About that handgun-firing drone

A knucklehead in Connecticut has caused quite the media firestorm over his video of a semi-automatic handgun being fired from a small drone.  I have received some media inquiries about whether it is legal or not.  The answer is that it depends.

Based on the video, it appears that this occurred on private property, away from any buildings or people.  The FAA does not seem to have a regulation that would prohibit discharging a firearm from a drone under those circumstances.

The closest thing you will find is FAR § 91.13, which prohibits the reckless operation of an aircraft (the FAA relied on this section in the Rafael Pirker case), and § 91.15, which prohibits dropping objects from an aircraft.  But both regulations apply only where the activity poses a danger to life or property.  That does not appear to be the case, here.

The more likely resource for determining the legality of this particular drone would be state law governing the handling and discharge of firearms.  These regulations vary by state, but in general one would look to whether a firearm was discharged in a reckless manner that posed a danger to others, or in a built-up area or an area zoned for housing.  You can review Florida’s law, here.

Does this presage the weaponization of private drones?  I doubt it.  The video seems to vindicate something I wrote back in October:

[A] small drone is unlikely to be a useful weapons platform. As anyone who has fired a gun can attest, the kickback from discharging a firearm would be just as likely to send a small drone tumbling out of the sky as it would be for the drone to hit its intended target.

The video proves the point.  The operator does not have any reasonable semblance of control over the weapon, and at one point he clearly seems to be downrange of the weapon.  That’s a big no-no among gun owners.

Having said that, I could foresee someone developing an “FPV drone paint-ball” war game (patent pending).  Where that would fit with FAA regulations and state firearms law might be a topic for another post.

Managing Drone Liability: Is New Legislation Necessary?


The question of drone liability is something that comes up, from time to time, in discussions with clients and in casual conversation.  The conventional wisdom one hears is that the unmanned systems and autonomous vehicles industry will never really take off until new laws have been enacted addressing liability when a vehicle causes injury to persons or property.

But is that really true?  Probably, not.  At least, not in the United States.

The fact is that the common law in the United States is amply well-suited to addressing unmanned systems liability issues, and that no major legislation is likely to be required in order for the industry to flourish.  We already have a system of laws governing automobile accident liability on the ground, and aircraft accident liability in the air. The distinctions vis a vis unmanned systems and autonomous vehicles are not legal, but factual

Liability for accidents, and injuries arising from accidents, breaks down into two basic categories: operational negligence and products liability.  Operational negligence is easy enough to understand: You run a red light and cause an accident, chances are (absent some extraordinary, intervening event) that you are liable for any damages.

It doesn’t matter if you lack sufficient experience and training. The law implies a duty to act in a manner consistent with that of a reasonable driver of ordinary skill.

On the other hand, products liability arises when a defect in the vehicle causes an injury.  If the defect existed when the vehicle left the factory, or at the time of sale, then the seller or manufacturer can be held strictly liable in tort for any injuries caused by the defect.  What constitutes a defect is a fact-sensitive question, but in general a product is defective if the risk is something that cannot be managed or foreseen by the operator, and is disproportionate to the product’s utility (or social utility).

That is why, for example, dangerous products with relatively little social utility, such as lawn darts (I’m showing my age!), can no longer be found on the market, while dangerous products with a great degree of utility, like chainsaws and farming combines, remain on the market.

Extreme events in products liability usually arise when a product having a high social utility, like a car, has a defect that makes it unreasonably dangerous to use. The GM ignition switch fiasco comes to mind as a recent example (although GM was able to avoid liability in that case due to the structured bankruptcy orchestrated by the government).

Other issues can come into play in products liability. For example, even if an aircraft is decades old the manufacturer can’t just ignore an airworthiness directive from the FAA regarding a known condition that might cause loss of control of the aircraft. But a manufacturer is not liable for defects in aftermarket parts and accessories that are incorporated into a vehicle after it is sold.

Among the manufacturer’s defenses to a products liability claim will be any facts suggesting negligence by the user. For example, if a product is used for a purpose for which it was not intended to be used, or the user failed to exercise reasonable care, the manufacturer might be off the hook. Thus, facts surrounding the operator/machine interface are often an issue in such disputes.

