The news is full of stories about drones. For even the most seasoned aviation lawyer, the subject of unmanned aerial vehicles (UAV’s) or unmanned aircraft systems (UAS) is something that is completely foreign. Whether because of the bad press or the obvious market waiting to be opened at home, nearly everyone is rushing to get some sort of legal framework in place for when the FAA ultimately allows commercial UAVs to be operated across the National Airspace System.

Simply stated, an unmanned aircraft is a device that is used, or is intended to be used, for flight in the air with no onboard pilot. These devices may be as simple as a remotely controlled model aircraft used for recreational purposes or as complex as surveillance aircraft flying over hostile areas in warfare. They may be controlled either manually or through an autopilot using a data link to connect the pilot to their aircraft. They may perform a variety of public services, including but not limited to: surveillance, collection of air samples to determine levels of pollution or rescue and recovery missions in crisis situations. They range in size from wingspans of six inches to 246 feet; and can weigh from approximately four ounces to over 25,600 pounds. The one thing they have in common is that their numbers and potential uses are growing dramatically.

In the United States alone, approximately 50 companies, universities, and government organizations are developing and producing some 155 unmanned aircraft designs.

The FAA estimates, as many as 30,000 unmanned flying machines could be licensed in the U.S. for nonmilitary purposes in less than 20 years.

Current FAA policy for UAS operations is based on three distinctions: (1) Unmanned Aircraft Systems Operating as Public Aircraft (performing a governmental function); (2) Unmanned Aircraft Systems Operating as Civil Aircraft; and (3) Recreational/Sport Use of Model Airplanes. Basically, no person may operate a UAS in the National Airspace System without specific authority to do so.

For UAS operating as public aircraft the authority is the Certificate of Waiver or Authorization (“COA”); for UAS operating as civil aircraft the authority is special airworthiness certificates and for model aircraft the authority is Advisory Circular 91-57. As of right now, commercial operators can only get a special airworthiness certificate for conducting experimental research and development or training and flight demonstrations.

PUBLIC UAS OPERATION

Under what circumstances can law enforcement agencies utilize UAS in connection with investigations and surveillance? Under the newly introduced bill, but as yet unenacted, Drone Aircraft Privacy and Transparency Act of 2013, applications for certificates, licenses or other grants of authority to operate an unmanned aircraft system in the national airspace system requires a “data collection statement” setting forth who is using the UAS, where it will operate, what information or data will be collected, how the data will be retained and/or dispersed, how and when the data will be destroyed, and provides a clear procedure for individuals to challenge the information.

While Section 341 of the Bill specifies that warrants are required for generalized surveillance, why should surveillance expectations be different for a UAS than they would be for a regular aircraft?

The U.S. Supreme Court held in California v. Ciraolo, 476 U.S. 207 (1986), that police can legally view private property from an aircraft without warrants where police observations took place within public navigable airspace and in a physically nonintrusive manner.

The Court stated that the touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy, which involves the two inquiries of whether the individual manifested a subjective expectation of privacy in the object of the challenged search, and whether society is willing to recognize that expectation as reasonable. Ratz v. United States, 389 U. S. 347.

In pursuing the second inquiry, the test of legitimacy is not whether the individual chooses to conceal assertedly “private activity,” but whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.

This unenacted Bill provides exceptions to the warrant requirement for situations where there is imminent danger of death or serious physical injury, possible terrorist attacks and search and rescue missions. If a government entity claims one of these exceptions then it is required to submit documentation justifying the exception to the Secretary of Transportation not later than 7 days after the date of the relevant UAS flight. So… observe first, justify later?

There is substantial case law already in place that will likely be applied to UAVs as their use becomes more prevalent. In 2012 the Supreme Court issued a unanimous decision in People v. Jones (2012) 132 S. Ct. 945, stating that attaching a GPS device to a suspect’s car constitutes a search under the Fourth Amendment. While not necessarily the same as recording a suspect’s movements with a drone, Justice Samuel A. Alito, in his concurring opinion (joined by three other justices) reflected “In the pre-computer age the greatest protections of privacy were neither constitutional nor statutory, but practical. … Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.”

