Jonathan D. Ash writes:

Air Traffic Control RadarThe FAA has recently partnered with various digital platforms to create the “Low-Altitude Authorization and Notification Capability” (LAANC) in an effort to streamline waiver authorization in controlled airspace. Normally, the process to obtain a waiver to fly in controlled airspace can take 90 days or even longer.

But for some commercial operators who may need to get in the air quickly, that process makes little sense. For example, when there is breaking news, a journalist cannot sit back and wait for the waiver process to be able to capture what is happening at that moment.

That is why LAANC seeks to provide instant waivers by allowing commercial pilots to apply digitally using the same applications they already use for flight planning. The LAANC partners, many of whom are already working with the FAA to digitally map the airspace, will provide for areas of controlled airspace that are already preapproved under certain conditions (i.e. altitude, weather, etc.).  If a commercial drone operator is seeking to fly in that airspace, under those conditions, they may receive instant authorization to fly.

While the current program is limited to only 50 airports, the goal is to expand this program nationwide. This appears to coincide well with the FAA’s other initiatives to develop an air traffic management system for drones and is yet another example of the FAA’s efforts to expand commercial operation.


Jonathan Ash is a partner in the firm’s Labor & Employment Department, resident in its Princeton office.

We have previously noted that people often view new technology with skepticism, and even trepidation bordering on fear. That perception changes as both costs decrease (resulting in more people using and adapting to the new technology) and the recognition of the tangible benefits produced by the new technology. In the early 20th Century, both automobiles and planes were new technology, and were initially met with resistance and skepticism.

A recent NASA study analyzed human reaction to audio recordings of noise created by automobiles, drones, as well as computer generated sounds (auralizations). In short, the study found that the human subjects rated noise created by drones as significantly more annoying than traffic noise.

It is important to note (and the study itself notes) that this is a single study and it “was not conceived to be a comprehensive examination of noise from either sUAS or road vehicles. Rather, it was meant, primarily, to demonstrate the extensibility of tools and facilities that NASA already possesses to the realm of sUAS noise. Therefore, it is unwise to attempt to generalize the results of this study beyond those stated in the discussion, and beyond the limited set of vehicles and conditions tested.”

The study also notes that the sound made by a drone does not qualitatively resemble the sound made by manned aircraft. As noted in the study: “This difference in sound quality introduces an unknown factor into the prediction of the resultant annoyance.”

Although this is a single study and is limited in scope, the initial analysis of the results of the study suggests that at least for the near future, the noise created by drones is another hurdle to overcome in accomplishing widespread public acceptance of having drones operating in near proximity to humans.

Another takeaway from the study is that human reaction to the noise from drones may compel some local governments to enact regulations governing where drones can operate due to the fact that people appear to find drone noise more objectionable than other routine background noise. Such would be unfortunate, assuming that the drone noise in question is no louder than other background noise.

 

Hardly a week goes by that someone does not ask me “What can I do if a drone flies or hovers over my property?” or the converse, “What restrictions are there on my operation of a drone over private property?”.

From inexpensive toys to advanced recording equipment, drones are now being used throughout both residential neighborhoods and commercial spaces. However, the legality of drone usage over private property has become somewhat muddled. Many drone owners aren’t certain whether their drone or drones can fly in private airspace — while homeowners and business owners are perplexed by their options.

Most Laws Implicated by Hovering Over Private Property Are Not Drone Specific

Widespread drone usage is a relatively new phenomenon. Although some state and local governments have enacted laws regulating drone usage, in many areas of the United States there are few if any state or local laws regulating drone usage. Because of this, most legal issues regarding drones are based on case law decided long before drones became an issue. In other words, a neighbor or a drone operator is not likely to get a definitive answer regarding whether their drone usage is legal.

