How to bring drones back down to earth

Bizarre, NakedLaw, News, Rights

Officially known as “Unmanned Aircraft Systems,” or UAS, drones have become a trending topic over the last few years. With the use of drones by the military, ongoing media attention, and Amazon’s commitment to bringing drone-based delivery service by 2020, questions regarding appropriate drone use have been growing in importance for law enforcement and civilians alike.

Over the past several years, many states have dealt with the complex intersection of personal privacy, property, and airspace rights presented by popular drone use. 17 states have passed drone-based legislation, and nearly every other state has contemplated it at some point in the past 24 months. The potential problems associated with unregulated drone use, including drone-plane run-ins, armed drones, and even drone vs. eagle (the eagle won), continue to grow, prompting many to question whether current UAS regulations are enough to both keep citizens safe, and allow for the many benefits of unmanned aircraft.

Legal implications

A number of legal principles are at play in the drone discussion, most notably a citizen’s right to privacy upon his or her own property. Recently in Kentucky, a neighbor opted to shoot a wandering drone out of the sky for fear it was coming unnecessarily close to his home – causing nearly $2,000 in damage and incurring several misdemeanor criminal penalties. His argument? A drone hovering above his land – presumably able to peer into his home – constitutes an unacceptable invasion of privacy.

He may be right. Civil nuisance laws prohibit property owners from engaging in any activity that interferes with the enjoyment of property owned by their neighbors. Nuisance actions provide a sturdy legal argument, as they are recognized in all 50 states and have been part of civil common law in one form or another for centuries. The concept has been applied to noxious fumes, odors, dust, and excessive noise. Accordingly, many who have taken this route when faced with a neighbor’s unmanned aircraft have successfully secured an injunction requiring the drone-owner to keep his or her aircraft out of the neighbor’s yard. Other successful civil claims include “intrusion on seclusion,” trespass, violation of wiretap regulations, invasion of privacy and (in California, of course) violation of anti-paparazzi laws.

Federal regulations

The Federal Aviation Administration has announced its intention to take an “incremental approach” to safe UAS integration. In a presidential memorandum, the FAA highlighted the importance of balancing “economic competitiveness” while simultaneously protecting privacy, civil rights, and civil liberties in the use of UAS.

So, what has the FAA come up with so far? Aside from putting in temporary time out, it has mandated that all UAS under 55 pounds must fly a “sufficient distance” from populated areas, including stadiums and airshows. Moreover, a drone enthusiast looking to use a UAS for business purposes must secure permission from the FAA one of three ways:

  • Special airworthiness certificate: For civil aircraft to perform research and development, crew training, and market surveys. However, businesses cannot carry persons or products for compensation or hire.
  • Restricted airworthiness certificate: Use for a highly-specific purpose, including agriculture, mining, wildlife conservation, aerial surveying, patrol pipelines, cloud seeding, or aerial advertising.
  • Certificate of waiver or authorization: Permits issued on a case-by-case basis that do not otherwise fit into one of the above categories.

Aside from specific use permits, the law in this area has vast room for growth, particularly considering the fact that the federal government maintains exclusive sovereign control over the airspace of the United States.

Potential problems with drone usage

The business and recreational benefits of UAS use are generally undisputed, but innovators are beginning to devise ways to launch fully-armed unmanned aircraft within residential areas, creating a major risk to citizens and law enforcement alike. In one recent incident, for example, an 18-year old was questioned about his creation of a handgun-carrying drone for a college class. The device was flown into the woods, never fired, and no complaints were lodged. However, the YouTube video documenting the drone’s flight garnered significant attention, and officials are investigating whether the activity is legal.

Secondly, as previously mentioned, indigenous animal life has taken none too kindly to the monitoring of their private lives by hovering drones – a nuisance that prompted one kangaroo to punch a drone right out of the sky. The guy in Kentucky can probably relate.

With any emerging technology comes the realization that it will not always be put to safe, benign, innocent use. As such, expect increasing regulation in this area, particularly as private sector businesses expand their use of UAS for commercial purposes.

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