Privacy Rights and Public Perception – What Didn’t Change in COVID

Posted by Nicole Witt on Mar 12, 2021 in In The News | 0 comments

We came across an interesting article in Slate that highlights an example of one police department in Connecticut that sought to use drones to help flatten the curve in the early months of the COVID-19 pandemic—allegedly by using drones equipped with tools that could monitor compliance with social distancing guidance and potential symptoms such as elevated temperature or heart rate. While the police department made clear that the program would not be used over private yards and would not use facial recognition technology, the department faced fierce public outcry and the program was shelved.

Privacy concerns continue to be a key issue for any local government agency looking to implement a drone program. It would be prudent for a local agency looking to use drones to adopt a drone policy to which its drone operations are subject. The policy should address privacy rights in particular. Failure to consider such a policy could lead to public-perception issues. Time and again we have seen that such public-perception problems mean the abrupt end to the agency’s drone program.

Remote Identification: The FAA Proposed Rule and Privacy

Posted by Steven Miller and Nicole Witt on Feb 6, 2020 in Federal Law | 0 comments

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule. This is the fourth in a series of postings about the significance of the proposed new rule.

As of February 1, there have been over 8,000 comments to the proposed rule—the comment period closes on March 2, 2020. Many comments have focused on privacy and of those, there are two distinct areas of concern.  First is the concern as to the use of the new remote identification information by law enforcement. Second is the broader concern, voiced by hobbyists and other non-industry users, that operator location will become public knowledge.

Understanding this concern, and assessing its legitimacy, requires understanding a part of the proposed rule that is, at best, opaque. As drafted, the rule will require drones, with some exceptions, not only to broadcast remote identification information via radio frequency, but also to connect via the internet (when internet service is available) to a website approved by the FAA—referred to as a “UAS Service Suppler” or “USS.” There are many unanswered privacy-related questions about the USS. Will it be hosted by a private entity?  How will law enforcement access the website?  Will the USS operator distribute information to the public? Will each drone manufacturer host its own separate USS, providing information about its drones only, or will there be a single USS linked to all drones in operation? Who will pay for the USS and will that cost be passed on to those who access the website for compliance or law enforcement purposes? We expect many of these questions to be answered during the rulemaking process. 

Remote Identification: What’s Next for Local Government Owners/Operators of Critical Infrastructure?

Posted by Steven Miller and Nicole Witt on Feb 5, 2020 in Federal Law | 0 comments

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule.  This is the third of a series of postings as to the significance of the proposed new rule.

Imagine you are the General Manager of a water district.  For weeks, there has been a drone buzzing over a dam and hydro-electric generation facility under your control.  You don’t know who is operating the drone or what the purpose of the flight is. Or imagine you are a Fire Chief whose safety operations have consistently been interrupted by drones operated from unknown locations. You know there are technologies available to identify drones and take them down, but your lawyer has been reading this blog and tells you that most are probably illegal.

Enter the remote identification rulemaking.

With remote identification, drones themselves will make it easier for effective use of the kinds of passive detection methods that do not raise legal issues. The first step in regulating drone use is to know who is using the drone and from where. The remote identification rulemaking will make this first step possible. But important enforcement questions remain. The remote identification rulemaking needs clarification as to how local government can access and use the remote identification information broadcast or transmitted by the drone. More important, federal preemption issues remain unclear, making it difficult for a local agency to enact drone regulations that it can enforce. 

Remote Identification: First Step in Expanded Drone Operations?

Posted by Steven Miller and Nicole Witt on Feb 5, 2020 in Federal Law | 0 comments

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking and promised that we would be blogging on the impacts of the proposed new rule.  This is the second of a series of postings as to the significance of the proposed new rule.

There are undeniable potential benefits of drones. They can deliver critical medicine to remote areas as easily as they can deliver a package to a front door. They can improve worker safety by conducting inspections in areas where it would be dangerous for a human to go. However, drone operations often face impossible hurdles in the form of FAA regulations that do not contemplate creative and unintended positive uses of drones. The enforcement challenges that necessitate the remote identification rulemaking also functioned as barriers to expanded drone operations. 

Enter the remote identification rulemaking. 

The proposed rule gives regulators access to critical information about the location of drones and their operators. This, in turn, will help to address key safety and security concerns underlying the present prohibition against operating at night or outside the operator’s line of sight.

