FAA Creates New Task Force to Study Non-Commercial Drone Registration

The Federal Aviation Administration announced today that it was creating a task force to develop recommendations for a registration process for all consumer drones—even those flown by hobbyists and therefore not subject to proposed rules governing commercial use of drones.  This action is recognition that the distinction between commercial and non-commercial use may not make a difference in achieving safety and security goals.   The task force is expected to provide a report by Thanksgiving.

It is not at all clear how the registration process will work.  Will there be exemptions for small or lightweight drones, or drones that are incapable of flying above a certain height?  Will the registration requirements apply retroactively?  What about drones that are not purchased fully functional, but are assembled by hobbyists from separate parts?  Finally, absent legislative or regulatory action, will the FAA actually be able to implement any recommendations proposed by the task force?

More fundamentally, requiring hobbyists to  register a drone may not address operational restrictions that continue to emphasize the difference between commercial and hobbyist use.   Non-commercial use is still going to be largely free from restrictions such as geographical restrictions, speed or height restrictions, and other regulations that address potentially unsafe operation.

Share This

Steve Miller on KPCC to Discuss Recent Drone Law in California

Join our own Steve Miller as he discusses Governor Jerry Brown’s signing of AB 856 on Tuesday, and what it means that he did not sign other proposed legislation into law.

“Analyzing Governor Brown’s choice to sign one drone bill, not others”

(Listen online, starting 11:50 AM Pacific. Or listen to the recording.)

Share This

California City Bans Drones

The City of Poway, in San Diego County, has passed an urgency ordinance that effectively bans the use of drones in any open space or rural residential area. The stated purpose of the ordinance is to prevent interference with firefighting efforts, though the measure is very broad. The measure was enacted pursuant to Government Code Section 65858, which permits a city to enact an urgency ordinance to “protect the public safety, health, and welfare.” The ordinance will remain in effect only until October 15, 2015, although the City Council can extend the ordinance twice, after public notice and hearing, for almost two additional years.

In order to avoid any issues of federal preemption, the ordinance does not restrict the actual flight of drones. Rather, it prohibits launching, operating (i.e. controlling a drone during its flight), or landing following flight. The City Attorney’s opinion in the staff report accompanying the ordinance concluded that focusing on the use of property within the city by way of implementing zoning regulations, rather than on flight itself, the City would be acting within its constitutional police powers. The ordinance therefore emphasizes that “without stable, well-planned neighborhoods, and urban planning, sections of the City can quickly deteriorate, with tragic consequences to social environmental and economic values.”

The ordinance contains an exemption for drones owned or operated by local, state, or federal law enforcement or emergency response personnel while acting in their official capacities.

Share This

Governor Vetoes SB 142

SB 142, which would have prohibited flying a drone over private property, has been vetoed by Governor Brown. In his veto message the governor wrote “Drone technology certainly raises novel issues that merit careful examination… This bill, however, while well-intentioned, could expose the novel hobbyist and the FAA-approved commercial user alike to burdensome litigation.” His veto came after intense opposition from the media industry, focused in part on uncertainties created by the measure’s use of a 350 foot ceiling for prohibited flight. There are still other drone bills pending so stay tuned for more legislative action in the very near future.

Share This

California Legislative Action

California lawmakers on Monday approved two bills that, if signed by the Governor, will regulate drone use in California. SB 142 would make it a crime to fly a drone less than 350 feet above private property without permission. The 350 limit represents a balance between those who think the limit should be 400 feet to avoid preemption by FAA regulations and those who argue that a better limit would be 200 feet to allow drone operators more flexibility to operate below 400 feet—for instance to develop drone delivery capability.  SB 142  carves out an exception for “otherwise lawful activities” of law enforcement personnel or government agencies.

AB 856 is a so-called “anti paparazzi” law. It expands existing liability for invasion of privacy to include a person who knowingly enters into the airspace above the land of another person without permission in order to capture a visual image or sound recording of the person “engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” The new law, if signed by the Governor, provides for the imposition of damages, including punitive damages, for commercial use of any recorded images that result from an invasion of privacy.

