A Vision For The Future Of Drones

On October 26, 2017 I will participate in and moderate a discussion at the Commercial UAV Expo Americas 2017.  The plenary session will focus on the regulatory roadmap facing the drone industry in 2018 and beyond.

Participants on the panel are:

  • Gregory McNeal, Professor of Law and Public Policy at Pepperdine University and Co-Founder of AirMap.
  • Finch Fulton, Deputy Assistant Secretary of Transportation at the U.S. Department of Transportation
  • Greg Walden, Chief Aviation Counsel, Small UAV Coalition
  • Thomas Wilczek, Executive Director, Nevada Institute for Autonomous Systems

 

Cities And Counties Will Inevitably Have A Say In When And Where Drones Operate

Caught between federal rules, legal ambiguity and public service, local governments struggle to find their places in governing private and commercial drone activity

On September 6, 2017 I was quoted in a lengthy and well-researched article in American City & County Magazine.

Here are some excerpts:

The FAA’s regulations “focus exclusively on federal aviation safety concerns,” the NLC report notes. Among the rules, which are readily available online, is the requirement that drone pilots operating under Part 107 must fly their drones no higher than 400 feet above ground level unless they are flying within 400 feet of a structure.

“I think the most difficult thing for Newton is that they chose to regulate airspace from the ground up to 400 feet above the ground,” says Greg McNeal, a professor of law and public policy at Pepperdine University and co-founder of drone software company AirMap.


McNeal’s comment references an item in Newton’s ordinance that mandates pilotless aircraft must not be operated “over private property at an altitude below 400 feet without the express permission of the owner of said private property.”

Plaintiff Singer argues in court documents that this rule, when applied with the FAA’s rule for Part 107, “would presumptively prohibit sUAS over most of the land area of Newton, Massachusetts.” Moreover, he argues that the FAA holds authority over at least part of Newton’s airspace below 400 feet above ground level.

So who exactly governs U.S. airspace? The simple answer is that there isn’t a definitive one.

Ian Gregor, public affairs manager for the FAA’s Pacific Division, writes that by federal law, the FAA has “sole jurisdiction over the nation’s civilian airspace.”

McNeal however, argues that the areas of airspace the FAA has sole jurisdiction over are in fact, legally unresolved.

“The FAA has in different forums claimed to not have jurisdiction over areas where land use, zoning or the police power apply,” McNeal says. “In other forums, they have asserted much more widespread jurisdiction. No case has ever acknowledged authority down to the ground.”

McNeal likens the issue to cities trying to create drone activity rules within a box of “arguable federal preemption of any law they do.”


Privacy and trespass are only a few of the many regulatory issues that surround the local governance of private and commercial drone activities. Even drones without video cameras that fly over private property could constitute a privacy or property law concern, McNeal says.

While video cameras are now commonplace, the NLC report notes, “the scope of a drone’s perspective is often much larger with granular detail easily accessible.” The advent of superior filming technology opens up issues of privacy enforcement, since a pilot could be flying adjacent to a homeowner’s property but still looking inside their home, Swindell says.

“Enforcement is such a challenge with all of this that… privacy is almost a quaint question,” he notes. “But it’s also one that many people are very concerned about.”

Drones’ noise can also affect privacy, especially in densely populated areas, because drones would likely fly there. Swindell suggests that the noise created by lots of drones could also lower existing property values.

It’s a predicament that can play into larger aesthetic and character of the community issues, given potential noise complaints and the crowding of multiple drones in a small area of airspace.

“Local governments want to zone certain areas as residential,” McNeal says. “They want to zone others as commercial, and they want to have the ability to say what happens in those areas.”

Operational restrictions — or no-fly zones — are an issue that McNeal and Swindell agree are among the most pressing issues that local governments face in drone regulation.

McNeal offers the example of drone flight near Apple’s doughnut-shaped campus in Cupertino, Calif. Drones could fly beside the building and observe activity inside, as well as fly inside the inner area within the campus.

“[Apple employees] don’t want to wait until the drone is adjacent to the window or in the courtyard of the Apple campus… they want to be able to exclude the drone from the inner courtyard of the Apple campus in the same way that they can exclude you or I from walking into the inner courtyard without checking in at the front desk,” he says.

Such an exclusion would involve regulating an area of airspace. As local airspace regulation is currently a legally precarious action, legal experts recommend that city officials focus more on the ground if they deem it necessary to issue drone regulations in their communities.


The assumption is that by occurring on land, the takeoff and landing of a drone fall within land use or zoning authority, as well as potentially police power. A rule that looks like aeronautical activity regulation is less likely to be defensible than one that falls within local land use, zoning and police power, McNeal says.

The NLC ordinance uses similar phrasing to the ACC-OC ordinance, but it also uses the terms ‘operate’ and ‘operation’ in reference to reckless operation.

