Make no mistake about it —

Drone production and usage are on the rise, not only for military purposes, but now for commercial and private purposes in the United States

The needs, reasons and interests for using drones are nearly limitless. It is, in many ways, a new frontier for our country and the world. What we only could see from flying in expensive aircraft before, we now can view for a nominal investment and little or no training. A newly accessible visual world is being opened for most of the world.

Unmanned Aerial Vehicles (UAVs), Unmanned Aircraft Systems (UASs), or as they are more commonly known - “drones” - are becoming a reality, like it or not

Property Monitoring

  • Oil Rigs
  • Agriculture (crop surveillance)
  • Real Estate

Government

  • Police
  • Fire
  • Customs & Border Control
  • Department of Defense
  • State & Federal Agencies

Delivery Services

  • Delivery of Merchandise
    (amazon.com)

Monitoring Nature

  • Nature Monitoring
  • Weather Mapping
  • Monitoring Wildlife [3]

Recreational

  • Recreational
  • Hobbyists

Media Production

  • Entertainment (motion pictures)
  • Photography
  • News Coverage

Drone Rules commercial use

As of now, the so-called “rules” on drone usage are evolving. Earlier this year, the Federal Aviation Administration (FAA) proposed new rules for commercial use of drones. These proposed rules will go through a comment and review period and will not be finalized until that review period has passed, probably in early 2017. Rules for larger drones are still being considered and drafted. Additionally, for “micro-drones”, or drones under 4.4 pounds, the FAA is considering separate rules.

The basics of the proposed rules for commercial use are as follows:

  • A permit is required, for which the operator must pass a written proficiency test;
  • The drone must be registered, including several hundred dollars in fees;
  • The drone may fly only during daylight hours;
  • The drone must be kept within the pilot’s line-of-sight (without binoculars, etc.);
  • The drone cannot be flown directly over people;

55lb

cannot weigh
more than 55lb

500ft

cannot fly
higher than 500ft

5miles

cannot fly within five miles
of an airport

100mph

cannot fly
faster than
100mph

How It Will Work

These rules will effectively prohibit Amazon.com, Google, Facebook and merchandisers from delivering their products via drone. At least for now. In our country, as all know, money talks and the money (i.e., lobbying) by Amazon, Google, and others, will be extensive and intense. Do not be surprised to see these limitations relaxed over the coming years or decade, or for “exemptions” (loop-holes) to be carved out for certain industries and/or businesses.

The above rules for commercial use do not apply to recreational users, hobbyists or to “model aircraft operations”, as the FAA calls these drone users.[2] As long as the hobbyist’s small drone does not interfere with air traffic, he is largely safe from regulation.

But, is essentially giving recreational drone users a free pass a safe way for the FAA to proceed? Remember, the FAA’s primary mission is to keep our airspace safe. As drones gain in popularity each year, there will be more hobbyists purchasing and using drones in our airspace. And, as the rules for commercial drone use are implemented and recognized, those rules will likely act as an impediment, or barrier, to use for many commercial enterprises. Which then begs the question: will we see a “blending” of recreational users, who just happen to be working for a business, and commercial use? Will there be an uncomfortable, and unsafe, overlap?

Will a real estate developer, suddenly have an employee who is a hobbyist, come in and photograph some property for her boss?

- The answer is probably “yes”

How frequently and to what degree this occurs will be interesting to see unfold. And when it does occur, and is caught, what kind of enforcement will take place to punish and/or deter such conduct? And who will take the lead in the enforcement: federal or state authorities?

Leaving recreational users virtually untouched in the regulatory process is going to create problems. Those problems will mimic the overarching problems our technologically evolving society will have with drones. Those problems boil down to two main areas of concern: 1) safety, and 2) privacy. Depending upon one’s view of life, one may be a much larger concern than the other. But they both are prominently out there, front and center. And there have been some major drone “fails” over the past several years. [3]

Recreational users may have leaped from “recreational” To commercial use

Let’s examine safety first. The FAA has started the regulatory process for commercial use. But the line between commercial and recreational use can be blurry, and recreational users are getting off easy, whether that is right or wrong. And, unfortunately, recreational users have been involved in some accidents in the past several years that have been near-misses as far as causing serious injury or harm. The examples below show perfectly how the FAA’s proposed drone regulations have some holes. Regardless, the lines can become blurry, and “recreational” usage has incredible potential, if the drones are not operated competently and safely, to cause incredible harm.

