Tressie McKeon writes:

Drone laws today are confusing.  Looking around the country we see that many states and cities have passed their own laws and regulations to ban or restrict the use of drones.  For example, in Texas, Texas Government Code Section 423 provides that an individual commits an offense if they use a drone to “capture an image of an individual or privately owned real property with the intent to conduct surveillance on the individual or property captured in the image.”  Thus, in Texas, you cannot use drones for spying.  But, you can still fly them, right?

Texas state capitol building in Austin, TXFor now, it appears you can if you are a hobbyist and not using the drone for commercial activities.  State and local governments have no authority over the airspace. The federal government, i.e. the Federal Aviation Administration (FAA), under 49 U.S. Code § 40103 “has exclusive sovereignty of airspace of the United States.” If all navigable airspace is overseen by the FAA, what can state and local governments regulate regarding commercial drones?  Those boundaries of the law will be tested in the years to come as drone use becomes more prolific.

As an example, the state and local governments may be able to control take-off and landing sites for commercial drones.  The states may also be able to restrict flights by using regulations more akin to trespassing statutes than by trying to control the air space.

For example, Texas Government Code Section 423.0045 enumerates the offense of operating a drone over critical infrastructure, such as dams, power plants, etc… Why might this state restriction not be preempted by the FAA?  The section restricts the offense to include areas only if “completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property, are reasonably likely to come to the attention of intruders, and indicate that entry is forbidden.”  And, it is even narrower in application as the drone must be flown below 400 feet over the structure, make contact with (i.e. crash into) the structure or interfere with the operation of the structure.  This is more akin to trespass than a direct attempt to control the airspace.

So what is the takeaway?  States cannot control the airspace per se, but it appears they might be able to use statutes that rely on other enforcement actions, like trespass, to restrict drone flight.


Tressie E. McKeon is an associate in the firm’s Litigation Department and head of its Aviation practice, resident in its Dallas office.

Earlier this month, I attended the InterDrone Conference in Las Vegas.  InterDrone brings together commercial drone operators, service providers, and tech companies, and included excellent key note speeches and informative panels on an array of topics.

One of the main takeaways from the conference was that while some of the focus remains on the expansion of drone operation (i.e. beyond visual line of sight, etc.), most people share an optimism that the necessary regulations will come in the near future.  The general consensus seems to be that this “drone train” has left the station and so it is only a matter of time before expanded operation becomes a reality.  With that in mind, the focus appears to have shifted to maximizing the information that a drone can collect.

Commercial operators are mainly using drones to collect data to help their business, but this raises important considerations, namely:

  • what can be done with that data?
  • how does that data help your business?
  • what trends does that data show?

In one of the key note addresses, Brian Krzanich, the CEO of Intel, recognized the value that the data collected from drones could have and proclaimed that “data is the new oil.”  That is likely why so many of the businesses at InterDrone were focused on software.  Many companies, including Intel, are offering up solutions to drone operators for cultivating and analyzing the data that is collected by drones.  The more that data can be used, the more valuable it becomes.  This is yet another example of the growth of the drone industry as a whole.

While drones have been used to capture breathtaking and heartbreaking images of Hurricane Harvey and its aftermath,  the FAA has issued a warning to drone operators.

The FAA has issued reminders that unless drone operators have specific authorization from the FAA, they are not permitted to operate where Temporary Flight Restrictions (“TFR”) are in place.  The primary reason is that operating an unauthorized drone in these areas could interfere with local, state, and federal rescue missions.

The FAA notes that if a drone operator interferes with emergency response operations, they could be subject to significant fines. In addition, even in areas where TFRs are not in effect, operating a drone without authorization in or near a disaster area  may violate federal, state, or local law.

Even in the absence of a natural disaster, operating a drone over people is prohibited by Part 107, unless a specific exemption has been granted by the FAA. Moreover, reckless operation of a drone is also prohibited.

While drones have incredible abilities to assist first responders and others, whether through providing real-time images and data that would be difficult or impossible to obtain through other means, unauthorized drone operations also have the potential to interfere with the efforts of first responders.

As tempting as it may be to fly a drone in or near a disaster area to capture footage, for the safety of all, please refrain from doing so unless you have specific authorization from the FAA.

There is no doubt that drones are going to drastically improve our lives. Drones are already being used to deliver medical supplies in third-world countries, survey land, film live events, assist police in investigations and surveillance, inspect tall buildings and other large structures, among other things. But, these advances in technology will come with a price when it comes to safety and preventing terrorism in the United States.

Drones, UAVs and terrorismDrones have reportedly already been used by drug cartels to smuggle drugs into the United States and to infiltrate prisons to deliver drugs, money and cell phones. It has also been reported that ISIS is using both weaponized and surveillance drones. Suicide drones are becoming an increasing problem in Syria given the ease of access to equipment for a small amount of money.