Share This

Los Angeles is paying attention to commercial drones

On August 28, 2015, the Los Angeles City Council unanimously tasked its City Attorney with drafting an ordinance to regulate the use of drones within five miles of any airport.  Perhaps more significantly, the Council called for an ordinance that would prohibit the operation of a drone “in a careless or reckless manner.  You can find the Council’s recommendation here.  The City is part of a growing movement of local agencies looking for ways to regulate, and prohibit, private drone use within its jurisdiction.  Whether sports stadiums, airports, or critical infrastructure, there is a growing movement that seeks to blur the distinction drawn so far by the FAA between commercial and non-commercial use.  At the federal level, this movement finds its voice in the Senator Feinstein’s proposed “Consumer Drone Safety Act” which would impose restrictions on non-commercial use of drones, including a requirement for geo-fencing or other collision avoidance technology.

Share This

Update #2 on California Legislative Action on Drone Use

We just blogged about AB 56, wending its way through the California Legislature. SB 142 is also not without controversy.  This measure, which was originally drafted as an anti-paparazzi statute, incudes a prohibition against use of drones less than 350 feet above ground level of private property.  The Consumer Electronics Association has sent a strongly worded letter of opposition, published here, asserting that the 350 foot rule is arbitrary and would unleash a wave of litigation, including on federal preemption and constitutional grounds.

The deadline for passing AB 56 this year is September 11, 2015.

Share This

Update on California Legislative Action on Drone Use

We wrote last year that 2015 would be a critical year in the development of drone law in California. We continue to monitor the three bills that are wending their way through the legislative process: SB 142, SB 271, and AB 56. AB 56 appears to be the most controversial at this point—you may recall that the bill’s original intent, still preserved, is to allow for use of a drone by law enforcement—so long as such use complies with the Fourth Amendment (i.e. a warrant is obtained as necessary and applicable). In the last week, largely in response to privacy concerns, and in particular those expressed by the ACLU, the bill has been amended in a number of ways that might increase its chances of passage, although perhaps at the risk of creating legal ambiguities while resolving political stumbling blocks.

First, at the most general level, the statute now allows use of a drone by law enforcement only when such use complies with the “protection of the inalienable right of privacy guaranteed by the California Constitution.” More specifically, any law enforcement agency that uses a drone must keep records of such use, including whether or not it sought a warrant and if the warrant was granted. In addition, the law enforcement agency must develop a policy that demonstrates how the “collection, use, maintenance, sharing, and dissemination” of information and data gathered through the use of a drone is “consistent with respect for an individual’s privacy and civil liberties.” The policy must also specify the circumstances under which a done may and may not be used, including time requirements, training requirements for authorized employees, and other restrictions. Finally, the policy must prohibit the use of a done solely for the purpose of monitoring activities protected by the First Amendment or “the lawful exercise of other rights secured by the United States Constitution, the California Constitution, and federal and state law. The policy shall also prohibit the use of a drone system to engage in discrimination on the basis of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity.”

These provisions might appear to be aspirational and difficult to enforce. But the statute as amended now creates a civil right of action against any person who knowingly violates the statute—including both the policy requirements as well as the underlying prohibition against use that violates the Fourth Amendment. The statute provides for punitive damages and attorneys’ fees in addition to any actual damages. It is not difficult to imagine litigation alleging that use of a drone violated an individual’s privacy rights, not to mention Fourth Amendment rights.

If the bill passes as currently drafted, law enforcement agencies will need to be extraordinarily careful that use of a drone does not implicate the privacy rights now protected by the statute. September 4 is the last day to amend a bill, and all bills must be passed by September 11. So we will know soon whether and how California drone law has changed.

Share This

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.

Share This

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.

Share This

Local Government Innovative Uses of Drones

Use of drones by government for firefighting and surveillance by law enforcement has been well covered in the news. Here are some other possible uses of drones being explored by local government. A full list, including some that are unlikely to get much traction (crowd control by way of drone-delivered pepper spray?) is here. As we have written elsewhere, even the most innocuous proposed use is likely to elicit concerns from the public and from privacy advocates unless local government engages in careful planning and an open public process prior to use of drones.