The FAA has already indicated that it anticipates the remote identification rule will “assist in the implementation of operations of small UAS over people and at night.” In fact, the FAA’s proposed rulemaking on the Operation of Unmanned Aircraft Systems Over People (issued in February of 2019) explicitly stated that the FAA intended to finalize its policy on remote identification prior to completing the rulemaking for flight over people and at night. The FAA also expects that the information provided pursuant to the remote identification rule will facilitate the technologies necessary for operation of a drone beyond the operator’s visual line of sight.

In short, we should anticipate that the final remote identification rulemaking will be the foundation for future expanded drone operations.

Remote Identification: Why is the FAA’s Rulemaking a Potential Game Changer?

Posted by Steven Miller and Nicole Witt on Feb 3, 2020 in Federal Law | 0 comments

In our first posting of 2020, we covered the FAA’s Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking, and promised that we would be blogging on the impacts of the proposed new rule.  This is the first of a series of postings as to the significance of the proposed new rule.

The proposed remote identification rulemaking is intended to give the FAA and law enforcement much-needed tools to address unsafe or prohibited drone operations.  The key issue here is: While there may already be some laws and regulations on the books targeting unsafe drone operations, the nature of drones themselves makes these laws and regulations very difficult to enforce.  Enforcement issues have been frustrating law enforcement and lawmakers alike.

The majority of drones are small, fast, and can fly a significant distance from the operator.  This means that, even if a drone is properly identified with the required registration markings, it can be impossible to link a drone with its operator in order to hold an individual accountable for the operation of his or her drone.  When it comes to enforcement of regulations or local laws and ordinances, these factors present a serious challenge. 

Enter the remote identification rulemaking.

The proposed rule requires most drones to broadcast or transmit important identifying information including: the drone’s ID information (serial number or session ID), latitude, longitude, and barometric pressure altitude of both the drone and the operator—the “control station.”   If the proposed rule is adopted, the FAA and law enforcement agencies would have near real-time access to information critical for at least two reasons.  First, law enforcement will have a new tool to distinguish between compliant and non-compliant operations, which may be helpful in determining whether a drone poses a security risk.  Second, and as important, the remote identification information will allow for those enforcing drone regulations to contact a person operating a drone in violation of the law.

Mysterious Droves of Drones

Posted by Nicole Witt on Jan 17, 2020 in In The News | 0 comments

For a number of weeks, the residents in areas of Colorado and Nebraska have been unwilling hosts to multiple nighttime flights by swarms of small drones flying in a grid pattern. Law enforcement and the FAA have been unable to determine the operator(s). On January 6, 2020, a multi-agency task force of state and federal authorities was formed to investigate the sightings. 

Read more here.

This situation highlights why the FAA’s recent Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking is so important

New Year: New Rulemaking

Posted by Nicole Witt and Steven Miller on Jan 16, 2020 in Federal Law | 0 comments

In one of the FAA’s final acts to close out 2019, it issued the long-awaited Remote Identification of Unmanned Aircraft Systems notice of proposed rulemaking. This rulemaking is the first step in giving the FAA and law enforcement the tools to identify drones in flight and the location of the drone’s control station. The proposed rule creates three categories of drones, each with different remote identification requirements. 

Standard Remote Identification UAS would be required to transmit certain information via the internet to an FAA authorized third party and to broadcast the same information directly using radio frequency spectrum. 

Limited Remote Identification UAS would be required to transmit certain information via the internet to an FAA authorized third party and such UAS would be operationally limited to flight within 400 feet of its control station. Operators of a Limited Remote Identification UAS would be required to keep the UAS within visual line of sight.

UAS Without Remote Identification, including all UAS purchased before the date of the rulemaking and which cannot be brought into compliance or amateur built UAS, could only be operated within the visual line of sight of the operator and within an FAA-recognized identification area or with authorization by the Administrator for specific purposes.

This rulemaking may mark the beginning of a seismic shift in UAS operations. The FAA has stated that this rulemaking will be the foundation for new technologies that will allow for expanded operations.

We will be discussing the significance of this proposed rulemaking in a series of posts,  addressing issues such as:

Why is this rulemaking needed?     

What does this rulemaking mean for expanded operation and other important rulemakings?

What does this rulemaking mean for local governments, owners/operators of critical infrastructure, and law enforcement?

