The Development of Drones:

The Regulations, Risks, and Coverage Issues Associated with Evolving Aviation Technology

Carol P. Michel, Frederick N. Sager, Jr.

Kyle R. Jackson, Sr.

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC

  1. Introduction

We live in a time where “Marty McFly” and “Doc Brown” would feel at home. As the technology of today’s world continues to advance, it feels as though we have traveled “Back to the Future.” Interestingly, the fantasy involved in the mid-80s box office hit series has, beneficially or not, become today’s reality. In 2015, our nation marveled at how successfully the movie predicted the creation of many of today’s most appreciated technology including flat screen televisions, video conference calling, biometric identification, 3D movies, and most pertinently, Unmanned Aerial Vehicles (“drones”).[1] What the writers of the iconic film failed to predict, or at least include however, is that with increased technology also comes increased liability.

Drones are aerial vehicles that are controllable without an in-craft or onboard operator. Instead, drones are controlled from the ground through various mechanisms including ground control stations, computers, handheld remote controls, and even cellphones. Drones vary in size, shape and model – ranging from being large enough to arm with weaponry and land on airstrips, to small enough take-off from the palm of your hand.

Despite drones’ original design for military recognizance and attacks, arguably, their greatest trait is their hobbyist allure. Over the last ten years, the joy of flying and owning drones has ballooned. In fact, in 2016 alone, the drone market is expected to be valued at $10-11 billion.[2] Further, drone use has expanded so much, that companies such as Amazon.com are beginning to promise drone delivery services as soon as 2017.[3] To be clear, however, despite all of the discussion regarding current drone technology, today’s possibilities hardly scratch the surface of the industry’s capabilities.

Nonetheless, as innocent as drones may appear, they are obviously much more than mere toys; to the contrary, drones are military technology now available to the public.[4] Further, drones have the ability to reach places that many cannot go, and they can do so nearly undetected. Understandably, people fear the unknown, yet traveling undetected is only one fear posed by drones among many issues of which to worry. Additional fears regarding drones include perverse and terroristic operator misuse, crashes, mechanical and software failures, privacy intrusions, and irresponsible piloting – the list of concerns is endless.

To address these endless concerns, on December 14, 2015, the Federal Aviation Administration (“FAA”) announced its updated regulations of drone use, and specifically its newest requirement for small drone registrations.[5] Yet, although the new regulations provide for a number of more strict regulations including altitude restraints, temporary flight restrictions, and the FAA’s power to prosecute, these regulations wholly fail to address the common concerns of products liability, trespass, and privacy intrusions.

Accordingly, this article seeks to educate and advise all potentially interest parties of the variety of regulations, risks, and coverage issues present with evolving aviation technology, particularly given the increasing prevalence of drone usage by non-skilled individuals.

  1. Current Regulation of Drones
  1. Federal FAA Drone Regulation (Condensed)

Pursuant to the new FAA regulations, drone owners and operators will not need approval by the FAA to fly a model aircraft for recreation or hobby; however, all new purchasers must undergo proper registration for models weighing less than fifty-five (55) pounds, and proper certification if flying drone models weighing greater than fifty-five (55) pounds.[6] This registration is implemented through the aircraft owner’s community-based aeromodelling organization – an entity put in place by the FAA.[7] Moreover, the new FAA regulations require that all drones be flown a sufficient distance from populated areas and be kept within clear, unassisted “visual line of sight of the operator.”[8] Further, the FAA regulations forbid flights made for business purposes without first obtaining special approval.[9] Generally speaking, commercial drone use is also prohibited under the FAA guidelines; however there are limited exceptions which can be granted, in most cases to movie companies, members of the agricultural and farming industry, and members of the real estate industry. However, this list of business types is not exhaustive regarding business purposes worthy of exception.