1. Somerville, MA is exploring use of drones to examine snow covered houses in order to make sure that roofs don’t collapse.
2. Greensboro, NC is considering use of drones to respond immediately and preliminarily to a 911 call to give first responders a preview of the scene.
3. Ann Arbor, MI is exploring using drones to map unpaved roads, discover potholes, and determine other road repair needs.
4. Duxbury, MA is considering using drones for purposes of building inspection and storm damage assessment.

Share This

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.

Share This

Legislative Update

AB 56, written about in a June 20 blog post, was significantly amended by its authors on June 24, 2015.  As originally written, the bill would have significantly limited local government’s use of drones for non-law enforcement purposes.  As amended, it is now limited only to drone use by law enforcement and no longer contains the requirement that any local agency provide public notice before using a drone for any purpose whatsoever.   AB 56 continues to require that a law enforcement agency obtain a warrant before using a drone to surveil private property.  The bill, as amended, is schedule for a hearing before the Senate Public Safety committee on July 7, 2015.

Share This

Senator Feinstein Wants to Regulate Non-Commercial Drone Use

Senator Diane Feinstein wants to close what she describes as a “loophole” in current efforts to regulate commercial drone use.  The loophole is the entire distinction between commercial and non-commercial use.   In particular to protect public infrastructure like airports, power plants, and bridges, Senator Feinstein last week proposed legislation that would expand the FAA’s pending regulation of commercial drones to include non-commercial use.

The Senator’s proposed bill would require the FAA to develop rules for both recreational drone flight and the manufacture of the devices. In its flight regulations, the agency would have to set a limit on maximum altitude, restrictions on where the devices can be flown and prohibitions related to weather and time of day. For the manufacturing rules, the FAA would have to bar manufacturers from making drones that can fly beyond a certain altitude, require the installation of sensors or software to avoid collisions and mandate systems to prevent drones from being flown close to airports and other protected airspace, among many other stipulations.

Share This

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?

Share This

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.

Share This

Local Government Update from the Wild West of Drone Regulation

Three bills are wending their way through the State legislature that may have particular relevance to drone use relating to local government in California.

AB 56 would require a local agency to develop use policies and provide public notice prior to use of a drone for any purpose.   It also places warrant requirements on law enforcement use.  Rather than earlier attempts at crafting specific warrant requirements, AB 56 relies on existing 4th amendment jurisprudence and requires that any use of drones 56 also by law enforcement complies with protections against unreasonable searches and seizures. AB 56 also places some restrictions on the use of drones by local agencies outside their jurisdictional boundaries—for instance use by law enforcement in an adjacent city. If enacted, this would be the first time legal authority has been expressly granted to local government to use drones for government purposes.

SB 142 expands trespass law to include trespass by a drone over another’s land without the consent of the landowner or without legal authority.  This bill may provide a helpful mechanism for public agencies looking to restrict drone use over public land.  It may also create problems for a public agency that flies a drone over private property without a warrant.

SB 271 criminalizes operation of a drone above the grounds of a public school without permission by the school principal.  It contains an exception for journalistic use, and attempts to define mainstream journalistic use by a “publisher, editor, reporter, or other person connected with or employed by a newspaper, magazine, or other periodical publication, a radio or television station, or by a press association or wire service.” This definition may be a controversial one given the widespread posting on the internet of videos taken by drones.

All three of these bills are worth tracking.

Share This

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.

 

Share This

City of Walnut Creek Passes on Use of Drones to Monitor ‘Rowdy’ Behavior

At its meeting on May 5, 2015, the City of Walnut Creek considered whether its police force should use drones to monitor late night rowdy behavior on weekends.  Its police chief, Thomas Chaplin, told the City Council that he had “no desire to embark on [the] journey” of exploring use of drones.  He expressed particular concerns regarding privacy issues arising from possible appearance of any drone video on YouTube.  Interestingly, the skepticism over the use of drones was contrasted with more enthusiastic support for use of body cameras.

Share This

Why Only Regulate Commercial Drone Use?

