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Article: November 2018: Drones: Emerging Legal and Regulatory Challenges in the Sky

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Drones Have Become Increasingly Popular for Both Recreational and Commercial Uses

Over the last several years, the growth in the use and sales of small unmanned aerial vehicles (“UAVs”)— more commonly referred to as drones—has been extraordinary. Improved technology, lowered costs, and wide availability have led to a boom in recreational sales as well as the possibility of myriad commercial and industrial applications. In the U.S. alone, approximately 2.4 million hobbyist drones were sold in 2016, more than double the estimated 1.1 million sold in 2015. The drone fleet in the U.S. today numbers many millions and forecasters expect the global drone market to reach over $11 billion by 2020. The expected boom is not limited to hobbyists and recreational users; sales for commercial drones— excluding government uses—are predicted to reach over 800,000 by 2021, compared to just over 100,000 sold in 2016. Drones are relatively affordable, easy to transport, and generally safe to pilot, factors which combine to give them mass-market appeal.

There are, however, risks to having thousands of small aircraft piloted by relatively untrained individuals flying through U.S. airspace day and night. Indeed, there have been reported incidents of property damage and interference with air traffic, including an in-air collision. According to a December 2015 report by the Office of the Chief Counsel of the Federal Aviation Administration (“FAA”), “[i]ncidents involving unauthorized and unsafe use of small, remote-controlled aircraft have risen dramatically.” FAA Office of the Chief Counsel (Dec. 17, 2015), “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet” (“FAA UAS Fact Sheet”). In September 2017, an unmanned drone crashed into an Army Black Hawk helicopter flying over New York waters. See Fraser, Ian. “The Trippy, High-Speed World of Drone Racing.” The New Yorker, Feb. 5, 2018. The next month, a drone collided with the wing of a passenger plane landing in Canada, which is the first known collision between a commercial flight and a drone in North America. Id. In both these incidents, the manned aircraft landed safely and there were no reported injuries. Surprisingly, the drone pilots were not identified, arrested, or charged with any offences. Incidents like these highlight the subsequent legal challenges and the need for a regulatory scheme that recognizes not only the potential benefits drones have for numerous applications, but more importantly ensuring the safety (and privacy) of all individuals both in the air and on the ground.

Regulating Airspace Has Traditionally Been the Domain of the Federal Government, but Drones Pose Challenges to That Existing Regulatory Scheme

The recent rapid growth of drone use for both recreational and commercial purposes has left U.S. legislators and regulators playing catch up. The U.S. aviation regulatory system was largely intended to regulate traditional manned aircraft rather than unmanned low-flying drones. Because of this, existing regulations cannot be neatly applied to drone flights and pilots, which has caused issues for those who seek to embrace the full potential of drones.

Recreational and commercial drone operators in the U.S. are faced with a patchwork of federal and local regulations with which they need to comply, and these regulations are rapidly changing to coherently exist in the innovative environment. Traditionally, the federal government has had exclusive sovereignty over U.S. airspace pursuant to the Air Commerce Act of 1926. 49 U.S.C. § 40103. “Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a plane taxies onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government.” Northwest Airlines v. State of Minnesota, 322 U.S. 292, 303 (1944) (Jackson, RJ., concurring). The Supreme Court has referred to U.S. airspace as a “public highway.” U.S. v. Causby, 328 U.S. 256, 261 (1946), and even though traditional common law ownership of terrestrial land once extended vertically “to the periphery of the universe,” the Supreme Court has rejected that notion. The Court has found that the traditional common law principle “has no place in the modern world” that includes air travel and other interstate commercial uses of airspace as part of day-to-day life. Id. at 261. Further, “Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.” Id.