McNeal argues, however, that the line between preemption and permissibility isn’t clearly defined, citing the example of a regulation prohibiting drones from flying within “50 feet of a school playground while school is in session.”

“It’s still in the category of regulating airspace,” he admits. “But you’re on very strong ground to say, ‘there are a bunch of police power reasons why we want to do this’ — related to safety, related to nuisance, related to protecting the children.”

A counter argument to such a rule could be regulating harmful conduct instead of drone flight, he acknowledges. Issuing a rule such as his example, he argues, could prevent such harmful conduct from occurring.

Nevertheless, legal experts agree that governing conduct rather than issuing operation restrictions presents several advantages to cities.


“There are a bunch of other things [Newton] did that are reasonable,” McNeal says, highlighting Newton ordinance items prohibiting harassment with a drone and surveillance via a drone. “I might disagree on the policy judgment there, but it’s not clear to me that all of that would be considered unlawful.”

Rupprecht offers another perspective. “I think that Singer will win. I think that the court’s going to rule with that. Now, how narrowly will [the judge] rule and on what grounds, that’s going to be an interesting point.”

“The hard part is the higher you get in airspace restrictions, the more likely it is that airspace restriction will be challenged,” McNeal adds.


“In this political climate, to have bipartisan legislation in both houses of Congress and have an idea that has bipartisan support from the Obama Administration to the Trump Administration, just suggests to me the inevitability of state and local governments playing a bigger role in this,” McNeal predicts. “I think it’s an exciting time for cities and counties.”

Flying Above The Law: Legal Issues Surrounding the Domestic Use of Drones

Keynote Address: Drones and the Future of Aviation: Key Issues in Law and Policy

On February 3, 2017 I will be delivering the keynote address at the Campbell Law Review Symposium.  The symposium title is Flying Above The Law: Legal Issues Surrounding the Domestic Use of Drones.  My remarks are entitled Drones and the Future of Aviation: Key Issues in Law and Policy.  

Campbell has lined up a great mixture of practitioners, academics, industry and others.  Here is the line up:

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Using Drones To Keep Our Cities Smart And Safe

On Thursday, January 19, I appeared on a panel with FAA Administrator Michael Huerta and others.  The panel description is below:

Keeping our cities safe and leveraging smart technologies go hand in hand. One such technology is the use of drones. Drones have the potential to change the way local government delivers city services, particularly as their technology advances. Could drones transform firefighting, environmental monitoring, and disaster management? How might we ensure cities have local authority to determine how this technology can best be used to serve residents and improve service delivery? Privacy is critical; how do we address data concerns? What opportunities arise as the job market transforms due to these innovations? In addition, we will also hear about an exciting national partnership born in San Francisco that is expanding across the country to help transform innovation in cities.

Participants:

Chair: Edwin Lee, Mayor of San Francisco
Michael Huerta, Administrator of the FAA
John Giles, Mayor of Mesa
Greg McNeal, Co-Founder of AirMap and Professor at Pepperdine University
Kamran Saddique, CEO & President of City Innovate Foundation

 

Innovating to Address Drone Related Challenges

Panel Of Experts To Discuss Safety Innovations At CES

At 2:15pm on January 6, 2017, I will be a panelist at the Consumer Electronics Show.  The panel is entitled “Innovating to Address Drone Related Challenges.”  Details are provided below:

Safety and privacy are overarching considerations as drones are integrated into the national airspace.  Where will software and hardware innovations help enhance safety and protect privacy as the use of drones increases in 2017?  Are safety and privacy concerns better addressed through rapid innovation rather than rampant regulation?
Moderator:
Bob Kirk, Partner, Wilkinson Barker Knauer, LLP
Speakers:
Brendan Schulman, VP, Policy & Legal Affairs, DJI
Gregory S. McNeal, Co-Founder, AirMap
Anil Nanduri, Vice President, New Technology Group/GM, Drone Group, Intel
Evan Low, Assemblymember, State of California

Drones and the Intricacies of Federal, State and Local Jurisdictions

On Wednesday November 16, 2016 I will be participating in a panel at the CompTIA Annual National State Government Affairs & State and Local Government Education (SLED) Meeting in Nashville, TN.

The panel line up includes:

Michael P. Huerta, Administrator, Federal Aviation Administration
Gregory McNeal, Professor of Law & Public Policy, Pepperdine University, Cofounder, AirMap
Diana Marina Cooper, Vice President of Legal and Policy Affairs at PrecisionHawk

 

 

Do Drones Raise Unique Privacy Concerns?

Federal Trade Commission (FTC) Fall Technology Series

On October 13, 2016 I will be a speaker at the Federal Trade Commission’s Fall Technology Series.

