Law Enforcement and Surveillance

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.

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.

Bewildered and fatigued, he lay there underneath the extirpated munitions shed. The mound of rubble around him blackened and scarred, swirled with smoke. The blast from the RPG had rattled him, but as he struggled to gain his composure, he was greeted with a heightened sense of his surroundings and an uncanny calmness. A cool breeze kissed his face as grains of sand tumbled over him. The air carried the cacophonous bellows of artillery shells from far away, but it was the bantering of footsteps over loose, crumbling, gravel that created a sense of terror. Through the cracks in the debris, the enemy could be seen plodding through the wreckage, searching for weapons and survivors. Clutched to his chest, a grenade was held tightly with the pin half drawn out. As he closed his eyes, he took a deep breath and began to pray.

The hero described above is the recipient of the Purple Heart and to this day still performs his duty as an officer in the U.S. Army. Getta’s story is one of courage, inspiration, and hope. The compromising position that Getta was forced into was due to a lack of knowledge as to where the enemy encampment was located.

The integration of drone technology into the theater of war has enabled the US military to conduct ISR (intelligence, surveillance, and reconnaissance) missions and strike capabilities from afar, providing information superiority and real-time situational knowledge without putting service men and women in harm’s way. As drone technology has evolved and has exhibited its military usefulness, the potential for domestic use remains largely unexplored.

With its untapped potential, drone technology has expanded beyond military applications and is now being primed for commercial and recreational use. As the technology continues to become cheaper and more accessible, the insatiable call for drone technology has increased and has led to the demand for drone operators, engineers, and ground station personnel. Several studies have shown that the integration of drone technology into U.S. airspace could create more than 100,000 high-paying jobs and provide more than $82 billion to the nation’s economy over the next decade.

Drone Operator and Engineer

In the private sector, Northrop Grumman, Lockheed Martin, and Boeing are offering drone operators and engineers annual salaries in excess of $100,000 and Amazon is ready to use drones to deliver packages straight to consumer’s homes. Anticipating the commercial demand for drone training, educational institutions around the country are “offering degrees and certificates on piloting, engineering, and repairing drones.”

While the demand for commercial use of drone technology remains high, the lack of regulatory guidance has inhibited its explosive potential. However, it is anticipated that the FAA will release regulations later this year that will allow for much broader commercial use. As operational guidance and regulations are put in place, operators using drones for commercial purposes will likely be required by the FAA to obtain certification of training or competence.

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As the laws and regulations related to commercial drone use gain clarity, the demand for drone technology and those who operate them will experience growth. Despite the presence and guidance of Amelia Earhart, Rosie the Riveter, and other females, aviation has historically been a male dominated field. Fortunately, as society has progressed, females have become more involved in aviation. The next generation of “flyboys” and “flygirls” are here to stay.

As the popularity of drone use continues to increase, it directly impacts the privacy and safety of those at the ground level. In a recent case, Boggs v. Merideth, a drone operator sued his neighbor for shooting down his drone. As a result, several issues pertaining to the boundaries of “navigable airspace” and how that airspace interacts with the state property rights of landowners may be clarified.

The federal government has exclusive sovereignty of U.S. airspace. Congress delegated to the FAA the ability to define “navigable airspace” and the authority to regulate “navigable airspace” of aircraft by regulation or order. 49 U.S.C. § 40103(b)(1). While it is clear that navigable airspace falls under the purview of the FAA, the boundaries of that airspace remain unclear.

According to Federal Aviation Regulations, “navigable airspace” is defined as “airspace at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing.” 14 C.F.R. § 1.1. For airplanes, the minimum flight altitude while flying over congested areas or open air assemblies of persons is 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet. 14 C.F.R. § 91.119(b).

