Unmanned Aerial Vehicles

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.

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.

 

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.

Recently I had the opportunity to speak to a college class regarding public perception and policy regarding drones and other autonomous vehicles. In preparing for my presentation, I realized several things that I already knew, but had not really thought about it.

In considering how best to provide an overview of how quickly technology is adapted once people understand its capabilities, it dawned on me that today’s college students have only known a world with smart phones. The first iPhone was introduced in June of 2007, when most college students were in elementary school.

In contrasting the public’s quick adoption of smartphones with the public’s far slower openness to drone technology, I asked the students to ponder how successful the iPhone would have been if only a handful of apps were available for the first few years after the iPhone’s introduction. In essence, even if smart phones were capable of supporting millions of varied applications, if the apps themselves were unavailable, the success of smart phones would have been in peril.

Okay, you say, I get that this is public perception, but how does it relate to policy? Until the public recognizes a tangible benefit from technology, it tends to be apprehensive of the technology.

In the early 20th century, cities passed laws that matched the speed limit to the pace of horse-drawn wagons, or no more than 5 miles per hour. In England, some small towns required the driver to notify the constable, who would then walk in front of the car waving two red warning flags.

In 1900, there were 8,000 automobiles in the United States. By 1920, that number had grown to 8,000,000. A large part of the increase is due to lowered production costs as a result of Henry Ford’s assembly line, but another factor was the public’s increasing understanding of the fact that automobiles could have a positive impact on their lives.

 

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In other words, both decreased cost as well as the recognition of a tangible benefit resulted in the public embracing new technology. The public’s newfound perception of automobiles as positive, rather than negative, then helped to shape policy, such as increasing the 5 mph speed limit, enacting gasoline taxes to fund roads, creating parking lots, etc.

As noted above, once the public embraces new technology, it is adopted quickly and the technology itself evolves rapidly.  Orville Wright piloted the first powered airplane in 1903. That first flight lasted 12 seconds and the aircraft flew a mere 120 feet.  Orville lived to see Chuck Yeager break the sound barrier in 1947. Likewise, Charles Lindbergh flew across the Atlantic in 1927 and he was present at Cape Canaveral when Neil Armstrong, Buzz Aldrin and Michael Collins climbed into the rocket that would take them to the moon.

If the public had not embraced automobiles and airplanes, those industries would not have enjoyed the success they have, at least not in the timeframe in which it occurred. Without roads and other infrastructure, the public’s eagerness to embrace automobiles would have been stymied. Without airports and regulations to ensure safe flights, as well as the ability to fly long distances, airlines would have struggled to succeed.

Until the FAA permits beyond visual line of sight (“BVLOS”) operation of drones, the public has no idea of the capabilities of drones and the myriad of ways in which their lives will be positively impacted by drones. However, when BVLOS is permitted, I predict the public will quickly comprehend the significant positive impact of drones and embrace the technology.

When will I be able to fly beyond visual line of sight? When will I be able to operate a drone over people?

In the world of drone law (and in the world of drones in general), hardly a week, or even a day, passes without one or both of those questions being asked.

The drone industry welcomed the long-awaited drone regulations of Part 107, which became effective in August of 2016. However, that only whetted our appetite for more.

The current presidential administration’s public pronouncements regarding scaling back government regulations creates a concern within the commercial drone industry. Contrary to most industries, in the commercial drone industry more regulations are necessary for the drone industry to advance. Targeted regulations that permit and define the parameters of beyond visual line of sight operations, flights over people, and nighttime operations will enable the drone industry to reach its potential.

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Recently the Small UAV Coalition sent a letter to the new Director of the Office of Management and Budget requesting a limited waiver from the moratorium on new regulations. The Small UAV Coalition has a diverse membership that have all have a keen interest in the commercial use of drones, inclduing AirMap, Amazon Prime Air, Google[x], Intel, Kespry, PrecisionHawk, Verizon Ventures, Aerware, AGI, Flirtey, Fresh Air Educators, T-Mobile, and WalMart.

In that letter, the Small UAV Coalition noted that there are currently three pending rulemaking actions regarding drone operations:

  • Notice of Proposed Rulemaking, Operation of Small Unmanned aircraft Over People
  • Final Rule, Operation of Small Unmanned Aircraft Over People
  • Notice of Proposed Rulemaking, Expanded Operations

Part 107 includes a provision for the FAA to grant waivers that would permit drone operations over people and beyond visual line of sight. However, since Part 107 became effective in August of 2016, the FAA has only granted one waiver to permit operations over people and only four waivers to operate beyond visual line of sight.

As is the case with most technology, regulations pace far behind what is needed for the technology to evolve and thrive. The technology exists, but without regulations permitting its use, it cannot be utilized.

As the Small UAV Coalition noted in its letter, without regulations that permit beyond visual line of sight, operations over people, and nighttime operations, the commercial UAS industry in the United States risks stalling and falling behind other countries, such as those in the European Union, China, and Australia.