Currently there are three methods by which drone operators can obtain approval for flying drones for business purposes:

  1. Special Airworthiness Certificates – Experimental Category (SAC-EC) for civil aircraft to perform research and development, crew training, and market surveys. However, carrying persons or property for compensation or hire is prohibited. For more information, please contact the Airworthiness Certification Service, AIR-113, at 202-267-1575.[10]
  2. Obtain a UAS type and airworthiness certificate in the Restricted Category (14 CFR § 21.25(a)(2) and § 21.185) for a special purpose or a type certificate for production of the UAS under 14 CFR § 21.25(a)(1) or § 21.17.[11]
  3. Petition for Exemption with a civil Certificate of Waiver or Authorization (COA) for civil aircraft to perform commercial operations in low-risk, controlled environments.[12]

To determine whether a drone’s flight is considered hobby or recreational as opposed to satisfying a business purpose, the FAA has provided the following chart:[13]

Hobby or Recreation / Not Hobby or Recreation
Flying a model aircraft at the local model aircraft club. / Receiving money for demonstrating aerobatics with a model aircraft.
Taking photographs with a model aircraft for personal use. / A realtor using a model aircraft to photograph a property that he is trying to sell and using the photos in the property’s real estate listing.
A person photographing a property or event and selling the photos to someone else.
Using a model aircraft to move a box from point to point without any kind of compensation. / Delivering packages to people for a fee.
Viewing a field to determine whether crops need water when they are grown for personal enjoyment. / Determining whether crops need to be watered that are grown as part of commercial farming operation.

Generally, Congress has afforded the FAA the authority and broad discretion to take enforcement action to protect the safety of common airspace in a manner that concurrently ensures safe operation of drones.[14] Accordingly, regardless of whether a drone satisfies the statutory definition or operational requirements promulgated by the FAA’s newest regulations, if a drone is “operated in such a manner that endangers the safety of [national air space], the FAA may take enforcement action consistent with Congressional mandate.”[15] More specifically, the FAA’s regulations fall into three basic categories: “(1) how the aircraft is operated; (2) operating rules for designated airspace; and, (3) special restrictions such as temporary flight restrictions and notices to airmen.”[16] General rules addressing operation of drones and operating drones in designated airspace typically include prohibitions on careless or reckless operation, carrying of “droppable objects” and, most notably, “right-of-way” restrictions such as the requirement that every drone give way to any manned aircraft and the requirement that no drone be operated within five (5) miles of an airport without first properly notifying an airport operator or control tower.[17] Additionally, as also noted in past versions of the FAA’s regulation of drones, there is a 500-foot altitude limit for all drone flights. Finally, the third category pertains to rules associated with temporary flight restrictions and notices to airmen. In this category lies the notable regulation that drones cannotbe flown near airshows or over stadiums hosting public events.[18]

Although the regulations listed and detailed above are a condensed summary of the FAA’s new guidelines for drones and other model aircrafts, the regulations discussed above are the regulations anticipated to be most commonly applied to drones and model aircrafts.

  1. National Outlook

To date, only twenty-six (26) states have adopted legislation regarding drone usage, however, in 2015, roughly forty-five (45) states considered a total of 168 bills related to drone usage.[19] Among the forty-five (45) states considering legislation, twenty (20) – Arkansas, California, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland,Michigan, Mississippi, Nevada, New Hampshire, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Virginia, and West Virginia – passed a total of twenty-six(26)pieces of legislation.[20] Further, five (5) more states – Alaska, Georgia, New Mexico, Pennsylvania, and Rhode Island – each adopted resolutions related to drone usage.[21] Moreover, in Virginia, Governor Terry McAuliffe signed an executive order establishing a commission on drone usage.[22]Additionally, Kentucky has pre-filed a bill regarding drone usage for its 2016 legislative session, leaving the remaining twenty-four (24) states – Alabama, Arizona, Colorado, Connecticut, Delaware, Idaho, Indiana, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Jersey, New York, Ohio, Oklahoma, South Carolina, South Dakota, Vermont, Washington, Wisconsin, and Wyoming – remain silent on the matter.[23] Finally, because the legislation currently in place among the twenty (20) states listed above vary greatly – ranging from the establishment of study committees to more serious legislation such as protections of privacy and restrictions of flight – detailed explanations of the legislation in place in the states that house our office locations can be found below as examples of how drone usage is being addressed nationwide.