What impact does this rulemaking have on privacy rights?

Stay tuned!

Why Didn’t Amazon Deliver My New Shoes Using a Drone?

Posted by Steven Miller and Nicole Witt on Nov 18, 2019 in Federal Law | 0 comments

It seems like forever since we first started expecting the explosion of drone delivery service. Three years ago, Amazon proudly announced Prime Air. Just last week, the Los Angeles Times published an article announcing Google’s entry into the drone delivery business.

So what is taking so long?  There are a number of legal reasons. 

First, an entity seeking to use drones for delivery needs to comply with FAA regulations. Without an exemption, some of these regulations become impossible hurdles. For example, the drone must at all times be under the control of a pilot—autonomous drones are impermissible. Also, the drone must be flown within the line of sight of the pilot in command. Finally, drones can’t be flown near airports, or at night, or over a person, or a moving vehicle or… The list goes on and on such that there are significant hurdles for anyone seeking to deliver anything using a drone—in particular in highly populated urban areas.

Second, until there is clarity as to whether FAA rules preempt the field of drone regulations,  there is a host of State and local regulations with which a drone delivery service must either comply or calculate the risk of non-compliance.  This risk is likely too high to allow for commencement of large scale drone delivery service.

Finally, despite the explosion of the industry, the average person is likely concerned about privacy and nuisance issues that need resolution before the general public will accept drone delivery.  This may not be a legal issue for the person receiving goods via drone—presumably, that person will have agreed to a drone landing in her front yard.  But the recipient is not the only person potentially impacted by drone delivery services.

So take the news of tomorrow’s burrito delivery with a grain of salsa.

249 Grams—the Magic Number?

Posted by Steven Miller and Nicole Witt on Nov 12, 2019 in In The News | 0 comments

DJI’s newest drone, the Mavic Mini, weighs in at 249 grams. It fits in the palm of your hand and is not much bigger than a cell phone.  Despite its size, it is no toy, but has remarkably high-quality video capability.  DJI is marketing its weight prominently, even featuring the number on the drone body itself.  So what’s the big deal with 249 grams?

Well, it turns out that the FAA only requires users to register drones that weigh more than 250 grams—see 14 CFR 48.15.  So technically, a recreational user of a Mavic Mini does not need to comply with the FAA’s drone registration requirements.  Of course, any commercial use needs to comply with Part 107 regardless of drone weight.  But if drone technology develops such that sophisticated drones like the Mavic Mini are marketed as ways to avoid regulatory compliance, that would not be a helpful development.   

Update on the (Slowly) Developing Preemption Landscape

Posted by Nicole Witt and Steven Miller on Sep 20, 2019 in Local Law | 0 comments

As we have discussed in previous posts (Local Drone Regulations and Possible Federal Preemption and Federal Case Declared Local Ordinance Illegal), the law is unclear as to the line which local government may not cross in regulating drone use before being preempted by federal authority. The legal landscape of preemption issues related to local drone regulations continues to slowly expand with a new unreported case from California’s First District Court of Appeal, Foletta v. Ellis. 

This case arises from a dispute between neighbors and only briefly touches on the issue of preemption. After Foletta reported Ellis to county authorities for engaging in unlicensed commercial activity, it is alleged that Ellis began a series of harassing behaviors including, playing loud music on a daily basis, lurking around the edges of his neighbor’s property, firing an orchard cannon, and flying a drone at Foletta approximately 6-10 feet over his head. Foletta obtained a restraining order against Ellis which, in part, prohibited Ellis from flying drones over Foletta’s property. 

Ellis challenged the order, arguing that it was “invalid to the extent it prohibits him from flying drones . . . over the Foletta property because airspace use is governed by the FAA.”  The court evaluated “whether the federal government’s regulation of airspace generally is intended to preempt the authority of states to regulate harassment that involves airspace” and found that it did not. 

While Foletta v. Ellis is an unreported case and certainly not the end of the preemption question, it is the second case that aligns with FAA guidance that state and local actions related to police power generally are not preempted by federal regulations. 

We will continue to watch this issue as more state and local governments adopt drone regulations, and those regulations are challenged.

