Privacy Rights and Public Perception – What Didn’t Change in COVID

We came across an interesting article in Slate that highlights an example of one police department in Connecticut that sought to use drones to help flatten the curve in the early months of the COVID-19 pandemic—allegedly by using drones equipped with tools that could monitor compliance with social distancing guidance and potential symptoms such as elevated temperature or heart rate. While the police department made clear that the program would not be used over private yards and would not use facial recognition technology, the department faced fierce public outcry and the program was shelved.

Privacy concerns continue to be a key issue for any local government agency looking to implement a drone program. It would be prudent for a local agency looking to use drones to adopt a drone policy to which its drone operations are subject. The policy should address privacy rights in particular. Failure to consider such a policy could lead to public-perception issues. Time and again we have seen that such public-perception problems mean the abrupt end to the agency’s drone program.

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Anti-Drone Technology at Professional Sports Stadiums

Anti-drone technology is now a basic security feature at many major league baseball (MLB) stadiums. Here is an interesting article on the Sports Illustrated website about the use of anti-drone technology to combat the growing problem of drones flying overhead during games. The Federal Aviation Association (FAA) has banned unmanned aircraft systems from flying over a stadium while a game is in progress. But in 2020 alone the MLB saw five games interrupted by drones.

The practical problem of drones flying overhead during baseball games raises legal questions about drone defense measures. Security cannot shoot a drone out of the sky, legally seize control of its operations to land the drone safely, or jam the drone’s signal to prevent it from flying. Rather, anti-drone technology currently revolves around identifying the pilot’s location and having security address the operator face-to-face. This can lead to another issue: although the FAA’s restrictions apply nationwide, local and state enforcement for people who violate those restrictions can vary greatly. Some states are very proactive with their regulations while other states have done nothing. Security, and drone pilots themselves, must continuously monitor legislation in this area. One such important rule is the FAA’s recently promulgated rules regulating operation over people and at night. See our previous post for more information on the FAA’s rule.

As part of an information campaign, the FAA has partnered with the Stadium Managers Association to launch its social media campaign “It’s Game/Race Day: Put Your Drone Away.” The goal is to reach recreational drone operators who do not appreciate the risks of flying their drones over a stadium. However, there will always be a risk that an operator is purposefully flying over a stadium. And so long as there are drones in the sky, anti-drone technology will be standing by.

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Drones and Local Government—a COVID Story

Here’s an interesting article from the New York Times about the use of drones to spray a sanitizing cleaning solution over seats at a spring training baseball stadium in Arizona.  Such UAS spraying technology already exists in the agriculture industry and so this is a simple hack for today’s COVID-influenced world.  So long as the drone pilot is licensed, the drone compliant with Remote ID rules, and flight is not over the stadium when occupied, such use complies with federal regulations.  We continue to think that cities and local agencies would do well to adopt clear drone usage policies before implementing a drone program to avoid any public confusion and address in advance any public concerns.  Whether and how a city or local agency could regulate such use by a private company is still very much an open question.

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FAA Issues Final Rules On Operation Over People and Remote Identification

The hoverlaw blog has been dormant for a while.  But we are back!  When we last posted, the FAA had issued notices of proposed rulemaking regarding remote identification of unmanned aircraft systems (UAS) and UAS operation over people.  As of January 15, 2021, the two rules are now finalized.  The Operation Over People Rule is here and the Remote ID Rule is here.  In addition, the FAA has helpful information on its website: Operating over People and Remote ID Information.  These new rules are each significant developments in drone law. 

Operation over People

The final rule allows routine operations over people and at night depending on which newly defined Category a drone is in.  These categories depend on the weight of the drone and the potential for causing injury if dropped on a person.  Here are some details about those categories.  In addition, the new Rule requires that any drone flown over people must comply with the Remote ID Rule.  Finally, the new Rule allows operation over moving vehicles.

Operation at Night

Anyone operating a drone at night must complete specific training or pass a test.  Additionally, any drone flown at night must have installed anti-collision lighting.

Remote Identification

Most drones must now include built in (or in some limited instances external retrofit) ID capability that will automatically broadcast information about drones in flight, such as the identity, location, and altitude of the drone and its control station or take-off location.  Authorized individuals from public safety organizations may request identity of the drone’s owner from the FAA.  A “community-based organization” or some educational institutions may operate a drone without remote ID capability but only in a special area identified by the FAA as safe for operation without broadcasting remote ID message elements.

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Remote Identification: The FAA Proposed Rule and Privacy

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule. This is the fourth in a series of postings about the significance of the proposed new rule.

As of February 1, there have been over 8,000 comments to the proposed rule—the comment period closes on March 2, 2020. Many comments have focused on privacy and of those, there are two distinct areas of concern.  First is the concern as to the use of the new remote identification information by law enforcement. Second is the broader concern, voiced by hobbyists and other non-industry users, that operator location will become public knowledge.

