Can I Collect It, Can I Use It?: Current Legal Status of UAVs and the

Use of Geospatial Data

GeCo in the Rockies 2014 Conference

Grand Junction, Colorado

September 25, 2014

Introduction

• Vocabulary:

– UAV

– UAS

– Drone

– Model Aircraft

– RC Aircraft

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Introduction

• Drones offer great promise for data collection as well as many other civilian uses.

• But they raise very real safety and privacy concerns.

• Today I’d like to give you some background law on UAV use • Along with recent regulatory and adjudicatory developments. • I will also touch briefly on some of the legal framework regulating

geospatial data.

• Goal: Give you a better sense of what can and can’t be done with these instruments and data, to help you “issue spot” and identify opportunities in planning and executing your work.

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Introduction

• About Me:

– 15 Years practicing in Colorado in local government, infrastructure development and land use

– Lifelong map enthusiast with GIS background

– Do business development for a start-up developer and manufacturer of UAVs

– Contact info: jim@mocklawoffice.com

• About You:

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Introduction

Key Themes:

• i. Government vs. Private use

• ii. Use of the instrument vs. use of the data

• iii. Safety

• iv. Privacy

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Introduction

• Disclaimer: Not Legal Advice. Nothing we talk about today or in these slides is to be considered as the rendering of legal advice for specific cases, and attendees are responsible for obtaining such advice from their own legal counsel. This talk, my responses to any questions and the slides are intended for educational and informational purposes only.

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Overview of UAVs

• Military/High End – Very Expensive ($3M to

$100M per unit)

– Highly regulated

– Requires several operators, a runway and sophisticated ground support

– Weigh thousands of pounds

– Can carry payloads weighing in the hundreds of pounds

– Flight duration of 18+ hours

– Not the focus of our talk

• Small UAS (sUAS) – $500 to $75,000

– Can be operated with just one or two people

– Much smaller, tighter take-off and landing facilities

– Weigh 3 – 20 pounds

– Can carry payloads up to 10 pounds

– Flight duration of 20 minuntes to 1.5 hours

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Overview of UAVs

• Drone Parts – Airframe – Autopilot – Communication link – Power source – Payload

• Gimbal • Camera • Atmospheric Sensor • Cargo

– Image Processing Software

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Overview of UAVs

• Potential Benefits:

– Acquire remotely sensed and in situ data:

• At a lower cost

• Faster

• In places where manned aircraft cannot fly safely – E.g., volcanos, power lines, tornados

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Overview of UAVs

• Potential/Current Beneficial Uses: – Emergency response

• Missing persons • Wildfires • Law enforcement

– Precision agriculture – Surveying – Engineering and Construction – Wildlife monitoring and protection – Infrastructure Inspection – Commercial photography

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Overview of UAVs

• State of the Industry

• Young, relatively un-segmented

• Participants – Government contractors (“the big boys”)

– Airframe manufacturers (UASUSA)

– Whole solution integrators

– Autopilot developers

– Image processing software developers

– Flight and data service providers

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UAV Law

• Congress has delegated administration of Navigable Airspace to the FAA

– A couple exceptions

• FAA has developed highly structured system to provide safe separation, orderly use of the U.S. Airspace.

– Two legal terms: “National Airspace System” and “Public Navigable Airspace”

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UAV Law

• What are the limits of Navigable Airspace? – U.S. Supreme Court in U.S. v. Causby in 1946

found a public easement or right of way in the airspace above private property (hence the term “Public Navigable Airspace”);

• however, the Court also noted that if a landowner is to have full enjoyment of his land, he must have exclusive control of the immediate reaches of the enveloping atmosphere

• The Court essentially left the extent to be fleshed out administratively or on a case-by-case basis.

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UAV Law

• Limits of Public Navigable Airspace (cont.) – FAA Regulations:

• Fixed wing aircraft must generally operate above 1,000 feet agl over congested areas and above 500 feet agl over most non-congested areas and large bodies of water.

