Author Archives: Brant Hadaway

Are Drones Are Invading Our Privacy?

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Business Insider has a well-written article on the issue of whether we should be concerned about drones invading our privacy, and whether new laws are needed to address those concerns. “Private citizens,” the article notes, “have grown increasingly concerned that these technologies could invade their privacy.”

Attorney Brendan Schulman – who has become the go-to guy for comments on sUAS issues – provides a healthy dose of context to these concerns:

As Schulman points out, most states already have laws to address the type of invasions that concern people. For example, peeping tom laws criminalize peering into someone’s windows. And private property laws prevent someone from building a treehouse over their neighbor’s yard. You likely can’t fly a drone there for the same reason, Schulman says.

“If I’m taking pictures through a window,” he said, “and I use a broom stick instead of a drone, it’s the invasive behavior that concerns lawmakers — not what you use.”

The article notes that the camera technology for most civilian drones is not very useful for surveillance. The writer points to this wide-angle city-scape of Seattle, taken by a drone photographer, which illustrates the point that it’s actually very difficult to photograph any sort of details unless the drone gets very close to the subject.

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Our view is that privacy concerns are just another example of the sort of moral panic that tends to follow in the wake of our permanent, 24/7 news cycle, where perceptions of an issue and reality tend to get out of alignment. We will be observing developments, but contrary to the conventional wisdom in the media, it is neither the most interesting, nor the most important, issue relating to drone law and regulations.

Litigation Pushback Against the FAA: A Brief History

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The Volokh Conspiracy guest-bloggers Michael Berry and Nabiha Syed have written a lengthy post about the recent history of litigation between the FAA and small drone operators. It’s an excellent and detailed review of everything from the Pirker case, to Texas Equusearch, to the FAA’s Notice of Interpretation of the special provision governing model aircraft, which led to the recent Petitions for Review filed by Brendan Schulman on behalf of persons such as our friend Peter Sachs.

Indeed, for those who would like to quickly educate themselves on the current state of play vis a vis small drones, or sUAS (also called microdrones), this would be a good place to start.

FAA agrees to movie production exemption

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The FAA has agreed to grant an exemption to Hollywood production companies to use drones in aerial photography. Although the scope of the exemption is not entirely clear, based on the article, this seems like a breakthrough:

In May, seven aerial photo and video production companies asked for regulatory exemptions (known as a 333 exemption) that would allow the film and television industry to use drones with FAA approval. Those seven companies and the Motion Picture Association of America (MPAA), were asked by the FAA to develop the guidelines and safety procedures under which they planned to operate. The FAA reviewed those procedures and is expected to approve the drone-specific rules and standards that will enable Hollywood to be exempt from existing aviation regulations.

One might hope that those procedures can serve as a model for other aerial photographers, but with one major caveat: Hollywood productions tend to exercise greater control over the filming location than many could possibly afford. A typical movie or television location crew will employ local law enforcement and/or private security to prevent interlopers from wandering onto the set. They also tend to have numerous production assistants acting as spotters and gofers, all within walkie-talkie range.

Still, progress is progress. It will be interesting to see the final guidelines when they are published.

Facebook rolls out its high-altitude drones project

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facebook-connectivity1

Facebook is rolling out plans to deploy high-altitude drones that would allow off-grid connectivity for users of its network. In addition to challenges in design, materials and technology, these drones will take us into some uncharted legal territory:

In order to fly its drones for months or years at a time, as it would have to do in order to provide consistent connectivity, Maguire explained, Facebook’s drones will have to fly “above weather, above all airspace,” which is anywhere from 60,000 to 90,000 feet in the air. That puts these drones on tricky regulatory footing, since there are essentially no regulations on aircraft that fly above 60,000 feet in the air. “All the rules exist for satellites, and we’re invested in those. They play a very useful role, but we also have to help pave new ground,” Maguire said.

Facebook and its counterparts will also have to find a way around regulations dictating that there must be one human operator to every drone, which could drastically limit the potential of such an innovation to scale. For proof, Maguire pointed to a recent solar drone demonstration by a British company, which ended after two weeks to give the pilots a break. “It’s like playing a videogame for two weeks straight with no rest,” he said. “We need a regulatory environment that will be open to one pilot perhaps managing 10 or 100 drones. We have to figure these things out.”

Other than the occasional spy plane or research balloon, what other traffic is at that kind of altitude?

FAA Fails to Include Drones in NextGen Plans

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Terrific:

WASHINGTON (AP) — Designers of the ambitious U.S. air traffic control system of the future neglected to take drones into account, raising questions about whether it can handle the escalating demand for the unmanned aircraft and predicted congestion in the sky.

“We didn’t understand the magnitude to which (drones) would be an oncoming tidal wave, something that must be dealt with, and quickly,” said Ed Bolton, the Federal Aviation Administration’s assistant administrator for NextGen, as the program is called.

I understand that the FAA is a government bureaucracy and all, but how could they have failed to see this coming? This is especially troubling, given the fact that it will be very difficult to “retrofit” the system:

The FAA has spent more than $5 billion on the complex program and is nearly finished installing hardware and software for several key systems. But the further it progresses, the more difficult it becomes to make changes.

The problem that regulators are just starting to realize has to do with incompatibility between large drones and the usual aircraft occupying Class A airspace. For example:

Planes at high altitudes are supposed follow designated highways in the sky to avoid collisions. A typical airliner on that highway might fly at over 500 mph, while a drone at the same altitude might fly at only 175 mph, he said. The more drones, the worse the traffic jam.