Americans are increasingly familiar with drones, also known as Unmanned Aerial Systems (UAS). These devices have become one of consumers’ most popular technology purchases; some estimate nearly one million new drones will be purchased in 2016. Many consumer drones are controlled by tablet or smartphone, and feature high-definition cameras, GPS, and the ability to fly autonomously.

Commercially available drones are even more sophisticated, and are increasingly used for a variety of activities, including monitoring and inspection, news reporting, search and rescue of missing persons, and delivery of commercial packages or medicine to rural areas. With potential to transform entire industries, the devices may generate significant economic benefits. Although drones may offer society numerous benefits, the potential for information collection through filming, photography or other types of monitoring raises the potential for consumer harms including invasion of privacy, identification, trespass, and harassment.

The National Telecommunications and Information Administration (NTIA) recently convened multi-stakeholder meetings to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private drone use. The drones workshop will explore the following questions related to commercial uses of drones:

What are the present capabilities of drone technologies? What technology do we foresee in the near future? In the longer term? What privacy concerns do drones raise? Are these concerns unique to drones, or are drones no different from other technologies? For people whose information may be captured by drones, what is the best way to provide transparency?  Given the difficulties of providing consumers with meaningful choices, what should the rules around privacy look like?
Should there be limits on data collection or limits on use?

Moderator:
Jamie Hine/Kate White
Federal Trade Commission

Panelists:

Gregory McNeal
Professor of Law and Public Policy, Pepperdine University School of Law Co-Founder, AirMap
Jeramie D. Scott
Director, EPIC Domestic Surveillance Project
Brendan Schulman
Vice President of Policy & Legal Affairs, DJI
Kara Calvert
Director, Drone Manufacturers Alliance

What Can Municipalities Do About Drones?

League of California Cities Annual Conference

On October 7, 2016 I’ll be presenting at the League of California Cities Annual Conference about drones and how cities can effectively regulate their use while still allowing for their benefits.  From the panel description:

The FAA estimates 1 million drones were sold during the 2015 holiday season. Learn about the effects of the 2015 FAA drone registration regulations and the spring 2016 commercial drone regulations on municipalities. Focus on what municipalities can and cannot do to combat privacy, noise, and nuisance issues raised by small drones through the types of ordinances allowed and not allowed due to FAA pre-emption. Discussion will also surround how these regulations affect municipal airports.

Policies Impacting Drones And The Future Of Flight

SXSW Panel To Address Key Issues Around Regulation And Innovation

On March 15, 2016 I will be appearing on a SXSW panel entitled “Policies Impacting Drones And The Future Of Flight.”

Here is the panel description:

Drones have the power to revolutionize a multitude of consumer and commercial sectors — in fact, they are well on their way. According to CTA projections, the U.S. drone market will approach $105 million in revenue in 2015 with unit sales expected to reach 700,000, an increase of 63%. However, a number of policy battles could stand in the way of this remarkable technology. This panel will discuss the key issues impacting drones, from innovation and economic impact to safety and privacy.

California’s Drone Trespass Bill Goes Too Far

California legislators are looking to tackle the perceived problem of drone trespasses with a modified version of a bill that was introduced earlier this year.  Unfortunately they’ve gone too far in the most recent version of the proposed legislation.

This bill was originally a privacy bill, and it was innovative when it was first introduced.  Because it was originally very narrowly tailored and focused on prohibiting trespasses in circumstances where a drone operator was violating a landowner’s expectation of privacy, it struck an appropriate balance between innovation and rights.  The bill was narrow and careful in that it required plaintiffs to prove a series of elements to make their case.  Requiring multiple elements of proof is important as it protects rights and guards against frivolous litigation.

Here is some of the original language from the preamble of the legislation when it was proposed earlier this year:

Existing law imposes liability for physical invasion of privacy, if a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity and the invasion is offensive to a reasonable person.  (my emphasis in bold)

The key here is that the original bill created a cause of action only when someone was trespassing for a very specific purpose — to violate one’s privacy.  The bill did this by modifying California’s existing physical invasion of privacy law.  If the bill had stayed as proposed, to prove a violation would require a plaintiff to prove not only that the drone entered the airspace above a person’s property without their permission, but also all of the following things:

  1. The operator knowingly violated the landowner’s rights, and 
  2. The operator captured any type of visual image, sound recording, or other physical impression of the plaintiff, and 
  3. That image or recording of the plaintiff showed them “engaging in a private, personal, or familial activity”, and
  4. The invasion of privacy was “in a manner that is offensive to a reasonable person.”

That’s a pretty sensible approach focused on privacy harms.  All four elements have to be proven, which means we won’t see spurious or vexatious litigation because the bar to litigation is high enough that someone isn’t going to sue unless their privacy was truly violated.  It also serves to protect First Amendment rights because it is narrowly tailored to address privacy harms, rather than being a broad ban on aerial imaging or the mere act of flying.

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