General UAS News and Developments

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.

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.