Understanding this concern, and assessing its legitimacy, requires understanding a part of the proposed rule that is, at best, opaque. As drafted, the rule will require drones, with some exceptions, not only to broadcast remote identification information via radio frequency, but also to connect via the internet (when internet service is available) to a website approved by the FAA—referred to as a “UAS Service Suppler” or “USS.” There are many unanswered privacy-related questions about the USS. Will it be hosted by a private entity?  How will law enforcement access the website?  Will the USS operator distribute information to the public? Will each drone manufacturer host its own separate USS, providing information about its drones only, or will there be a single USS linked to all drones in operation? Who will pay for the USS and will that cost be passed on to those who access the website for compliance or law enforcement purposes? We expect many of these questions to be answered during the rulemaking process. 

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Remote Identification: What’s Next for Local Government Owners/Operators of Critical Infrastructure?

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule.  This is the third of a series of postings as to the significance of the proposed new rule.

Imagine you are the General Manager of a water district.  For weeks, there has been a drone buzzing over a dam and hydro-electric generation facility under your control.  You don’t know who is operating the drone or what the purpose of the flight is. Or imagine you are a Fire Chief whose safety operations have consistently been interrupted by drones operated from unknown locations. You know there are technologies available to identify drones and take them down, but your lawyer has been reading this blog and tells you that most are probably illegal.

Enter the remote identification rulemaking.

With remote identification, drones themselves will make it easier for effective use of the kinds of passive detection methods that do not raise legal issues. The first step in regulating drone use is to know who is using the drone and from where. The remote identification rulemaking will make this first step possible. But important enforcement questions remain. The remote identification rulemaking needs clarification as to how local government can access and use the remote identification information broadcast or transmitted by the drone. More important, federal preemption issues remain unclear, making it difficult for a local agency to enact drone regulations that it can enforce. 

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Remote Identification: First Step in Expanded Drone Operations?

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule.  This is the second of a series of postings as to the significance of the proposed new rule.

There are undeniable potential benefits of drones. They can deliver critical medicine to remote areas as easily as they can deliver a package to a front door. They can improve worker safety by conducting inspections in areas where it would be dangerous for a human to go. However, drone operations often face impossible hurdles in the form of FAA regulations that do not contemplate creative and unintended positive uses of drones. The enforcement challenges that necessitate the remote identification rulemaking also functioned as barriers to expanded drone operations. 

Enter the remote identification rulemaking. 

The proposed rule gives regulators access to critical information about the location of drones and their operators. This, in turn, will help to address key safety and security concerns underlying the present prohibition against operating at night or outside the operator’s line of sight.

The FAA has already indicated that it anticipates the remote identification rule will “assist in the implementation of operations of small UAS over people and at night.” In fact, the FAA’s proposed rulemaking on the Operation of Unmanned Aircraft Systems Over People (issued in February of 2019) explicitly stated that the FAA intended to finalize its policy on remote identification prior to completing the rulemaking for flight over people and at night. The FAA also expects that the information provided pursuant to the remote identification rule will facilitate the technologies necessary for operation of a drone beyond the operator’s visual line of sight.

In short, we should anticipate that the final remote identification rulemaking will be the foundation for future expanded drone operations.

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Remote Identification: Why is the FAA’s Rulemaking a Potential Game Changer?

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking, and promised that we would be blogging on the impacts of the proposed new rule.  This is the first of a series of postings as to the significance of the proposed new rule.

The proposed remote identification rulemaking is intended to give the FAA and law enforcement much-needed tools to address unsafe or prohibited drone operations.  The key issue here is: While there may already be some laws and regulations on the books targeting unsafe drone operations, the nature of drones themselves makes these laws and regulations very difficult to enforce.  Enforcement issues have been frustrating law enforcement and lawmakers alike.

The majority of drones are small, fast, and can fly a significant distance from the operator.  This means that, even if a drone is properly identified with the required registration markings, it can be impossible to link a drone with its operator in order to hold an individual accountable for the operation of his or her drone.  When it comes to enforcement of regulations or local laws and ordinances, these factors present a serious challenge. 

Enter the remote identification rulemaking.

The proposed rule requires most drones to broadcast or transmit important identifying information including: the drone’s ID information (serial number or session ID), latitude, longitude, and barometric pressure altitude of both the drone and the operator—the “control station.”   If the proposed rule is adopted, the FAA and law enforcement agencies would have near real-time access to information critical for at least two reasons.  First, law enforcement will have a new tool to distinguish between compliant and non-compliant operations, which may be helpful in determining whether a drone poses a security risk.  Second, and as important, the remote identification information will allow for those enforcing drone regulations to contact a person operating a drone in violation of the law.

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Mysterious Droves of Drones

For a number of weeks, the residents in areas of Colorado and Nebraska have been unwilling hosts to multiple nighttime flights by swarms of small drones flying in a grid pattern. Law enforcement and the FAA have been unable to determine the operator(s). On January 6, 2020, a multi-agency task force of state and federal authorities was formed to investigate the sightings. 

Read more here.

