Unmanned Aircraft Systems ('UAS') – Aka Drones Legal Issues: Where Are We Headed?

There have been almost daily news stories about the advent of Unmanned Aerial Vehicles ("UAVs"), also referred to as "drones," and how commercial usage is expected to explode over the next several years. There have been reports of UAVs being used to deliver everything from pizza, to beer, to dry cleaning, to packages. Entrepreneurs have been hailed for coming up with new ways to use UAVs for many purposes. Interestingly, most of these news stories fail to mention that currently, commercial use of UAVs is illegal. While the FAA is busy attempting to come up with a plan to safely integrate UASs into our navigable airspace over the next few years, it is important to focus on what legal issues may arise once UAS usage increases. There will inevitably be many legal issues: accidents involving personal injury and property damage; IP issues implicated by the technology used to control UAVs; individual privacy rights; as well as criminal laws coming into play such as stalking, harassment, and wiretapping.

A.Concerns

Legal concepts will need to be tailored to UASs' unique capabilities, which allow for much more intrusive invasions (both physically and with respect to privacy issues) than traditional aircraft, and present significant questions as to safety of persons and property. Of particular concern is the use of UASs by government entities. Drones are currently used for or have been proposed for use in domestic surveillance, license plate reading, facial recognition, interception of text messages and cell phone calls, and hacking into Wi-Fi networks. Infrared sensors, high-powered cameras, and facial recognition may also expand UAV capabilities into more controversial realms.

Further, potential and current uses have sparked numerous fears over privacy issues, and have pitted advancing technology against individual rights. Privacy concerns and individual rights will have to be balanced against First Amendment protections of newsgathering. In particular, drone ubiquity raises the concern that the average person on the ground cannot know who is in control of a given UAV, as well as fear about how data will be used and disseminated, and by whom. There are also security concerns about what can be delivered by a drone and whether there is any way to regulate or track such deliveries.

There are also concerns regarding military, human rights, and government transparency issues. In January 2014, federal lawmakers made a move to block President Obama's plan to shift control of the U.S. drone campaign from the CIA to the Defense Department, inserting a secret provision in a spending bill that would preserve the spy agency's role in lethal counter-terrorism operations.1 This was viewed as an unusually direct intervention by lawmakers into the way covert operations are run. The operation of UASs by the CIA and special forces is troubling to many because the public at large—and even lawmakers themselves—have very little information about who is doing what, meaning there is little, if any, accountability. This problem will only be exacerbated as technology continues to develop. Future UAS programs may very well include nuclear-fueled UASs that can stay airborne for months and do not require anyone to operate them.

Criminal laws may also come into play, and have to be tailored, as the court and lawmakers decide how to apply stalking, harassment, and other criminal laws to UASs. Current criminal stalking and harassment laws tend to focus on the presence of a threatening message being communicated to the victim; therefore, a UAS whose primary function is simply to communicate information back to an operator may not be implicated by these laws unless they are amended specifically to include UASs.

UASs may also run afoul of wiretapping laws that make it unlawful to intercept an oral communication by one who has an expectation that the communication is private. UAS recordings or interceptions of private conversations by UASs may very well violate these wiretap statutes.

2. The Legal Framework

   With the FAA in the midst of integrating UASs into national air space and UAS technology rapidly advancing, a legal framework must be put in place. It is impossible to predict exactly how courts will treat the unique legal issues presented by UAVs; however, some insight can be gleaned from past cases dealing with emerging technological changes.

   A.FAA UAV Suit—Administrator v. Pirker

   The Pirker case2 is the FAA's first attempt to regulate small UAVs under existing policies. Raphael Pirker used a small, remote controlled...