Can the air near your shoes be considered "public airspace?" In Oregon, at least, it soon might be.
A new bill making its way through Oregon's state senate would establish something known as "Airspace of Oregon" which the state could use to regulate drone use by agencies and private citizens.
Proponents of the bill are trying to get ahead of a nationwide push to set rules for unmanned aerial vehicle use by civilians, which some advocates worry could intrude on personal privacy.
"The use of drones domestically will raise significant new privacy issues which cannot be addressed by current law," says Becky Straus, legislative director of ACLU's Oregon office. "We are not and should not be a surveillance state. Drones should never be used for mass surveillance. Law enforcement should only use them when there is individualized suspicion of criminal wrongdoing."
But experts say it's unclear whether Oregon would be allowed to regulate ankle-level airspace at all, since it's typically covered by the Federal Aviation Administration.
Though the bill says that "Oregon Airspace" would be "the space above the ground that is not part of airspace governed by federal law," Mitch Swecker, director of the Oregon Department of Aviation says it's not that simple.
"I don't know that we can establish an Oregonian airspace," he says. "It's premature and early in the process, but the FAA controls all airspace."
A 2002 attempt by Huntington Beach, Calif., to ban banner-towing airplanes was thrown out in court after the FAA said it had ultimate control over airspace.
Allen Kenitzer, a spokesperson for the FAA Northwest region, which includes Oregon, told U.S. News that he could not comment on pending legislation, but that "federal airspace" can start as low as 500 feet above the ground in some parts of the country.
"Elsewhere, it's 30,000 feet, some places it's 60,000 feet—it depends on what part of the country you're in," he says.
John Villasenor, a nonresident senior fellow at the Brookings Institution who studies drone technology and law, says if the Oregon bill passes, an already complicated issue could become even more difficult if the state tries to regulate the "airspace" around a homeowner's lawn or shrubs.
"The question of where a homeowner's control of airspace stops and public airspace begins is already complex," he says. "Adding claims by state government to the mix makes it even messier."
Oregon is one of a host of states that is trying to get ahead of the coming drone revolution—last year, Congress directed the FAA to devise a set of regulations for the operation of unmanned aerial vehicles. So far, lawmakers in Missouri, North Dakota, Virginia, California, and Florida have drafted legislation that would regulate drone use by private companies, citizens, and law enforcement agencies.
Oregon state Sen. Floyd Prozanski told the Oregonian earlier this week that he drafted the bill because "the last thing [he] thinks people want to do is look outside their picture window or their bedroom window and see a drone."
If passed, the bill would define a drone as "an unmanned flying machine that is capable of capturing images of objects or people on the ground or in the air, intercepting communications on the ground or in the air, or firing a bullet or other projectile," and would require anyone hoping to fly a drone to register it with the Oregon Department of Aviation. Swecker says so far his agency has had nothing to do with drone operation, and that the National Guard occasionally operates them in the state.
"We don't have any oversight of them right now—it's all federal," he says. "There's a lot of development that has to take place, but it's too early to say we'd regulate it in any certain way."
The bill is currently being mulled over by the senate's judiciary committee. A similar bill is being crafted in the state's lower house, but a draft of that bill does not have the "Airspace of Oregon" provision.