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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Update on California Drone Bills

A large number of drone-related measures are presently working their way through the California legislature. In light of the FAA’s recently published final rule on drone use and operation, many of these measures may be subject to further amendment—up until a deadline of August 19, 2016. But the following is brief summary of the status of all California drone-related bills as of June 22, 2016:

AB 1662 would require a drone operator to follow the same requirements as a vehicle operator following an accident that results in the injury to another. AB 1662 would require that after an accident involving a drone, a drone operator would have to immediately land the drone and provide certain identifying information to the injured individual or the owner of damaged property. This bill passed the Assembly and was referred to committee in the Senate.

AB 1680 would make it a misdemeanor for a person to use a drone to interfere with the duties of law enforcement or other “first responders.” AB 1680 simply adds 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. This bill passed the Assembly and was referred to committee in the Senate.

AB 1724 would require anyone operating a drone to place identifying information or digitally store the information on the drone and would impose a fine of up to $2,500 for failure to so identify the drone. This bill is in committee. Its first hearing was cancelled at the author’s request.

AB 1820 imposes restrictions on a law enforcement agency’s use of drones. Before any use, the law enforcement agency would need to develop and make available to the public a policy on the use of drones, and train its staff on such a policy.   Even with such a policy in place, AB 1820 would require that a law enforcement agency could only use a drone if it obtains a search warrant, absent exigent circumstances. Finally, AB 1820 would require that all images or data obtained by use of a drone be destroyed within one year, with certain exceptions. This bill passed the Assembly and was referred to committee in the Senate.

AB 2148 would require the Department of Fish and Wildlife and the Department of Parks and Recreation to develop regulations for the use of drones over the lands managed by each department in order to protect wildlife and sensitive species. This bill passed the Assembly and is currently in committee in the Senate.

AB 2320 was a twin to SB 808 before it was amended. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). AB 2320 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. The bill also permits a judge to prohibit a person required to register as a sex offender from operating a drone if the judge finds it is in the public interest to do so. Lastly, this bill contains non-binding language of legislative intent to prohibit a person from flying a drone within 250 feet of any critical infrastructure in order to gather information or photographs of the facility. This bill passed the Assembly and is in committee in the Senate.

AB 2724 would amend the Civil Code to include the requirement that drones sold in California include a copy of FAA safety regulations, as well as a notice of the requirement to register the drone with the FAA. AB 2724 would also require that any drone with gps capability also be equipped with geofencing software that would prohibit the drone from flying within 5 miles of an airport. Finally, AB 2724 would require owners of drones to buy liability insurance. This bill passed the Assembly and was referred to committee in the Senate.

SB 807 would limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services.   The bill broadly applies to public and private entities, and to persons regardless of whether they are paid or volunteer.   This bill passed the Senate and the Assembly Committee on Privacy and Consumer Protection. The bill is currently in the Assembly Judiciary Committee.

SB 808 was a twin to the original draft of AB 2320. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). SB 808 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. This bill was referred to committee in the Senate.

SB 809 would prohibit the operation of a drone in the airspace over a public school (K-12) without the written permission of the school principal. This bill was referred to committee in the Senate.

SB 810 would make it a misdemeanor, punishable by up to 6 months in jail and/or $5,000, to operate a drone in a manner that interferes with efforts of firefights to control, contain, or extinguish a fire. This bill was referred to committee in the Senate.

SB 811 would make it a misdemeanor to operate a drone on or above the grounds of a state prison or a jail without prior permission from the Department of Corrections and Rehabilitation or the county sheriff. This bill was referred to committee in the Senate.

SB 868 would prohibit the operation of a drone within 500 feet of “critical infrastructure” designated by the Office of Emergency Services. It would also prohibit operation of a drone within the airspace above most state offices in Sacramento, above a state park, or above any airspace over land or water managed by the Department of Fish and Wildlife, with limited exceptions. This bill passed the Senate and was referred to committee in the Assembly.

SB 1246 would require pest control businesses and government agencies conducting pest control activities, to notify the public at least 7 days before administering pesticides by drone over a residential area. This bill is in committee in the Senate.