This situation highlights why the FAA’s recent Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking is so important

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New Year: New Rulemaking

In one of the FAA’s final acts to close out 2019, it issued the long-awaited Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking. This rulemaking is the first step in giving the FAA and law enforcement the tools to identify drones in flight and the location of the drone’s control station. The proposed rule creates three categories of drones, each with different remote identification requirements. 

Standard Remote Identification UAS would be required to transmit certain information via the internet to an FAA authorized third party and to broadcast the same information directly using radio frequency spectrum. 

Limited Remote Identification UAS would be required to transmit certain information via the internet to an FAA authorized third party and such UAS would be operationally limited to flight within 400 feet of its control station. Operators of a Limited Remote Identification UAS would be required to keep the UAS within visual line of sight.

UAS Without Remote Identification, including all UAS purchased before the date of the rulemaking and which cannot be brought into compliance or amateur built UAS, could only be operated within the visual line of sight of the operator and within an FAA-recognized identification area or with authorization by the Administrator for specific purposes.

This rulemaking may mark the beginning of a seismic shift in UAS operations. The FAA has stated that this rulemaking will be the foundation for new technologies that will allow for expanded operations.

We will be discussing the significance of this proposed rulemaking in a series of posts,  addressing issues such as:

Why is this rulemaking needed?     

What does this rulemaking mean for expanded operation and other important rulemakings?

What does this rulemaking mean for local governments, owners/operators of critical infrastructure, and law enforcement?

What impact does this rulemaking have on privacy rights?

Stay tuned!

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Why Didn’t Amazon Deliver My New Shoes Using a Drone?

It seems like forever since we first started expecting the explosion of drone delivery service. Three years ago, Amazon proudly announced Prime Air. Just last week, the Los Angeles Times published an article announcing Google’s entry into the drone delivery business.

So what is taking so long?  There are a number of legal reasons. 

First, an entity seeking to use drones for delivery needs to comply with FAA regulations. Without an exemption, some of these regulations become impossible hurdles. For example, the drone must at all times be under the control of a pilot—autonomous drones are impermissible. Also, the drone must be flown within the line of sight of the pilot in command. Finally, drones can’t be flown near airports, or at night, or over a person, or a moving vehicle or… The list goes on and on such that there are significant hurdles for anyone seeking to deliver anything using a drone—in particular in highly populated urban areas.

Second, until there is clarity as to whether FAA rules preempt the field of drone regulations,  there is a host of State and local regulations with which a drone delivery service must either comply or calculate the risk of non-compliance.  This risk is likely too high to allow for commencement of large scale drone delivery service.

Finally, despite the explosion of the industry, the average person is likely concerned about privacy and nuisance issues that need resolution before the general public will accept drone delivery.  This may not be a legal issue for the person receiving goods via drone—presumably, that person will have agreed to a drone landing in her front yard.  But the recipient is not the only person potentially impacted by drone delivery services.

So take the news of tomorrow’s burrito delivery with a grain of salsa.

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249 Grams—the Magic Number?

DJI’s newest drone, the Mavic Mini, weighs in at 249 grams. It fits in the palm of your hand and is not much bigger than a cell phone.  Despite its size, it is no toy, but has remarkably high-quality video capability.  DJI is marketing its weight prominently, even featuring the number on the drone body itself.  So what’s the big deal with 249 grams?

Well, it turns out that the FAA only requires users to register drones that weigh more than 250 grams—see 14 CFR 48.15.  So technically, a recreational user of a Mavic Mini does not need to comply with the FAA’s drone registration requirements.  Of course, any commercial use needs to comply with Part 107 regardless of drone weight.  But if drone technology develops such that sophisticated drones like the Mavic Mini are marketed as ways to avoid regulatory compliance, that would not be a helpful development.   

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Update on the (Slowly) Developing Preemption Landscape

As we have discussed in previous posts (Local Drone Regulations and Possible Federal Preemption and Federal Case Declared Local Ordinance Illegal), the law is unclear as to the line which local government may not cross in regulating drone use before being preempted by federal authority. The legal landscape of preemption issues related to local drone regulations continues to slowly expand with a new unreported case from California’s First District Court of Appeal, Foletta v. Ellis

This case arises from a dispute between neighbors and only briefly touches on the issue of preemption. After Foletta reported Ellis to county authorities for engaging in unlicensed commercial activity, it is alleged that Ellis began a series of harassing behaviors including, playing loud music on a daily basis, lurking around the edges of his neighbor’s property, firing an orchard cannon, and flying a drone at Foletta approximately 6-10 feet over his head. Foletta obtained a restraining order against Ellis which, in part, prohibited Ellis from flying drones over Foletta’s property. 

Ellis challenged the order, arguing that it was “invalid to the extent it prohibits him from flying drones . . . over the Foletta property because airspace use is governed by the FAA.”  The court evaluated “whether the federal government’s regulation of airspace generally is intended to preempt the authority of states to regulate harassment that involves airspace” and found that it did not. 

While Foletta v. Ellis is an unreported case and certainly not the end of the preemption question, it is the second case that aligns with FAA guidance that state and local actions related to police power generally are not preempted by federal regulations. 