One can easily imagine how these principles will apply to drone liability. Questions will arise on how to sort out the standards for reasonableness of operator skill and risk/utility. But insurers, judges, juries and expert witnesses will be the primary drivers behind these determinations, not legislatures.

Comments to the NPRM: A Roadmap to the FAA’s Thinking

Much has been written about the FAA’s NPRM for sUAS over the last week and a half. I think it’s safe to say that, while many were pleasantly surprised by the liberality of the proposed rules, most comments from the industry have been critical, particularly of the requirement for Visual Line of Sight (VLOS) and the prohibition on night operations, as well as the requirement for an aeronautical knowledge test and sUAS pilot certification.  The comments posted to date at regulations.gov have ranged from the thoughtful to the unhinged.

But before submitting comments, it is useful to understand what the FAA is thinking, and how it views the path going forward. Otherwise, even the most well-intentioned comments are likely to drift off-point. The FAA has made this task simple enough by laying out its reasoning in the first 160 pages or so of the NPRM.

The entire framework of the proposed rule can only be truly understood by taking into account what the FAA sees as two primary concerns that, in its view, are unique to UAS: (1) the ability of the operator to see and avoid other aircraft; and (2) Loss of Positive Control (i.e., a loss of communication between the vehicle and the control station).

See and Avoid:

The FAA emphasizes that the first job of an airman in avoiding collisions with other aircraft is to adhere to the “see and avoid” rule of flying. The FAA believes that pilots of manned aircraft have an inherent advantage in exercising see and avoid because they are able to use their peripheral vision from the cockpit. The agency is concerned, on the other hand, that the vision of an operator of a UAS who relies on FPV or other camera devices will be too restricted to be able to effectively see and avoid other aircraft.

The agency has considered requiring on-board see and avoid detectors, as have become standard on manned aircraft. However, it believes that, at least for now, the technology is not advanced enough, and is too heavy, for use onboard small UAS. The agency nevertheless remains open to suggestions.

One can of course raise countervailing considerations, such as the fact that a sUAS at 500 feet will be extremely difficult to see with the naked eye. Nevertheless, it would be difficult to overstate the amount of importance that the FAA attaches to this subject. Comments on the VLOS rule should respectfully take the agency’s concerns into consideration.

Positive Loss of Control:


Another point of emphasis, one that also relates to the proposed VLOS rule, is that problem of Positive Loss of Control. The problem is well-known, as evidenced by a flurry of reports of fly-away incidents, including the White House episode, last month.

The FAA believes that the risk of PLoC is significantly mitigated by keeping the operator within VLOS. Again, the agency is open to ideas on less restrictive ways to address this, but its concerns should be respectfully considered when making comments to the NPRM.

The Elephant in the Room:

talk-about-the-white-elephant-in-the-roomAs we noted last week, the FAA realizes that it has a compliance problem. But the FAA is not a police force, and it currently has no ability to quantify the degree of non-compliance. It also knows that imposing regulations that are unduly burdensome will only foster more non-compliance.

Its goal, therefore, is to enact regulations that encourage compliance while balancing its safety concerns.  Again, keep this in mind when submitting comments.

About Those § 333 Exemptions:

UltralightUntil a final rule is in place, commercial operators who don’t want to risk problems with the FAA will still need to apply for and obtain a Section 333 exemption. One of the questions on people’s minds has been, why does the FAA impose such mind-bogglingly stringent requirements, such as requiring a private pilot’s certificate, when granting these exemptions?

The FAA claims – and here is where I think that the agency is being disingenuous – that it has no statutory flexibility under Section 333 to waive:

  • Requirements for Airman Certification;
  • Security Vetting;
  • Aircraft Marking;
  • Registration Requirements.

That seems like a very odd assertion to make, given the fact that, for example, there is no airman certification requirement for operators of single-seat ultralights, which are much heavier than a typical sUAS and are powered by gasoline engines. The FAA does not claim any particular statutory authority for its regulations governing ultralights, other than a general series of statutes giving the FAA discretion to manage safety in the NAS.

Moreover, federal agencies – especially under this administration – have rarely been shy about claiming the maximum regulatory authority under the law. And the courts generally defer to an agency’s reasonable interpretations of the statutes that it is charged with administering.

It is therefore difficult to understand why the FAA claims such a lack of regulatory flexibility under Section 333. We are open to suggestions.

