How Drone Regulation Will Develop: Lessons from Piracy, Automobiles, and the Insurance Industry

New technologies like drones often appear long before legal systems fully understand how to regulate them.

The legal and regulatory framework for counter-drone defense does not yet exist in any meaningful form. History shows that courts, insurers, and professional organizations will build it before government does. Organizations that wait for legislative clarity are not playing it safe; they are ceding the standard to someone else and accepting the exposure that comes with it.

I have finally reached the last stage of grief when it comes to drone policy change: acceptance. Change is not coming until there is a major event. That is the nature of the government beast. Acceptance has made me think about whether history offers any parallels for how regulation, policy, law, and case law will eventually form around the small-drone threat. If change cannot be made before a drone causes real damage, the historical pattern is the best roadmap available.

Why Is Drone Regulation Falling Behind the Threat?

The threat from drones is outpacing the legislative and policy-making apparatus.

When this happens in most Western democracies, the courts, insurance brokers, and professional organizations are forced to fill the guidance vacuum the government leaves behind.

Many people in government are aware of how fast the technology is moving. The system itself is designed to be slow and deliberate. Ask anyone who has moved from the private sector to government, or vice versa, about the speed-of-change shock.

Democratic systems were designed to slow change so cooler heads could prevail. That is a feature, not a bug. But when something changes rapidly, it can escape the hands of policymakers and lawmakers entirely. Drones are slipping through.

How Will Counter-Drone Policy and Law Develop?

In the absence of clear guidance, people will adapt. Solutions will be found. Along the way, there will be broken eggs. The hope is that before we are up to our eyeballs in soufflé, we figure it out.

Drone incidents will shape best practices in professional organizations, drive insurance policy responses to financial loss, and produce jurisprudence in the civil and criminal courts. Eventually, after enough industry white papers, standardized insurance policies on drone mitigation, and court decisions clarifying the limited statutes and precedent already on the books, the legislature will adopt what everyone else has been doing while it was missing in action.

That process will be messy, but it is the best outcome available as long as policymakers are moving like a herd of turtles walking through peanut butter. The worst outcome is the outright banning of drones, which could happen if there is a big enough incident or a large number of them. But that nightmare of a scenario is something I am going to leave for another day.

What Does the History of Maritime Piracy Teach Us About Drone Defense?

During the golden age of piracy and into the 1800s, Lloyd's of London and other insurance brokers shaped the operational practices that defended against piracy. The legal framework eventually came from state action, customary international law and treaties such as the Geneva and UN conventions on the high seas. But the operational standard ran ahead of the law, and the insurers helped write it.

Insurers required ship owners to hire private security, invest in defensive measures, and plan routes that avoided pirate-infested waters. They did this because no international legal framework against piracy yet existed.

The insurers still play a strong role in how ships operate today. War risk premiums spike with every escalation of any conflict next to a busy route. Some carriers refuse coverage outright on certain routes. The insurers are deciding which ships sail and which do not, in real time, while the international legal regime watches from a distance.

The same dynamic is coming for counter-drone defense. Standard counter-UAS (CUAS) best practices, agreed upon by major carriers and reinsurers, will be required of critical infrastructure, large outdoor public gatherings, prisons, schools, houses of worship at scale, and other operators the carriers determine to be at heightened risk. Insurance will drive market behavior in CUAS the same way it has in maritime security.

What Does Automobile Liability Law Tell Us About the Future of Drone Liability?

When the automobile arrived, the law followed in its dust. Cars drove on roads with no speed limits, in states with no licensing requirements, made by companies more concerned with reliability than with passenger safety.

It took decades of court cases to work out liability for crashes, the doctrine of product defect, and the basic question of whether cars should be regulated at all. MacPherson v. Buick Motor Co. in 1916 broke the privity requirement and opened manufacturer liability to anyone foreseeably injured by a defective product. That single decision established the product liability doctrine that now governs every product on every shelf in America.

The pattern that followed was consistent: insurance companies and manufacturers developed safety standards, courts adopted those standards as benchmarks for reasonable care, and legislatures codified what industry had already been doing for years. Common law and statute developed together, with courts establishing duty and standard of care while legislatures slowly formalized the rest.