• The FAA regulations specifically exempt helicopters from the minimums if “the operation is conducted without hazard to persons or property on the surface.”

• But, the altitude must always be sufficiently high to allow “an emergency landing without undue hazard to persons or property on the surface.”

• But the standard NAS model is flipped with Model Aircraft and public UAS subject to maximums of 400 feet (discussed later), therefore apparently authorizing altitudes possibly to the ground

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UAV Law

• Current FAA Framework:

– If you are a public entity (i.e., a government; non-profit doesn’t count), get a Certificate of Waiver and Authorization (COA)

– If Civilian: Get an Airworthiness Certificate

– Can you fit within the Model Aircraft Guidance/Rules?

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COA

• The entity has to apply for a COA

• Specifies where and under what circumstances a UAV may be flown

• Long, complex application process – Initial COA application can take many months

• Pilot has to file a NOTAM (usually at least 2 hours in advance) for each flight operation

• Examples: FAA website, CU, Mesa County Sheriff’s Department / Ben Miller

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Airworthiness Certificate

• Experimental

• Special

– Only two issued so far, both to large oil and gas companies for oil infrastructure management on the North Slope of Alaska

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Model Aircraft Rules?

• FAA Issued Guidance for Model Aircraft in 1981

• Many people are flying under these rules based on a broad interpretation or calculation that they will not get caught

• Others contend that these guidelines are not enforceable as laws, they are merely “suggestions”

• Congress has codified and expanded on these rules in the 2012 FAA Act (discussed later)

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Model Aircraft Rules (cont)

• Definition: Model Aircraft: an unmanned aircraft that is – Capable of sustained flight – Flown within visual line of sight of the operator – Flown for hobby or recreational purposes

• This is a huge issue

• Exemption from FAA Rules if: – Flown strictly for hobby or recreational use – Operated in accordance with a community-based set of safety

guidelines within a nationwide community –based organization (AMA rules)

– Weigh no more than 55 lbs unless certified by a community based organization

– No interference with any manned aircraft – Provide prior notice to airport if flown within 5 miles

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New Legislation/Coming Changes

• 2012 FAA Modernization and Renewal Act (FMRA)

• Congress ordered the Department of Transportation (acting through the FAA) to integrate UAVs into the NAS by 2015

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2012 Act

• Specific requirements – Adopt final rules for civil operation of “small

unmanned aircraft systems” in the NAS in 2015 • Draft regulations are expected to be released in a few

months

– Adopt program to establish six test ranges to integrate UAS into the NAS

– Special rules for expanding use in the Arctic

– Special rules for certain UAS (Sec. 333) • This is where all the action is

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Special Rules for Certain UAS (333)

• FAA indicated in May that it is interested in applications from: – Cinematographers

– Precision agriculture

– Power and pipe line inspection

– Flu gas inspection

• The plan is to provide more flexibility than the COA/Special Airworthiness Certificate process

• Rumor that FAA will authorize 7 cinematographers today

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2012 Act Changes (cont.)

• Simplified Rules for Public UAS

– 60 day expedited review

– One-time approval of similar operations over a fixed period of time

– Allows public safety agencies to operate sUAS pursuant to the Model Aircraft Rules

– FAA putting resources here

• Model Aircraft Rules

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Other Laws

• Other Federal Agencies

– Dep’t of Defense regulates certain military airspace

– National Park Service banned UAVs this summer

• Export regulations

– Be careful before taking a UAV to a foreign country for a project

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Other Laws (cont.)

• State Laws

– States have limited ability to regulate NAS

– In the absence of FAA action, some have stepped in or are looking at stepping in

– Three varieties of state laws:

• Restrictions on use by law enforcement (many)

• Privacy restrictions (Texas, Florida)

• Laws in support of UAS (North Dakota, Hawaii)

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Challenges to FAA Authority

• FAA is widely perceived to be dragging its feat. Industry players are worried that this is stifling U.S. job creation and market leadership. Others just want to get the data or get into the business ASAP.