This NPRM Is Not the Last Word:

The above notwithstanding, the FAA clearly sees this NPRM as a first step on a long path to full UAS integration. It notes that the object should be to remain as open as possible to innovation, and it realizes that the pace of change in the UAS industry is rapid enough that it should avoid imposing some of the more stringent requirements, such as type certifications, that are common for manned aircraft.

It has specifically invited comments on a wide range of topics, such as whether UAS can be employed as air carriers, as well as available technologies and procedures that would allow safe VLOS and night operations, and whether a micro-UAS rule would make sense.

The comment period closes on April 24, so the time to get rolling on submissions is now.  If you would like to submit a comment with the assistance of counsel, please feel free to contact the law firm of Diaz, Reus & Targ, LLP and ask for Brant Hadaway, or email me at bhadaway@diazreus.com.

The Meaning of Yesterday’s NTSB Ruling

All Is Not Lost

Yesterday’s ruling from the NTSB, overturning Judge Geraghty’s order in the Pirker case, caused quite the twitter storm, and practically crashed our Google news feed. So, a lot of virtual ink has already been spilled on this. But much of it has been either poorly written or flat-out wrong.

We stand by our initial take, which is that the scope of this ruling is ultimately quite narrow. We also think it stands on shaky ground, and could be vulnerable on review by an Article III court.* Here’s why.

First, the opinion was narrowly tailored to the question of whether a model aircraft falls within the FAA’s enforcement authority under 14 C.F.R. § 91.13(a), which provides that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The key finding was that a model aircraft is an “aircraft” under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6), the NTSB concluded:

defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” Similarly, 14 C.F.R. § 1.1 defines “aircraft” for purposes of the FARs, including § 91.13, as “a device that is used or intended to be used for flight in the air.” The definitions are clear on their face. Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.

That sounds like a broad conclusion. It is, and it isn’t. The NTSB points out that, at the time of the original Federal Aviation Act:

so-called “drones” were largely the currency of science fiction. Congress demonstrated prescience, however, in the early definition of “aircraft”; it expressly defined the term as any airborne contrivance “now known or hereafter invented, used, or designed for navigation of or flight in the air.”

… [The FAA] may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator; Advisory Circular 91-57 implies such a practice, and the processes outlined in 14 C.F.R. §§ 11.81 – 11.103 provide a more formal means of seeking exemption. However, for the case sub judice, the plain language of § 91.13(a), as well as the definitions quoted above, does not exclude certain categories of aircraft.

Turning to whether the FAA correctly applied Section 91.13(a) to Pirker’s model aircraft, the NTSB points to the doctrine of judicial deference to agency interpretations of the statutes they are charged with enforcing. Agency interpretations will generally be accorded deference if the agency can point to a reasonable basis in the underlying statute. The NTSB concludes that, since nothing in the history of the statute or the FAA’s enforcement actions indicate a clear intent to categorically exclude model aircraft from the definition of “aircraft,” the FAA’s interpretation should be upheld as reasonable.

But the NTSB also hints that the scope of this conclusion will be constrained by practical limits on the FAA’s prosecutorial discretion. Simply put, the FAA cannot prosecute every operator of a model aircraft who does something dangerous or foolish. The decision also does not grant the FAA license to enact a wholesale prohibition on the operation of model aircraft, or even require licensing for hobbyists.

In summary, if you are an amateur hobbyist who operates a model aircraft within traditional parameters – less than 400 feet, within line of sight (precise definitions are being sorted out in the courts), and you refrain from doing anything stupid, the chances of getting a citation from the FAA are exceedingly remote.

Pirker might be able to argue that the NTSB’s ruling is inconsistent with the scope of the FMRA’s Special Rule for Model Aircraft, which we discussed here. The Special Rule contains a statutory construction provision:

Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

FMRA, Sec. 336(b) (emphasis added).

Although FMRA was enacted after Pirker’s “offending” flight, he could argue that this statutory provision shows that the FAA’s interpretation is directly at odds with Congressional intent, vis a vis model aircraft. A threat to individuals and their property, he might contend, is not a threat to the “safety of the national airspace system.” In other words, unless a model aircraft has somehow threatened the safety of the national airspace, as that has been traditionally defined, its unsafe operation should be a matter for local police authorities, not the FAA.