Last week, I blogged on the fuzzy distinction between commercial and non-commercial drone use. This issue is of particular concern to Senator Feinstein, who is considering introducing a bill she is calling the Drone Safety Act.  In testimony on April 22 before the Transportation, Housing, and Urban Development subcommittee, the Senator expressed concern that non-commercial drone use “could also be a safety risk in untrained hands and this is a gap in the legislative authority of the regulatory agency that prevents FAA from regulating drone manufacturers if their drones might be used for recreational purposes.”  Among other things, Senator Feinstein is interested in requiring that drones come with “geo-fencing” technology pre-installed so that drones are automatically prevented from flying over specified areas—for instance security-sensitive infrastructure.

Senator Feinstein’s measure, if introduced, is likely to require FAA certification for any private drone use, and would obliterate the distinction between commercial and non-commercial use.  It would also provide the FAA with additional enforcement authority.

This issue may be of particular concern to municipalities and local agencies exploring the limits to their authority to regulate drones flying in their airspace (see the Golden Gate Bridge’s concerns on this issue here).  Applying traditional concepts of trespass to drone flight may be difficult under State law.

Share This

The Wild West of Commercial Drones – Why 2015 Could Be a Pivotal Year in California

Article by Steven Miller and Nicole Witt,  published in the spring edition of Public Law Journal.

Please click here to read the full article (PDF).

Reprinted with Permission of the State Bar of California

Share This

Commercial v. Non-Commercial Drone Use

Pursuant to federal law, the FAA may regulate commercial drone use, but does not, with certain limited exceptions, have the authority to regulate recreational use of drones by hobbyists.  The distinction can be frustrating, and may have little relevance to those looking to promote safety.  What  difference does it make, from a safety perspective, whether a drone is being flown for commercial or non commercial purposes?

The Golden Gate Bridge, Highway and Transportation District has highlighted this issue in a letter it has posted to the FAA’s docket for its proposed rule on commercial drones.

In the letter, the Golden Gate Bridge accurately points out that a drone taking pictures of security-sensitive areas of the Bridge poses a security threat regardless of whether the operator is being paid—indeed, non-commercial use may have more pernicious intent. Here’s an article about issues concerning drone use near the Golden Gate Bridge.

The distinction between commercial and non-commercial use may be one without a difference in some respects. The FAA has recently taken the position that a hobbyist’s video taken from a drone may nonetheless constitute commercial use subject to FAA regulation if the video is posted to YouTube, because the YouTube website includes advertisements.  This broad interpretation of “commercial use” could have significant implications if the FAA begins to regulate drone use that may have started out as recreational, but that it asserts became commercial only because it was posted on the internet.   What if a hobbyist posts a video to a website that does not include ads, but is then linked to another website that includes advertisements?  Do drone users have First Amendment rights to video taken by a drone-mounted camera and are those rights implicated by any government attempt to regulate the video after-the-fact?

Another reason why it is so important to establish the boundaries of the FAA’s jurisdiction is that if the FAA can not regulate commercial drone use, then States and local municipalities and agencies likely can, without raising issues of federal preemption.  But if the FAA asserts jurisdiction over drone use simply because video ends up on a website containing advertising, then local regulation may be limited—local agencies will have to rely on reasons other than safety as a basis for regulating drone use.

Share This

Legislative Update: California Drone Legislation

This year, California legislators have introduced a number of bills related to drone use. The following is a brief update on legislative action taken on these proposals.

SB 142, introduced by Senator Jackson, would prohibit the use of drones over private property without permission. The proposal passed out of the Senate Committee on Judiciary with amendments to clarify that the bill applies to flying drones over real property. The bill moved to the Senate Floor for a third reading which precedes a floor vote.

SB 262, introduced by Senators Galgiani and Anderson, would condition law enforcement use of drones on compliance with State and Federal Constitutional protections against unreasonable searches and seizures and with California law related to the use of surveillance technology. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Judiciary.

SB 271, introduced by Senator Gaines, would prohibit the use of drones over school grounds. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Appropriations. Before passage, the bill was amended to provide an exception for drones used after school hours and with the permission of the school principal or other relevant authority. Additionally, the amended proposal provides that it is an infraction to use a drone to take photographs or other images of public school grounds during school hours and without the permission of the school principal. The bill was also amended to reduce the punishment for an infraction.