  1. Florida Drone Regulation

Florida, like many other leading states, has enacted legislation that limits or prohibits certain drone usage.[24] Florida’s Senate Bill 766 prohibits a person, state agency, or political subdivision from using a drone to capture an image of privately owned real property or of its owner, tenant, occupant, invitee, or licensee without his or her written consent if a reasonable expectation of privacy exists.[25] Senate Bill 766 does, however, authorize the use of a drone by a person or entity engaged in a business or profession licensed by the state but only for purposes of performing reasonable tasks within the scope of practice of the business or state license.[26] The businesses included within this exception are property appraisers, utility companies, aerial mappers, cargo delivery systems, and others who show substantial need.[27] Finally, Senate Bill 766 authorizes and provides for a cause of action to aggrieved parties to initiate a civil lawsuit and obtain compensatory and punitive damages, or injunctive relief for violation of the statute.[28]

  1. Georgia Drone Regulation

In 2015, Georgia drafted and passed a resolution to establish a House study committee regarding the use of drones.[29] The study resulted from House Bill 5, which sought to lay out who can use drones, why they can use drones, and where drones can be used.[30] To ensure success of the study, the committee selected researchers and aviation experts, among some of the nation’s best, who are at the helm of drone development.[31] The goal of the committee and its eventual, subsequent legislation is to create laws that detail the control and reasonable use of this new technology without simultaneously stifling the growth and advancement of drones.[32] Although the state of Georgia has high aspirations for becoming a leader in drone regulation, there is still plenty to be researched before any legislation will be put into practice.

  1. Nevada Drone Regulation

Nevada, took a different approach in its 2015, legislative session. With its legislation, Nevada has become an innovator of sorts by being one of the first states to expound upon federal regulation by explicitly regulating who may operate drones (registered users) and setting forth the state’s obligation to create a registry for all drones under the Department of Public Safety, where money permits.[33] Moreover, Nevada, in light of the expected expansion of drone usage, took further proactive steps by revising its definition of “aircraft” to include drones.[34] Assembly Bill 239 also authorizes the use of drones by law enforcement agencies without a warrant in situations that create exigent circumstances, call for search and rescue, instances of imminent threat to life and safety of individuals or the public at large, state emergencies or disasters, or with informed consent of the person being subjected to drone usage.[35] Additionally, public agencies may also operate drones but only where they have first registered the drone, operate in accordance of FAA regulations, and do not use their drone to assist law enforcement. Interestingly, Nevada’s Assembly Bill 239 also sets forth an explicit ban against “weaponizing” drones and declares that flights “at a height of less than 250 feet over the property” of another will be deemed trespass.[36] Moreover, Nevada’s Assembly Bill 239 also provides a more stringent “proximity” rule by banning flights with 2.5 miles (as opposed to five (5) miles) of all airports and “critical facilities.”[37] Finally, like Florida, Assembly Bill 239 authorizes and provides for a cause of action to aggrieved parties to initiate a civil lawsuit and obtain compensatory and punitive damages, or injunctive relief for violation of the statute.[38]

  1. Trespass to Land/Privacy Issues

Another national issue necessary of legislation is the realistic fear of trespass and privacy invasions that may likely result from the ability of a small, often undetectable device that intrudes upon the land and privacy of another. While many of these issues could be resolved through application of traditional Fourth Amendment privacy rights, those rights may only be asserted against state or governmental action. Accordingly, regulations against invasion of privacy – which currently are widely inexistent – could do nothing more than provide for criminal prosecution or clear statutory intent for purposes of negligence per se. Instead, the principles of trespass to land and various privacy issues are most properly addressed pursuant to common law jurisprudence and will address causes of action against drone operators, even when acting in compliance with FAA flight regulations.