Such an argument would have sound Constitutional underpinnings. Congress derives its authority to regulate airspace from the Commerce Clause of Article I, which gives Congress the power to regulate interstate commerce. Granted, the courts have construed this power so broadly that it is by now practically meaningless as an enumerated limitation on the federal government. But it is generally recognized that the power extends to regulation of anything that has a material impact on interstate commerce.

What constitutes an effect on interstate commerce is typically a fact-sensitive question. Hypothetically, prosecuting a model aircraft operator who buzzes old ladies on a sidewalk is not something that even remotely affects interstate commerce, whereas an operator who flies his Phantom II into the air intake of a commercial jet does affect interstate commerce.

It will be interesting to see whether Mr. Pirker takes up these questions on appeal to an Article III court.

* An Article III court is a court established by Congress under Article III of the U.S. Constitution. The NTSB court is an administrative court and is therefor part of the Executive Branch under Article II. Article III courts have jurisdiction to hear appeals from the decisions of administrative courts.

The NTSB Remands the Pirker Case [Updated]

The NTSB has spoken. Short version: The NTSB concludes that the FAA has jurisdiction to regulate the safe operation of model aircraft, and has remanded the Pirker case for findings of fact on whether Pirker operated his RITEWING Zephyr drone in a reckless manner. The full decision is here.

The NTSB begins by defining the scope of its opinion:

At this stage of the proceeding … we decline to address issues beyond the threshold question that produced the decisional order on appeal: Is respondent’s unmanned aircraft system (UAS) an “aircraft” for purposes of § 91.13(a), which prohibits any “person” from “operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another”? We answer that question in the affirmative.

The law judge’s ruling in Pirker’s favor turned on the conclusion that the FAA had never asserted jurisdiction over model aircraft, and that the FAA’s position now would lead to the “risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of [14 C.F.R. part 91 and] Section 91.13(a).” The NTSB unequivocally rejects that conclusion:

Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.

From there, the NTSB concludes that the FAA’s interpretation of its jurisdiction as allowing it to prohibit the “reckless” operation of small, unmanned aircraft under Section 91.13(a) is reasonable. The NTSB is not swayed by the voluntary guidelines found in Circular 91-57:

Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.

Writing at Forbes, Gregory S. McNeal emphasizes that small drone operators are now on notice that they can be fined for reckless operation of any unmanned aircraft.

Asked for comment, Pirker’s attorney, Brendan Schulman, kindly responded:

While we disagree with the decision, today’s NTSB ruling in the Pirker case is narrowly limited to whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation, an issue that the NTSB has said requires further factual investigation before a penalty is imposed. The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed in the decision, and is currently pending before the D.C. Circuit in other cases being handled by Kramer Levin. We are reviewing the options for our next steps in the Pirker case.

We agree with Mr. Schulman’s assessment. This decision only goes so far as to say that the FAA can prohibit the reckless operation of model aircraft, the FMRA’s Special Rule for Model Aircraft notwithstanding (apparently). It reaches no conclusions on whether Mr. Pirker should be fined. However, if the law judge finds that Pirker operated his aircraft in a reckless manner, he might have no choice but to sustain a fine.

As a practical matter, we would guess that the NTSB was influenced in its thinking by a growing number of press reports – some of which could be taken more seriously than others – about reckless conduct by amateur drone operators. Perhaps the NTSB even read a recent article in which an amateur operator begged for someone to stop him before he hurt somebody. For now, we can only speculate.

UPDATE: Read this for our follow up thoughts.

Stop worrying, learn to love drones *

Writing for the Brookings Institution, drone policy expert Gregory McNeal has published a report urging Congress and state legislatures not to overreact when it comes to privacy concerns over drones. McNeal argues, and we agree, that a “technology-centric” approach to legislating privacy protections is misguided, and ends up missing the point:

[Various] legislative efforts have been aimed at restricting the government’s use of drone technology, while largely allowing the government to conduct identical surveillance when not using drone technology. This absurd anachronism is intentional, as privacy advocates have explicitly chosen to capitalize on the public interest and attention associated with the demonization of drone technology as a way to achieve legislative victories. These advocates are admittedly not focused on more sensible legislation that addresses harms irrespective of the technology used.