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FAA Finalizes Commercial Drone Rule

The Federal Aviation Administration on Tuesday finalized its long-awaited rule on commercial drones. The final rule limits operation to daylight hours below 400 feet and within the line of sight of the operator, and requires operator certification every two years. The rule places a limit on the weight of the drone plus any payload of 55 pounds. There are a host of additional restrictions, many of them waivable by the FAA under specific circumstances. The new rule will be effective this August (2016).

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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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California Legislative Update

It appears that members of the California Legislature are undeterred by the Governor’s decision to veto all drone related bills but one at the end of last year. In the first few weeks of January, members of the Legislature have introduced, reintroduced, and amended a number of drone related bills. Interestingly, in what appears to be an effort to address federal preemption concerns, most of the bills include a provision specifying that the bill does not apply to drone use authorized by the FAA or does not conflict with federal law. Below is a summary of the bills that have recently been introduced.

AB 1680, expands the prohibition against a person going to or stopping at the scene of an emergency to watch emergency personnel if it impedes the work of emergency personnel to include people using or operating drones.

SB 811, appears to be an attempt to address the recent use of drones to drop contraband into prisons by prohibiting the knowing or intentional use of a drone on or over the grounds of a state prison or jail. This prohibition would not apply to prison or jail personnel acting in the scope of their employment or to any entity authorized by the FAA.

AB 1662, requires 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.

AB 14 was introduced last year but was recently amended to require owners and operators of drones that do not fall under the definition of “model aircraft” to either 1) mark the drone with the owner’s name, address, and telephone number, 2) store the same information on the drone in a digital format, or 3) mark the drone with the address of an website where the same information is listed. The markings may not modify or confuse any marks required by the FAA.

SB 809 is the reintroduction of SB 271 to prohibit the use of drones over school grounds.

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Local Drone Regulations and Possible Federal Preemption

As we have written before, State and local agencies are not waiting for the federal government to address issues of local concern regarding consumer and recreational drone use. For instance, the Golden Gate Bridge, Highway and Transportation District today posted a notice prohibiting operation of drones near the Golden Gate Bridge.

GGB Drone Notice

Such local action raises legal issues concerning preemption by the federal government—specifically the Federal Aviation Administration (FAA). On December 17, 2015, the FAA’s Office of the Chief Counsel released a Fact Sheet addressing issues of Federal preemption of state and local drone regulations.  According to the fact sheet, the FAA is broadly empowered by Congress to regulate “matters pertaining to aviation safety.” More specific to drone use, the FAA Modernization and Reform Act of 2012 directs the FAA to establish  requirements for safe operations of drones posing little or no public risk or threat to the national airspace system.  The FAA has required the registration of drones which it claims is consistent with its authority under the law.  Because the FAA’s registration is required for operating a drone in navigable airspace, “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”

A recent New York Times article suggests that the FAA’s preemption arguments may not deter state legislators, including Senator Gaines (R-El Dorado), from continuing efforts to regulate drones at the state level.

Notwithstanding the FAA’s position, we think that the preemptive effect of federal drone regulation will be limited, especially to the extent that local regulations are directed at issues not within the FAA’s purview, such as privacy, security (including law enforcement), and land use (including trespass and zoning). In any event, it is growing increasingly clear that states and local governments are disinclined to wait for the FAA to regulate drone use.

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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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Is Your Drone Naughty or Nice? The FAA Begins Drone Registry Requirement on December 21

The FAA today announced the launch of its consumer drone registry program. Here is a FAQ the FAA has posted about the program. The program requires registration of all drones greater than .5 pounds, whether flown for commercial or recreational purposes. All new drone owners must register beginning on December 21, 2015—people who already own a drone have until February 20, 2016 to register. A $5 registration fee is waived for those who register before January 20, 2016. A preliminary review of the program indicates it to be quite expansive. Upon registration, all drone owners must attach a unique registration number to the drone and carry a registration certificate—in either hard or electronic form—when operating a drone.

