The New Drone Registry Targets Consumers

The Department of Transportation wants to create a national drone registry. Here’s why it’s unnecessary and likely to fail.

The Department of Transportation just announced the creation of a national registry for drones. The rationale, according to public statements, is to aid in identifying owners and operators of errant drones, and close a “gap” in rule enforcement.

Left unmentioned was the fact that a drone registry already exists for commercial drones. While the FAA effectively prohibits commercial drone operations without specific approval, an exemption can be granted by petitioning through Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA). To complete the petition, an operator is required by law to register the drone as a “small unmanned aircraft,” send in the original Bill of Sale from the manufacturer, and complete an affidavit of ownership (among other things).

Since commercial drones are already required to register with a national database, the new registry is therefore aimed squarely at consumers, hobbyists, and enthusiasts — the group of drone users who, up until now, had enjoyed relative freedom from the DoT and FAA’s regulatory indiscretions.

That freedom has been no accident. The FMRA, the current law of the land, explicitly restricts the FAA’s ability to “promulgate any rule and regulation” over recreational drones. Transportation Secretary Anthony Foxx has thus had to cite the DoT’s broadly-defined “safety authority” when pressed on the registry’s legality.

Regulatory creep

Nevertheless, as Marc Scribner points out, the Administrative Procedure Act (APA) requires any new rule to solicit comments from the public and take them into consideration. This process often takes years, but even if a new rule were finalized tomorrow the act would still allow 60 days for affected parties to come into compliance. This is problematic for the DoT, which is scrambling to get the details of the registry in place by November 20th. The timing is crucial, since up to a million drones are expected to be sold in the US this holiday season alone.

The broadness of the DoT’s safety authority is clearly a recipe for serious regulatory creep, which is why these procedures are essential for providing at least a modicum of accountability. Otherwise, infinitely contorted interpretations of their mandate let the DoT become a de facto law maker, only minus all the messy business of democratic oversight.

But since the DoT and FAA are proceeding as if the time constraints don’t exist, it suggests they may be planning to evoke a “good cause” exemption to these important APA rules. As drone lawyer Jonathan Rupprecht explains:

[T]he APA allows the FAA to issue a direct final rule without any notice when the FAA has good cause. Good cause is when the rulemaking process is “impracticable, unnecessary, or contrary to the public interest.” … “This exception can be used when an urgent and unsafe condition exists that must be addressed quickly, and there is not enough time to carry out Notice and Comment procedures without compromising safety.”

The idea that unregistered recreational drones are an imminent threat to public safety is, in a word, laughable. Yet more importantly, it runs contrary to the DoT and FAA’s own behavior, as they have allowed recreational drones to fly unregistered for years without exercising safety authority, and therefore materially contributed to their own deadline pressure.

Feasibility

These legal questions are just the tip of the iceberg. Suppose the FAA somehow finds the legal authority for a drone registry in time for Black Friday. That still does not make the registry itself anymore feasible on a practical level.

Take the existing process for registering commercial drones: it requires traveling in person to an Aircraft Registration Branch or FAA district office, being in direct and timely communication with the manufacturer, having a notary verify your true identity, remembering to update the FAA (via snail mail) every time the aircraft is resold, and otherwise updating your own registration every three years. A drone registry may sound easy on paper, but actually existing registries are regularly convoluted messes. Validating and tracking ownership of anything en masse is never an easy task.

The high barriers to petitioning for a Section 333 exemption have kept the current registration system manageable, with fewer than 2,000 commercial drones registered so far. While tracking these is surely daunting enough, now imagine millions of drones, from hundreds of manufacturers, out of dozens of countries, changing hands and being modified on a daily basis.

Part of the new task force’s job is thus to determine “threshold criteria” where recreational drone registration makes sense given the DoT and FAA’s limited internal resources. It will be interesting to see what these criteria end up being, as price and weight are weak proxies for the degree of damage that a malicious drone operator can cause.

The FAA has demonstrated it’s comfortable demanding commercial registration for the kinds of drones most people look at as toys. The definition of “small unmanned aircraft” simply points at anything below 55 lbs. This includes the dozens of multi-rotor copters priced well below $100, as evidenced by the current registry’s special accommodations for drones so small that they don’t even have space to affix an official serial number.

This suggests that no matter what criteria the DoT and FAA settle on, either the size of the registry will make it untenable, or the criteria will be ill-suited to the safety concerns they claim the registry is meant to address.

Non-Compliance

OK — So suppose the DoT and FAA survive the legal problems, figure out a set of criteria that make logical sense, and set up a feasible point-of-sale registry system that doesn’t crash on day one. What guarantees that, on day two, consumers don’t become substantially non-compliant?

One only need to look at initiatives to create large scale firearm registries to get a sense of the boondoggle that the DoT has set up for itself. Two years after passing, New York’s SAFE Act’s gun registry system has only registered ~45,000 assault-style weapons out of the 350,000 to 1 million estimated to be in the state, for a compliance rate of between 4–12%. Canada’s attempt to create a national firearm registry also famously backfired, with dramatic implementation issues and cost overruns measured in the hundreds of millions of dollars. The DoT will have its own retroactive compliance problem, on top of figuring out how to deal with foreign manufacturers and who, when the dust settles, is going to pay for it all.

Some things are simply easier to impose a national registry on than others. Cars, for example, last for decades, are made by a handful of companies, and are much harder to build with a 3D printer and some recycled circuitry. National registry systems are nonetheless popular with regulators since they fulfill the conceit that government can achieve the holy grail of “Total Information Awareness.” Ignorance makes regulators uncomfortable, like they’ve somehow lost control. But the truth is national registry systems only provide the illusion of control. Americans understand this full well when it comes to guns. As the saying goes: when drones become outlawed only the outlaws will have drones.

Go north, my drones

Meanwhile, in Canada, drones weighing less than 35 kg (71 lbs) can be flown recreationally within a set of reasonable safety guidelines. And if it’s for work or research, no extra permission is required — just let Transport Canada know your contact info, location and serial number through a simple online form.

No wonder so many drone companies have chosen to migrate operations to Canada and other similarly permissionless jurisdictions, bringing the fruits of innovation with them. The difference now is that the out-of-step drone policies of the FAA are threatening to encroach on everyday hobbyists, too.

The alternative is a system that is both fairer to the civil liberties of every day consumers, and which recognizes the inherent inability (and undesirability) of a national government to effectively track, monitor, and control its people. Now that is something to wish for this holiday season — presuming the FAA doesn’t force St. Nick to register his magic sleigh.