He notes that current unmanned systems are actually not as effective at surveillance as manned aircraft (which consistent with a point that we have previously made, here). He also points out that banning law enforcement from using drones, in the absence of a warrant, leads to absurd results. For example, using drones to monitor the Boston Marathon – a public event – might benefit public safety. But the law doesn’t allow the Boston PD to do so unless it obtains a warrant by demonstrating probable cause in an application:

That application would need to define with particularity the place to be searched or the persons to be surveilled. All of this would be required to observe people gathered in a public place, merely because the observation was taking place from a drone, rather than from an officer on a rooftop or in a helicopter. In a circumstance like a marathon, this probable cause showing will be difficult for the police to satisfy. After all, if the police knew who in the crowd was a potential bomber, they would arrest those individuals.

Even more absurd is that

in the states where drones have been banned (unless accompanied by a warrant), the police have not been prohibited from using any other type of surveillance equipment—just drones. This technology-centric approach has done little to protect privacy, but will certainly harm public safety, depriving law enforcement of a tool that they could use to protect people.

After reviewing a series of court opinions governing the current state of aerial surveillance, McNeal goes on to provide some recommendations for how legislatures should think about their approaches to drone surveillance regulations. Read the whole thing.

*In what seems like a reference to “Dr. Strangelove,” arstechnica distills the message to “stop worrying, learn to love drones.”

“I’m an idiot, someone stop me!”

An amateur Phantom II operator (or, perhaps we should say, former operator) did something stupid that could have hurt someone, and now laments the fact that what he was doing isn’t illegal:

The thing is, there are basically zero regulations in the U.S. preventing what I did from happening again. There is no age requirement or learner’s permit necessary to purchase a drone. There are some basic rules in place from the FAA that ban hobbyists from flying over densely populated areas or close to airports, but aside from that, if you stay under 400 feet, you’re good to go.

When it comes to commercial drone flights, on the other hand, the FAA has made them completely illegal in the US. It’s taken years to develop new rules for companies, during which time other countries have forged ahead. And now it’s saying it will miss the deadline set by Congress to get commercial drones flying over American skies in 2015.

This is completely backward. It didn’t really hit me until my own crash, but the FAA is actually focusing its regulation on the wrong group. Companies typically need to carry liability insurance on the machinery they operate. A bad crash would be terrible for a brand, something that will make them more conservative about flights. The people with the least to lose are the casual hobbyist like me.

We think that the writer has a valid point about insurance concerns driving the commercial drone sector. But his call for the nanny state to stop him from acting foolishly is, well, silly. First, his argument assumes that the woman on the bicycle would have been left without a remedy had his careless behavior injured her or her child.

His in-laws probably have homeowner’s insurance. It might have adversely impacted his marriage, but any decent plaintiffs’ lawyer would have immediately looked into that.

And perhaps the writer has his own umbrella policy. He doesn’t say.

But the larger question is, at what point do we call on government to restrict the liberty of others, simply because some people act irresponsibly? We license car drivers, and have laws against reckless driving and drunk driving, but that doesn’t stop cars from being deadly missiles (much more dangerous than a 5-pound drone) in the hands of the wrong person. Requiring licenses for model aircraft operators seems grossly disproportionate to the risk involved.

If we are to remain a free and open society, on some level we have to still count on the virtue of individual citizens as the primary keeper of civic peace. Translated into contemporary parlance:

Don’t be an idiot, and we’ll all get along, just fine.

Michigan Company Developing Crash-Avoidance System

One of the primary goals of the FAA’s roadmap for drone integration is to develop an effective crash-avoidance system, or systems. A company in Michigan, called SkySpecs, has been working on a solution:

For the past five years, the SkySpecs team has been working on an object detection and avoidance system for aerial drones that could help even amateur pilots prevent dangerous collisions. Last week the company was accepted into the startup incubator R/GA Accelerator to help it get its first product, Guardian Crash Avoidance, to market.

The SkySpecs team, who met at the University of Michigan in 2009, started out by building their own drones for the International Aerial Robotics Competition competition. “I thought I wanted to do manned aircraft,” says Ellis, who was an aerospace engineering major. “But it was a time that drones were becoming popular and it seemed like a good opportunity.”

The problems of drone integration are going to be solved by entrepreneurs like these young people, not by bureaucrats.

Self-Defense Against Drones

The use of self-defense against drones has become a hot topic, especially in the wake of the case of a New Jersey man who shot down a drone that was flying over a neighbor’s property.

