It’s a Bird, It’s a Plane, It’s a Drone Or Drones 101

It’s October and I can report that I’ve started my training for this year’s Turkey Trot. Last year, as I prepared to start in my annual less-than-sprint down Delaware Ave. on Thanksgiving Morning, I noticed a drone hovering over the start. “That’s cool,” I thought and began working my way down Delaware Avenue (My favorite moment of the race occurred about midway through when I saw the back of a woman’s shirt that read “if you’re behind me, you didn’t train either.”  Right on, Sister). But I digress. Since then, I’ve seen bits and pieces of news and notices about drone use from a variety of sources for a variety of reasons.  While I’m hardly an expert in this field (for someone who is, look up Joe Hanna at Goldberg Segalla), it seemed timely and certainly relevant to provide a high level overview of the issue as these devices—and the technology they rely upon become increasingly present for recreational, public safety and commercial use.

The Federal Aviation Administration is the primary regulator of drones, whose more formal name could be an Unmanned Aircraft System (UAS), Unmanned Aerial Vehicle (UAV) or just UA. For purposes of clarification, this piece has nothing to do with the devices that are used for military activities.  Definitions are important.  Under 49 U.S.C. 40102(a)(6), an “aircraft” is defined as any contrivance invented, used or designed to navigate or fly in the air,” and an “unmanned aircraft” is defined as an “aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.” (P.L. 112-95, Section 331(8)).  Finally, one more bit of boilerplate from14 C.F.R. Section 91.13(a) “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

The FAA has identified 3 primary classifications for UASs or drones. These are “model,” “public,” and “civil.”  The FAA does not regulate aircraft in the “model” category so long as: 1) each device flown for hobby or recreational purposes (this is important!); 2) each device operated in accordance with community-based safety guidelines; 3) each weighs no more than 55 pounds; 4) each yields to manned aircraft; and 5) notice is provided, in advance of launch, to local air traffic control officials.  The important distinction in item 1 is that in the event that a device is flown for any commercial purpose, the FAA has—and takes—authority to regulate such operations. There two other important items to consider when using a drone for non-commercial purposes. The operator must maintain visual line of sight with the device from a fixed location (the back of a car is unacceptable, and, not kidding, there has not yet been a ruling about whether an operator sitting on a horse is acceptable for maintaining line of sight from the FAA’s perspective). The second is that a model device cannot go more than 400 feet above the ground.  The height restriction is simply based on the FAA’s rulings. Municipalities may enforce lower flight limits. More information on rules for flying model aircraft here .

The non-aeronautical issues that the presence of drones creates may be more cocktail party worthy, but certainly no less—if not more—important than the aeronautical ones. Included in these issues are privacy rights, data collection, property rights, law enforcement uses and public safety.

Privacy and Data Collection
As Edward Snowden (remember him?) made painfully clear to most Americans, the federal government has been keeping tabs on many citizens, much to the dismay of civil libertarians and others who are concerned that our privacy as individuals has been severely—and potentially permanently—comprised. The presence of drones in our daily lives (not to mention our backyards) certainly creates legal and personal challenges. As a side note, while your neighbor’s drone may violate your airspace and be generally annoying, it is a federal crime to shoot down a drone (remember, it is an aircraft, and for all sorts of good reasons, shooting down any aircraft is a bad move any way you look at it).

While the issues of property rights and nuisance caused by low flying drones are complex and important, in the interest of space, those will be left to the experts. I’m not ignoring them.  However, what it is critical is at least a mention of the issues of both law enforcement drone usage and the potential for interference with law enforcement operations by well-meaning (let’s hope) but ill-informed drone operators.

Recently, there have been several publicized incidents where drones have either interfered with or almost interfered with helicopters that were transporting critically ill or injured patients for immediate medical care. In a recent California case, a drone recently got in the way of a firefighting helicopter. Disaster was averted, but not by much.  Because in both cases (and many others, no doubt) the drones were operating beyond the allowable altitude, and because they may or may not have been operated by someone complying with existing rules, let alone good judgment, public safety was threatened. The issue is drone operators, regardless of how enamored with the technology and what it can do, must know how the devices should—and should not—be used.  Recreational users who have no interest in financial gain or commercial advantage have to meet a lower standard to comply with existing rules and good practice than do those who are using the devices for anything that could even remotely be argued was for commercial gain. Drones offer access to an incredible array of information. But like any other sexy newish technology in the open marketplace, they must be used with care.