• Climate of partial compliance

• Pirker case – Used a fixed-wing UAV to shoot film for hire on

University of Virginia Campus

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Pirker (cont)

• FAA found out, claimed that he violated an FAA regulation providing that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

• Fined him $10,000

• Pirker contested the fine, asserting that there are no enforceable laws banning the use of model aircraft (and by implication other sUAS), and specifically that a “model aircraft” was not an “aircraft” for purposes of the FAA prohibition

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Pirker (cont.)

• Administrative law judge with the NTSB ruled for Pirker

• FAA has appealed

• Current status: Some elements of the UAV/model community have interpreted this to mean “open season” and nothing is prohibited

• It is risky to rely on a case which is on appeal

– Also note that the act at issue occurred in 2011 before FMRA, so it’s not clear what impact that has

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FAA Has Moved to Codify Model Aircraft Rule

• Proposed Rulemaking this summer essentially adopting 1981 Guidance and FMRA

• Academy of Model Aeronautics and a group of small businesses have sued to stop the regulations

• The Comment period was extended once and was closed two days ago

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Texas EquuSearch

• Non-profit search and rescue operation • Used UAVs in searches earlier this year • Received a “cease and desist” letter from the FAA • Texas Equusearch sued the FAA this spring; court dismissed

on technical grounds (essentially that TE didn’t try to exhaust its other administrative options)

• TE was awarded a 5 day COA to search for a missing person two weeks ago. – Through a partnership with a local police department and the

National Institute for Standards and Technology – FAA issued statement on when it will grant emergency COA’s – Here the FAA used its new powers in the 2012 Act

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Moving Toward the Future

• sUAS rulemaking coming soon

• Special rules for certain UAVs in the interim (this window will likely close when the sUAS regs are released)

• Model Aircraft Rulemaking

• Even if Defendant is successful on appeal, Pirker’s influence will diminish with further FAA rulemaking

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So, Who’s Flying Now

• FAA Test Sites

• Public entities with COA’s

• Two Private operators with Special Airworthiness Certs.

• 7 Cinematographers after today?

• Grey area

– RC community

– Industries (e.g., realtors)

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Can I fly my drone now without risk from the FAA?

• Yes, if:

– You are affiliated with a public entity and have a COA

– You are a private entity with an airworthiness cert.

– You are flying strictly for recreational purpose and are in compliance with the other model aircraft rules

– You are flying in another country pursuant to that country’s rules

– Pirker is decided for the defendant, the FAA does not appeal, and the FAA’s rulemaking isn’t yet in place

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What Can My Organization Do to Start Flying?

• If you are a public entity or contract with a public entity, apply for a COA – It requires some resources, but it’s not impossible

and it gets easier after the first approved application

• Find a public entity to partner with

• Apply for special use certification under Sec. 333

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Geospatial and Drone Data Law

• Shifting gears, expanding beyond just drones • Two ways to view current status of laws

regulating geospatial data: – Hodgepodge with gaps leaving individual privacy

vulnerable vs. Evolving standards with minimum impact on innovation and freedom (giving the industry breathing room)

– Some thinkers and lawmakers are pushing for comprehensive legislation, either to: • Stop the train in its tracks; • Or, put laws in place that avoid big problems and a resulting

backlash of bad laws

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Restrictions on Government and Private Use of Geospatial Data

• Different sets of laws, but there is overlap

• In particular, laws restricting government conduct in searches influences the conception of privacy rights against non-governmental actors

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Laws Restraining the Government

• 4th Amendment prohibition against unreasonable search and seizure

• No cases have made it to the Supreme Court yet, and not aware of lower court cases, but they are coming

• There is a nice body of case law addressing aerial surveillance that will surely come in to play when collection or use of drone data is contested

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4th Amd’t. Aerial Surveillance Cases

• Dow Chemical v. U.S. (1986): EPA hired aerial photographer to take photographs of 2,000 acre fenced facility at 1,200 feet agl

– Court ruled there wasn’t an unreasonable search as the open areas in the 2000‐acre industrial facility were more akin to an “open field” than to the curtilage of a home, and, as a result, were “open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras.”