In a guest column at the ever-valuable Volokh Conspiracy blog, law professor A. Michael Froomkin and his research assistant, Zak Colangelo, present their thoughts on the law of self-defense against drones. They offer a great deal of food for thought, and we recommend reading the whole thing. But while we agree with some of their arguments, we have reservations about others.

Froomkin and Colangelo begin with a general observation about the applicability of self-help doctrines to robots:

[W]hen a person fears for her safety, property, or privacy, the same self-help doctrines that govern other issues should govern a person’s use of self-help against a robot, whether that robot is operating on land, air, or sea. That is, an individual threatened with harm should be able to employ countermeasures that are reasonable in proportion to the harm threatened. The rule shouldn’t be different just because a robot poses the threat. Thus, as a general matter — but subject to some pretty important exceptions — a person who reasonably fears harm from a robot has a right to act to prevent that harm, up to and even in some — but far from all — cases shooting it down.

It is important to note, they point out, that the law treats robots as property. Because the law places a greater value on human life than it does on property, “[a]cts of self-defense that would be unreasonable when threatened by a human will in many cases be reasonable — in an otherwise similar situation — in response to threats from a mere chattel.” However, “[t]he toughest question is the scope of permissible self-help when individuals fear for their privacy rather than for their safety or property….” (emphasis added).

Froomkin and Colangelo point out that, whereas a threat to one’s property is easier to quantify, a threat to one’s privacy is not:

A trespassing, spying drone can do a lot of damage, but privacy harms are hard to monetize, especially ex ante.* That means it is hard to weigh the potential damage against the harm that the self-helper risks doing to the offending chattel. Not only is privacy is hard to value in general, but in this case the victim cannot know in advance how the operator of the drone intends to use the photos, hacked wifi, or whatever the drone may be collecting.

In light of this uncertainty piled on difficult valuation, we argue that the scope of permissible self-help in defending one’s privacy should be quite broad — else privacy will inevitably lack the protection it deserves. There is exigency in that resort to legally administered remedies would be impracticable — the drone will be long gone — and worse, the harm caused by a drone that escapes with intrusive recordings can be substantial and hard to remedy after the fact. Further, it is common for new technology to be seen — reasonably — as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great, or even extant, at least when the risks of collateral damage are small.

While recognizing that those who operate drones on the periphery of one’s property probably have some valid First Amendment claims, Froomkin and Colangelo “understand why people would be concerned to learn that drones might someday aim telephoto lenses into their bedrooms from the sky.”

Because an average person is likely to be unable to immediately assess a drone’s threat to his or her privacy, they argue that “[t]ort law is likely to be solicitous of the property-owner’s need to make quick decisions under uncertainty. That solicitude will not, however, extend to actions that presented a reasonable risk of danger to third parties, such as shooting into the air in populated areas….” (emphasis added).

We whole-heartedly agree with the latter point regarding actions that present a danger to others, but think that their underlying assumptions are flawed. First, keep in mind that, as we have noted here, it is highly improbable that a civilian drone operating in Class G airspace is going to have any meaningful “spying” capabilities. It might be noisy and bothersome, but a drone is not very effective as a “peeping Tom” device (unless you’re sunbathing nude in your backyard or on your roof, in which case your claim to a reasonable expectation of privacy is probably dubious, at best).

Froomkin and Colangelo suggest that the uncertainty over drone capabilities could be resolved by, first, instituting a blanket ban on weaponized drones in the U.S. We think this is a reasonable suggestion. But, then again, how have blanket bans on weapons worked out in the past? The track record is not so great.

In any event, a small drone is unlikely to be a useful weapons platform. As anyone who has fired a gun can attest, the kickback from discharging a firearm would be just as likely to send a small drone tumbling out of the sky as it would be for the drone to hit its intended target.

Next, they propose that

all mobile robots should be required to carry warning markings, lights, and the equivalent of a Vehicle Identification Number (VIN) that would be recorded in a state or national registry…. Although far from perfect, these notices would be calibrated not just to warn of the drone’s presence, but also to say something about its capabilities, such as whether it carries a camera, and whether it is capable of capturing sounds or wifi or other information.

