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.
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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.
How do you keep small drone aircraft safe in the world’s busiest national airspace? One idea is to have them use cellphone networks to feed data back to an air traffic control system made just for drones.
A startup called Airware is working with NASA on a project exploring how to manage the swarms of commercial drones expected to start appearing in U.S. skies. The four-year program will create a series of prototype air traffic management systems and could shape how widely commercial drones can be used. Airware’s main business is selling control software and hardware to drone manufacturers and operators.
The plan is for the program to evolve from something very basic, and internet-based, to something much more complex and integrated:
Later phases of the project will build more sophisticated systems that can actively manage drone traffic by sending out commands to drones in flight. That could mean directing them to spread out when craft from multiple operators are flying in the same area, or taking action when something goes wrong, such as a drone losing contact with its operator, says Jonathan Downey, CEO of Airware.
If a drone strayed out of its approved area, for example, the system might automatically send a command that made it return to its assigned area, or land immediately. The commands could vary depending on the situation — such as how close the drone is to a populated area — or the size and weight of the aircraft. . . . Ultimately, NASA wants its system to do things like automatically steer drones out of the way of a crewed helicopter that unexpectedly passes through.
This sounds ambitious, but ultimately workable. We especially like the fact that this takes a technological, rather than a regulatory, approach to the problem. The commercial potential of drones will never be realized if operators have to file a flight plan for every commercial flight, and remain in contact with ATC while in flight.
“Companies around the world are considering, with great interest, the numerous possibilities that unmanned aircraft systems create,” said Hogan Lovells UAS Group chair E. Tazewell “Ted” Ellett. “This sophisticated technology opens up many business opportunities for our clients. Our Aviation practice has been assisting UAS clients for years. Now, by creating this dedicated UAS Group comprised of firm lawyers who are specialists in the many disciplines and industries of interest to our UAS clients, we are able to provide comprehensive UAS-related legal services on a global scale.”
A link to their UAS practice page can be found here.
(Note: The FAA has temporarily un-cancelled Advisory Circular 91-57. See Update, below.)
The FAA’s withdrawal of Advisory Circular 91-57 is causing a round of concern that the agency is taking steps to make hobby drones illegal. This article from Vice is an example.
The Federal Aviation Administration took the first initial steps today toward severely restricting or banning all hobby and commercial drone flights in the country, putting in a request to formally cancel the document under which model aircraft have legally operated since 1981.
While we have expressed our own concerns about FAA overreach, we think that panic in this case is unwarranted. The more likely explanation is that the FAA is cleaning out its attic in preparation for instituting a final regulatory framework under the FAA Modernization and Reform Act of 2012.
First, it is important to understand the applicable language of the FMRA pertaining to model aircraft:
SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.
(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—
(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).
(b) STATUTORY CONSTRUCTION.—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.
(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—
(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes.
In other words, Congress has told the FAA that it can’t impose any regulations on model aircraft. That is the law. However, the FAA – for better or worse – is charged with promulgating regulations interpreting the laws that Congress passes, and the courts grant agencies like the FAA a fair amount of deference in how they construe statutory language.
The current fight is over how broadly, or how narrowly, Congress’ definitions for model aircraft should be construed. For example, what did Congress mean by “flown strictly for hobby or recreational use”? What did Congress mean by “flown within visual line of sight of the person operating the aircraft”?
The language of Section 336 of the FMRA, by itself, conflicts with Advisory Circular 91-57 in some respects. For example, AC 91-57 provided for voluntary notice to a control tower when operating within 3 miles of an airport. The FMRA requires notice if operating within 5 miles. Thus, even if the FAA ends up construing (or is forced to construe) the definitions for “model aircraft” broadly, the final language is almost certainly going to be inconsistent with the language of Advisory Circular 91-57.
We therefore see the cancellation of AC 91-57 not as part of a plot to criminalize modeling, but as an example of agency housekeeping.
FAA does plan to cancel AC 91-57 in order to reconcile the outdated AC with current sUAS policy and the “Special Rule for Model Aircraft” provided by Congress as part of the FAA Modernization and Reform Act of 2012. However, this will occur at a later date and will be accompanied by additional information and an explanation as to the reason for the cancellation.
Back when Jeff Bezos announced Prime Air on an installment of 60 Minutes, a lot of people (many of whom should have known better) dismissed it out of hand as a publicity stunt. We, on the other hand, were inspired by the announcement, and ultimately decided to create this blog based in part on what we saw as the serious potential behind Amazon’s efforts.
Subsequent events have borne out the seriousness of Amazon’s goals. Earlier this year, we reported on Amazon’s application to the FAA for an exemption to allow them to test Prime Air at their U.S. facility in the Seattle area. That application is still pending, as far as we know at this time.
But in case you’re still not convinced, you might want to consider the fact that Prime Air is now hiring. Yep, that’s right. A listing of currently open positions can be found here. Spread the word!
Today we have links to a couple of local reports on a hearing before Connecticut lawmakers regarding the creation of possible drone rules.
Both reports feature a demonstration by Peter Sachs, who continues to do yeoman’s work on behalf of small drone operators. An excerpt of Peter’s testimony can be viewed here.
As usual, the media emphasizes privacy concerns while saying next to nothing about the wide range of proven and potential benefits of this technology. We have unfortunately come to expect this kind of willful ignorance from reporters.
Some legislators fare no better. Consider the comment from State Rep. Mary Mushinsky, who said, “We had one incident in New Jersey where somebody shot down their neighbor’s drone because he was using the drone to harass the neighbor.”
With all due respect, ma’am, we have seen no report suggesting that the operator was harassing anybody. Please, learn the facts before you cast your vote on anything pertaining to this issue (or any other issue, for that matter).
Stupidity aside, the Connecticut legislature appears ready to abstain from instituting a moratorium on drone use.
Today’s edition of The New Yorker has a long article on the current and short-term future state of drone technology. The author only alludes to the legal aspects of the technology, instead offering an overview of why drones can be both frightening and exhilarating. He likens the power of drones to making operators into superheroes.
The technology of unmanned flight has diversified so rapidly that there are now 1,500 different kinds of drones being manufactured, and they are participants in nearly every type of human endeavor, composing a whole flying-robot ecology so vast that to call every one by the same name can seem absurd. But drone, an impossible word, is also a perfect one. Each of these machines gives its human operator the same power: It allows us to project our intelligence into the air and to exert our influence over vast expanses of space….
Lost in the concern that the drone is an authoritarian instrument is the possibility that it might simultaneously be a democratizing tool, enlarging not just the capacities of the state but also the reach of the individual — the private drone operator, the boy in Cupertino — whose view is profoundly altered and whose abilities are enhanced. “The idea I’m trying to work out to simplify this whole thing — surveillance, drones, robots — has to do with superhero ethics,” says Patrick Lin, a technology ethicist at California Polytechnic State University. “It’s about what humans do when they have superpowers. What happens then?”
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.
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?