The basic framework for U.S. airspace regulation was established in the first half of the 20th century, long before lawmakers or judges could have contemplated an influx of low-flying, quiet, unmanned aircraft crisscrossing the nation. The Supreme Court in Causby, (when considering the extent to which persons owned the airspace above their properties), based its decision largely on the disturbing impact that aircraft noise and light had on the operation of a chicken farm situated near an airport. Causby, 328 U.S. at 259. The Court recognized that “if [a] landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise, buildings could not be erected, trees could not be planted, and even fences could not be run.” Id. at 264. Accordingly, in considering the case of Mr. Causby’s farm, the Supreme Court held that “airspace, apart from the immediate reaches above the land, is part of the public domain” but that a landowner controlled, up to a certain limit, his or her immediate airspace. Id. at 266. As a consequence of this decision, the federal government historically treated much of the country’s airspace as an instrumentality of interstate commerce, with a band of low-level airspace—below 1,200 feet—partially exempt from federal law under certain circumstances. See Takahashi, Timothy T. The Rise of the Drones - the Need for Comprehensive Federal Regulation of Robot Aircraft (2015) 8 Alb. Gov’t L. Rev. 63. All aircraft operations in that federally-regulated airspace required a certified and registered aircraft, a licensed pilot, and operational approval. See Lightfoot, Thaddeus R. Bring on the Drones: Legal and Regulatory Issues in Using Unmanned Aircraft Systems, Nat. Resources & Env’t, Spring 2018, at 41. These requirements—until recently—applied equally to manned and unmanned aircraft (i.e., drones) regardless of the size or altitude of the drone.

Drones, of course operate very differently from traditional aircraft; they fly in relative silence, they are small, and can be nearly invisible from the ground to those not otherwise aware of their presence. In other words, a drone would likely not disturb Mr. Causby’s chicken farm in the same way as a commercial plane would. In February 2012, President Obama signed the FAA Modernization and Reform Act (FAA Act), which was passed to incorporate this new class of aircraft (the drone) to existing law. This Act provided some clarity for drone pilots as it treated them differently to pilots of other aircraft. For recreational drone pilots, Section 336 of the FAA Act provided that “the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” as long as “the aircraft is flown strictly for hobby or recreational use.” FAA Modernization and Reform Act of 2012, PL 112-95, February 14, 2012, 126 Stat 11. On the other hand, commercial drone pilots, were subject to complex authorization requirements under the FAA Act, with the FAA taking a broad view as to what constituted “commercial flying.” See Lightfoot, Thaddeus R. Bring on the Drones: Legal and Regulatory Isues in Using Unmanned Aircraft Systems, Nat. Resources & Env’t, Spring 2018. It is known that some drone operators simply chose to ignore these new requirements, presumably under the assumption that the FAA would not use their authority under the FAA Act to impose sanctions. This strategy was certainly successful for many pilots, however others ran afoul of the FAA Act, such as an aerial photography firm that allegedly flew over 60 flights without the proper authorization and was subject to a potential $1.9 million fine (though the case ultimately settled for approximately $200,000). Id.

In August 2016, the FAA promulgated additional regulations relating to the commercial use of small drones. See 17 C.F.R. 107 (“Small Unmanned Aircraft Systems”). These regulations apply to “unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.” 17 C.F.R. 107. Section 107 of the regulations provide a framework for commercial use of drones that is less complex than what had previously been set forth under the 2012 FAA Act. Under Section 107, a new type of “pilot” is established known as a “remote pilot in command” authorized to operate drones for commercial purposes, who must pass certain FAA-mandated certification requirements. A certified remote pilot in command may pilot a drone for commercial purposes according to certain requirements as specified in section 107, such as time of day, line of sight, and atmospheric conditions. Importantly, Section 107 also provides the FAA with authority to waive some of these restrictions upon application to the FAA. After obtaining such a waiver, a remote pilot in command may then be authorized to, for example, fly a drone at night or beyond his visual sightline. To date, the FAA has granted almost 2,000 of these “Section 107” waivers. See Federal Aviation Administration, “Part 107 Waivers Granted,” retrieved from https://bit.ly/2p4iFxy.