While drones will be able to improve our lives, they also have dark potential. The question seems to be not if but when a drone will be used in the United States to carry out a terrorist attack. The question that we need to answer is this: How do lawmakers stop terrorists from using drone technology to carry out attacks here in the United States?

From a policy perspective, what can U.S. lawmakers do, if anything, to prevent such an attack? While lawmakers here have been relatively silent on the issue, China has enacted a number of rules limiting where drones can legally fly. However, this is only a piece of the puzzle as legislators have no meaningful way to enforce these laws. For now at least, we will have to rely on drone manufacturers to incorporate safety features to prevent use by terrorists.

One of the largest drone manufacturers, DJI, is currently developing a Geospatial Environment Online system (“GEO”). This system will provide flyers with up-to-date guidance regarding areas where flight may be limited by regulation or raise safety concerns. More importantly, the GEO will be able to limit drones, by default, from taking off or flying into areas that may raise safety or security concerns such as major stadium events, prisons, or nuclear power plants. The ability to control where drones can be flown, and detect how they are being used, will be vital to ensuring our national security.

Someday relatively soon drones will be used in the United States to deliver packages, groceries, emergency medical supplies, and conduct police surveillance, among many other things. But protecting us from terrorists that will try to use them to carry out terrorist attacks, for good or for bad, may largely fall on the shoulders of drone manufacturers—not U.S. lawmakers.


Tressie E. McKeon is an associate in the firm’s Litigation Department and head of its Aviation practice, resident in its Dallas office.

Earlier this month, the U.S. Army discontinued the use of DJI drones due to concerns over cybersecurity.  This follows NASA and the Department of Energy who also prohibit the use of DJI drones for similar reasons.  DJI, a China-based company, is the world’s largest drone manufacturer and has a whopping 70 percent market share.  Under DJI’s privacy policy, users agree that DJI has the right to collect information from flights, including photos, videos, and location information.

It is unclear what DJI does with that information, but presumably, DJI is using it to gain valuable information on its consumer’s habits.  However, because drones are being used more and more for commercial enterprises, such as 3D mapping, inspections, etc., it is plausible that valuable information about U.S. infrastructure could be collected and stored by DJI.  The U.S. Army is not taking any chances that such information could fall into the wrong hands or be susceptible to a cybersecurity attack.

The National Oceanic and Atmospheric Administration (“NOAA”) recently analyzed the cyber threat posed by one of DJI’s higher-end drones, the S-1000.  While the NOAA ultimately found that there was nothing improper about way it handled data, one of the authors tested his DJI Phantom 3 and found that it was sending encrypted data back to DJI to an unknown location.

DJI is, after all, a private corporation.  We have seen in recent months how private corporations can be vulnerable to attack – HBO, for example, is currently dealing with the fallout from a cybersecurity breach.  Here, because the nature and extent of the information collected by DJI is unknown, the resulting impact of a breach could have national security implications.


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

The focus of this blog has been legal and policy issues regarding the civilian operation of drones. However, it is easy to forget that just a few short years ago, if you asked the person on the street the first thing to come mind if they heard the word “drone”, the vast majority would have responded “military”or some variant thereof.

Military usage of drones has increased (and will continue to), but due to the fact that civilian application of drone technology has increased greatly, more and more people envision civilian applications of drones when the term is mentioned.

Military use of drone technology raises unique issues.  The moral and ethical concerns of utilizing autonomous systems for military purposes was recently the subject of an article in NATO Review Magazine.

The term “autonomous” is often used rather loosely and is routinely used to describe what is more accurately described as “remotely operated” or “remotely piloted”.  Truly autonomous drones are “advanced drones programmed with algorithms for countless human-defined courses of action to meet emerging challenges”. In other words, artificial intelligence.

As the authors note, while the general rules of the Law of Armed Conflict will apply, autonomous drones may potentially be operating their weapon systems during an attack without any human involvement.  As the article notes, the law requires a reasonable commander acting in good faith to make certain discretionary decisions in the heat of the moment.

Among the concerns noted is whether we as a society are prepared to delegate life-and-death decisions to a nonhuman system. However, while magnified when used for military applications, many of the moral and ethical concerns apply to civilian usage as well. For example, what collision avoidance systems will be employed in autonomous vehicles and how will the system decide between various alternative course of action, each of which may cause injury or death to humans?

Moral and ethical concerns surrounding the implementation of artificial intelligence are not limited to the military, but will become more and more of an issue for society as artificial intelligence technology continues to develop. The legal and ethical issues raised by technology, particularly in the area of artificial intelligence, will intensify as we move forward as a society.

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.”