The Trump administration is introducing legislation that would allow the Department of Homeland Security and the Department of Justice to intercept drones that pose a threat “to the safety or security of a covered facility or asset.”  The legislation is necessary because intercepting a drone would involve interfering with electronic communications in violation of the Electronic Communications Privacy Act (18 U.S.C. § 2510 et seq.).  However, the scope of the proposed legislation appears to be very broad, giving the government wide discretion in identifying a threat, leading to privacy and even First Amendment concerns.

The goal of the legislation is pretty straightforward.  As drones become cheaper and easier to obtain, the potential for someone to use one in a dangerous manner only increases.  To safeguard potential targets, whether it be infrastructure or individuals, federal law enforcement need a way to combat a potential threat.  According to the proposal, this legislation would allow the government to:

  1. “detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent…”;
  2. “warn the operator of the unmanned aircraft system…”;
  3. “disrupt control of the unmanned aircraft system…”;
  4. “seize or exercise control of the unmanned aircraft system…”;
  5. “seize or otherwise confiscate the unmanned aircraft system…”; and
  6. “use reasonable force to disable, damage, or destroy the unmanned aircraft system…”;

In addressing privacy concerns, the legislation merely states that any interception or acquisition of an unmanned aircraft system shall be “conducted in a manner consistent with the fourth amendment to the Constitution and applicable provisions of Federal law…” but it is unclear how that would work in practice.   Likewise, the proposal states that communications may only be intercepted “to the extent necessary to support a function of the Department of Homeland Security or the Department of Justice.”

While everyone can appreciate the need for safety in the face of a new technology, the broad authority granted by this legislation could raise questions for responsible drone pilots.  It is likely that the types of facilities and buildings will need to be more narrowly defined.

This weekend I was fortunate enough to attend the New York City Drone Film Festival in Tribeca and appear on a panel with some of my Fox colleagues about legal issues in the drone world.  I also watched the panel on drone technology that was immediately prior to the law panel and was introduced to a truly impressive piece of technology, the Skydio R1 drone.  The R1, unlike other consumer drones on the market, is fully autonomous, meaning it flies itself and can follow you while avoiding obstacles. This had me wondering, is the world ready for this?  More specifically, is the FAA ready under the current state of regulations?

For starters, obstacle avoidance at this level is a huge benefit and something the FAA must be watching closely.  After all, if commercial operation is ever truly going to get beyond visual line of sight, it is technology like the R1 that can help make it possible.  However, as impressive as the technology is, the FAA is not going to simply trust a machine to fly itself.  And while the regulatory framework of the FAA deals primarily with commercial operations (though a recent effort by certain airline industry groups asks the FAA to regulate hobbyists and recreational use), and the R1 appears designed more for recreational use (like an expensive flying selfie stick), there are still open questions about flying and complying.

Under Section 336 of the FAA Modernization and Reform Act of 2012 (“FMRA”), recreational flying is exempt as long as it is done “in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”  Currently, the only organization that can make such guidelines is the Academy of Model Aeronautics (the “AMA”).  Under current AMA guidelines, autonomous flights are permitted, provided that the pilot can take over manual control of the aircraft at any time.  The R1 does allow the user to take over manual control, but what does actual “control” consist of?  How quickly must the user be able to take control in order for it to satisfy that guideline?

In one of the promotional videos for the R1, for example, it shows the drone following a person on a mountain bike.  In order for that person to take control of the drone, they would have to stop their bike, get off, take out the controller and then pilot the drone.  Is that enough control to comply with the AMA guideline?  At the festival, I posed that question to Adam Bry, the CEO of Skydio and he acknowledged that it was an interesting question, but did not have an answer.  That is because “control” in that context would need a more precise definition and maybe as more autonomous drones hit the market, that definition will come.  For now though, I want one.

Now that 2017 is wrapped up, a look back at what happened in drone world in 2017 and a look to what might happen in 2018 is warranted. While there were several exciting developments, this article will focus on a handful of those deemed among the most significant.

Drone usage, both recreational and commercial, continues to grow quickly. As drone usage grows, the need for regulations to permit the safe operation becomes more and more critical.