They further suggest that “[s]etting up a licensing regime and national or state-based registries would help connect a malfeasant robot to its owner or user, but no single system is likely to work in all circumstances.”

Froomkin and Colangelo seem to concede that their regime might well be unworkable, due in part to the problem of “cheating.” But we think that their proposal is far too complex, and relies far too much on unworkable regulatory regimes that will create more problems than they are likely to solve.

We propose a much simpler approach. First, we are persuaded that civilian “microdrones” should be regulated as consumer products, like cell phones and lawn mowers. We discussed that in a post on August 30, 2014. Off-the-shelf, consumer product regulations would solve many of the problems mentioned by Froomkin and Colangelo. For example, microdrones could be required to have built-in limitations on range and height. Naturally, they could be prohibited from having any sort of weapons capability.

Regulating microdrones as consumer products would also dispense with the need for a licensing regime. Model aircraft have been operated for generations without the need for mandatory licensing regulations. Maintaining a reasonable line-of-sight range limit for consumer model aircraft would more than adequately address concerns about hazards to public safety.

This sort of approach would remove much of the ambiguity concerning the capabilities of civilian microdrones. To the extent that any ambiguities might still exist, we think that the rules for using self-help against perceived threats from drones should be made abundantly clear.

We first note that we are adamant supporters of the right of self-defense as a fundamental human right. But with that comes an abiding respect for firearms safety and for the property rights of others.  Absent the sort of threat that would give rise to a justifiable use of deadly force under applicable state law, we would never advocate discharging a firearm in a heavily populated area. Froomkin and Colangelo seem to agree.

State legislatures could, if they wished, enact laws clarifying the circumstances in which a person may presume a threat of death or serious bodily harm from a drone, much like some state laws allow one to presume such a threat when an intruder invades one’s home or automobile. But we do not think that extending such a presumption to model aircraft would be a good idea.

The entire discussion might also be academic.

The FAA claims the authority to regulate or even prohibit the use of any flying object operated outdoors, no matter the altitude or distance from an airport, etc. If the FAA’s sweeping claim of jurisdiction is correct, then questions of federal/state preemption are going to necessarily come into play.

Current federal law prohibits the shooting down of any aircraft. Many small drones are already being regulated as “aircraft” by the FAA. Just consider the recent spate of 333 exemptions to the FAA’s “ban” on commercial drones. If one were to shoot down a drone being operated under such an exemption, it would be hard to argue that one had not just committed a federal crime.

But more than that, the FAA claims that the definition of “aircraft” includes model aircraft. Thus, according to the FAA, shooting down a model aircraft should be a federal crime. Until the FAA provides clarity on that, any discussion of whether a drone can be shot down by a civilian, under any circumstances, is unlikely to be useful.

*Lawyer-ese for “before the event.”

Dumb, Dumb-Dumb Dumb!

Does anyone remember the old “Dragnet” theme? Put that tune to the words, “Dumb, dumb-dumb dumb,” and you’ll have some idea of our reaction to this story:

A New Jersey man was arrested after police say he shot down a neighbor’s remote control drone.

According to investigators, officers with the Lower Township Police Department were called to a home in the 1000 block of Seashore Road on September 26th to investigate the report by a resident that his remote control helicopter (drone) was shot down.

The suspect – a neighbor – was booked on charges of Possession of a Weapon for an Unlawful Purpose and Criminal Mischief, and his shotgun was seized by police.

We have seen a number of people, in various discussion threads, say that if a drone ever flew near their property they would shoot it down. We have sought to discourage such thinking. There is practically no good reason to discharge a firearm in a populated area, unless you are being attacked and threatened with impending death or great bodily harm (and the law on this varies by state – some require that you first exhaust all means of safe retreat before using deadly force).

A civilian drone is not a threat to your life or safety. It might be annoying. It might be regarded as an intrusion on your privacy (but not really – see here). But unless you’re in the crosshairs of a military drone in some godforsaken battlefield (and chances are that, if you do end up in such a situation, you are unlikely to know what’s coming until it’s too late), there is never a reason to shoot at one. At best, you might be sued for destroying someone’s private property.

But the more likely outcome is a story like the one above.

UPDATE: David Michael Butts at the UAV Legal News discussion group on Facebook makes an excellent observation: If the FAA insists on calling small drones “aircraft,” why didn’t this man just commit a federal crime?