So, we take it there’s no passing lane?

More drone law-blogging at the WaPo

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Michael Berry and Nabiha Sayed have a new guest post on developments in drone law at The Volokh Conspiracy blog. Today, they provide a pretty solid overview of the FAA’s slow start at promulgating UAS regulations. Recommended reading for anyone who might be new to the topic.

They promise to review the various lawsuits that have been filed, tomorrow.

A week of drone law blogging at the Washington Post!

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Michael Berry and Nabiha Syed are guest-blogging at The Volokh Conspiracy this week in a series dedicated to the regulation of private drone use. Their first post, on “journo-drones,” is here. Today, they write about philosophical approaches to drone regulation:

As policymakers consider drone regulation – particularly with respect to privacy and safety – the possible fields of regulation fall into five principal realms: operators, flight, purpose, property and surreptitious use. Some of these categories face practical difficulties, while others present constitutional issues. Nevertheless, these five fields offer a framework to help make sense of the legislation and regulation emerging around the use of drones.

The authors intend to visit the history of the FAA’s piecemeal approach, tomorrow.

In the meantime, we would suggest that they consider the consumer product approach to sUAS regulations for one of their posts.

Realtors weigh in on rules for integrating drones

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A powerful realtor lobbying firm will be working with the FAA on developing rules governing the use of drones in aerial photography:

The National Association of Realtors announced last week it was invited to sit on a newly formed working group focused on regulating drones, or unmanned aerial vehicles, and how to integrate them into the ‘‘national airspace system.’’

They are asking pointed questions about the FAA’s ban on commercial drones:

‘‘Aerial real estate photography and videography is nothing new,’’ said Brian Saver, a principal with McWilliams Ballard in West Palm Beach who uses video taken from drone flights to market his listings. ‘‘It’s just been done from real helicopters for ages. Where was the outrage there? Drones simply make it more affordable and accessible to more realtors.’’

We’re not sure that the helicopter analogy is entirely correct, but you get the point.

Because when you get down to it:

Many say the demand for drone work, and money to be earned, outweighs the risk of getting a cease and desist order from the FAA.

‘‘From an economic standpoint, we can’t just stand by and let this business pass,’’ Paul Morris, owner of Miami Aerial, told The Palm Beach Post last month. ‘‘My bone of contention is an amateur can go fly when a professional can’t. Who is more apt to have a problem?’’

It really doesn’t make much sense. ‘Shame that regular people are noticing.

Robb Heering, a Wellington attorney who specializes in federal regulatory law and is a licensed realtor with his own firm, said the FAA’s warnings against commercial use are all bluster.

He doesn’t believe it has any authority to stop realtors from using drones.

We like the defiant attitude on display in this article.

An alternative approach to small drone regulations?

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Writing at Aviation Today, authors Henry Perritt, Jr. and Eliot O. Sprague make some interesting suggestions for a more practical, alternative approach to FAA regulations for small, line of sight drones (what they call “microdrones”): Treat them as a consumer product, like a cell phone or lawn mower.

They begin with a stunning admission from the FAA:

In May 2014, Jim Williams, head of the FAA’s Unmanned Aircraft Systems (UAS) office, told the Small Unmanned Systems Business Expo that general regulations for microdrones would not be promulgated until after 2020. Congress, in the 2012 FAA Modernization and Reform Act, mandated that such regulations be effective no later than 2015. This much of a delay beyond the congressionally mandated deadline invites a lawsuit telling the FAA to move forward quickly.

The reason it will take so long is that the FAA assumes that it will begin with existing regulations for manned aircraft and adapt them line by line, to the peculiarities of microdrones.

Instead, the authors argue,

the agency should take advantage of the capabilities of microdrone technology to enforce certain limits on flight profiles autonomously. Such an approach would focus FAA energy on defining what limits should be built into drones commercially marketed, relieving it of detailed regulation of airmen and detailed flight rules to be enforced in the conventional way.

Taking a cue from the FCC’s regulation of cell phones, the authors suggest that the FAA require that microdrones have certain limitations and capabilities built into their hardware and software. For example:

The most basic rules to be encoded into microdrones are already agreed on. First, a height limit is necessary to keep microdrones away from the airspace in which manned craft fly most of the time. Under the proposed approach, legal microdrones must have a navigational mechanism – a combination of barometric pressure sensors and GPS navigational systems – that would not permit them to fly above 400 ft. AGL.

Second, microdrones can be flown only within line of sight. In order to keep them there, microdrones must have a built-in radius limit of, say, 1,500 ft. horizontally from the DROP.

As a further prerequisite for certification, microdrones must have a return-to-home feature that could be triggered by the DROP, and which would be automatically triggered by loss of signal. This also might be triggered by an indication that the DROP has become inattentive, kind of like the “dead man control” on railroad locomotives.

Many microdrone operators would probably not be in full agreement on these proposed limitations. We imagine, for instance, that operators would not be happy with the FAA imposing an arbitrary maximum horizontal radius to enforce line of sight. But, on balance, this seems to us like a preferable approach to insuring that both commercial operators and hobbyists are able to use off-the-shelf technology without having to go through the cumbersome process of obtaining traditional FAA certifications.

What do you think?