I just completed a course in the law of drones. Just a couple of years ago, whod’ve thunk? Now, all of a sudden, drones are everywhere. And the law is scrambling to catch up.
The course included a review of applicable federal regulations, Federal Aviation Administration (FAA) enforcement actions, state laws and regulations, UAS applications and operations, UAS and Fourth Amendment considerations, privacy issues, property rights (who owns the airspace?), and advising clients about UASs.
“U” might have noticed my repeated use of “UAS” and that’s our starting point. Although most of us simply call them drones, the proper name for these buzzing new additions to our lives is Unmanned Aircraft Systems, or UAS. It is important to consider that, at law, an UAS is, in fact, an aircraft and as such, is subject to many of the same rules and regulations to which manned aircraft are subject.
Pursuant to the FAA Modernization and Reform Act of 2012, there are three basic distinctions which apply to UASs. There are hobbyists who use the UASs strictly for recreational purposes, commercial operators, and government entities. Each is treated differently. In a few weeks, a new “small UAS rule” will go into effect which, among other things, will change the licensing requirements for commercial operators. As of this writing, in order to commercially operate a drone, the operator must possess at least one category of a pilot’s license. Soon, however, that will change and, rather than a pilot’s license, a new category of “operator’s license” will be created. By the way, a “small” UAS is defined as one weighing less than 55 pounds and a “micro” UAS is one which weights 8.8 ounces or less. Generally, drones can stay aloft for 20 minutes more or less before they must land and have a new battery inserted.
Some rules that apply—or will soon apply—to commercial operators include: flights must occur only during the daytime, must remain below 500 feet, must maintain “line of sight” of the drone at all times, must employ a visual observer in addition to the operator, must not travel faster than 100 miles per hour, must not fly within 5 miles of an airport, and must not fly within 500 feet of non-participating persons. There are specific federal restrictions for flying new critical infrastructure such as the White House, power plants, or stadiums.
As noted above, different rules apply to hobbyists and while, for example, there is no specific rule prohibiting a hobbyist from flying within 5 miles of an airport, if a hobbyist employs the UAS in a careless or reckless manner, he can (and likely will) be prosecuted. Flying near an airport could conceivably be construed to be reckless or careless behavior, particularly if the airport has objected or tried to warn the operator away. In order to ensure care in flying, the FAA has developed an “app”—B4UFly—which will inform the hobbyist what is in the vicinity in which he intends to fly—and what to take care to steer clear of—before one flies. The app employs the smart phone’s GPS so the information is specific to your sight.
As of December of last year, all drones must be registered with the feds, even those of hobbyists. Failure to register can result in significant penalties.
My last column was on pre-emption and it should be noted in this context that FAA rules regarding the NAS (National Air Space) generally pre-empt state and local rules. That said, however, states and municipalities may regulate UASs where their use may affect “traditionally” local concerns such as zoning, public welfare, health, safety, and advertising. As noted in the last column, federal law will pre-empt only where there is a direct conflict between a federal rule and a state or local rule.
As of this writing, there are no Colorado state laws specifically addressing drones.
Even though no state laws specifically address drones in Colorado, that is not to say that existing laws would not or could not be applied to drones. For example, in using a drone, it is possible to trespass and possible to create an actionable nuisance.
Both civil and criminal actions may arise from the improper use of a drone. Drones may cause property damage or invade one’s privacy. If a drone camera captures and uses someone’s image, it may raise issues of appropriating someone’s name or likeness for commercial purposes. Criminal issues may include: reckless endangerment, assault, privacy violations, noise disturbances, trespass, eavesdropping violations, and violations to state aviation and/or vehicle laws.
What about use by law enforcement and the 4th Amendment right against unreasonable searches and seizures? May a police drone surveill you without a warrant? What if a drone happens to peek in your backyard and stumble up an illegal activity? Would the evidence be admissible at trial? These are all things that the various states are scrambling to figure out. While there are few, if any, cases yet directly on point, there are analogies aplenty that the states are trying to fit into the specific circumstances surrounding drones. What the law suggests is that there is no reasonable expectation of privacy when a law enforcement drone observes that the general public could observe whether by use of a drone or by other means.
A few states have enacted drone-specific laws such as those prohibiting the use of drones for fishing or hunting or to interfere with hunting by employing a drone.
What about a drone buzzing above your backyard? Can you shoot ‘er down? Ah… no. Under federal law, it is illegal to shoot down an aircraft and, remember, a UAS is an unmanned “aircraft” system. What’s more, shooting in an urban area is likely a state and/or local crime. And there is some question as to whether you even own the airspace above your home and, if you do, to what height and under what circumstances.
Drones have issues. If you are a commercial operator—or are engaging a commercial operator—you must and should have a written contract which spells out both standard contractual issues and those issues specific to the use of drones. These should include liability and indemnity issues, insurance issues, licensure issues, and more.
It appears that drones will increasingly become a part of our lives. But before an Amazon drone drops a package at your door, the law will have to do a little catching up.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business & commercial transactions, real estate & development, family law, custody, & divorce and civil litigation.
Mr. Robbins may be reached at 970/926.4461 or at his e-mail address: Robbins@SLBLaw.com.