Further Delay of the FAA’s Remote Identification Rulemaking

Posted by Nicole Witt and Steven Miller on Sep 17, 2019 in Federal Law | 0 comments

A fundamental and practical problem in regulating drone use is that the operator is remote from the drone. If a drone operator is violating Federal regulations, it is difficult if not impossible to locate the person flying the drone and hold them accountable. One potential solution is to require a drone to broadcast its identifying information to assist law enforcement and the FAA in enforcement activities. This is known as “remote identification.” 

In its August 2019 Significant Rulemakings Report, the FAA indicated that it will further delay its long-awaited Remote Identification of Unmanned Aircraft Systems Rulemaking to December of 2019. 

According to the FAA, the rulemaking “would implement system(s) for the remote identification of certain unmanned aircraft systems. The remote identification of unmanned aircraft systems in the national airspace system would further address security and law enforcement concerns regarding the further integration of these aircraft into the national airspace while also enabling greater operational capabilities by these same aircraft.”

This delay may also implicate other important FAA rulemakings.  In the February 13, 2019 Notice of Proposed Rulemaking regarding the Operation of Small Unmanned Aircraft Systems Over People, the FAA noted that it intended to finalize its policy regarding remote identification of small UAS before finalizing the rulemaking addressing flight over people.

This news is also bound to irk Washington lawmakers who, in July of 2019, wrote a letter to Secretary Chao, Acting Administrator Elwell, and Acting Director Vought register their concern at the delay in issuing the remote identification rulemaking. Lawmakers noted the “failure to complete this effort poses serious risks to the National Airspace System, its users, and the Nation’s most critical and sensitive facilities and assets.” 

Anti-Drone Technologies

Posted by Steven Miller and Nicole Witt on Sep 10, 2019 in Federal Law | 0 comments

A drone flies over a water tank (or a bridge,  a power plant, a baseball stadium, an airport…the possibilities are endless). Even assuming that the local government agency with jurisdiction over the water tank has restricted drone flight, how is it to enforce such a restriction? An agency seeking to enforce its drone restrictions could shoot down the drone—or employ a technological solution to capture, disable, or destroy the drone.  But otherwise, it is close to helpless if it cannot locate the operator of a drone.  Anti-drone detection technologies offer a possible solution to this enforcement problem. Like so many legal issues regarding drone technologies, the legal landscape is unclear as to what anti-drone solutions are legal. 

Airspace is a company selling interesting anti-drone technologies—including the two main methods of enforcing drone regulations—Detection and “Mitigation,” meaning capture and removal of drones. These technologies raise interesting legal issues. There are both federal and state laws on the books that, while not originally intended to apply to drones, create a difficult set of obstacles for any agency seeking to implement an anti-drone strategy.

On one end of the spectrum are mitigation methods by which a drone is controlled, disabled, or destroyed. See 1:47-2:02 of this video for a tried-and-true mitigation method involving raptors. Airspace is marketing a higher-tech mitigation technology—see this video for Airspace’s simulation. The problem with mitigation techniques is that they are almost certainly illegal. 

Drones are considered a type of aircraft. Title 18 of the United States Code provides that “[w]hoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft . . . shall be fined under this title or imprisoned not more than twenty years, or both. (18 U.S.C. § 32). 18 USC 32 is not the only potential federal statutory impediment to anti-drone mitigation efforts—all of the federal prohibitions discussed below with regard to active detection, also would prohibit mitigating drone flight. Mitigation methods also present legal risks under State law, for conversion or other tort theories, that could open the door to a civil action by the drone owner whose drone was captured. 

At the other end of the spectrum are detection methods.  These methods, when completely passive, likely do not implicate any of the legal issues applicable to mitigation methods. For example, Airspace offers a solution that it claims integrates “sensor correlation, targeted visual display, and communication alerts” to detect drone activity. It is hard to tell from its video whether Airspace’s technology is truly passive. As soon as a detection technique involves more active efforts, legal issues start to appear. For example, pinging a drone to determine its location may be an illegal interference with satellite GPS systems in violation of 18 U.S.C. § 1367.  Federal law also generally prohibits computer hacking, including intentionally accessing a computer without authorization if, by doing so, an individual obtains information from any protected computer. (see 18 U.S.C. § 1030(a)(2)(C))

Just as with the development of drones a few years ago, anti-drone technology is also developing faster than the law can keep up. Those interested in this evolving area should check out a recent FAQ from the Federal Aviation Administration concerning drone detection systems—in particular #s 5 and 6.  The FAA emphasizes the risks of drones—in particular at airports. But it cautiously emphasizes that only statutorily permitted federal agencies may implement most anti-drone technologies.  Local agencies are still waiting.

