By Michael Petro, originally published in Buffalo Law Journal on 5/11/15.
Growing drone usage sparks legal concerns
Drones aren’t just used by the military and law enforcement entities. Smaller and cheaper versions of unmanned aerial vehicles have become available for everyday hobbyists and commercial use
As a result, the challenge now faced by the Federal Aviation Administration and state and local agencies is regulating their use, according to Buffalo attorney Joseph Hanna. At the forefront is how to balance privacy and security with the benefits of unmanned aircraft systems, said Hanna, a partner at Goldberg Segalla
Drones may have been around for years, but regulating them is part of a new and changing area of the law. Hanna said the FAA and many states are making strides as the regulatory framework continues to take shape. He’s seen an explosion of legislation around the country in an attempt to put more laws on the books and help open the door to further drone use.
“It has been fun to be so active in the legislative research and following these bills because it’s such an emerging area of the law,” said Hanna, who has addressed town boards and county legislative sessions throughout New York and discussed potential laws and liabilities for statewide municipalities.
His research led him to write “The Drones are Coming! Is New York Ready?” for the New York Bar Association Journal. He also speaks to insurance companies that want to be ahead of the game when legislation passes or when FAA recommendations go into effect.
Last week, Phillips Lytle attorneys Doug Dimitroff and John Falk were part of a panel discussion on the struggle of regulations to keep pace with the explosive growth of the technological capabilities of drones. They spoke about the rules that govern commercial use of the devices, what’s coming down the pike from the FAA and their usefulness in certain areas of business.
“It’s absolutely fascinating to me, especially when I realized the value and power of these things and the positive impact they can make,” said Dimitroff, a partner at the Buffalo firm. “But it will have to be balanced by safety and privacy and all of those types of things. I think the current value and potential value will be extraordinary.”
For 15 years, Falk, who works in Washington, D.C., has been involved in advanced military and national security technology in the simulation, training and utilization of unmanned aerial systems. He also has worked with the Department of Justice and National Institute of Justice in harnessing these systems to the benefit of federal, state and local law enforcement.
“I could not be more thrilled about seeing these types of technology evolving,” Falk said. “It’s very exciting to see technology that cost tens of millions of dollars for the defense department to be accessed for a few thousand dollars by the general public.”
Dimitroff said the use of unmanned aircraft systems is regulated and governed by the FAA. Those rules pre-empt all other state and local regulations because the FAA claims U.S. airspace from the ground up. Drones cannot be flown above 400 feet and closer than three miles to an airport. Also, any commercial aircraft, manned or unmanned, needs some form of FAA approval. The FAA is proposing to make modifications to those rules, but final determinations won’t be completed for 12 to 18 months, he said.
What the FAA is looking to do is limit the height in which drones can be operated, to perhaps as low as 200 feet, and stress the need that they be operated by someone with line of sight to the drone. Right now, for hobbyists, the rules allow for quite a bit of latitude for heights and how and where drones can be operated, according to Dimitroff.
In the absence of federal regulations, more pressure has fallen on the states to regulate drone-related activity, Hanna said. As the potential for widespread use of drones grows, he said that having a more effective regulatory framework in place will help the state avoid headaches down the road.
“I think another concern is how, say, (are) the town of Amherst or city of Lackawanna or Village of East Aurora going to regulate tracking down someone flying a drone larger than it’s legally supposed to be? Or flying too close to a building?” Hanna said.
New York has been active in attempting to pass legislation, he said. A number of pieces are modeled after state law passed in Texas that focuses strongly on safety, security and privacy yet still grants permission for the use of drones for hobbyists, commercial entities and law enforcement. After doing a comprehensive study, he found that a handful of states have yet to draft drone-related legislation.
“I take great pride in New York being ahead of the curve. There is a great deal of interest statewide and from national insurance carriers regarding potential liability and impacts related to drones and drone usage,” Hanna said.
Much of the attention on drones comes from their commercial use, Dimitroff said. There is a process in which a potential operator for commercial use can get an exemption from the FAA. As of now, the FAA has granted about 250 exemptions and has another 750 or so backlogged applications to weed through, he added.
“The idea is that before we have a massive amount of people using them, the rules have to be implemented so that it’s controlled substantially,” Dimitroff said. “The process in the current rulemaking would streamline or allow under certain or limited conditions the commercial use of these devices.”
He said the general consensus of the recent panel discussion is that the FAA is taking a methodical approach to expanding regulations because the potential usage is still broad. The more expensive the drone, the more capabilities its equipment will have, including the quality of the camera on it. Some people in the audience deemed the proposed rules too restrictive, he added.
The FAA makes it clear that just because a person can buy an unmanned aerial vehicle doesn’t mean he or she can fly it anywhere or for any purpose.
Even though they are smaller devices, as far as where they’re flown, security remains a concern, Hanna said. An example is when drones have been flown on White House property. Also, last year, there was a report of one being flown over Larkinville during an outdoor event.
Hanna said when drones are flown in private places, it raises concerns regarding constitutional rights.
He said drones are projected to be a billion-dollar industry, so the economic impact is important, as well. Major corporations such as Amazon are attempting to use drones commercially in day-to-day business.
The Association of Unmanned Vehicle Systems International estimates the domestic industry will grow to $13.6 billion by 2018 and $82.1 billion by 2025, with 103,000 new jobs by 2025.
“As long as the concerns of the people, in terms of security and privacy, are covered, the economic impact and job creation can be great for this country,” Hanna said.
Dimitroff said unmanned aircraft systems can also be used for agricultural purposes, inspection of structures and on-site maintenance. They could even eliminate the need for dangerous jobs such as a tower climber and save lives as a result.
Drones can provide value to the general public, law enforcement and public safety, according to Falk. He has seen them be used in train derailments to help provide fire and EMS officials with quick intelligence. They also have been used to rescue lost individuals. He said they have become “a marvel of our military that have secondary and tertiary benefits to the American public.”
“I’m a deep believer in harnessing technology for lifeand-death situations and how they can make life and death impacts, which is the case with unmanned systems,” Falk said. “It’s interesting just being on a panel and hearing the FCC implore the industry to harness technology to help with worker safety. If a drone can be harnessed to undertake rudimentary tower inspection and avoid the loss of lives, that’s a wonderful return on the investment.”
Michael Petro is editor and reporter for the Buffalo Law Journal