The more drone-related cases reach the courts, and the more insurance companies and manufacturers establish CUAS benchmarks, the more the legal landscape for drones will harden into something workable. The process will take countless billable hours. It will, more than likely, also cost lives.

What Are the Biggest Unanswered Legal Questions in Counter-Drone Defense?

The courts, the insurance industry, the security profession, and eventually lawmakers will have to clarify three issues in particular.

What Industries Are Required to Address the Drone Threat as Part of Their Standard of Care?

Foreseeability is the first unanswered question. The Rubicon has already been crossed by several sectors. Critical infrastructure, prisons, airports, and large public gatherings have crossed it. Schools may have crossed it. Healthcare campuses, mass-transit hubs, large houses of worship, and corporate headquarters may be approaching it.

The list of contexts where an organization can credibly claim non-foreseeability is shrinking. Once a sector crosses the threshold, every organization within it is presumptively on notice.

Who Is Liable When a Drone Attack Succeeds or a Drone Is Disabled?

Accountability is going to become the dominant operational question in CUAS. If a malicious drone attack succeeds, who is liable? The operator, certainly. The venue, almost certainly, under premises liability and negligent security doctrine. If a defender disables a drone and it falls and causes injury or property damage, who carries that liability? If a CUAS system disables an innocent drone, who pays for the loss?

Inside the organization, someone has to own implementation. In some industries that is the chief security officer. In others it is the chief risk officer, the general counsel, or the chief operating officer. The boards that have not assigned this responsibility are creating personal exposure for their directors under the duty of oversight articulated in In re Caremark and refined in Marchand v. Barnhill.

Who Has Legal Authority to Counter a Drone Threat?

Authority is the hardest of the three questions, because the answer is currently the tightest. Federal law concentrates drone-mitigation authority in a small set of authorized agencies. Private organizations cannot lawfully jam, spoof, take over, or kinetically engage a drone without exposure under 18 U.S.C. § 32, the Wiretap Act, the Computer Fraud and Abuse Act, and the FCC's prohibition on jamming devices.

State and local law enforcement is gaining limited authority through the SAFER SKIES Act, but only through individual officer certification at the federal training center, and only with approved technology. The question of whether private operators of high-value sites will eventually be granted some form of mitigation authority will be argued for years. Until it is resolved, the operational reality for most defenders is that mitigation is not on the table and the response has to be built around what is.

What Should Organizations Do About the Drone Threat Right Now?

There are three realistic positions, and doing nothing is not one of them.

Minimum compliance means waiting for regulatory clarity and doing only what current statute and regulation specifically require. For some industries with low drone exposure, that may be defensible. For the NFL or a power company, it could be professional negligence in waiting.

Active preparedness means establishing who plans for CUAS in your organization, documenting threat assessments, training personnel who will encounter the threat first, and maintaining a CUAS policy based on current best practices. The preparedness record is what makes the difference between a defensible organization and an exposed one when an incident occurs.

Industry leadership means helping write the standard. Participate in trade-association working groups. Contribute to professional certification bodies. Foster relationships with law enforcement and government partners. Engage with FEMA on the CUAS Grant Program. Build the documentation and training that other organizations in your sector will eventually be measured against. The industries that lead the standard-setting process get to shape it. The industries that wait will be measured against a standard someone else wrote.

CUAS knowledge and policy will be written by someone. The only question is whether you help write it, or have it written for you.

Daniel Holland is the co-founder of Crisis Prevention and Response (CPR), a security consulting and training firm that delivers practical security solutions to homes, businesses, schools, houses of worship, and other organizations. He is an active law enforcement officer with over 10 years of experience in investigations, crime prevention, and public safety. He holds Florida Crime Prevention Practitioner and Florida Crime Prevention Through Environmental Design (CPTED) Practitioner designations along with FBI-LEEDA Public Information Officer certification at both levels. He also specializes in emerging threat assessment, with a focus on the drone threat landscape and its implications for civilian organizations.