Hoverlaw Returns—Update from Marin County

Posted by Steven Miller and Nicole Witt on Sep 9, 2019 in Local Law | 0 comments

It has been over a year since we posted to this blog.  We are still here, hovering above quite a bit of legal action in the drone-space.  We are re-engaging in our blogging activities and plan on posting updates in the coming days on legal issues concerning drone use in California, particularly at the local level. 

We inaugurate our return with an interesting story from the town of Tiburon, just north of San Francisco. In July of this year, the Tiburon City Council adopted an ordinance regulating the operation of drones.  The ordinance included a number of non-controversial provisions, and also prohibited drone operation (1) directly above or on the grounds of local public schools without permission, (2) within 400 feet of any “publicly permitted event,” and (3) in a manner that interferes with emergency response activity, in particular within 400 feet of any emergency vehicle that is operating with lights and/or sirens. A few days later, the National Press Photographers Association threatened a lawsuit, claiming that the ordinance’s restrictions concerning publicly permitted events and emergency response activities could not be enforced under principles of federal preemption because only the Federal Aviation Administration (FAA) may regulate the drone airspace. In response, the City has amended the ordinance to remove the prohibition against operating near permitted events, emergency vehicles in operation, or in a manner that interferes with emergency response. In the staff report accompanying the amended ordinance, the City asserted that the original ordinance would not have implicated any preemption issues, but amended the ordinance anyway in order to reduce the likelihood of legal challenge.

The story of Tiburon raises interesting legal issues concerning preemption: 

First, a local agency with police power, like a city, almost assuredly is not preempted when it enacts drone restrictions that implicate areas within its police powers—like zoning, land-use, privacy, and law enforcement operations.  Tiburon’s prohibition of drone use that interfered with emergency response almost certainly was within its police powers, and therefore should raise little risk of preemption. 

Second, prohibitions on drone flight that lie outside traditional police powers may be subject to a preemption challenge. Until there is a larger body of appellate decisions clarifying the preemptive effect of FAA regulations, a city seeking to adopt drone regulations should be prepared for legal challenges. Interestingly, the city did not seek to amend the prohibition on flight over schools—no one threatened litigation. Like the prohibition on flight over permitted events, this prohibition could have been subject to a preemption challenge as being outside a city’s power.  It seems likely that the school district did not issue the restriction itself precisely because it thought the city might have regulatory powers that it (a school district does not have police powers) did not possess—why else would it have asked the city to enact the ordinance instead of doing so itself?  The City could perhaps have established a basis for its regulations by issuing findings that drone flight interfered with the privacy of its residents—in particular students and teachers.  Such a finding would have bolstered the theory that the City was acting within its local powers, not preempted by federal regulations, when it prohibited drone flight over permitted events or schools. 

Third, a local agency that does not have police powers faces potential difficulties in enforcing any drone restrictions.  This is particularly concerning for special districts in California, which do not have police powers but have responsibilities to protect critical infrastructure like water towers, waste processing facilities, and bridges, the safety and security of all of which are threatened by unfettered drone use. 

An Update on Commercial Drone Law in California (Video)

Posted by Steven Miller and Nicole Witt on Jan 5, 2017 in California Law | 0 comments

In 2016, the California legislature sent six bills to the governor, who signed two and vetoed four.

The two bills are:

1. AB1680 – Makes it a misdemeanor to interfere with first responders or emergency personnel at the scene of an emergency
2. SB807 –  Protects emergency first responders from liability for damage to a drone that is interfering with the responder’s ability to provide emergency service

Also, the Federal Aviation Administration (FAA) has released its final rule on commercial drone operation, which may affect any state laws and local ordinances.

California Legislature Sends Six Drone Bills to the Governor’s Desk

Posted by Steven Miller and Nicole Witt on Sep 1, 2016 in California Law | 0 comments

With the end of the legislative session, the California legislature sent the following six bills to the Governor’s desk:

• AB 1662
• AB 1680
• AB 2148
• AB 2320
• AB 2724
• SB 807

Most of these bills criminalize non-compliance with the law and either create a new crime or expand the scope of an existing crime. Interestingly, just last year, the Governor vetoed a number of bills, including three drone related proposals, because the bills created a new crime and, the Governor observed, “[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.” It seems the Legislature is sending the Governor a message that certain drone related conduct requires a criminal penalty and should be proscribed by the State.

