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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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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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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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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LA Times Examines Lobbying in Sacramento by Drone Manufacturers

Steven Miller was quoted in Sunday’s LA Times. The article focuses on the potential impact of increased lobbying by drone manufacturers in Sacramento. As a patchwork of regulations begin to fill the void, drone makers are exerting what influence they can to affect legislation involving the more than 500,000 drones already registered by the FAA.

Read the article here »

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White House Buries the Lead in Announcing Its Investment in Drone Research

The Obama administration is hosting a workshop today on Drones and the Future of Aviation — “to advance and celebrate the potential of unmanned aircraft systems.”  Read the formal announcement here.

The workshop announcement emphasizes the $35 Million in research funding by the National Science Foundation into the potential applications for commercial drones, specifically calling out monitoring and inspection of physical infrastructure, smart disaster response, agricultural monitoring, and the study of severe storms.

But just as important, and probably receiving less attention, is the call to the UAS industry to develop “best practices” regarding privacy.   This invitation to industry to set standards is in keeping with much of the drone regulation to date.  Given the paucity of federal and State laws on the topic, local government in particular may end up looking to industry standards to assist it in developing and setting rules relating to privacy standards/rights.    The ACLU also is actively involved in setting such standards and has developed a series of recommendations for local government’s use of drones.

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Steven Miller Explains Drones and Privacy on CBS 13, Sacramento

CBS Channel 13 (Sacramento, California) came to Steven Miller for clarification on the legality of hovering a drone over private property.

“You can be liable for invasion of privacy if you use a drone to capture images or sound recordings of someone on their property,” Steven explained, but if the drone is not recording, we’re still in a gray area until legislation catches up.

View the full article and video here.

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Micro-Drone Report Released

On April 1, 2016, the FAA’s Micro UAS Aviation Rulemaking Committee (ARC) released its recommendations on a framework to regulate small consumer drones. The ARC was composed of a group of stakeholders, largely from the drone industry, and was tasked with developing performance and operational regulations for drones engaging in flight over people.

The FAA will use the information and guidance provided by the ARC to create “a flexible, performance-based proposed rule.” Until the issuance of such a rule, there remain many questions as to how the FAA will regulate consumer drone use. But, it appears that the ARC report points to a possible, or even probable, relaxing of earlier statements by the FAA indicating the likelihood of very restrictive regulation of even the smallest drones. This report may be the first signal that the FAA is willing to permit certain drones, in select circumstances, to operate outside the general regulations.

The report recommends dividing small consumer drones into four categories, depending on the level of risk of injury posed as a result of flight over people. For each category, the report recommends a risk threshold based either on the drone’s weight or “impact energy equivalent” and corresponding operational limitations. The ARC’s report can be read here.

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AMA Encourages Members to “Hold Off Registering Model Aircraft”

On December 16, 2015 the Academy of Model Aeronautics (AMA) Executive Council approved a plan to challenge the FAA’s recently announced drone registration program.  Although the AMA was one of the groups invited to participate in crafting the registration plan, they are unhappy with the results.  As part of their challenge, they are encouraging members to refrain from registering their aircraft for the time being.  Specifically, the plan suggests “AMA members hold off on registering their model aircraft with the FAA until advised by the AMA or until February 19, the FAA’s legal deadline for registering existing model aircraft.”

At the core of their dispute the AMA questions whether the FAA has the legal authority to require registration or otherwise regulate model aircraft.  The FAA took the position that model aircraft are ‘aircraft’ it has statutory authority to regulate, and thus require registration of UAVs under the Section 336 of the FAA Modernization and Reform Act of 2012.  However the AMA contends such authority is limited by the same act, otherwise known as the “Special Rule for Model Aircraft.”  Shortly after the FAA issued its interpretation of Section 336 and announced its intent to regulate model aircraft, the AMA filed a petition with the U.S. Court of Appeals for the District of Columbia which is pending.  In its petition, the AMA is specifically challenging the FAA order “Interpretation of the Special Rule for Model Aircraft.” 79 Fed.Reg. 36,172 (June 25, 2014) and seeking a court order to rescind.  The core of the petition is whether or not “model aircraft,” including small UAVs or drones, are “aircraft” subject to FAA jurisdiction to regulate.