We will continue to watch this issue as more state and local governments adopt drone regulations, and those regulations are challenged.

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Further Delay of the FAA’s Remote Identification Rulemaking

A fundamental and practical problem in regulating drone use is that the operator is remote from the drone. If a drone operator is violating Federal regulations, it is difficult if not impossible to locate the person flying the drone and hold them accountable. One potential solution is to require a drone to broadcast its identifying information to assist law enforcement and the FAA in enforcement activities. This is known as “remote identification.” 

In its August 2019 Significant Rulemakings Report, the FAA indicated that it will further delay its long-awaited Remote Identification of Unmanned Aircraft Systems Rulemaking to December of 2019. 

According to the FAA, the rulemaking “would implement system(s) for the remote identification of certain unmanned aircraft systems. The remote identification of unmanned aircraft systems in the national airspace system would further address security and law enforcement concerns regarding the further integration of these aircraft into the national airspace while also enabling greater operational capabilities by these same aircraft.”

This delay may also implicate other important FAA rulemakings.  In the February 13, 2019 Notice of Proposed Rulemaking regarding the Operation of Small Unmanned Aircraft Systems Over People, the FAA noted that it intended to finalize its policy regarding remote identification of small UAS before finalizing the rulemaking addressing flight over people.

This news is also bound to irk Washington lawmakers who, in July of 2019, wrote a letter to Secretary Chao, Acting Administrator Elwell, and Acting Director Vought register their concern at the delay in issuing the remote identification rulemaking. Lawmakers noted the “failure to complete this effort poses serious risks to the National Airspace System, its users, and the Nation’s most critical and sensitive facilities and assets.” 

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Anti-Drone Technologies

A drone flies over a water tank (or a bridge,  a power plant, a baseball stadium, an airport…the possibilities are endless). Even assuming that the local government agency with jurisdiction over the water tank has restricted drone flight, how is it to enforce such a restriction? An agency seeking to enforce its drone restrictions could shoot down the drone—or employ a technological solution to capture, disable, or destroy the drone.  But otherwise, it is close to helpless if it cannot locate the operator of a drone.  Anti-drone detection technologies offer a possible solution to this enforcement problem. Like so many legal issues regarding drone technologies, the legal landscape is unclear as to what anti-drone solutions are legal. 

Airspace is a company selling interesting anti-drone technologies—including the two main methods of enforcing drone regulations—Detection and “Mitigation,” meaning capture and removal of drones. These technologies raise interesting legal issues. There are both federal and state laws on the books that, while not originally intended to apply to drones, create a difficult set of obstacles for any agency seeking to implement an anti-drone strategy.

On one end of the spectrum are mitigation methods by which a drone is controlled, disabled, or destroyed. See 1:47-2:02 of this video for a tried-and-true mitigation method involving raptors. Airspace is marketing a higher-tech mitigation technology—see this video for Airspace’s simulation. The problem with mitigation techniques is that they are almost certainly illegal. 

Drones are considered a type of aircraft. Title 18 of the United States Code provides that “[w]hoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft . . . shall be fined under this title or imprisoned not more than twenty years, or both. (18 U.S.C. § 32). 18 USC 32 is not the only potential federal statutory impediment to anti-drone mitigation efforts—all of the federal prohibitions discussed below with regard to active detection, also would prohibit mitigating drone flight. Mitigation methods also present legal risks under State law, for conversion or other tort theories, that could open the door to a civil action by the drone owner whose drone was captured. 

At the other end of the spectrum are detection methods.  These methods, when completely passive, likely do not implicate any of the legal issues applicable to mitigation methods. For example, Airspace offers a solution that it claims integrates “sensor correlation, targeted visual display, and communication alerts” to detect drone activity. It is hard to tell from its video whether Airspace’s technology is truly passive. As soon as a detection technique involves more active efforts, legal issues start to appear. For example, pinging a drone to determine its location may be an illegal interference with satellite GPS systems in violation of 18 U.S.C. § 1367.  Federal law also generally prohibits computer hacking, including intentionally accessing a computer without authorization if, by doing so, an individual obtains information from any protected computer. (see 18 U.S.C. § 1030(a)(2)(C))

Just as with the development of drones a few years ago, anti-drone technology is also developing faster than the law can keep up. Those interested in this evolving area should check out a recent FAQ from the Federal Aviation Administration concerning drone detection systems—in particular #s 5 and 6.  The FAA emphasizes the risks of drones—in particular at airports. But it cautiously emphasizes that only statutorily permitted federal agencies may implement most anti-drone technologies.  Local agencies are still waiting.

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Hoverlaw Returns—Update from Marin County

It has been over a year since we posted to this blog.  We are still here, hovering above quite a bit of legal action in the drone-space.  We are re-engaging in our blogging activities and plan on posting updates in the coming days on legal issues concerning drone use in California, particularly at the local level. 