Drone Laws

Over uncongested areas, airplanes can operate at an altitude of 500 feet above the surface. However, airplanes can operate even lower when over “open water or sparsely populated areas.” When flying over those areas, aircraft may not operate closer than 500 feet to any person, vehicle, or structure provided that if the airplane’s engines fail, an emergency landing will not create an undue hazard. 14 C.F.R. § 91.119(a) and (c). Two exceptions exist for when a person may operate an aircraft below these altitudes: (1) when necessary for takeoff or landing; or (2) in an in-flight emergency requiring immediate action. 14 C.F.R. § 91.119(a)14 C.F.R. § 91.3(b)[1]

In United States v. Causby, the Supreme Court of the United States in 1946 provided guidance on where private property rights of airspace end and navigable airspace begins. In Causby, a farmer lived adjacent to a military airport where aircraft flew as low as 83 feet over the farmer’s property. As a result, the noise from the aircraft startled the farmer’s chickens, causing them to kill themselves by flying into walls.

Causby

Since the navigable airspace which Congress had placed in the public domain was airspace above what was deemed the minimum safe altitude (“MSA”), the Supreme Court reasoned that airspace above the MSA was immune from suits against the government for a takings violation.

The Causby Court put forth two key principles regarding airspace below the MSA. First, landowners have “exclusive control of the immediate reaches of the enveloping atmosphere.” Second, landowners own at least as much of the space above the ground as they can occupy or use in connection with the land.

While it appears that the lowest “navigable airspace” could descend to is just over the Causby limits, the circumstances of the case may limit its applicability. Causby took place during World War II. It involved large military aircraft flying 83 feet above the farmer’s property. The unsettling noise resulted in the destruction of the use of the property as a commercial chicken farm and caused the farmer’s family severe anxiety from the lack of sleep. In contrast, drones are typically not noisy or earsplitting, and often fly well below 83 feet. Further, drone technology did not exist when Causby was decided 70 years ago.

The Court ruled in favor of the farmer. However, several questions linger including “where the precise boundaries of public airspace above the farm meet the immediate reaches of the farmer’s property” and how high state government’s rights extend. [2]

In other words, would the Court in Causby have ruled in favor of the farmer if the aircraft at issue operated above 90 feet or perhaps 150 feet? The Causby decision does not clarify what happens between 83 feet and 500 feet. Moreover, it is unclear if the Court would have found a taking if the property was vacant and the aircraft caused no damage to the farmer or his property.

The FAA has divided airspace into different categories based on altitude. Class G airspace is defined from the Causby limits to 500 feet and is considered uncontrolled airspace. This begs the question, does “navigable airspace” include class G airspace and if not, does the FAA have the authority to regulate the airspace below?

The FAA argues that it “has authority to regulate aircraft in U.S. Airspace” at any altitude because Federal law states that the FAA “shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. 49 U.S.C. § 40103(b)(1).

Furthermore, it could be argued that the FAA can regulate airspace below 500 feet despite jurisdictional limitations because another federal law gives the FAA the authority to prescribe “regulations and minimum standards for other practices, methods and procedure the [FAA] finds necessary for safety in air commerce and national security.” 49 U.S.C. § 44701(a). Under this section, the FAA regulates amateur rockets, motorized paragliders, and other vehicles below 500 feet.

Even if navigable airspace does not extend to the surface, the FAA has argued that it may regulate below navigable airspace because it can prescribe regulations “on the flight of aircraft for navigating, protecting, and identifying aircraft” and “protecting individuals and property on the ground.” 49 U.S.C. § 40103(b)(2).

As a result of increased drone technology and use, it could be that “navigable airspace” extends to the surface. At the moment, the area below “navigable airspace” is a gray jurisdictional area for the FAA to attempt to regulate and states continue to argue that they should be able to regulate flight below 500 feet through their traditional police powers. Boggs v. Merideth may provide answers to whether a drone flying below 500 feet is operating in “navigable airspace.”

As the case progresses, we will continue to monitor and provide updates of any developments.


[1] Minimum safe altitudes for helicopters differ from other aircraft. Specifically, “If the operation is conducted without hazard to persons or property on the surface . . . . A helicopter may be operated at less than the minimums prescribed [for fixed wing aircraft], provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA.” 14 C.F.R. § 91.119(d)(1).

[2] Jonathan Rupprecht, Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them, at 24-25, (Version 2.03) (2015).

It was just past noon on a clear February day as Delta Air Lines Flight 1159 descended to 3,000 feet on final approach to Los Angeles International Airport. The first officer was about to radio air traffic control for landing instructions when an unidentified object slightly ahead of the Boeing 757 jet caught his eye.