In its zeal to invoke a plan to register UAVs in time for the 2015 holiday season, the registration rules leave many unanswered questions.  At a minimum, the registration requirement may also be challenged as an overreach by the FAA because the agency failed to follow public notice and comment procedures ordinarily required before final adoption of federal regulations.  If model aircraft are determined to be ‘aircraft’ subject to registration requirements, can the same be said for model or hobby rockets or unmanned experimental balloons?  Will hobbyists in those areas also find themselves subject to registration?

To be clear, the AMA does not oppose registration of drones per se, but does object to FAA registration that is duplicative of association rules.  The AMA also objects to the broad definition promulgated by the FAA as to what constitutes a model aircraft subject to regulation.

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Steve Miller Quoted in Popular Science

Check out quotes from Steve Miller’s interview with Popular Science magazine about the pending FAA drone registry.

Model Airplane Hobbyists Skeptical of Proposed Drone Registry

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Scientist Suggests Drones Stress Wildlife

In a journal article first covered by the Washington Post, researchers from the University of Minnesota’s Department of Fisheries, Wildlife and Conservation Biology found evidence that drone surveillance causes stress in black bears.  Writing in Current Biology, postdoctoral researcher Mark Ditmer, presented evidence that black bears can be stressed by the presence of UAVs, even if they don’t outwardly show it.  This blog previously discussed the use of drones to monitor shark activity near California beaches.   Scientists and wildlife officials also use drones used to monitor whales and dolphins at sea, as well as African wildlife subject to poaching.

Since passage of the 1964 Wilderness Act, motor vehicles are generally prohibited in the rapidly expanding network of wilderness areas in the United States (16 U.S.C. § 1133(c)-(d)).  Limited exceptions exist for wildlife research, but the law and it’s enforcing regulations are less than clear regarding drone use.  For example, aircraft over-flights are allowed, but aircraft landing is prohibited except in an emergency.  Exacerbating the issue is conflicting jurisdiction between land-use agencies such as the Bureau of Land Management or National Park Service with the Federal Aviation Administration. Nevertheless, as scientists conduct more research, the article tacitly suggests another area where federal, state and local officials could implement regulations.

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UAV Used To Smuggle Drugs Into Prison

The United States has the largest prison population per capita of any industrialized nation.  It should therefore come as no surprise to find that high tech has made its way into that demographic almost as easily as it does outside prison walls.  And the most common vehicle for delivering technology into prisons is also now high tech.

Correctional officials in Ohio recently announced that a fight among inmates at the Mansfield Correctional Institution was caused when a UAV was used to drop more than seven ounces of heroin, marijuana, and tobacco into the prison yard.  Drone Drops Drugs Into Ohio Prison Yard: The Newest Smuggling Method? While drugs can be delivered into a prison by simply tossing a drug-laden tennis ball or faux rock over the wall, the primary use of UAV’s appears to be Smartphone delivery.  Airmail via Drones Is Vexing for Prisons. Smartphones are extremely valuable to inmates because they are not monitored or recorded in prisons and can be used for many unlawful purposes, including coordinating delivery, via UAV, of additional contraband.  UAV’s have been discovered attempting to deliver contraband into prisons in the US, Canada, Ireland, Britain, and Australia.  Over the past two years, the 10 discovered attempts are viewed as the tip of the iceberg.  Officials have no way of knowing how many attempts are successful.  Judging by the increasing number of Smartphones found in prisons (one inmate was recently discovered hiding 17 devices in his cell) the number of successes is suspected to be substantial.

DJI, the largest producer of hobby drones suggests Geofencing—programming “no fly” coordinates into UAV flight control software—as the best means to prevent the problem.  To that end, the company Noflyzone, Inc. has published a website where property owners can register their address to be added to a comprehensive airspace database provided to UAV companies for inclusion in their “no fly” programming.  However, the decreasing cost to build DIY drones and the availability of open source control software, suggests such measures will be a stop-gap at best.

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Recreational Drones Disrupt Fire Efforts in the San Bernardino Mountains

The effect of unregulated drones became particularly apparent this week when recreational drones were found flying in a no-fly zone near the wildfires burning in the San Bernardino Mountains.  According to an article in the Los Angeles Times, the drones were spotted by an incident commander on the ground forcing three planes carrying fire retardant to divert their course.  The DC-10 was able to reroute to an alternative fire on the Nevada border but the two smaller planes had to jettison their fire retardant because they could not land with the added weight.  While the Federal Aviation Administration has issued a NOTAM designating the area as a temporarily restricted airspace, given the anonymity of the drones and inability to immediately identify operators, implementation can be difficult.

