Drones, Privacy Concerns and Regulations

The recreational use of drones, or unmanned aerial vehicles (UAV), has become increasingly popular in the United States. While such use has gone largely unregulated due to the unlikeliness that these drones will obstruct air traffic, commercial and governmental use of drones—especially larger drones—has sparked safety and privacy concerns leading to attempts at regulation.

What Are the Major Concerns?

With respect to public safety, the primary concern is that drones will collide or otherwise interfere with other aircraft, particularly when flown in congested airspace such airports. The Federal Aviation Administration (FAA) legitimized this concern by admitting the difficulty in policing drone use since they are typically undetectable by radar. Even assuming drone violations were detectable, it would be nearly impossible to track down the device or, more importantly, its operator. In addition, the inability to fully monitor drone use has caused public concern over personal privacy and accountability for breaches.

What Are the Applicable Regulations?

Earlier this month, the FAA proposed a set of rules regulating domestic commercial drone use for drones weighing up to 55 pounds. Among other things, the new rules would require operators to pass a knowledge test, register drones, and pay fees. In addition, flight would be prohibited above 500 feet, faster than 100 mph, over anyone not directly involved in the drone’s flight, beyond the operator’s line of sight, and at night. In light of the minimal safety risk posed by small drones, operators would not be required to obtain a pilot’s license or certify drone safety. On the other hand, the FAA is drafting separate rules for both larger drones requiring enhanced regulation and smaller drones that may be relieved from certain requirements.

Complementing the proposed FAA regulations designed to ensure aviation safety, President Barack Obama issued a presidential directive aimed at protecting personal privacy from intrusive government surveillance. Specifically, federal agencies will be required to publicly disclose drone flight locations within the United States and their policies for storing, using, and protecting personally identifiable information collected by drones. While the order extends only to federal agencies, Obama directed the Commerce Department and the drone industry to work together to develop a similar voluntary code of conduct for the private sector.

Privacy concerns are also being addressed at the state level. For instance, a bill has been proposed in California that would make traditional concepts of private property and trespassing applicable to drones by creating a cause of action for individuals whose privacy has been violated. In sum, a drone operator could be held liable for knowingly entering the airspace of another without permission, or otherwise trespassing to procure an image or recording of the plaintiff engaging in private activity, if the invasion would be offensive to a reasonable person.

Although, legislation will potentially allow thousands of businesses to employ drones in the near future, operators should be careful to recognize the questionable legal status of drone use. New regulations will have to endure years of public review before official implementation, and during that period can be expected to change as technology develops.

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