The Federal Aviation Administration (FAA) estimates that almost 2.5 million unmanned aerial systems, more commonly known as drones, will be purchased in 2016, and that annual sales will reach almost 7 million units by 2020. Drones have been or soon will be employed in an ever-broadening sphere of applications, including photography, natural resource mapping and management, hobbyist flying, military and police applications, and perhaps even package delivery. But as with many fast-emerging technologies, governance regimes have not kept pace with science. As a result, many of these millions of purchasers have at least one thing in common: uncertainty over how their flying activities are regulated.
On Friday, April 8, the Environmental Law Society hosted a discussion of the future of drone regulation at the federal and state levels, featuring three experts: Russ Klingaman, who teaches Aviation Law and is a licensed pilot; Eric Compas, a UW-Whitewater professor and drone enthusiast who has received grant funding to investigate the use of drones for natural resource and disaster recovery purposes; and Detective Eric Draeger of the Milwaukee Police Department. In a wide-ranging discussion, the panelists agreed that legal regimes governing drones are constantly evolving. They grouped the top legal challenges related to drones into three categories: safety, privacy, and security.
Handling air safety falls within the FAA’s sphere of responsibility, Klingaman said. He admitted that the current regulations are often confusing and difficult to navigate, even for experts. The agency is in the process of developing new rules, and Klingaman expects it to create “tiers” of regulations, one for nearby uses and others for longer distances. The panelists touched on a variety of the currently applicable safety regulations. Klingaman reiterated his comment in a recent interview that the so-called “line of sight” requirement – that the drone must be operated within the pilot’s field of vision – is the biggest limitation to commercial drone uses. Compas explained that another difficulty lies in separating his personal roles as a drone user; one set of regulations applies when he flies as a hobbyist, and a different set when he flies professionally as part of his research or teaching as a UW-Whitewater faculty member. Commercial use requires at least a sport pilot’s license, absent an exemption granted by the FAA.
Privacy, on the other hand, is the responsibility of the states. Approximately 32 states have enacted a hodgepodge of far-from-uniform laws governing privacy concerns, according to the panelists. In Wisconsin, 2013 Act 213 provides that drones may not be used to photograph or observe individuals in locations that give rise to “a reasonable expectation of privacy.” Similarly, law enforcement must obtain a search warrant if using a drone to gather evidence from a location whose occupants have an “expectation of privacy.” Draeger commented that it’s not clear exactly what that means, in either context.
The panelists also discussed the positive and negative aspects of drones under the broad umbrella of “security.” On the positive side, law enforcement agencies can use drones to perform tasks that are dangerous or otherwise difficult for humans. Draeger noted that the Milwaukee Police Department doesn’t have any drones yet, but expects that all law enforcement agencies will use them within the next decade. This widespread usage will create interactions with other aspects of criminal law, requiring courts to decide, for example, how the Fourth Amendment prohibition on unreasonable searches and seizures applies to drone operations.
Conversely, due to operator malfeasance or (more commonly) lack of skill, drones sometimes fly where they shouldn’t. Their surprisingly frequent approaches to commercial airliners are well documented. In another recent incident, a hobbyist mistakenly landed a drone in the Waupun prison yard. Yet another recently crash-landed near the White House.
Near the conclusion of the program, an audience member asked what he, as a hobbyist, should do to ensure he complies with the law. Klingaman responded that at a minimum, a hobbyist must register the drone and comply with the FAA’s “know before you fly” guidelines for recreational users, which include maximum altitude requirements and mandatory separation distances from airfields, among other things. The problem? Those requirements may change as soon as this year, or whenever the FAA releases its new rule package.