Notably, the 2016 FAA regulations required universal registration of drones, for both commercial and recreational users. The FAA explicitly stated its view that the federal government had exclusive authority over the registration and regulation of unmanned drones: “No state or local UAS registration law may relieve a UAS owner or operator from complying with the Federal UAS registration requirements. Because Federal registration is the exclusive means for registering UAS for purposes of operating an aircraft 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.” See FAA UAS Fact Sheet. A federal court later struck down the registration requirement, see Taylor v. Huerta, 856 F.3d 1089, 1092 (D.C. Cir. 2017), but it was reinstated by the 2018 National Defense Authorization Act. See National Defense Authorization Act, 2018, PL 115-91, December 12, 2017, 131 Stat. 1283. As the law currently stands, all drones must be registered with the FAA.

Federal law regarding drones continues to be in flux, and some legislators appear to be focused on drones’ potential dangers rather than their benefits. In June of this year, the “Preventing Emerging Threats Act” was introduced in the Senate in order to “assist the Department of Homeland Security in preventing emerging threats from unmanned aircraft and vehicles.” Preventing Emerging Threats Act of 2018, S.2836, retrieved from https://bit.ly/2p3ks64. This proposed legislation, if passed, would vest the Department of Homeland Security (“DHS”) and Department of Justice (“DOJ”) with authority to monitor drones using a variety of methods and to “[d]etect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire communication, an oral communication, or an electronic communication used to control the unmanned aircraft system or unmanned aircraft.” Id. The DHS and DOJ would also be authorized to seize, confiscate, or otherwise take control of any unmanned aircraft. Id. According to the DHS’s Deputy General Counsel, this proposed legislation was based on perceived security threats from drones: “Generally, examples of UAS-related threats include recklessly flying UAS near critical infrastructure, intentionally conducting surveillance and counter surveillance of law enforcement, smuggling contraband, or facilitating kinetic attacks on stationary or mobile, and high consequence targets . . . . We have already seen transnational criminal actors adopt UAS technology to move drugs across the border. Terrorist groups overseas use drones to conduct attacks on the battlefield and continue to plot to use them in terrorist attacks elsewhere. This is a very serious, looming threat that we are currently unprepared to confront.” See United States. Cong. Senate Committee on Homeland Security and Government Affairs, Hearing on S. 2836, the Preventing Emerging Threats Act of 2018: Countering Malicious Drones, June 6, 2018 (statement of David Glawe, Under Secretary of Intelligence and Analysis, U.S. Dept. of Homeland Security, and Hayley Chang, Deputy General Counsel, U.S. Department of Homeland Security).

In contrast others in the Federal Government consider that drone regulation is better left to state and local governments. This viewpoint is reflected by the 2017 “Drone Federalism Act” introduced by Senators Feinstein, Lee, Cotton and Blumenthal to “preserve state, local, and tribal authorities and private property rights with respect to unmanned aircraft systems.” Drone Federalism Act of 2017, S. 1272, retrieved from https://bit.ly/2x6N1Uq. This proposed legislation would authorize local governments to regulate drone activity within 200 feet above a property, with the FAA still retaining authority over altitudes greater than 200 feet. Id. Even under the existing laws, the FAA’s Office of the Chief Counsel has advised that local government regulations of drone activity may avoid federal preemption to the extent such laws cover areas “traditionally related to state and local police power . . . including land use, zoning, privacy, trespass, and law enforcement operations.” FAA UAS Fact Sheet. For example, local laws prohibiting attaching firearms or other weapons to drones are likely to fall outside the scope of federal preemption. Id. With multiple pieces of federal legislation currently being considered—not all of which are consistent with each other—drone operators are unlikely to have clarity (in the short term) about the precise federal regulations they are supposed to follow.