…But That Doesn’t Mean There’s No Recourse

Simply because there are few laws that specifically written to address operating drones over private property, that doesn’t mean that such operations are lawful. Rather, it means that issues with drones generally fall under different sets of laws. As examples:

  • Drones with cameras may be found to be invasions of privacy. Though it is legal to use a camera in a public space, filming someone in the privacy of their own home (such as through their window) where a person has a reasonable expectation of privacy is generally not legal. Thus, though the action of “using a drone and a camera” might not be illegal, using it in certain ways can be.
  • Drones may be considered to be a private nuisance. A drone that is repeatedly “buzzing” someone within their yard or is found to be hovering close to their home could be considered a nuisance — or even considered to be harassment if the individual is being targeted. Again, in this case it is not the drone itself that is illegal, but the actions being taken with the drone.

Drones, like any tool, they can be used in an illegal fashion. The legal system is still playing “catch up” with laws that are directly related to private airspace and drone usage, but many of the potentially harassing, damaging, or frustrating actions that could be taken by drones already are illegal under existing law.

Accordingly, being considerate of your neighbors is important, not just for drone operations, but for a civilized society.

On June 27, a massive ransomware attack now known as “Petya” spread across the globe in a similar fashion to the WannaCry cyberattack in May. In an Alert today, Fox Chief Privacy Officer and Partner Mark McCreary breaks down what we know about the attack, how to address it if your organization falls victim to it, and how to minimize the risks of future attacks:

Petya Cyberattack ScreenshotYesterday’s worldwide cyberattack once again exploited a vulnerability that has been known to experts for many months. These attacks are sure to continue and the best defense is knowledge. Awareness of how malware works and employee training to avoid the human error that may trigger an infection can prevent your organization from becoming a victim.

This latest ransomware variant, referred to as “Petya,” is similar in many respects to the “WannaCry” ransomware that affected hundreds of thousands of computers in mid-May, using the same Eternal Blue exploit to infect computers. The purpose of this Alert is to provide you some information believed or known at this time.

How Is a Computer Infected?

Experts believe the Petya malware is delivered in a Word document attached to an email. Once initiated by opening the Microsoft Word document, an unprotected computer becomes infected and the entire hard drive on that computer is encrypted by the program. This is notably different from WannaCry, which encrypted only files.

Once Petya is initiated, it begins seeking other unprotected computers in the same network to infect. It is not necessary to open the infected Microsoft Word document on each computer. An infection can occur by the malware spreading through a network environment.

To read Mark’s full discussion of the Petya attack, please visit the Fox Rothschild website.

Mark also notes that “I continue to stress to clients that in addition to hardening your IT resources, the absolute best thing your business can do is train employees how to detect and avoid malware and phishing.  In-person, annual privacy and security training is the best way to accomplish this.”

Come Senators, Congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside
And it is ragin’
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’

Bob Dylan – “The Times, They Are A-Changin”

Unless this is your first visit to our blog (and if it is, welcome), you know that we have addressed the tension between the federal government vs. state and local governments regarding regulating drones on several occasions. Because the landscape continues to change, this topic is a hot button issue.

Although the boundaries of federal vs state and local government authority to regulate drone operations remains unclear, state and local governments continue to assert authority to regulate drone operations. Over the last few years, drone operations have increased significantly, and drone operations are expected to increase dramatically over the next few years.

In addition to the Drone Federalism Act recently introduced in the U.S. Senate, a bill was recently introduced in the U.S. House of Representatives titled “Drone Innovation Act of 2017”. Similar to the Drone Federalism Act, the Drone Innovation Act seeks to address the manner in which state, tribal, and local governments can regulate drone operations.

Here are the key points of the Drone Innovation Act (the following is only a summary of the highlights):

No later than six months after enactment, the Secretary of Transportation is required to publish a civil unmanned aircraft local operation policy framework (after consultation with state, local and tribal officials, as well as other stakeholders)

The policy framework shall:

“(1) provide guidelines to aid States, local, and Tribal governments in harmonizing and, to the degree possible, standardizing reasonable time, manner, and place limitations and other restrictions on operations of civil and small unmanned aircraft that are local in nature;

(2) take into account the economic and non-economic benefits, such as civic or educational uses, of small or civil unmanned aircraft operations;

(3) provide guidelines to aid States, local, and Tribal governments in creating an environment that is hospitable to innovation and fosters the rapid integration of unmanned aircraft into the national airspace system; and

(4) aid States, local, and Tribal governments in adopting technologies, such as unmanned traffic management systems, that will enable notification to operators regarding reasonable time, manner, and place limitations on operations of civil and small unmanned aircraft that are local in nature.”