“At first I thought it was a large bird soaring towards us,” the first officer wrote in a report following the incident. But as it passed outside of the right window, “I very clearly saw a large square-shaped bright red drone with black accents and black propellers.” The first officer had it in sight for a few seconds as it flew by in the opposite direction approximately 150 feet away from them.

To be sure, no drone has ever collided with a manned aircraft. But with close encounters becoming more commonplace, many are asking “why these incidents are occurring and what can be done to prevent a potentially catastrophic accident?”

Drone Collission With Airplane

To help answer those questions, Bard College’s Center for the Study of the Drone recently released a study. The study analyzed records of 921 incidents involving drones and manned aircraft in U.S. national airspace over the past two years. In the report, a variety of factors were analyzed including altitude, distance from airports, drone-to-aircraft proximity, manned aircraft type, drone type, and time of day.

The incidents were divided into two categories. “Close encounters” were defined as incidents where a drone came close enough to a manned aircraft that it met the FAA’s definition of a “near midair collision” or close enough that there was a possible danger of collision. On the other hand, “sightings” were defined as when a drone was spotted above its legal ceiling or in the vicinity of an airport or aircraft, but did not pose a clear potential for a collision.

Of the 921 total incidents, 327 were categorized close encounters and 594 were categorized sightings. Over 90 percent of the incidents occurred above 400 feet, the maximum altitude that the FAA allows drones to fly. Even more striking, a majority of the total incidents occurred within 5 miles of an airport (which is prohibited airspace for all drones regardless of the altitude at which they are flying). These alarming stats raise questions about the effectiveness of the FAA rules and more fundamentally, its ability to enforce those rules.

Other notable findings include 158 incidents in which a drone came within 200 feet of a manned aircraft and 51 incidents in which the proximity was 50 feet or less. Furthermore, pilots had to maneuver to avoid a collision with a drone 28 times. While 90 of the drone close encounters involved commercial aircraft, 38 close encounters involved helicopters.

Solutions to prevent future incidents involving drones are already being developed. Sense-and-avoid systems and mandatory registration requirements were discussed in our earlier articles. Geo-fencing, on the other hand, is a system that uses software to limit where drones can fly such as restricting the users’ ability to fly within 5 miles of an airport.

Drone Geo Fencing

In addition, NASA is developing a UAS Traffic Management System which uses conflict avoidance software. After being integrated into air-traffic control systems, NASA’s system could prevent collisions by alerting and re-routing drones.

With the skyrocketing popularity of drones among consumer and commercial users, regulators and policymakers are struggling with how to reap the benefits of UAS technology without undermining safety.

The Bard report provides lawmakers with a greater understanding of close encounters and sightings involving drones and manned aircraft, including the areas of greatest risk and how an accident might occur. More importantly, it highlights ways for making the airspace safer for everyone.

As more drones enter U.S. airspace, a combination of approaches will be needed to prevent incidents that could potentially pose a threat to public safety. Lawmakers and industry regulators should use the information from the report to develop strategies and solutions to address the growing number of potentially dangerous incidents between manned and unmanned aircraft.

In a much-anticipated announcement, an FAA-created task force, with input from drone industry leaders, issued to the FAA their recommendations for the creation of a registration process for small drones used for commercial and recreational purposes. It is anticipated that the FAA will adopt these recommendations and issue final rules requiring registration by mid-December through its “emergency” rulemaking power under the Administrative Procedure Act.

Santa Claus Flying on Drone

Since the task force’s creation in October, the drone community has been eagerly awaiting these recommendations. In particular, hobbyists and recreational users have had the most cause for concern as “model aircraft” – drones used recreationally – have not previously been subject to any registration requirements.

