New Florida Law Allows Expanded Governmental Drone Usage—But Only with Some Drones

First, we have seen concerns voiced at the federal and state levels about use of foreign made drones, with a focus on those made in China. Industry watchers should be aware that procurement of UAS from certain countries could be limited. Indeed, there have been a number of recent policy decisions at the federal level stemming from national security and cybersecurity concerns regarding foreign-made products.

Second, the law raises the issue of data privacy with respect to the information collected by the drones. Although this law touches on law enforcement obligations, private sector readers should be aware of evolving privacy obligations for businesses as more and more states consider enacting their own comprehensive privacy legislation.

Existing Florida Law:Florida already has a statute, Section 934.50(3), prohibiting the use of drones by law enforcement agencies to collect evidence or conduct surveillance.

However, this prohibition does not apply where (1) a drone is being used to counter a high risk of a terrorist attack; (2) a law enforcement agency obtains a search warrant; or (3) a law enforcement agency has a “reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent danger to life or serious damage to property, to forestall the imminent escape of a suspect or the destruction of evidence, or to achieve purposes including, but not limited to, facilitating the search for a missing person.”

New Law: The newly enacted Senate Bill 44 (SB 44) adds five new exceptions to this list. Specifically,

• Florida law enforcement agencies may now use a drone to provide an aerial perspective of a crowd of 50 people or more, subject to certain guidelines on the use of the drone and the collected content.
• Law enforcement agencies in the state may use drones to assist with traffic management, although they may not issue traffic infraction citations based on the drone’s footage.
• Drones may be used to facilitate a law enforcement agency’s collection of evidence at a crime scene or traffic crash scene.
• Drones may be used by Florida state agencies or political subdivisions to assess the damage caused by a natural disaster or for vegetation or wildlife management on publicly owned land or water.
• Certified fire department personnel may use drones to perform tasks within the scope and practice authorized under their certifications.

Notably, the new law also adds discussion of “security standards” for governmental agency drone use. SB 44 further directs the Florida Department of Management Services (DMS) to, by January 1, 2022, publish a list of approved drone manufacturers. Under the law, approved manufacturers “must provide appropriate safeguards to protect the confidentiality, integrity, and availability of data collected, transmitted, or stored by a drone.”

Once published, Florida governmental entities may only purchase or otherwise acquire drones from a manufacturer on the list. Governmental entities that were using drones made by unapproved manufacturers prior to the list’s publication may continue to use those drones but must submit a plan for discontinuing this use by July 1, 2022. By January 1, 2023, all governmental use of unapproved drones in Florida must be discontinued.

SB 44 also requires the DMS to adopt rules, “consistent with any federal guidance on drone security, [for] minimum security requirements for governmental agency drone use to protect the confidentiality, integrity, and availability of data collected, transmitted, or stored by a drone.”

Looking Ahead:

Moving forward, drone manufacturers and industry stakeholders will want to be on the lookout for guidance from the DMS, as well as for similar legislation coming out of other statehouses. Drone stakeholders should also closely monitor trends with respect to limiting the use of foreign-made drones and increased privacy obligations.