When preparing the policy framework and any future regulations or standards related to unmanned aircraft, the Secretary of Transportation is required to define “the scope of preemptive effect”. The Act requires that any such regulations or standards “be limited to the extent necessary to ensure the safety and efficiency of the national airspace system for interstate commerce, and shall preserve the legitimate interests of State, local, and Tribal governments, including–

(1) protecting public safety;

(2) protecting personal privacy;

(3) protecting property rights;

(4) managing land use; and

(5) restricting nuisances and noise pollution.”

The Act requires the Secretary of Transportation to “abide by and be guided by” several “fundamental principles”. It also requires the Secretary to establish a pilot (I assume no pun intended) program and enter into agreements with a predetermined number of state, local, or tribal governments to provide technical assistance in regulating drones. Within 18 months after the pilot program is established, the Secretary is required to provide a report on best practices for state, local and tribal governments to regulate drones.

The Act prohibits the Secretary from prescribing regulations or standards for drones that authorize the operation of drones less than 200 feet above ground level “where there is a reasonable expectation of privacy without permission of the property owner”.

Moreover, it expressly states that the following causes of action are not preempted: “personal injury, wrongful death, property damage, inverse condemnation, trespass, nuisance or other injury based on negligence, strict liability, products liability, failure to warn, or any other legal theory of liability under any maritime law, or any Federal, State, or Tribal common law or statutory theory”.

The prohibition on preemption of those causes of action is tempered by the following language: “no cause of action, claim or remedy may be made solely because of the transit of an unmanned aircraft through airspace local in nature over private property in the absence of proof that such transit substantially interfered with the owner or lessee’s use or enjoyment of the property or repeatedly transited the airspace local in nature above the owner’s property”.

The Secretary is prohibited from issuing any rule or regulation that would impede the authority of state, local, or tribal governments to define private property rights as it applies to drones that operate at an altitude less than 200 feet.

State or local governments may not “unreasonably or substantially impede” a drone from reaching navigable airspace. Per the Act, unreasonably or substantially impeding includes:

“(1) outright bans on overflights of the entirety of the lateral boundaries of a State or local government’s jurisdiction;

(2) excessively large prohibitions on overflights of areas of local significance such that access to airspace is so impeded as to make flight within the lateral boundaries of a State or local government’s jurisdiction nearly impossible; and

(3) a combination of restrictions intended to unreasonably impede or having the practical effect of unreasonably impeding the ability of a civil unmanned aircraft from reaching the navigable airspace.”

Finally, nothing in the Act may be construed to affect: manned aircraft operations or the authority of the FAA with respect to the same; the FAA’s right to take emergency action; the FAA’s right to pursue enforcement actions against drone operators; or the right of first responders to access airspace in the event of an emergency.

The Drone Innovation Act is not the first attempt by Congress to address the issue of federal vs. state (including tribal and local) government authority to regulate drone operations. The Act appears to recognize the need to avoid having a checkerboard of varying laws and regulations from locality to locality. Whether the final version of any Congressional act defining federal vs. state authority over drone operations includes this theme remains to be seen.

Powered by developments in aviation, sensing, and software technology, the drone industry is projected to be one of the fastest growing industries, with sales expected to top $12 billion by 2021.[2] Within the next decade, the commercial drone industry alone is expected to generate more than $82 billion and could provide 100,000 new jobs.[3]

The unprecedented growth of the drone and unmanned aerial systems (“UAS”) industry has not waited for governmental regulation to catch up. Now, federal, state, and municipal governments are struggling with how to regulate UAS use. Regulation of UAS by both federal and state governments has led to issues relating to federal and state preemption, with both authorities continuing to assert that they possess the authority to regulate drones. For instance, the U.S. Senate recently introduced the Drone Federalism Act of 2017.

Illinois is another State that has recently has taken its first steps to lay the groundwork for UAS regulation and the future use of drones in the State.