Drones equipped with night-vision capabilities and directional microphones could stretch the “in plain sight” doctrine to an absurd degree.

What can individuals do to defend themselves against unlawful trespass? Many states are trying to get in the game and create their own regulatory framework. In California, existing law provides that a person is subject to civil and criminal liability for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaged in confidential communications or activity involving a reasonable expectation of privacy, through the use of a visual or auditory enhancing device.

On August 27, 2013 the California Senate passed SB15. It provides that engaging in these prohibited activities through the use of an unmanned aircraft system is included within the prohibitions. The Bill additionally requires that local agencies provide reasonable public notice regarding the acquisition of an unmanned aircraft system and requires that these agencies paint or label the UAS in a way that provides high visibility. The Bill further requires a warrant for data collection and the destruction of said data after one year. (The Bill also makes it a crime to equip a UAS with a weapon).

PRIVATE UAS OPERATIONS

Nonpublic entity operations require a special airworthiness certificate in the experimental category to operate their air vehicles, a status that prohibits them from being used commercially. Restricted category certification under the Federal Aviation Regulations is for “special purpose operations” and allows for commercial uses such as aerial surveying.

On July 19, 2013 the FAA issued restricted category type certificates to two UAS that both weigh under 55 pounds and are roughly 4.5 feet long with wingspans roughly 10 feet. The FAA stated that previous military acceptance of the Insitu’s Scan Eagle X200 (energy companies using to patrol Alaskan coast to inspect ice floes and migrating whales in petroleum exploration areas) and the AeroVironment’s Puma (support oil spill emergency response-crews and watch over wildlife in the Beaufort Sea) supported their certification process

RECREATIONAL (MODEL AIRCRAFT)

Model aircraft operations below 400 feet (AGL), away from populated areas are essentially unregulated.  FAA Advisory Circular 91-57, dated June 9, 1981, operations states, “This AC outlines, and encourages voluntary compliance, safety standards for model aircraft operators.”

By comparison, the FAA chose not to promulgate Federal regulations regarding pilot certification, vehicle certification, and vehicle registration of ultralight vehicles, preferring that the ultralight community assume the initiative for the development of these important safety programs.

From the FAA Website: “Do I need to get approval from the FAA to fly a model aircraft for recreation? No.” FAA guidance does not address size of the model aircraft. FAA guidance says that model aircraft flights should be kept below 400 feet above ground level (AGL), should be flown a sufficient distance from populated areas and full scale aircraft, and are not for business purposes.

The Federal Government has gone to extensive lengths to ensure that the FAA not regulate model aircraft. Both the FAA Modernization and Reform Act of 2012 and the pending Drone Aircraft Privacy and Transparency Act of 2013 provide that the FAA is not to promulgate any rule or regulation regarding model aircraft.

PROHIBITED OPERATIONS

As of now, there are basically two things that can get you in trouble, commercial operation of UAS without first obtaining Special Airworthiness Certificates (READ: real estate agents, aerial photographers and videographers, movie producers and directors and the fabled “Tacocopter”) and/or careless or reckless operation.

A good example of the FAA’s current stance is the pending case Administrator v. Pirker, FAA Case No. 2012EA210009.

The FAA has alleged careless or reckless operation of a radio-controlled model aircraft constructed of Styrofoam that weighs less than 5 pounds for basically just flying around a college campus.

Mr. Pirker’s defense counsel filed a Motion to Dismiss, arguing that there is no existing FAR governing the operation of model aircraft, that the FAA faces pressure due to the public’s concern about “drones” and the FAA’s delay in proposing new regulations, and that the FAA’s policy statements concerning the operation of unmanned aircraft systems are not binding or enforceable. Defense counsel alleges that the FAA’s 2007 Notice is an invalid legislative rule because it is intended to bind the public in the absence of notice and comment rulemaking.

For now, we will have to wait to see where this goes.

About the author

John Van Geffen

John T. Van Geffen graduated from Santa Clara School of Law and was admitted to the California Bar in December of 2006. His practice focuses mainly on three areas of law: business transactions and commercial law; civil litigation; and regulatory compliance with a focus on transportation.

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