We inaugurate our return with an interesting story from the town of Tiburon, just north of San Francisco. In July of this year, the Tiburon City Council adopted an ordinance regulating the operation of drones.  The ordinance included a number of non-controversial provisions, and also prohibited drone operation (1) directly above or on the grounds of local public schools without permission, (2) within 400 feet of any “publicly permitted event,” and (3) in a manner that interferes with emergency response activity, in particular within 400 feet of any emergency vehicle that is operating with lights and/or sirens. A few days later, the National Press Photographers Association threatened a lawsuit, claiming that the ordinance’s restrictions concerning publicly permitted events and emergency response activities could not be enforced under principles of federal preemption because only the Federal Aviation Administration (FAA) may regulate the drone airspace. In response, the City has amended the ordinance to remove the prohibition against operating near permitted events, emergency vehicles in operation, or in a manner that interferes with emergency response. In the staff report accompanying the amended ordinance, the City asserted that the original ordinance would not have implicated any preemption issues, but amended the ordinance anyway in order to reduce the likelihood of legal challenge.

The story of Tiburon raises interesting legal issues concerning preemption: 

First, a local agency with police power, like a city, almost assuredly is not preempted when it enacts drone restrictions that implicate areas within its police powers—like zoning, land-use, privacy, and law enforcement operations.  Tiburon’s prohibition of drone use that interfered with emergency response almost certainly was within its police powers, and therefore should raise little risk of preemption. 

Second, prohibitions on drone flight that lie outside traditional police powers may be subject to a preemption challenge. Until there is a larger body of appellate decisions clarifying the preemptive effect of FAA regulations, a city seeking to adopt drone regulations should be prepared for legal challenges. Interestingly, the city did not seek to amend the prohibition on flight over schools—no one threatened litigation. Like the prohibition on flight over permitted events, this prohibition could have been subject to a preemption challenge as being outside a city’s power.  It seems likely that the school district did not issue the restriction itself precisely because it thought the city might have regulatory powers that it (a school district does not have police powers) did not possess—why else would it have asked the city to enact the ordinance instead of doing so itself?  The City could perhaps have established a basis for its regulations by issuing findings that drone flight interfered with the privacy of its residents—in particular students and teachers.  Such a finding would have bolstered the theory that the City was acting within its local powers, not preempted by federal regulations, when it prohibited drone flight over permitted events or schools. 

Third, a local agency that does not have police powers faces potential difficulties in enforcing any drone restrictions.  This is particularly concerning for special districts in California, which do not have police powers but have responsibilities to protect critical infrastructure like water towers, waste processing facilities, and bridges, the safety and security of all of which are threatened by unfettered drone use. 

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Anti-Drone Technology Raises Legal Hazards

Here is an interesting article from the Washington Post that highlights a growing legal issue in the drone world. Drone flight is illegal over NFL stadiums, but enforcement is almost impossible. Technologies exist to mitigate or interfere with drone use. But, whether such anti-drone technologies are legal is extremely dubious in the current legal environment. Substitute bridges, highways, water towers, and energy facilities for NFL stadiums and the magnitude of the problem becomes clear. Legislative reform will be needed in order to allow the use of almost any anti-drone technologies…Unless you want to go old school.

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FAA Reauthorization Bill Includes Battling Drone Amendments

The U.S. House of Representatives announced, at the end of last month, passage of the 2018 FAA Reauthorization Act by an overwhelming majority: 393 to 13. The Act includes a host of provisions relevant to the drone industry and in particular opens the door to an easier future for drone delivery programs.

Lost in much of the publicity surrounding this admittedly important legislative action is an issue of key importance to government agencies and operators of critical infrastructure who are increasingly concerned about safety and security issues presented by drone use. This issue concerns the distinction between commercial and recreational use and the extent to which local government may regulate drone use without regard to the character of such use. For example, a drone flying over a crowded toll plaza during rush hour may cause safety and security problems regardless of whether the drone is flown commercially or recreationally.

The law has always been, and remains unclear on the ability to regulate recreational drone use. The Reauthorization Act may not help. Two amendments to the House bill—both adopted—address the distinction between recreational and commercial use.  But the two amendments may be in conflict with each other and, if both are included in the final Bill, could cause legal headaches.

The amendments are by Congressmen DeFazio and Sanford.  Without getting too far into the details, they take different approaches as to the FAA’s authority to regulate “model aircraft”—which arguably already includes recreational drones.  The DeFazio amendment would more overtly bring such recreational drone use within the ambit of FAA jurisdiction while the Sanford amendment likely will make it more difficult to regulate recreational use.

It will be important to monitor whether and how this issue is reflected in any final bill.

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New Test Site for Drone Delivery in San Diego

The US Department of Transportation released the list of sites to test drone delivery and nighttime flight—part of the Trump administration’s express goal of promoting a variety of commercial operations for drones that are currently barred by FAA Rules. San Diego is one of ten sites chosen across the country—the only in California—and will focus its testing on the critical area of improved drone identification and tracking systems. While San Diego plans on testing in the area of border security, developing this technology will be of particular importance to all local government, and operators of critical infrastructure, who are essentially ignored by the present state of drone law and are unable to distinguish between harmless recreational use, and drone use that threatens the safety and security of both people and infrastructure.