The incident underscores the importance both to local agencies and to drone operators of understanding the legal landscape regarding drone regulation.

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Drone Use by EMS

Google was granted a patent on the use of drones to provide emergency medical service. Patent 9,051,043, issued June 9, covers the use of unmanned aerial vehicles to provide emergency medical support.  This is an example of yet another innovative idea for the use of drones as a platform for existing technologies.  Perhaps a drone can deliver supplies to an incident location more quickly than an ambulance? Or transmit data to medical workers?

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Sharks have privacy rights too?

The City of Seal Beach’s lifeguards have been using drones to spot sharks swimming off local beaches.  See report here. As has been the case in other jurisdictions, privacy rights have been raised as a concern and the City Council may be getting involved to establish a policy on use by lifeguards.  As has been reported in a separate post on this blog, if  AB 56 becomes law,  the City would be required to set a policy and provide public notice before any further use.

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CNN Undeterred by Jon Stewart Mockery

In March, 2015, Jon Stewart skewered CNN for its use of drones to cover the 50th anniversary of the Selma march.  Nevertheless, CNN is continuing to explore use of drones it its news coverage.  On May 6, 2015, the FAA announced that it has authorized CNN to participate in testing of drone flights in urban areas for newsgathering purposes.  The key item being tested is whether and how the line-of-sight restrictions can be expanded.  CNN is partnering with the Georgia Institute of Technology.

 

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Progress Toward A “Highway in the Sky”

Here is a link to a Fortune article about products that are being developed by Exelis Inc. as part of a partnership between NASA and private companies to create technologies that could be used in an unmanned aircraft traffic system. While the recently released FAA proposed rule on commercial drone use requires that flights must take place within the visual line of sight of the operator, this article suggests that the development of the aircraft traffic system “could persuade the FAA to allow flights beyond the line of sight, provided the operator is using such a tracking system.”

See the full article here.

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Commercial Drones and Privacy of Operators — Lessons to Be Learned from EU Recommendation?

The European Union is far ahead of the United States when it comes to regulating commercial drone use.  The EU’s position is much friendlier to commercial use than the recently proposed FAA rules in the United States.  However, the EU has just released a report on the Civilian Use of Drones in the EU that is notable in one particular respect that could impact privacy laws and regulations presently being considered at various levels throughout the United States, both federal and State.  The EU’s report recommends requiring identification of all drones and drone operators.  The EU report considers such identification “essential to enforce existing and future laws governing [drone] use.”  I have previously written about California legislative efforts to protect privacy from drone users.  But no law in the United States to my knowledge has required identification of drone operators, or registration of drones.  Privacy implications to drone operators could be significant.

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“The Backwards Set of Rules Governing the Drone Industry in the United States”

Here’s a link to a NY Times article describing what it describes as “the backward set of rules governing the drone industry in the United States.”

www.nytimes.com/2015/02/05/technology/personaltech/giving-the-drone-industry-the-leeway-to-innovate.html

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Flying Fungus Drone

This is supposed to be a legal website.  So I suppose there are implications under CEQA—or maybe even food safety regulations—presented by this innovative drone application.  But mostly, I just think it is really cool.

The Flying Fungus: NASA’s Biodegradable Drone that Flies and Dies (CNN)

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Drone Draws Blood at TGIF

Lots of legal questions presented by this unusual incident at TGIF.  Was the accident caused by a failure of the drone, or operator failure?  Was it a single accident or an example of a larger product failure? Was there insurance to cover this incident and what type of insurance would apply?  Did TGIF engage an outside contractor to provide the drone service?  What risk allocation methodologies were included in such a contract?  Was TGIF allowed to operate a drone inside its restaurant?

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Drones For Firefighting

As drone technology is advancing, new uses of drones are similarly arising almost every day. Here are a number of articles about the use of drones to assist in fighting fires.

