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.

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.

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.

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.

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.

 small drone

Some of the legal issues discussed in this blog merit a more in-depth analysis and discussion. That level of analysis and discussion, however, is not well-suited for a blog, due to length and other issues.

For that reason, we also publish in other forums which are better suited to a more in-depth analysis and discussion. An example of an issue meriting more in-depth analysis and discussion is the tension between federal versus state regulation of drones.

State and local laws regulating drones often conflict in some way with both the FAA’s assertion of exclusive authority over the national airspace and its resolve to establish a single national policy for drones.

To address these contemporary and dynamic issues, Fox Rothschild attorneys Mark Connot and Jason Zummo, members of the firm’s UAS/Drones practice group, recently authored Everybody Wants To Rule the World: Federal vs. State Power To Regulate Drones, to be published in the widely recognized journal, The Air & Space Lawyer, Volume 29, Number 3, 2016.

In the article, Connot and Zummo analyze the ways in which federal preemption currently applies in the aviation context and the potentially fraught relationship between the interests of federal, state, and local governments in regulating drones. In addition to highlighting a recently introduced federal legislative measure that could provide a path to reconciling those regulatory interests, the authors conclude that state and local authorities should regulate drone uses with restraint, recognizing both the breadth of federal regulatory authority over aviation and the need to encourage, not suffocate, this burgeoning industry.

Click here to view the full article.

Published in The Air & Space Lawyer, Volume 29, Number 3, 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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).