While the specifics of the new program are not yet explicit, in my view, the importance of this action by the Trump Administration is that it represents a no-going-back moment in the eventual widespread use of drones for the delivery of goods.

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Drone Registration Requirements Reinstated

Included in the Fiscal Year 2018 authorization bill for the Department of Defense is a provision restoring the Federal Aviation Administration’s (FAA) authority to require registration of all drones—both commercial and recreational.

The registration scheme, implemented originally at the end of 2016, encountered some turbulence when a federal court determined in May, 2017 that the FAA didn’t have the authority to require registration. Once the new DoD authorization measure is signed by the President, the original registration requirements are restored.

Even after the May court action, the FAA continued to maintain the registry, so this action may have little practical effect. It may allow for more enforcement of the registration requirement, although the FAA’s emphasis to date has been on education and not penalties.

The registration rule has the support of the drone industry, whose support appears to be essential to any new law or regulation concerning drone operation.

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Trump Executive Order Introduces Pilot Program

As part of its mission to make America Great Again, President Trump has signed an executive order under which “our nation will move faster, fly higher, and soar proudly toward the next great chapter of American aviation.” In fact, the executive order aims to establish a pilot program that could have significant effects on the current state of drone regulation.  While the pilot program describes the lofty goals of “promoting innovation” and “balancing national and local interests,” it seems to me that the biggest possible practical impact could be a loosening of the current prohibition against operating  beyond the line-of-sight of the drone operator.  This is a key restriction that presents an impediment to using drones to deliver goods.  No surprise that the drone industry welcomed the executive order.  Here is a link to the executive order and related materialsHere is a link to an article in today’s San Francisco Chronicle about the executive order that includes an interview with yours truly.

This cynical observer wonders, in the current political climate, when, and even whether, the concepts embedded in the executive order will become reality.  It also is possible that if any relaxation of current rules implicates safety or —perhaps more important—privacy concerns, States, Municipalities, or citizen groups could take legal action to seek to block any such rules. I emphasize privacy because the FAA’s jurisdiction over drone regulations is focused on the safety of the national airspace and does not extend to privacy concerns that are outside its purview.

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Federal Case Declares Local Drone Ordinance Illegal

As we have previously posted, Senator Feinstein has proposed a bill that would clarify a key legal issue that has stirred up controversy among drone-law practitioners—namely the extent to which FAA regulations preempt efforts by local government to regulate drone use. Senator Feinstein’s measure would free up local government to regulate drone use so long as such regulations did not interfere with the safety and efficiency of the national air-space system. Without this bill, there is a reasonable argument that any and all local safety regulations are preempted.

The need for legislative clarity has now become more significant. For the first time, a federal district court has ruled that the FAA’s jurisdiction over drones has broad preemptive effect on local regulations under the theory of Conflict Preemption, about which we have previously blogged. In Singer v. City of Newton, a federal judge has now struck down a Newton, Massachusetts ordinance that, among other things, required registration of all drones and prohibited flight less than 400 feet above private and City property (under FAA regulations drones may only fly less than 400 feet above the ground). The City argued that such requirements were within its powers to protect the privacy interests of its residents.  But the court ruled that these two provisions in particular impermissibly conflicted with the FAA’s preemptive authority to integrate drones into the national airspace. You can find the opinion here. The judge’s ruling is of course not the last word as the City could appeal, or could modify its ordinance to comply with the court’s ruling.

At a minimum, this case should give local government pause before regulating drone use in their municipalities.

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Update from California: (Almost) All’s Quiet on the Western Front

Here in California, 2017 has been a very quiet legislative session with regard to drone law. Prior years have seen many attempts—many unsuccessful—to regulate drone use in a variety of ways.  The current legislative session ended on September 15 with only a single drone-related bill passed by the legislature.  AB 527 (Caballero) will make modest revisions to existing law regarding licensure requirements for those who operate pest control aircraft. The Bill’s author, Anna Caballero, represents the 30th assembly district, which includes the Pajaro and Salinas valleys—both major agricultural areas. If the Governor signs AB 527 any person operating an unmanned aircraft in pest control will need to be certified to do so by the California Department of Health—this certification is an expansion of the procedures already in place for those who conduct pest control operations using manned aircraft. The certification process does not appear to be onerous, but will certainly require more training and expertise than the current unregulated legal landscape.

This bill reflects the increased use of drone technology in the agriculture industry and is yet another example of the law trying to catch up to fast-growing technology in the drone field. This trend will only continue as the industry continues to innovate and find new ways to make use of drone technology. The Governor has until October 15 to sign or veto AB 527. Inaction means the bill becomes law.

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Drone Delivery…To Prison

News over the weekend that a South Carolina prisoner who recently escaped from jail (and was just recaptured) managed his escape by way of a drone. Convicted kidnapper James Causey arranged for delivery of the tools he needed for his escape via drone–including guns, wirecutters, fake ID, and cash.