Freedom from Drone Surveillance Act

Presently, the only statute in Illinois expressly addressing drone use is the Freedom from Drone Surveillance Act (the “Act”).[4] The Act provides generally that law enforcement agencies cannot use drones to gather information.[5] However, the Act allows for the use of drones by a law enforcement agency in the following limited circumstances:

  1. to counter a high risk of a terrorist attack if the United States Secretary of Homeland Security determines that credible intelligence indicates there is that risk;
  2. if a law enforcement agency first obtains a search warrant based on probable cause, provided the warrant is limited to 45 days;
  3. if a law enforcement agency possesses reasonable suspicion that swift action is needed to prevent imminent harm to life, or to forestall the imminent escape of a suspect or destruction of evidence; provided, however, the use of the drone is limited to a period of 48 hours;
  4. if a law enforcement agency is attempting to locate a missing person, and is not also undertaking a criminal investigation;
  5. if a law enforcement agency is using a drone solely for crime scene and traffic crash scene photography; provided, however, the use of a drone on private property requires a search warrant based on probably cause or lawful consent to search; and
  6. if a law enforcement agency is using a drone during a disaster or public health emergency.[6]

Moreover, except as provided by one of the exceptions above, a law enforcement agency may not acquire information from or direct the acquisition of information through the use of a drone owned by a private third party.[7] If a court finds by a preponderance of the evidence that a law enforcement agency used a drone to gather information in violation of the Act, then the information is presumed to be inadmissible in any judicial or administrative proceeding.[8]

The Illinois Unmanned Aerial System Oversight Task Force

On August 18, 2015, Public Act 99-392 became effective, creating the Unmanned Aerial System Oversight Task Force (the “Task Force”). The mission of the Task Force was “to study and make recommendations for the operation, usage, and regulation of Unmanned Aerial Systems.”[9] On June 30, 2016, the Task Force submitted its recommendations to the Governor and General Assembly, which struck a balance between safety, deference to federal oversight, and allowing commercial use of UAS to become a considerable economic driver in Illinois.[10]

The Task Force found that UAS operations should generally be permitted if they do not cause a safety hazard, do not infringe on the privacy or property rights of others, and if performed in accordance with applicable FAA rules and regulations.[11] Any legislative action relating to UAS was recommended to be flexible to adapt State-level oversight to the changing UAS regulatory landscape at the federal level.[12]

To this end, the Task Force found that statutes currently exist that address individual concerns, such as privacy and property rights.[13] For instance, statutes and ordinances exist regarding voyeurism, harassment, stalking, disorderly conduct, public nuisance, reckless endangerment, and recording of individuals in locations where there exists a reasonable expectation of privacy.[14] As such, the Task Force found no reason to create numerous new laws or amend existing statutes related to acts committed by UAS.[15] Rather, it was recommended that the General Assembly consider a global “extension of oneself” clause that would serve to link the operator with the UAS.[16]

The increased use of drones also raises questions regarding the balance between federal and state regulation. Importantly, the Task Force analyzed the topic of preemption at length.[17] With regard to federal preemption, the Task Force determined that any State-level oversight relative to UAS operations should complement and not conflict with FAA rules and regulations.[18] As to State preemption, the Task Force recommended that the General Assembly enact State-level preemption regarding UAS oversight in Illinois.[19] The Task Force reasoned that a patchwork of local ordinances would lead to confusion and would place an increased burden on UAS operators and the UAS industry.[20] In addition, a patchwork of local ordinances would negatively impact commercial and public operators that operate UAS in multiple locations throughout the State and across municipal boundaries.[21]

The Task Force also focused on the potential commercial use of UAS in Illinois.[22] Finding the commercial use of UAS is heavily regulated at the federal level, the Task Force noted that commercial use should generally not be subjected to additional operating restrictions provided operations are performed safely and in accordance with the FAA.[23] The Task Force determined that UAS can develop into an economic driver for the State, by enhancing employee efficiency and productivity, through retail sales revenues, and also by creating or sustaining jobs in UAS design, development, manufacturing, distribution, retail, and professional commercial operators.[24]

