UAVs and to deal with careless or reckless or nefarious operators and operations on a case-by-case, ex-postbasis. In doing so, this Article aims to present lessons learned in the context of commercial UAVs so that inefficiencies and paternalistic rulemaking can be avoided in the regulation of other innovations associated with the Internet of Things, including urban air mobility and electric vertical-takeoff-and-landing technologies—otherwise known as flying cars—that are just around the corner.