In summary, the task force recommends:

  • The registration requirements will cover all drones that weigh less than 55 pounds, well, technically less than 55 pounds and above 250 grams (.55 pounds). In practice the 250 gram exemption is irrelevant since most drones weigh more than that.
  • Drone owners do not need to register each individual drone they own. Rather, each registrant will have a single registration number that covers any and all drones that the registrant owns.
  • Registration is required prior to operation, not at point-of-sale.
  • Information required for the registration process includes (1) name and (2) street address of the registrant. Mailing address, email address, telephone number, and serial number of the aircraft are optional.
  • The minimum age requirement to register is 13 years of age.
  • There is no registration fee.
  • Registrants will provide their registry information through the Web or apps, and receive registration numbers and certificates of registration back from the system. Those certificates will contain the registrant’s FAA-issued registration number.
  • The registration number must be attached to the drone, unless the registrant chooses to provide the FAA with the drone’s serial number, and must be readily accessible, readable, and legible upon close visual inspection.

These recommendations have been met with mixed reactions from the drone community. The Academy of Model Aeronautics (“AMA”), one of the largest associations of drone hobbyists in the country and a member of the task force, offered the most severe criticism.

While acknowledging that “registration of UAS makes sense at some level,” Dave Mathewson, executive director of the AMA, argued that “these recommendations would make the registration process an unnecessary and unjustified burden” to their members. Further, “the recommendations may ultimately prove untenable by requiring the registration of smaller devices that are essentially toys and do not represent safety concerns.”

In particular Mr. Mathewson criticized the task force’s consideration of only weight when determining the threshold at which drones should be registered. According to Mr. Mathewson, several factors, including weight, should be considered when determining where the threshold should be for drone registration.

Drone Ball and Chain

Chinese drone manufacturer DJI and other critics have argued that the proposed registration mandate “contradicts the provisions of several federal statutes,” including section 336 of the FAA Modernization and Reform Act of 2012. George Mason University Mercatus fellow Eli Dourado argued that registration of noncommercial drones may be overturned if challenged in court.

On the other hand, many support the recommendations, believing them to be “a good start.” Jim Coon, Aircraft Owners and Pilots Association senior vice president of government affairs, said that the recommendations would help “ensure safety, protect the National Airspace System, and support participation and innovation in the drone community.”

Supporters note that “too many people have demonstrated too much carelessness with their drones for there to be zero accountability.” Others also point out that “making every person register their drones will make those who misuse their drones easier to identify and also encourage drown owners to be more responsible with their new gadgets.”

While the task force’s recommendations appear simple enough, they leave several questions unanswered. Moreover, complicated legal issues about the agency process by which the FAA will issue the registration rule, as well as whether it even possesses the underlying authority to adopt the rule are “primed for takeoff.”

As the FAA continues to consider the recommendations and proceeds with its rulemaking process, we will continue to monitor and provide immediate updates of any developments.

The Electronic Privacy Information Center (“EPIC”) recently submitted comments to the FAA regarding the soon to be announced registration program for drone hobbyists.  EPIC urged the FAA to consider both privacy and safety risks in developing the regulations which will form the framework for registration of all drones in the national airspace.

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EPIC noted its long-standing concern for privacy, and in particular its position regarding drones and privacy issues. EPIC expressed its concerns for the privacy not only of persons who may be the potential subject of drone surveillance, but also for drone hobbyists who will be required to register.

Specifically, EPIC urged that all drones be required to include a GPS tracking feature to broadcast information regarding not only the location, speed, and course of the drone, but also identifying and contact information of the drone owner. And for any drone with specific capabilities, EPIC urged the FAA to consider requiring owners to provide the following information at the time of registration.

  • Drones carrying video surveillance technology would be required to provide information regarding its capabilities, such as “resolution, frame rate, and zoom range”.
  • Drones carrying audio surveillance technology would be required to disclose the “capabilities to capture and record audio communications or broadcasts”.
  • Drones that possess the technology to intercept signal communications, perform human recognition functions at a distance, or that are capable of any other advanced surveillance would be required to disclose not only the surveillance capabilities, but also the anticipated use.

EPIC also noted its concerns that the FAA takes steps to implement privacy protections for drone operators who register their drones. In particular, EPIC requested the FAA to protect personal identifying information of registrants, similar to how states protect driver records. Specifically, a general prohibition on the disclosure of a registrant’s name, address, and phone number. Finally, that FAA was requested to limit the information it collects regarding registrants to only the information necessary to create and maintain the registry.

A broad cross-section of organizations and individuals have a keen interest in the specific registration requirements that will be announced by the FAA. We will continue to follow this topic and provide insight and updates.