City of Chicago

Chicago was the first major American city to approve a comprehensive set of drone regulations.[25] The regulations appear to balance protecting public safety while at the same time encouraging innovation and technology.[26] The ordinance provides that it is unlawful to operate a drone in the City unless it is registered with the Department of Aviation.[27] Registration is valid for one (1) year and costs an annual fee of $50.[28] In addition, the owner of a drone must maintain a liability insurance policy that insures the owner, lessee, and operator of the aircraft.[29] The insurance policy must name the City of Chicago as an additional insured.[30] A drone must also have a valid identification tag issued by the Department of Aviation affixed to it.[31]

Under the ordinance, it is unlawful for a person to operate a drone in City airspace: for the purpose of conducting surveillance, unless permitted by law; within five (5) miles of an airport; that is equipped with a firearm or other weapon; with intent to use the small unmanned aircraft to cause harm to persons or property; within one-quarter mile of an open air assembly unit, school, hospital, or place of worship; at any altitude higher than four hundred (400) feet above ground level; outside the line of sight of the operator; while under the influence of alcohol or drugs; whenever weather conditions would impair the operator’s ability to do so safely; or between the hours of 8:00 p.m. and 8:00 a.m.[32] Any person who violates the ordinance will be fined not less than $500.00 nor more than $5,000.00 for each offense, or may be incarcerated for a term not to exceed 180 days, or both.[33]

Favorable regulations relating to drone use could result in great economic potential for the future use of drones in Illinois, a notion that the Task Force seemed to understand. The Task Force’s recommendations balance the competing interests of public safety and commercial use. It is still too early to tell if the General Assembly will heed the Task Force’s advice. However, practitioners and businesses operating in Illinois should be on look-out for legislative and regulatory changes in this burgeoning area of the law. In addition, continue to visit Fox Rothschild’s blog for updates on how such changes will affect the general landscape of UAS regulations.

[2] BI Intelligence, The Drones Report: Market forecasts, regulatory barriers, top vendors, and leading commercial applications, June 10, 2016, available at http://www.businessinsider.com/uav-or-commercial-drone-market-forecast-2015-2

[3] The White House, Fact Sheet: New Commitments to Accelerate the Safe Integration of Unmanned Aircraft Systems, August 2, 2016, available at https://www.whitehouse.gov/the-press-office/2016/08/02/fact-sheet-new-commitments-accelerate-safe-integration-unmanned-aircraft

[4] 725 ILCS 167/1, et. seq.

[5] 725 ILCS 167/10.

[6] Id. at § 15.

[7] Id. at § 40.

[8] Id. at § 30.

[9] 20 ILCS 5065/15(a).

[10] Illinois Unmanned Aerial System Oversight Task Force, UAS Recommendations Report, June 30, 2016, available at http://www.idot.illinois.gov/Assets/uploads/files/Transportation-System/Reports/Aero/IUASOTF/UAS%20Recommendations%20Report-IUASOTF-2016-06-30.pdf.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Justin Peters, SLATE, Chicago Becomes the First Big City to Enact Drone Regulations, Nails Them, Nov. 20, 2015, available at http://www.slate.com/blogs/future_tense/2015/11/20/chicago_enacts_drone_regulations_that_are_really_good.html.

[26] Id.

[27] Chicago Municipal Code, 9-121-020(a).

[28] Id. at 9-121-030(a).

[29] Id. at 9-121-040(a).

[30] Id. at 9-121-040(b).

[31] Id. at 9-121-050(a).

[32] Id. at 9-121-060(a).

[33] Id. at 9-121-070.

Jonathan Ash writes:

With the Trump Administration’s focus on jobs and building the economy, it makes perfect sense that it would explore opportunities in one of the fastest growing industries right now: drones.  In what may be the first direct outreach to the drone industry, President Trump is scheduled to meet with leaders of several drone companies to discuss the growing industry and the regulatory landscape. According to a White House spokesman, President Trump will see “demonstrations of how these technologies will contribute to the 21st century economy and how the government can ensure that their safe adoption leads to the best possible outcomes for the American worker and American businesses.”

U.S. based companies Kespry, AirMap, Airspace and PrecisionHawk are expected to be in attendance, among others. These companies focus on drone software for such things as mapping and analysis as well as drone security.

