James Farwell and Geoff Elkins
BridgeTower Media Newswires
That buzzing sound you hear outside your window might be one of the 7 million private drones expected to cloud the skies within three years. What are your rights? How do drone users respect the rights of others?
In non-military world, drones can take high resolution photographs or video, act as peeping toms and intrude on Wi-Fi communications. Companies like Amazon want to use drones to deliver products. That complicates legal duties or rights, but inviting them to do so may waive objections to trespass or privacy.
Look to federal and state law to find the answers. These include rights privacy, protections against trespass. What is a drone? Federal Aviation Administration rules define an unmanned aircraft system as an aircraft without a human pilot aboard. It includes elements used to operate the aircraft remotely. New FAA regulations went into effect on Aug 29. They apply to commercial users, like photographers, retailers and inspectors. The federal regulations mostly do not affect recreational users. State laws may do so. Louisiana specifically prohibits any use that intrudes on the privacy of property owners.
Who qualifies as a recreational user? If you’re flying for fun — which includes no compensation – you must meet certain FAA conditions. You have two options, and both require a certificate of aircraft registration from the FAA. Do that through the website registermyuas.faa. gov. For option one, the Special Rule for Model Aircraft applies. That requires you to:
• Fly the drone exclusively for hobby or recreation.
• Follow a community-based set of safety guidelines and within the programming of a nationwide community-based organization. The FAA hesitates to elaborate on what counts as a “community-based organization,” but it has recognized the Academy of Model Aeronautics as one.
• Yield right of way to a manned aircraft.
• Fly no higher than 400 feet. Any higher and the FAA regulates the use.
• Drones weighing between .55 pounds and 55 pounds must be registered with the FAA. Drones weighing over 55 pounds must be certified by a community-based organization in addition to FAA registration requirements.
• The drone must avoid flying within five miles of an airport unless it gives the airport operator and airport traffic control tower prior notice.
• The drone must remain with visual line-of-sight at all times of operation. Use an observer as needed.
• The drone must avoid flying near critical infrastructure such as power stations, water treatment facilities, government facilities, prisons, etc.
• Avoid filming, taping or photographing private activities or acting as a “peeping Tom.” People have a constitutional right to privacy.
Prudence dictates other considerations. Do not operate a drone under the influence of alcohol or drugs. Develop competence in operating a drone. Make certain you comply with all federal and state law as well as local ordinances.
A second option is to fly as a certified remote pilot in command in accordance with the FAA’s Small UAS Rule (Part 107). Under this approach you must:
• Obtain a remote pilot certificate or be under the supervision of someone who holds such a certificate. You have to pass an aeronautical knowledge test to obtain this certificate.
• Pass a Transportation Security Administration security background check.
• Follow all the operating rules in accordance with the regulation.
A recreational user might want a remote pilot certificate if they want a first person view. This is where a drone flies beyond a pilot’s visual range and streams back live video to pilot the drone.
Who qualifies as a commercial user? It includes people who sell photos or videos taken from a UAS, factory or roof inspectors, contractors using a UAS, people who provide security or monitor work progress, land surveyors and generally anyone who uses a UAS in the course of their business.
Subject to certain special permission waivers, commercial users must abide by the Small UAS Rule (Part 107):
• Have a Remote Pilot Airman Certificate.
• Be at least 16 years old.
• Pass a TSA security background check.
• Operate drones that weigh less than 55 pounds at takeoff, including the payload.
• Keep the UAS in visual line of sight of the pilot or a visual observer.
• Fly during the day.
• Yield the right of way to manned aircraft.
• Don’t fly over people, sports stadiums, events or emergency response efforts like fires.
• Don’t fly from a moving vehicle except in sparsely populated areas.
• Stay below 400 feet above ground level or, if higher than that, remain within 400 feet of a structure.
• Fly no faster than 100 mph (ground speed).
• Never operate from an airplane.
• Don’t carry hazardous materials.
• The remote pilot must conduct a preflight inspection.
• Ensure that any load does not endanger the drone’s ability to fly or the user’s ability to control it.
If a commercial user wishes to use a UAS in a way that is prohibited by the Small UAS Rule, the user can apply for a Section 333 exemption from the FAA. The FAA grants Section 333 exemptions on a case-by-case basis. Section 333 exemptions can allow drones to weigh over 55 pounds, fly over people, fly at night or avoid other restrictions that the Small UAS Rule forbids.
Where can you fly? Drones can fly in Class G airspace. Commercial users can seek permission to fly in Class B, C, D and E airspace. The FAA has a useful mobile app called B4UFLY. It provides airspace restrictions and other flight requirements.
Many opposed to allowing private ownership of drones argue they threaten privacy, public health and safety. Could a terrorist use a drone to spread anthrax? What about the safety risk a crash poses?
Those who support private ownership of drones argue that they can be fun, commercially useful and that regulations assure safety.
If you buy or operate a drone, be well informed, well trained and certified as necessary before you zoom into the wild blue yonder.
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James Farwell and Geoff Elkins are attorneys with Elkins PLC of New Orleans and have expertise in cybersecurity law. They have co-authored a new book with Virginia Roddy and Yvonne Chalker, “The Architecture of Cybersecurity.”