  1. Trespass

To be liable for direct or indirecttrespass, a person must“intentionallyenter uponlandin the possession of another or the person mustintentionallycause some ‘substance’ or ‘thing’ to enter upon another'sland. . . . That is, theintentto do the act which leads to thetrespassis the requirement, not theintentto actuallytrespass.”[39] Further, the commonly misperceived notion that “ownership of the land extend[s] to the periphery of the universe . . . has no place in the modern world.”[40] Rather, only land within “the immediate reaches above the land” is considered the owner’s; all other land is part of the public domain.[41] Accordingly, intentional drone usage that causes entrance upon the land or airspace of another within “the immediate reaches above land” may suffice as a trespass – the remedy of which will be compensatory (and potentially punitive) relief for the damage caused by the drone operator.

  1. Intrusion Upon Seclusion

A privacy intrusion upon seclusion occurs when a plaintiff successfully proves that a defendant intentionally “physically or electronically intrud[ed] into [his/her] private quarters.”[42] One of the greatest concerns involving drones is their built-in cameras, or the foreseeable addition of cameras to a drone. The fear that results from the existence of these cameras is the foreseeable, perverse misuse of spying on the privacy of others. To date, only one case illustrates the possibility of this cause of action. Boring v. Google Inc., a case involving images captured for purposes of “Google (Aerial) Satellite View,” “Google Street View,” and “Google Maps,” held that Google had not invaded the individual privacy rights of those captured in Google’s images where, primarily, it lacked intentionality to capture images of the individuals in its published views.[43] Presumably, however, any drone operation intentionally used in a manner to intrude upon another’s private quarters will be well within the common law’s purview regarding privacy intrusions upon the seclusion of a person’s private quarters.

  1. Public Disclosure of Embarrassing Facts

Similarly, a prima facie case for public disclosure of embarrassing facts requires a plaintiff to prove “(1) the publication, (2) of private facts, (3) that are offensive, and (4) are not of public concern.”[44] In like fashion concerning intrusion upon seclusion, any subsequent publication of the private information recovered by a drone operator if considered offensive and not of public concern, will most properly be handled by the common law cause of action of public disclosure of embarrassing private facts.

  1. Publicity Placing Others in a False Light

Recovery under publicity that places others in a false light requires: “(1) the false light must be highly offensive to a reasonable person; and (2) the defendant must have acted either knowingly or in a reckless disregard as to the falsity of the publicized material and the false light in which it would be placed.”[45] With the FAA’s near-blanket approval of citizen journalist[46],[47] drone use, it seems inevitable citizens will equip their drones with high-powered cameras to get pictures and video otherwise unavailable to professional journalists and subsequently make those images available to the highest bidder.[48] Consequently, a large concern that goes unaddressed by the FAA’s guidelines is the foreseeable misuse of this capability and the capturing of images of people who were simply in the wrong place, at the wrong time. Nonetheless, upon proof of the knowledge of the perpetrator or the reckless disregard of the falsity of the publicized material, plaintiffs may properly recover damages under this common law cause of action.

  1. Risks of Litigation & Exposure for Drone Manufacturers

The most obvious area of potential legal liability issues when discussing drones is in the products liability arena. Occasions involving crashes, collisions, or injuries resulting from the use and operation of drones will almost certainly invoke litigation against a drone manufacturer. Accordingly, strict products liability, as well as assertions of manufacturing defects, design defects, and failure to warn, are all likely claims to be raised against drone manufacturers. Fortunately, each of these likely claims fall within the realm of what can be considered as “normal” commercial aviation claims and a typical defense to these types of claims will likely suffice the claims arising from drone usage.