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Dow Chemical v. U.S.

• Curtilage: the immediate vicinity of a residence (decks, gardens, lawn area, etc.)

• The Court wrote that “open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from governmental interference or surveillance” and that “an individual may not legitimately demand privacy for activities out of doors in fields, except in the area immediately surrounding the home.”

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California v. Ciraolo

• First of “the Pot Cases” (1986) • Police tipped that Defendant was growing pot in his

backyard • Police drove by but couldn’t see in because of a high

fence • Hired an airplane, flew over at 1,000 feet and busted. • Court ruled not an unreasonable search because the

observations were made in public navigable airspace in a physically non-intrusive manner

• Court wasn’t concerned that plants were within the home’s curtilage

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Florida v. Riley

• (1989)

• Another backyard pot case, except this time police rented a helicopter and flew at 400 feet.

• Through an open skylight in a greenhouse the police observed pot plants

• Court ruled this to not be an unreasonable search because any member of the public could legally have been flying over the property in a helicopter at that altitude and could have observed the plans

• Court noted that the case would be different if the flight operation had been contrary to law

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Kyllo v. United States

• (2001) • Police officer used a thermal imaging camera to detect

unusual heat signatures emanating from residence. The homeowner was arrested

• Court rule that this was an unreasonable search, stating when “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant

• Query: With smartphones beginning to adopt thermal imaging technologies, will this type of search be illegal in ten years?

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State Laws

• E.g., Colorado HB 14-1152: The State must destroy personally identifiable passive surveillance imagery after three years.

– And after one year it must keep a record of anyone that accesses it.

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Laws Regulating Private Use of Geospatial Data

• Source of Acquisition?

– Drone footage of April 2014 fire in Dayton, Ohio, provided to a tv station by a hobbyist.

– FAA cautioned tv station against broadcasting the footage, noting that the station might run afoul of FAA regulations

– If you use drone data that was obtained by a third party, are you in violation?

• First Amendment issues

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Laws Regulating Private Use of Geospatial Data

• Case law: – Invasion of privacy

• Publication of private facts – Revelation of information that is not of public concern and the

release is offensive to a reasonable person

• Intrusion on Seclusion – a perpetrator intentionally intrudes, physically, electronically,

or otherwise, upon the private space, solitude, or seclusion of a person to oversee or overhear the person's private affairs; and

– the intrusion would be highly offensive to a reasonable person.

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Invasion of Privacy (cont.)

• Appropriation of name or likeness

– A person uses the name or likeness of another person for personal gain or commercial advantage

– This is one reason faces are obscured in Google Street View

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Restrictions on Private Use

• Trespass

• Nuisance

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Restrictions on Private Use

• Federal: FAA likely to deal, reluctantly, with drone privacy in its sUAS regulations

• Drone test sites are required to have privacy policies and practices

• President Obama has indicated he will issue an Executive Order directing the National Telecommunications and Information Administration to develop guidelines for geospatial data (including drone data)

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Restrictions on Private Use

• State laws

– States are active in regulating drone privacy

• Federal copyright law

– Data can be:

• Copyrighted

• Open/Creative Commons (you can use, but you can’t profit and you can’t restrict others)

• Public Domain

• Fair use test

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Restrictions on Private Use

• Security/Public Safety – NSA, DoD, FERC, etc.

– State laws protecting individuals

– State laws protecting critical infrastructure assets and wildlife locations

• Common law – License restrictions

– Warranties (express and implied)

– Fraud/Misrepresentation

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Questions/Discussion?

• Thank you!

• My Contact Info:

• James M. Mock, PLLC

• P.O. Box 11196, Boulder, Colorado 80301

• jim@mocklawoffice.com

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