AB 14, introduced by Assembly Members Waldron, Brown, and Maienschein, and Senator Nielsen, would create a task force to advise the Governor in the creation of a comprehensive state policy related to drone use. The bill failed to pass out of the Assembly Committee on Transportation but the Committee granted reconsideration of the action. A number of amendments were made to the bill including the addition of provisions highlighting California’s unique position and need for drone use related to aviation, aerospace, high technology, agriculture, and public safety. The protection of privacy was also stricken from the specific objectives of a comprehensive state policy.

AB 56, introduced by Assembly Members Quirk and Campos, would limit the use of drones by law enforcement and public agencies. The proposal passed out of the Assembly Committee on Public Safety and was re-referred to the Committee on Privacy and Consumer Protection. This bill is very similar to AB 1327 which was passed by the Legislature and vetoed by the Governor in the last legislative session. AB 56 was amended to require that notice or guidelines must be made available to the public prior to the use of drones by law enforcement agencies. The amended bill also provides that police are permitted to use drones over public lands, highways, and open spaces without first obtaining a warrant.

Share This

FAA Sued Over Failure to Propose Privacy Rules Related to Commercial Drone Use

On Tuesday, March 31, 2015, the Electronic Privacy Information Center (“EPIC”) filed a petition for review of the FAA’s decision not to address privacy issues in their proposed regulation on commercial drone use.

In 2012, EPIC sent a letter to the FAA highlighting the threat posed to privacy and civil liberties by both commercial and government use of drones. The letter discussed use of drones by the Bureau of Customs and Border Protection and local law enforcement agencies. EPIC also suggested that privacy is threatened by commercial use of drones. EPIC observed the development of “paparazzi drones” as well as increased drone use by private detectives. In part, EPIC requested that the FAA “examine and report on the impact on privacy to individuals within the scope of their comprehensive plan to safely integrate civil drones into the national airspace.”

Under the criteria laid out in 14 CFR § 11.73 for consideration of a petition for rulemaking, the FAA denied EPIC’s request because the issue was not “an immediate safety concern.” Additionally, the FAA noted that it “has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system” and EPIC’s comments would be considered in that effort. As noted in our February 17, 2015 post, the proposed rule is silent on the issue of privacy but, on the same day the proposed rule was released, the President issued a memorandum which requires the National Telecommunications & Information Administration to create voluntary rules for privacy, accountability, and transparency in commercial drone use.

EPIC’s petition asks the court to review the FAA’s denial of the request for rulemaking. EPIC also requests the court set aside the FAA’s proposed rule on commercial drone use for its failure to propose drone privacy rules and remand to the agency.

 

Share This

FAA Approves Amazon Drone Delivery Test

Today, in a move that could fundamentally alter the future of commercial drone use in the United States, the FAA granted Amazon limited permission to begin testing its drone delivery service, Amazon Prime Air.  The FAA’s permission, expressed in the form of an “experimental airworthiness certificate” is notable for the limits it imposes.  First, Amazon may begin testing drones only in an isolated parcel of property in rural Washington State.  Amazon may only fly drones below 400 feet, only during daylight hours, and only within the line of sight of the operator.  The drone must be operated by a pilot with a certificate to fly a private manned aircraft. Amazon must report to the FAA each month,  providing the number of flights conducted, pilot duty time per flight, unusual hardware or software malfunctions, any deviations from air traffic controllers’ instructions, and any unintended loss of communication links.

Nevertheless, Amazon is the 600 pound gorilla in the commercial drone industry.  Its commencement of testing—even as the FAA is in the midst of the public comment period for its proposed Rule on commercial drone use—signals that drone delivery is coming to an airspace near you.  The only question is when.

Share This

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.

Share This

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.

Share This

Legislators Ask, Is California Law Ready for Drones?

Two days after the FAA released its proposed rule to regulate commercial drone use in the United States, the California Senate Judiciary Committee held an oversight hearing to examine the potential benefits and risks associated with the expansion of drone technology. The hearing was entitled, “Drones: Is California Law Ready? The Potential, the Perils, and the Impact to Our Privacy Rights.”