The White House, Washington, D.C.
Copyright: pigprox / 123RF Stock Photo

Also of note is that this meeting comes a day after the first meeting of the Remote Identification Aviation Rulemaking Committee of the Federal Aviation Administration, which is scheduled to meet on June 21, 2017. This Committee is tasked with creating new standards for remotely identifying and tracking drones. In addition to helping law enforcement with security concerns, remote identification could provide the starting point for an air traffic management system for drones.  This could then pave the way for expanded operation of drones, including beyond line of sight, among other expansions that could allow for things like drone delivery.

This increase in activity by the administration in the area of drone technology coupled with the recent announcement of privatization of air traffic control, helps foster the conclusion that expanded operation or additional waivers for commercial use could be coming faster than people anticipate.  This administration appears ready to address ways to help the industry grow.  We will follow up with any significant developments from these meetings.


Jonathan Ash is a partner in the firm’s Labor & Employment Department, resident in its Princeton office.

The challenge presented by having federal, state and local authorities all attempting to regulate drones is a topic we have addressed on this blog and in other publications (see links below). Unfortunately, a solution to that challenge remains elusive.

State and local authorities continue to assert that they possess the authority to regulate drones. That position, coupled with the current state of the federal regulatory process , has now been further complicated by the introduction of the Drone Federalism Act of 2017 (“Drone Federalism Act” or “Act”) also known as S. 1272, which was recently introduced in the U.S. Senate by Senator Feinstein.

If enacted, the Drone Federalism Act will amend Section 336 of the FAA Modernization and Reform Act and will provide states broad rights to regulate drone operations. It requires the FAA Administrator to not only define the preemptive effect of federal regulations regarding unmanned aircraft operations, but it also requires the Administrator to: “preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments, including— (A) protecting public safety; (B) protecting personal privacy; (C) protecting property rights; (D) managing land use; and (E) restricting nuisances and noise pollution.”

The Drone Federalism Act also requires the Administrator, when enacting regulations or standards regarding drones, to “ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.”

The Act specifically states that “reasonable restrictions” include:

  • Limitations on speed
  • Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, or other public or private property;
  • Restrictions on operations at certain times of the day or week or on specific occasions such as during parades or sporting events;

  • Prohibitions on operations while the operator is under the influence of drugs or alcohol;

  • Prohibitions on careless or reckless operations; and

  • Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.

58499289 – no drone, multicopter prohibited symbol. not fly zone. sign indicating the prohibition or rule. warning and forbidden. flat design. vector illustration. easy to use and edit.

If enacted, the Act will only lead to a further patchwork of state and local laws, making compliance for drone operators exceedingly difficult. We have addressed some of those concerns in other writings.

While a solution to the patchwork of laws is necessary, the Drone Federalism Act does not solve that problem. Rather, it only exacerbates the problem.

Recently, several members of my Firm and I had the opportunity to speak on a panel at the New York City Drone Film Festival (“NYCDFF”) regarding legal issues and drones. Thanks to the excellent moderation of Randy Slavin, the founder of the NYCDFF, we had the opportunity to discuss several legal issues. While the presentation was directed to attendees of the NYCDFF, the discussion encompassed a fairly wide breadth of legal issues.  Among the issues discussed are the current state of drone regulations, first amendment issues, liability issues, intellectual property, drone cinematography, releases, and insurance issues. I recommend anyone who is interested to watch the video of the panel presentation. Also, if you are not familiar with the NYCDFF, I highly recommend checking it out.

 

On March 18, Fox attorneys Mark Connot, Brian Rothery, Christopher Beall and Imraan Farukhi participated in a panel discussion entitled “Up in the Air: 2017 Drone Law Update” as part of the Third Annual New York City Drone Film Festival. The festival is “the world’s first event exclusively dedicated to celebrating the art of drone cinematography,” and offers an international platform for filmmakers from around the world to exhibit their work for the drone community and the film industry.

The discussion covered current laws, First Amendment issues, rights clearances for filmmakers licenses their footage and more. We invite you to watch the full 45-minute discussion, available on YouTube and below, and to find out more about this annual event.