By Berin Szoka & Ryan Hagemann
September 23, 2015 at 5:00 am ET
California almost banned flying drones above populated areas. Last month, lawmakers overwhelmingly approved one of the toughest anti-drones laws in the country. The bill banned flying drones below 350 feet — unless operators obtained the express permission of everyone who owned property under the flight path. This would have effectively banned drones in urban areas, making impossible a variety of uses, from hobbyist tinkering and to package delivery.
To a generation of innovators and entrepreneurs, California would have said, essentially, “Go somewhere else.”
Fortunately, Governor Jerry Brown vetoed the bill, urging more “careful examination,” and warning that the bill “could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation.”
In other words: innovation shouldn’t require permission. Huge, uncertain legal liability can strangle innovation in its crib just as surely as detailed regulation. You’d think that would be obvious in California, home to Silicon Valley. Yet Sacramento has become increasingly schizophrenic in its approach to technology, finding a thousand ways to kill the goose that laid the golden egg—not to mention the tax base that keeps the spendthrift state afloat.
The question isn’t whether government has a role, but what that role should be. Even without California’s legislation, California law — its common law — will protect homeowners from invasion. If drones fly too low, make too much noise, or prove too intrusive, the courts will respond — not with a categorical, hardline ban, but with decisions that, over time, evolve towards a better balance.
That trial-and-error approach — in a word, dynamism — is the best way for law to protect consumers, and to balance values like privacy and innovation. There might be a role for legislation to clarify the common law or even correct it if it went awry, which does sometimes happen. But legislation is inherently static. It’s unlikely to strike the right balance — and painfully slow to correct itself.
When legislators try to legislate around new technology, claiming that common law won’t work, they often point back to airspace, claiming that air transportation became possible only because wise legislators intervened. Under common law, the myth goes, every property owner would have had an infinite column of ownership above their land, extending “into the heavens.” In the 1920s, Congress set a height cap on property rights low enough to allow innovative technologies (airplanes). But actually, courts were well on their way to recognizing a commons in airspace — and will continue to adjust just where the line between property and commons is as technology changes.
California lawmakers almost set a new cap so high as to effectively ban innovative technologies (drones). Fortunately, Gov. Brown had the foresight to stop them
This isn’t the first time Brown has stood up for permissionless innovation over regulation, for dynamism over stasis—but it is the clearest example. In 2012, he signed legislation that allowed self-driving cars to start operating on California roadways. Unfortunately, transportation is already so highly regulated, creating room for innovation isn’t easy. It took the state two years just to figure out how to revise its complicated regulations — and autonomous vehicles still face a host of challenges. Most notably, they’re required to let drivers take control of the vehicle — something that sounds sensible, but could actually make autonomous vehicles less, not more, safe.
Brown is offering California precisely what it needs: a reminder that California became the innovation capital of the world by allowing experimentation, not putting up roadblocks. This approach, more than any particular law or veto, may prove to be Brown’s true legacy — if he’ll stick to it on drones, legalizing fully autonomous vehicles, and a host of other innovations emerging from California’s tech sector.
Berin Szoka is President of TechFreedom, a non-partisan technology policy think tank. Ryan Hagemann is the technology and civil liberties policy analyst at the Niskanen Center and an adjunct fellow at TechFreedom.