Evolving U.S. law on drones hit a speed bump in 2014 when the Federal Aviation Administration banned, at least temporarily, commercial deliveries by drones.
This blog post has been updated, with a summary of the FAA’s 2016 drone regulations. Click here for 10 critical points under the 2016 drone law.
However this post explains the background.
The 2014 approach drew a line between recreational, hobby use of drones, which is allowed, and various commercial uses, which were either outright banned or heavily regulated.
The document gives examples. “Flying a model aircraft at the local model aircraft club” is allowed. Not allowed: “delivering packages to people for a fee.”
Plans by Amazon.com and other companies are put on hold by the FAA move. But, this may only be temporary. There’s a 30-day comment period and the overall rules are now being reviewed top to bottom.
Background on Drones & Law
Drones like those available at the mall or a hobby shop such as the DJI Mavic Mini are covered by a 1981 Federal Aviation Administration ‘Advisory Circular’. The advisory was intended for model airplanes and other flying remote control gizmos.
The advisory cautions against flight over 400 feet and recommends notification of airports and control towers when flying within 3 miles of an airport.
But the FAA advisory is voluntary, offering no solution when the neighbors buzz a drone up and down the street near or over private property.
Drones: What Law?
FAA missed by six weeks a December 30, 2015 deadline to enact new rules integrating drones into U.S. airspace. An updated blog post linked above outlines the proposed changes.
If and when new drone rules pass, questions remain over civil liberties and snooping. The new drone rules are required to comply with federal, state and local laws protecting an individual’s right to privacy. But at a January 2014 Senate hearing the FAA administrator acknowledged his agency lacks full authority in that area and must work with other agencies.
For example, state and local law punish peeping toms. But, it has been pointed out that private drones will force new review of laws protecting all basic privacy rights.
A report available online, Integration of Drones into Domestic Airspace: Selected Legal Issues released in April, 2013 details the laws, or lack thereof, on drones.
Amazon.com created headlines announcing package delivery by drone. But that’s only one of many companies considering the idea. So, urgency underlies the need for drone flight rules.
Drone Cameras in the Sky: What Rules?
Drones with cameras present larger issues. Real estate agents love them. “Paparazzi” chasing stars want them. But, what about the nosey neighbor?
What about a photographer with a drone camera hired by the University of Virginia to take publicity shots? After flying a camera drone around campus, including through a tunnel, the FAA slapped a fine of $10,000. The photographer’s attorney appealed, challenging the FAA’s authority to even regulate airspace below 500 feet.
I think it’s doubtful, legally speaking, that the FAA was ever given jurisdiction over that airspace. That’s not where you would find people flying in airplanes.”
New York Attorney Brendan Schulman quoted in San Francisco Chronicle
What about a journalism professor teaching students to use drone cameras in news gathering? The federal government slapped the University of Nebraska “drone lab” with a cease and desist order. The school believed they could fly under the old hobby advisory because they were not engaged in commercial or research and development efforts.
Drones Buzzing Over Private Property
Can property owners prevent a drone flying over the yard delivering a last minute Christmas gift to the neighbor? The common law doctrine that ownership of land extends to the sky does not work in the modern world. That concept comes from a 1946 U.S. Supreme Court decision.
The issue in U.S. v. Causby was whether military aircraft flying 63 feet above a chicken farm on approach to an airport presented an unconstitutional taking of land. The court held yes, meaning damages were available. But no precise description of the nature or duration of the easement taken by the aircraft was given. With drones flying over the yard delivering pizza to neighbors, unanswered issues beg for rulings at all levels.
Drones: Now What?
Drones carry the FAA label Unmanned Aircraft Systems, or ‘UAS’. But what if courts decide the federal government lacks authority over the first 400 to 500 feet of airspace? Under the Tenth Amendment to the U.S. Constitution powers not delegated to the federal government are reserved to the states. Imagine states and municipalities rushing to pass new laws on safety, privacy and other concerns about to clutter U.S. airspace.
This blog post has been updated with the latest legal developments and will be revisited as events require.
Attorney Andrew D. Myers is a personal injury lawyer and bankruptcy lawyer in Massachusetts and New Hampshire who occasionally writes on other legal topics. SouthernNHPersonalInjuryLawyer.com Bankruptcy-LawyerNow.com