We have now competed the first full calendar year under Part 107, which became effective in August of 2016. Since August of 2016, the FAA has granted 1,448 waivers to Part 107.

This past year witnessed the first waiver by the FAA for operations beyond visual line of sight (“BVLOS”). To date, the FAA has granted four waivers for BVLOS.

The FAA has granted a total of eight waivers for operations over people, but three of those eight were granted to the same applicant, CNN.

Also in 2017, the FAA announced the UAS Integration Pilot Program (“IPP”). Per the FAA, “The UAS Integration Pilot Program is an opportunity for state, local, and tribal governments to partner with private sector entities, such as UAS operators or manufacturers, to accelerate safe UAS integration.”  Moreover, in its announcement, the FAA stated: “The Program is expected to provide immediate opportunities for new and expanded commercial UAS operations, foster a meaningful dialogue on the balance between local and national interests related to UAS integration, and provide actionable information to the Department of Transportation (DOT) on expanded and universal integration of UAS into the National Airspace System (NAS).”

The FAA has established four objectives for the IPP:

  • Accelerate the safe integration of UAS into the NAS by testing and validating new concepts of beyond visual line of sight operations in a controlled environment, focusing on detect and avoid technologies, command and control links, navigation, weather and human factors;
  • Address ongoing concerns regarding the potential security and safety risks associated with UAS operating in close proximity to human beings and critical infrastructure by ensuring that operators communicate more effectively with Federal, State, local, and tribal law enforcement to enable law enforcement to determine if a UAS operation poses such a risk;
  • Promote innovation in and development of the United States unmanned aviation industry, especially in sectors such as agriculture, emergency management, inspection, services, and transportation safety, in which there are significant public benefits to be gained from the deployment of UAS; and
  • Identify the most effective models of balancing local and national interests in UAS integration.

In 2018, we will see a continued push from industry to enact regulations permitting BVLOS and operations over people, as well as a push from the industry to ensure safe operation of drones, including enhanced training and certification requirements for commercial operations.

The industry continues to move forward, albeit not as quickly as some would like on the regulatory side. That being said, it is still an exciting time to be involved in the world of drones, as the technology continues to evolve and the public sector continues to become more aware of the capabilities of this disruptive technology.

As 2018 unfolds, we will continue to monitor the key legal developments affecting drones in the United States.

The Federal Aviation Administration has been slow to enact regulations allowing drones to operate commercially in the United States.  In 2016, the FAA published rules allowing very limited use of drones for commercial purposes. While the FAA did need to get rules in place to ensure public safety, it also needed to develop a system and framework to allow for the growing use of drones for a variety of commercial purposes. Unfortunately, that has not happened.

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

Current regulations severely curtail the use of commercial drones and stifle their potential. Companies like Amazon, Google and UPS are allowed to operate commercial drones in the United States — but only under very limited circumstances. For example, if flying a drone for a commercial purpose you must: 1) keep the aircraft in line of sight; 2) fly under 400 feet; 3) fly during the day; 4) fly at or below 100 mph; and 5) cannot fly over people (and this is not an inclusive list). These rules effectively tie the hands of many companies from using drones for any significant purpose.

The development, use and potential uses for drones has sky rocketed in the United States. However, the regulatory framework needed to pave the way for this new industry is simply not there. In short, the FAA has been unable to develop a system for getting drones from point A to point B similar to what exists  with air traffic control for commercial aviation in the United States.

The FAA’s website states:

“The FAA’s vision for fully integrating UAS into the National Airspace System (NAS) entails UAS operating harmoniously, side-by-side with manned aircraft, occupying the same airspace and using many of the same air traffic management systems and procedures.”

The problem is, the FAA is struggling with how to accomplish this. And, to be fair, it is no easy task.

Trump’s executive order is a message to the FAA to turn this “vision” into a reality. Now. It encourages the FAA to seek the input from state and local governments to craft a strategy for the national management of UAS operations. Trump’s order also makes it clear that these entities need to coordinate with the private sector in creating this framework.

Regardless of your politics, creating a regulatory framework that balances the benefits of UAS technology but also keeps the risks to public safety and security to a minimum will benefit our economy and consumers.


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

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.