Putting aside the obvious benefits of using drone-mounted devices to assist in emergency response, such use presents some interesting legal questions that are as yet unresolved in California:

  • Is the video a public record under the California Public Records Act?
  • What if the video captures pictures or sound recordings of information that arguably is private, or contains Personal Identifiable Information?
  • Is a fire district, or other fire fighting agency, liable for damages or injury caused by the drone use?
  • Could private drone use, for instance by the media, interfere with a public emergency responder’s use, and what are the First Amendment rights to use a drone in a situation where a public drone is already being used?

Stay tuned…

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Drone Regulation in Canada

While many complain that the absence of regulation in the United States is stifling competition (see recent Wall Street Journal article: “Regulation Clips Wings of US Drone Makers“), Canada does not suffer from such inaction.

Here is a link to the drone website maintained by Canada’s Privacy Commissioner: Drones in Canada.

The material on the website reveals a lot of interesting policy choices—all of which are presently facing regulators in the United States.

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Electronic Frontier Foundation on Drones

The EFF has done interesting work on drones but may have let the topic slide for some time—its drone website seems to be out of date.

The site does include a Google-based map of drone flight authorizations (and the authorizing entities) across the US.

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Welcome to Hanson Bridgett’s Drone Law Blog

As recently as two years ago, mention the word “drone” and people would think you were talking about a recent military drone strike in a far off corner of the world.  But Google “drone” today, and the top hits are all for websites dedicated to the commercial sale or use of drones.  From real estate brokers to agribusiness, from journalists to wedding photographers, commercial drone use has exploded in the last few years.

For the moment, commercial use of drones is essentially unregulated in California. But the landscape may be changing quickly. The new frontier of regulation of commercial use of drones is most likely to take place at the local level.

The Federal Aviation Administration is charged under federal law with issuing regulations in 2015 concerning commercial drone use.  These regulations will largely focus on safety issues and will be of critical importance to anyone seeking to make commercial use of drone technology.  But even with federal action (and any FAA action is not going to be finalized until 2016 at the earliest—my prediction is it will not be until 2017), California–and especially local agencies–are taking notice and  are beginning to regulate commercial drone use.

At the State level, the legislature passed AB 2306 which took effect on January 1, 2015.  This is a relatively modest law that clarifies existing invasion-of-privacy laws already on the books and applies them to video or audio captured by a camera attached to a drone. A video or audio recording taken of someone in situation in which the person has a reasonable expectation of privacy can now be actionable even if the audio or video recording is taken with a camera- mounted drone.

The other area in which the California legislature is active concerns use of drones by municipalities and other local agencies.  Late in the last legislative session, the Governor vetoed AB 1327, which would have required a warrant for use of drones by law enforcement.   Law enforcement agencies are generally opposed to a statutory warrant requirement, preferring to rely on courts to establish how the Fourth Amendment will apply to new technologies like drones. Efforts are already underway to pass similar legislation, with the hope that the Governor will sign the bill if presented it outside the context of an election campaign.

Separate from both the federal safety regulations, and any State efforts to regulate law enforcement use, Local agencies are beginning to step up to fill a vacuum created by the absence of regulation. These local efforts are likely to have more immediate and significant impacts on the drone industry—equal to, or possibly greater than the impact of any federal or State law.

Cities have broad police power to regulate activities within their jurisdiction.  Cities, as well as other local agencies, are beginning to examine regulating drone use in three different ways:

  • Licensing.  Cities may require drone operators to obtain business licenses in general, or more specific commercial activity permits.  Both may include specific restrictions on operating parameters.
  • Purpose Restrictions.  Local agencies may enact restrictions to protect privacy and promote safety.  For instance, in the absence of State law, some cities are considering warrant requirements.  Others are considering privacy restrictions that go beyond the current State law.  Other cities are taking the opposite approach and are considering ordinances that would expressly permit use of drones by law enforcement.
  • Functional Use Restrictions.  Cities are considering regulating use by imposing time, place, and manner restrictions on drone use—for example prohibiting drones over particular intersections during commute hours.

Some local efforts may raise preemption issues depending on when and if the Federal or State government acts to occupy the field.  But many local efforts will not conflict with State or federal law and so all commercial operators should be aware of local efforts in their jurisdiction.

Expect the federal government to move slowly.  Expect the State government to try and fill some gaps. But look to your local jurisdiction to try and keep up with the rapid advances in drone technology.  2015 is going to be an interesting year for the drone industry.

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