Additionally, some of the bills sent to the Governor this year touch on similar concerns addressed by the Legislature last year, including impeding the work of emergency personnel. While it is unclear how the Governor will act on these proposals, it is evident that the Legislature is undeterred by the Governor’s rejection of past drone related legislative proposals.

Update on California Drone Bills

Posted by Steven Miller and Nicole Witt on Jun 23, 2016 in California Law | 0 comments

A large number of drone-related measures are presently working their way through the California legislature. In light of the FAA’s recently published final rule on drone use and operation, many of these measures may be subject to further amendment—up until a deadline of August 19, 2016. But the following is brief summary of the status of all California drone-related bills as of June 22, 2016:

AB 1662 would require a drone operator to follow the same requirements as a vehicle operator following an accident that results in the injury to another. AB 1662 would require that after an accident involving a drone, a drone operator would have to immediately land the drone and provide certain identifying information to the injured individual or the owner of damaged property. This bill passed the Assembly and was referred to committee in the Senate.

AB 1680 would make it a misdemeanor for a person to use a drone to interfere with the duties of law enforcement or other “first responders.” AB 1680 simply adds drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. This bill passed the Assembly and was referred to committee in the Senate.

AB 1724 would require anyone operating a drone to place identifying information or digitally store the information on the drone and would impose a fine of up to $2,500 for failure to so identify the drone. This bill is in committee. Its first hearing was cancelled at the author’s request.

AB 1820 imposes restrictions on a law enforcement agency’s use of drones. Before any use, the law enforcement agency would need to develop and make available to the public a policy on the use of drones, and train its staff on such a policy.   Even with such a policy in place, AB 1820 would require that a law enforcement agency could only use a drone if it obtains a search warrant, absent exigent circumstances. Finally, AB 1820 would require that all images or data obtained by use of a drone be destroyed within one year, with certain exceptions. This bill passed the Assembly and was referred to committee in the Senate.

AB 2148 would require the Department of Fish and Wildlife and the Department of Parks and Recreation to develop regulations for the use of drones over the lands managed by each department in order to protect wildlife and sensitive species. This bill passed the Assembly and is currently in committee in the Senate.

AB 2320 was a twin to SB 808 before it was amended. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). AB 2320 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. The bill also permits a judge to prohibit a person required to register as a sex offender from operating a drone if the judge finds it is in the public interest to do so. Lastly, this bill contains non-binding language of legislative intent to prohibit a person from flying a drone within 250 feet of any critical infrastructure in order to gather information or photographs of the facility. This bill passed the Assembly and is in committee in the Senate.

AB 2724 would amend the Civil Code to include the requirement that drones sold in California include a copy of FAA safety regulations, as well as a notice of the requirement to register the drone with the FAA. AB 2724 would also require that any drone with gps capability also be equipped with geofencing software that would prohibit the drone from flying within 5 miles of an airport. Finally, AB 2724 would require owners of drones to buy liability insurance. This bill passed the Assembly and was referred to committee in the Senate.

SB 807 would limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services.   The bill broadly applies to public and private entities, and to persons regardless of whether they are paid or volunteer.   This bill passed the Senate and the Assembly Committee on Privacy and Consumer Protection. The bill is currently in the Assembly Judiciary Committee.

SB 808 was a twin to the original draft of AB 2320. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). SB 808 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. This bill was referred to committee in the Senate.

SB 809 would prohibit the operation of a drone in the airspace over a public school (K-12) without the written permission of the school principal. This bill was referred to committee in the Senate.

SB 810 would make it a misdemeanor, punishable by up to 6 months in jail and/or $5,000, to operate a drone in a manner that interferes with efforts of firefights to control, contain, or extinguish a fire. This bill was referred to committee in the Senate.

SB 811 would make it a misdemeanor to operate a drone on or above the grounds of a state prison or a jail without prior permission from the Department of Corrections and Rehabilitation or the county sheriff. This bill was referred to committee in the Senate.

SB 868 would prohibit the operation of a drone within 500 feet of “critical infrastructure” designated by the Office of Emergency Services. It would also prohibit operation of a drone within the airspace above most state offices in Sacramento, above a state park, or above any airspace over land or water managed by the Department of Fish and Wildlife, with limited exceptions. This bill passed the Senate and was referred to committee in the Assembly.