The California legislature has twice tried to enact a law that would make it a misdemeanor (a misdemeanor!) to operate a drone on or above the grounds of a state prison or a jail but failed both times. The Governor vetoed one of the two bills, arguing that it criminalized conduct that was already prohibited, and stating that it therefore “creates increasing complexity without commensurate benefit.” The other bill died before passage.

I am unaware of any efforts to prosecute drone flight over prisons under any existing law. Even were prison guards to monitor prison fences, the most one might expect would be to intercept a drone delivery after landing. The difficulties inherent in locating and apprehending the drone operator encapsulates many of the novel legal issues surrounding drone technology that are the subject of this blog:

  • May the FAA require registration of a drone? The registration process was recently overturned by a federal court, but a bill is before Congress to authorize the FAA to continue registering all drones.
  • Is it illegal to operate a drone over prisons absent specific legislation? In California, it is illegal to bring prohibited items into a state prison or jail, and it is also illegal to have unauthorized communication with inmates. But it is not hard to imagine legal arguments that simply flying a drone over a prison wall does not necessarily implicate those violations.
  • May a prison guard take down a drone flying over a prison? Recent California law limits the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services. But this law likely would not apply to prison officials.
  • Under what circumstances must law enforcement obtain a warrant before apprehending the drone operator – in particular if law enforcement is using anti-drone technology (or another drone) to locate the operator?
  • To what extent is any State or local law governing drone flight over prison walls preempted by federal law? A bill before Congress would clarify this important question.

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Proposed Federal Drone Laws Aired

After some time without any legislative action, two pieces of federal legislation are being floated. Most recently, on June 23, 2017 Senator Mark Warner (D-VA) introduced legislation that, in addition to providing modest funding for a number of drone-related initiatives, would essentially overturn the recent court decision that held the FAA exceeded its statutory authority when it required all recreational drone users to register their drones on an FAA website. The Warner legislation would allow for such registration activities to continue. You can find the text of the proposed legislation here.

Last month, Senator Feinstein floated a bill that would help clarify a key ambiguity in the state of Drone Law—namely the extent to which FAA regulations preempt state and local government from regulating drone use within their jurisdictions. While the FAA would continue to be able to propound regulations with preemptive effect over the safety and efficiency of the national air-space system, regulations would not preempt State or local government from regulating drone use to protect public safety, personal privacy, and property rights, as well as manage land use and restrict nuisance and noise pollution. If signed into law, this measure would make it much simpler for local government to regulate drone use, as well as make positive uses of drones for a host of governmental purposes. You can find the text of the proposed legislation here

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Contracting with Commercial Drone Operators in a New Legal Landscape

Is your marketing department planning on hiring someone to take aerial photography using a drone?  There used to be no way to protect your business against the unknown risks of commercial drone use in an unregulated environment. That is no longer the case. There are a number of key contractual provisions that you should now include in any contract that will involve the use of a drone. A standard professional services agreement likely will not provide adequate protection against some avoidable risks of increased liability. Your Contractor must have drone-specific licenses and insurance—concepts that one year ago did not exist but that now are standard in the drone industry. You should contractually require your contractor to comply with all federal, state, and local regulations regarding drone operation and safety—again such regulations did not exist a year ago. You should also not ignore Intellectual Property and Privacy issues. Take a look at your standard indemnity clause and expand it to include drone-specific claims or losses.  With a little bit of effort, it is now possible to contract with a drone operator and not expose your business to unnecessary risk.

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To Permit or Not to Permit

In the early days of commercial drone use—say two years ago—most local government agencies took a prescriptive approach to done operation in their jurisdictions.  Many cities and even State agencies adopted blanket prohibitions against drone use—or at least against drone use in specified areas.  Now agencies more and more are asking themselves whether such broad prohibitions are practical, enforceable, or even necessary.  As a result, permitting mechanisms are beginning to spring up.  So far, permitting requirements for compliance are often very stringent.  Some jurisdictions are following the model of the California Department of Transportation (Caltrans).  Caltrans requires the following—even if it grants a permit in the first instance—as a condition of granting a filming permit over Caltrans streets or highways.

  • Drone filling must be over a closed set.
  • The radius constituting the mandatory closed set must include 500-feet beyond any point of the roadway.
  • Drone pilots (with the approval of Caltrans) may decrease the perimeter of the closed set only if barriers or structures are present that would sufficiently protect nonparticipating persons from the Drone and/or debris in the event of an accident.
  • Traffic Control will be enforced from both directions.
  • Filming may be required to occur in very short intervals—1-3 minutes—to minimize traffic interruptions.
  • Productions must work with all applicable city jurisdictions to facilitate the closing of all relevant over-crossings and under-crossings during filming with a Drone.
  • If the road to be closed for Drone filming is adjacent to a beach or park, permission must also be granted from the Park’s film liaison.

These restrictions make sense, but do mean that a small-scale drone video shoot may take on some of the characteristics of a bigger budget Hollywood movie.  Don’t forget Craft Services!