The new registration requirements raise a number of legal questions. These range from the general, including whether the FAA even has the authority to require such mandatory registration at all, or if it may do so without a more formal public comment process, to the specific, including whether and how non-citizens will register—under the present guidelines, neither are subject to the registration requirement as the FAA only claims authority to register drones belonging to US citizens and permanent residents.

Failing to register as required can result in civil penalties of up to $27,500. However, Michael Whitaker, deputy FAA administrator has stated that “the goal is not to be punitive, but to get people into compliance with the regulations.”

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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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The FAA Rushes Recommendations Ahead of Christmas Shopping Season

On November 21, an FAA task force made up of representatives of manufacturers, pilots, government officials, and other technologists released its recommendations for how to monitor recreational use of drones—as distinguished from commercial users. The FAA had given the task force only four weeks to prepare its recommendations, hoping to act on them in time to apply to what is anticipated to be a huge Christmas drone-shopping season.

The recommendations include a registration process for all recreational users, with the resulting creation of a national database of drones. Such a database could be key in efforts to link a drone to its operator. Enforcing drone restrictions now is very difficult as it can be impossible to find the operator when an anonymous drone is mis-used. The registration requirements would be augmented by a requirement that each drone display its registration number. In a controversial move objected to by some toy manufacturers, the task force recommended that the registration rule apply to any drone weighing over 250 grams (a little more than half a pound). This would include most drones used by hobbyists. The task force did not recommend measures suggested by privacy advocates that all drones broadcast registration information by way of a transponder

Next steps are for the FAA to consider and adopt/modify/reject the recommendations. A key decision for the FAA will be how to enforce the registration requirement. The task force recommended a “reasonable and proportionate penalty schedule” less than the $25,000 maximum that presently applies to aircraft registration violations. In order for the registration requirement to have any teeth, a sizable penalty will be necessary to achieve any kind of deterrent effect.

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FAA Names Members of UAS Registration Task Force and Seeks Public Input on Proposed UAS Registration Framework

The FAA announced the members of its UAS Registration Task Force. The 26 member task force will be chaired by the Director of the FAA’s UAS Integration Office, Earl Lawrence and GoogleX’s, Dave Vos. Members include representatives from industry, law enforcement organizations, consumer groups, aviation officials’ organizations, and pilots’ associations.

The FAA recently announced the formation of the task force to develop recommendations for expanding the registration of drones as part of an effort to ensure that small drones are used safely. In a document titled “Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS,” the FAA noted that pilots have reported twice as many drone sightings in this year as compared to 2014. Pilots report drones as high as 10,000 feet and as close as half a mile from runways. The FAA also observed that drone use near wildfires has interfered with the work of emergency responders.

The FAA anticipates 1 million new drones will be purchased this holiday season and it is concerned that instances of illegal and unsafe drone use will become more and more frequent. While the FAA has exercised discretion related to the registration of drones in the past, it is considering changing course by requiring greater compliance from drone operators with federal law prohibiting the operation of unregistered aircraft.

The taskforce is charged with forming recommendations related to drone registration. The taskforce will also consider whether the FAA should continue to exclude certain drones from registration based on weight and performance limitations.

In keeping with the creation of the rapid-response task force to develop a process for registration of UAS, the FAA asked for public input regarding relevant rulemaking.  The FAA would like all input by November 6, 2015.  Interested persons may comment online or via traditional methods.

In its request, the FAA identified 10 questions for which it seeks public comment:

  1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?
  2. At what point should registration occur (e.g. point-of-sale or prior-to-operation)? How should transfers of ownership be addressed in registration?
  3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?
  4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.
  5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?
  6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?
  7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?
  8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?
  9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (e.g. PayPal)?
  10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?

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Steve Miller on KPCC to Discuss New Federal Drone Regulations

Join our own Steve Miller as he discusses proposed requirements for hobbyists to register their drones.

“You’re going to need to register that drone: Federal government announces new regulations”

(Listen online, starting 11:15 AM Pacific. Or listen to the recording.)

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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.

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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.)

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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.

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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.

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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.

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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.

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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.

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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.

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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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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.

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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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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.

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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.

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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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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.

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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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