DOD Drone user crashed his personal aircraft on the White House lawn

This past January an intoxicated, Department of Defense drone user crashed his personal aircraft on the White House lawn. This event made national news and probably did little to advance this gentleman’s career. Not only was injury avoided in this case, but a potential national security incident was also averted. This gentleman’s use likely fits into “recreational”. The potential ramifications of his drone usage, however, certainly extended way beyond recreational into the realm of national security. [4]

*Regulations would likely not have applied

Drone Crashed into a crowd in the Motor Sports Park, captured on video

But, in late August of 2013, a drone crashed into a crowd in the Motor Sports Park in Dinwiddie County, Virginia, and was captured on video. While four or five people suffered minor injuries, no one required hospitalization. The video shows the unmanned machine flying close over the bleachers and then diving into the crowd. It was somewhat miraculous that no one was seriously harmed. This, while at first blush might seem to be a recreational use, it clearly moves into the commercial realm when involving a clearly commercial event where dozens of people could have been injured. [5]

*Regulations would have likely been applied

Drone flew into the face of a photographer, at restaurant cutting her face

Another drone mishap occurred last December at a Brooklyn, New York TGI Friday’s Restaurant. Apparently one of the restaurant employees thought it a good idea to operate the drone, indoors, and carry a mistletoe over customers’ heads. When attempting to land the drone on a reporter, the reporter flinched and the drone flew into the face of a photographer, cutting her face. Again, this was a commercial event, and the drone use was a marketing ploy. Perhaps TGI Friday’s did not own the drone, but it likely would have been liable for serious injuries. [6]

*Regulations would likely not have applied

Privacy

How important is privacy to democracy?

When is it ok, legally, to use a drone for surveillance? By the government, a commercial entity, or an individual?

The FAA’s proposed rules really do not address privacy concerns. Because drones are often outfitted with cameras (still and video), the potential for far-reaching privacy violations is extraordinary. Everything from facial recognition to tracking and following a person from a distance, at heights not perceptible to the naked eye, present questions without answers. And the tracking, or following, can be done for long periods of time, which has been given the moniker “persistent surveillance”. [7]

For example, could a private, “recreational” drone user take photographs of you and/or your family through the windows in your house, or apartment building, or office building? Or watch your house from the air, effectively stalking you from the sky?

Currently, there are no laws to specifically prohibit any of the above from happening. As an attorney, were I defending someone accused of this type of surveillance, I would say it is no different than a private detective taking photographs from his car parked in the street. Perhaps your state has peeping or stalking laws that may be applied, and those legal arguments are sure to play out over the coming decade or more. But existing laws may fall short, because they did not contemplate video cameras in the sky when written. They did not necessarily contemplate law enforcement, or my neighbor, or a commercial entity, being able to visually follow people over time and pinpoint their exact location and what they are doing, whether that is hanging out at the pool or going to work.

“There is no clear line between episodic surveillance—a snapshot—and persistent surveillance, even though the effects are profoundly different”

As stated in The Economist, these are complicated issues. Taking one photo of someone is, or can be, much different than taking video or a series of still photographs.

“[T]here is no clear line between episodic surveillance—a snapshot—and persistent surveillance, even though the effects are profoundly different.[8] Sonia Sotomayor pointed out in a 2012 case, incremental observations by the government may not violate a person’s privacy, but the sum total do. It’s the difference between a snapshot and an overhead video that shows the comings and goings of everybody in a city over the course of a week. In such a video, a so-called “pattern-of-life” emerges. Any still frame from the video might be a defensible incursion on privacy, yet the whole video is something more than the sum of these parts.”

By way of example, recently a Kentucky man shot a drone down that was hovering over his back yard.[9] There have been a few similar incidents over the past few years, and we will likely see more. Someone in the neighborhood gets a new toy and then starts checking out a neighbor’s back yard, deck, pool, etc. Most people would have a negative reaction to such unwanted scrutiny.

Regardless, our courts will undoubtedly see an onslaught of drone-related litigation, both in criminal and civil courts, in the near future. And the litigation will not go away quickly or quietly. Be prepared. I foresee a market for one way window glass, blinds and shades in the future: you can see out, but cannot see in.

Ultimately, however, one has to ask these questions: How important is privacy to democracy? And without a reasonable expectation of privacy, do we lose a modicum of freedom?

The coming drone revolution is just that — a revolution

Drones, UAVs, or UASs have the potential to do great things, and the potential to cause catastrophic loss of life, and much in between. Drones are not only game-changers on the battlefields of the Middle East, but soon they will change the way we live our lives, in our homes, work places and streets.