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Commercial Drone Insurance – Now a Reality

As new Drone laws and regulations start coming into focus, the market for commercial drone insurance is also becoming more standardized and readily available. This is not surprising—and in some respects mirrors the development of auto insurance 125 years ago (the first auto insurance policies, written in the 1890s, were actually adaptation of horse-drawn vehicle liability policies). We are now being asked with increasing frequency, by both drone operators and those who would contract with drone operators, what kind of insurance is available and should be obtained.

The good news is that commercial drone liability policy is now readily available. As best as we can tell, premiums for policies that cover liability up to $1 Million are in the neighborhood of $800 per year. Interestingly, on-demand policies are also available that provide coverage by the minute for a nominal hourly rate—such policies may be prudent for recreational operators but are unlikely to satisfy those who would seek to do a business deal with a drone operator. In addition to the new license requirement for commercial drone operators, we think carrying drone liability insurance coverage will quickly become an essential requirement for doing business, if it is not already.

With the growing availability of commercial drone liability policies, it is also increasingly clear that general commercial or homeowner’s insurance coverage will not suffice. Obtaining drone-specific coverage is not just smart, it is probably essential for anyone operating a drone-related business. In 2016, the California legislature enacted, but the Governor vetoed, a bill which would have required any drone operator to carry liability insurance at minimum thresholds set by the State—similar to cars. We can expect this bill to be revived, and required in other States. Inevitably, like cars, States will enact laws requiring drone operators to obtain minimum amounts of liability insurance.

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An Update on Commercial Drone Law in California (Video)

In 2016, the California legislature sent six bills to the governor, who signed two and vetoed four.

The two bills are:

  1. AB1680 – Makes it a misdemeanor to interfere with first responders or emergency personnel at the scene of an emergency
  2. SB807 –  Protects emergency first responders from liability for damage to a drone that is interfering with the responder’s ability to provide emergency service

Also, the Federal Aviation Administration (FAA) has released its final rule on commercial drone operation, which may affect any state laws and local ordinances.

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New California Drone Law!

On September 1, we updated you on the six bills passed by the California legislature by the end of the 2016 legislative session. With only hours to spare, Governor Brown has signed two of the six into law, and has vetoed four. Along with the issuance of the FAA rule earlier this year, there is finally the beginnings of a body of law governing the use of commercial and recreational drones in California.

The two bills signed into law are SB 807 and AB 1680.

SB 807 amends the Civil Code to limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services. The bill applies to public and private entities and to persons regardless of whether they are paid or volunteer. One of the more frequent questions I am asked from public agencies is “Is a firefighter liable if he knocks down a drone that is in his way while fighting a fire?” As of January 1, 2017, there is now an answer to this question—“No!.”

AB 1680 amends the Penal Code to add drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. Violation is a misdemeanor. Interesting, while the pre-existing law focuses on persons who are physically at the scene of an emergency, AB 1680 now criminalizes interference regardless of the drone operator’s location so long as the drone itself is at the scene of the emergency. Another frequent question I am asked is “How do I stop someone whose drone is interfering with firefighters?” As a result of AB 1680, law enforcement may be able to cite a drone operator who interferes with emergency personnel in the performance of their duties.

The Governor vetoed AB 1662, AB 2148, AB 2320, and AB 2724.

AB 1662 would have required the operator of a drone that is involved in an accident resulting in injury or damage to a person or property to immediately land the drone in the nearest safe place. The operator must then either: 1) present valid ID to the injured person, 2) locate the owner of the damaged property and present valid ID if requested, or 3) leave a note with the name and address of the operator and the circumstances of the incident in a conspicuous place on the damaged property and notify the police. This requirement would not apply to law enforcement personnel acting within the scope of their employment or to anyone authorized by the FAA.

In his veto message, Governor Brown emphasized the need for a comprehensive approach to drone regulation and stated that “Piecemeal is not the way to go.”

AB 2148 would have made it unlawful for any person to operate a drone over lands or waters managed by the Department of Fish and Wildlife and the Department of Parks and Recreation unless authorized by those agencies. The bill would also have made it illegal to use a drone to catch fish or other wildlife.

In his veto message, Governor Brown stated the law was unnecessary because the departments had authority to promulgate their own regulations without the need for statute.

AB 2320 would have applied drone use to existing law regarding “stay-away” orders.

In his veto message, Governor Brown stated that current law was sufficient to prosecute the operation of a drone in a manner that violates a protective order.

AB 2724 would have required drones to include geofencing capability to prohibit the drone from flying within any area prohibited by local, state, or federal law. It also would have required all drone owners to procure insurance—potentially sparking a new drone-insurance industry that is developing any way. Had it been signed by the Governor, this bill could have had a profound effect on the drone industry and on drone use in general.

In his veto message, Governor Brown stated that the bill would have created “significant regulatory confusion” and would likely be preempted by federal law. He emphasized the need for comprehensive regulations and again stated that “Piecemeal is not the way to go.”

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