State and Local Governments Have Also Waded into Drone Regulation, Creating a Patchwork of Laws Across the Country

While federal government regulation of drones to date has focused on safety concerns relating to drones entering federal airspace, state and local governments have now also stepped into the fray, particularly in regards to the threat drones may pose to individual privacy. Most drones are mounted with cameras with the ability to record high-definition video of individuals who may be on their own private property or may be completely unaware they are being recorded. Anyone who purchases an off-the-shelf drone could easily hover it over a neighbor’s backyard or peer into the window of a skyscraper. Largely in response to such privacy concerns, at least 41 states have enacted laws addressing the flight and operation of unmanned drones and to protect individuals from any breaches of privacy. See National Conference of State Legislators, “Current Unmanned Aircraft State Law Landscape” (Feb. 1, 2018), retrieved from https://bit.ly/2xfzjhg.

Some major cities—such as Los Angeles and Chicago— have implemented their own laws. See Widener, Michael N., Local Regulating of Drone Activity in Lower Airspace (2016) 22 B.U. J. Sci. & Tech. L. 239. The majority of these laws provide for civil penalties for recording people via drone without their knowledge or consent. See Farber, Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones 33 Ga. St. U. L. Rev. 359, 409 (2017).

Florida, for example has passed a law creating a cause of action against anyone who, without prior consent, uses a drone to capture images of persons on private property, if a reasonable expectation of privacy exists. Id. Under this law, “a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.” See Fla. Stat. Ann. § 934.50. California law bars the “invasion of privacy” that occurs when a “person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” See Cal. Civ. Code § 1708.8. A Nevada law that took effect in October 2015 states that “a person who owns or lawfully occupies real property in this State may bring an action for trespass against the owner or operator of an unmanned aerial vehicle that is flown at a height of less than 250 feet over the property” under certain particularized circumstances. Nev. Rev. Stat. Ann. § 493.103.

These new state and local laws are necessary because traditional tort law is not especially well-suited to drones or their potential for invasions of privacy. Every U.S. jurisdiction recognizes the tort of trespass, which arises where a person “intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.” See Restatement (Second) of Torts § 158 (1965); Farber, Hillary B., Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts As Applied to Drones (2017) 33 Ga. St. U. L. Rev. 359, 409. Yet when aircraft are involved—and drones in particular—the issue of trespass becomes less clear, as drones are not touching another’s property and are often well above a property’s immediate airspace. The tort of nuisance includes any conduct—not just trespass— that interferes with a person’s use and enjoyment of their property. Nuisance claims often arise where a defendant has done something that directly impacts neighboring properties, such as creating smells, sounds, or vibrations. conversely drones can fly over and potentially record people on their property without those residents even knowing a drone is nearby. A nuisance claim may not be well suited to the presence of a nearby drone. Id.

What Drone Operators Can Expect Moving Forward

The precise contours of drone regulation are still a work in progress, with the federal government moving slowly and state and local governments filling in the gaps. This regulatory uncertainty will likely continue for at least several more years, as decades of airspace regulation is modified to address this new technology. Ultimately, it seems likely that federal regulation will trump local drone regulations (absent passage of the aforementioned Drone Federalism Act). Federal courts have already begun to invalidate state laws that encroach on U.S. government regulations. In 2016, the city of Newton, MA passed an ordinance requiring, among other things, that all drone owners register their drone with the city. See Singer v. City of Newton, 284 F. Supp. 3d 125, 127 (D. Mass. 2017). The ordinance was challenged by a resident of Newton who was also an FAA-certified unmanned aircraft pilot who owned and operated multiple drones in Newton. Id. The resident argued that Newton’s ordinance was preempted by federal law because it attempted to regulate an area of aviation that was an almost exclusively federal law. Id. at 128. The District Court agreed, holding that “[t]he Ordinance limits the methods of piloting a drone beyond that which the FAA has already designated . . . Intervening in the FAA’s careful regulation of aircraft safety cannot stand.” Id. at 133. For drone operators, the pace of progress by federal regulators may be frustratingly slow, but the benefit of having a cohesive regulatory scheme going forward likely outweighs the risk of having various states and localities take the lead, resulting in variable and inconsistent rules that would be burdensome for any interstate commercial operation to comply with.