Senator Hannah-Beth Jackson (D-Santa Barbara), the Senate Judiciary Committee Chairwoman, suggested the expansion of drone technology presents difficult public policy questions including, “how to welcome these new technologies into our lives without surrendering our right to privacy?” Senator Jackson inquired into existing state-level regulation of commercial drone use across the nation, how unauthorized drones might impact fire-fighting efforts, and whether the leaders in drone technology innovation are considering issues of safety and privacy. Senator Jackson suggested that, in considering the regulation of drone use, critical questions might be, where are drones benefiting society and where are they not? Additionally, Senator Jackson stated that she believes the express right to privacy in the California Constitution gives California the authority to go beyond any steps taken by the federal government to protect privacy rights as implicated by expanding drone use.

Senator Joel Anderson (R-San Diego) submitted that, in regulating drone use, care should be taken in achieving the right balance in order to ensure that technology is not being unreasonably restricted. The Senator drew a comparison between emerging drone technologies and street mapping, as both encountered a tension between privacy concerns and commercial benefits. Senator Anderson asked the witness from the Motion Picture Association about the cost, quality, and safety of using manned versus unmanned aerial vehicles in the film industry. Lastly, the Senator asked about the use of drones in quantifying the effects of global warming and in the exploration of active volcanoes. During his time, Senator Bill Monning (D-Carmel) asked whether drones could be used for dropping fire retardant and whether drones are being used to apply pesticides.

The direction of legislators’ comments and questions highlights the potential risks and benefits of drone use in California and emphasizes the great uncertainty that exists in the landscape of drone regulation today. Watch the full Senate Judiciary Committee hearing here.

Share This

City of Berkeley Passes First-In-California Drone Regulation

On Tuesday, February 25, the Berkeley City Council enacted a one-year moratorium on City use of drones—in particular use by law enforcement for any purpose.  The original proposal was for a more significant, and longer, prohibition.  But the Council adopted a more limited proposal that extends for only one year and includes an exemption that allows the Fire Department to use drones for disaster response purposes.  The Council made clear that the moratorium would not affect private use, but any limitation on use by local government has the potential to affect the market for commercial drones.  In addition, privacy concerns expressed by the Council could inform broader legislation to be considered in the future.  To that end,  the Council also voted to  continue to study and draft more comprehensive drone policy for consideration a year from now.  The City has not yet posted the minutes of the meeting or published a version of the resolution as adopted by the City Council. But here is a link to the Council agenda which includes a video of the discussion of the item.

Share This

New FAA Proposed Rule Does Not Slow California Lawmakers’ Efforts to Regulate Drone Use

On February 15, 2015, the FAA released its proposed regulations on commercial drone use entitled, “Operation and Certification of Small Unmanned Aircraft Systems.” Just days following the release of the proposed rule, two new bills were introduced in the California Legislature related to drone use and the California Senate Judiciary Committee held an oversight hearing related to the benefits and risks of drone use in California.

During the committee hearing, Senate Judiciary Chairwoman Hannah-Beth Jackson (D-Santa Barbara) stated that she was pleased the FAA has issued its much delayed proposed regulation but noted that State lawmakers should not wait for Washington to act. Rather, the emergence of drone technology raises important issues of state law including questions of property law and privacy rights. See Senator Jackson’s entire opening statement.

Four days after the FAA issued its proposed rule, Senator Gaines (R-Roseville) introduced SB 271 which would make it an infraction to operate a drone on or above a school with K-12 students. The bill provides for fines of up to $150 for the first infraction and up to $500 for subsequent infractions.

On February 18, 2015, Senators Galgiani (D-Sacramento) and Anderson (R-San Diego) introduced SB 262 which specifically authorizes law enforcement use of drones so long as the use complies with Constitutional protections against unreasonable searches and California law regarding law enforcement use of surveillance technology.

While it is still unclear what preemptive effect the FAA’s rulemaking will have, it appears that California lawmakers are not waiting to find out and are moving ahead to address  issues raised by the expansion of drone technology.

Share This