SB 1246 would require pest control businesses and government agencies conducting pest control activities, to notify the public at least 7 days before administering pesticides by drone over a residential area. This bill is in committee in the Senate.

Micro-Drone Report Released

Posted by Steven Miller and Nicole Witt on Apr 14, 2016 in In The News | 0 comments

On April 1, 2016, the FAA’s Micro UAS Aviation Rulemaking Committee (ARC) released its recommendations on a framework to regulate small consumer drones. The ARC was composed of a group of stakeholders, largely from the drone industry, and was tasked with developing performance and operational regulations for drones engaging in flight over people.

The FAA will use the information and guidance provided by the ARC to create “a flexible, performance-based proposed rule.” Until the issuance of such a rule, there remain many questions as to how the FAA will regulate consumer drone use. But, it appears that the ARC report points to a possible, or even probable, relaxing of earlier statements by the FAA indicating the likelihood of very restrictive regulation of even the smallest drones. This report may be the first signal that the FAA is willing to permit certain drones, in select circumstances, to operate outside the general regulations.

The report recommends dividing small consumer drones into four categories, depending on the level of risk of injury posed as a result of flight over people. For each category, the report recommends a risk threshold based either on the drone’s weight or “impact energy equivalent” and corresponding operational limitations. The ARC’s report can be read here.

California Legislative Update

Posted by Nicole Witt on Jan 20, 2016 in California Law | 0 comments

It appears that members of the California Legislature are undeterred by the Governor’s decision to veto all drone related bills but one at the end of last year. In the first few weeks of January, members of the Legislature have introduced, reintroduced, and amended a number of drone related bills. Interestingly, in what appears to be an effort to address federal preemption concerns, most of the bills include a provision specifying that the bill does not apply to drone use authorized by the FAA or does not conflict with federal law. Below is a summary of the bills that have recently been introduced.

AB 1680, expands the prohibition against a person going to or stopping at the scene of an emergency to watch emergency personnel if it impedes the work of emergency personnel to include people using or operating drones.

SB 811, appears to be an attempt to address the recent use of drones to drop contraband into prisons by prohibiting the knowing or intentional use of a drone on or over the grounds of a state prison or jail. This prohibition would not apply to prison or jail personnel acting in the scope of their employment or to any entity authorized by the FAA.

AB 1662, requires the operator of a drone that is involved in an accident resulting in injury or damage to a person or property to immediately land the drone in the nearest safe place. The operator must then either: 1) present valid ID to the injured person, 2) locate the owner of the damaged property and present valid ID if requested, or 3) leave a note with the name and address of the operator and the circumstances of the incident in a conspicuous place on the damaged property and notify the police. This requirement would not apply to law enforcement personnel acting within the scope of their employment or to anyone authorized by the FAA.

AB 14 was introduced last year but was recently amended to require owners and operators of drones that do not fall under the definition of “model aircraft” to either 1) mark the drone with the owner’s name, address, and telephone number, 2) store the same information on the drone in a digital format, or 3) mark the drone with the address of an website where the same information is listed. The markings may not modify or confuse any marks required by the FAA.

SB 809 is the reintroduction of SB 271 to prohibit the use of drones over school grounds.

Local Drone Regulations and Possible Federal Preemption

Posted by Steven Miller and Nicole Witt on Dec 28, 2015 in Federal Law | 0 comments

As we have written before, State and local agencies are not waiting for the federal government to address issues of local concern regarding consumer and recreational drone use. For instance, the Golden Gate Bridge, Highway and Transportation District today posted a notice prohibiting operation of drones near the Golden Gate Bridge.

Such local action raises legal issues concerning preemption by the federal government—specifically the Federal Aviation Administration (FAA). On December 17, 2015, the FAA’s Office of the Chief Counsel released a Fact Sheet addressing issues of Federal preemption of state and local drone regulations.  According to the fact sheet, the FAA is broadly empowered by Congress to regulate “matters pertaining to aviation safety.” More specific to drone use, the FAA Modernization and Reform Act of 2012 directs the FAA to establish  requirements for safe operations of drones posing little or no public risk or threat to the national airspace system.  The FAA has required the registration of drones which it claims is consistent with its authority under the law.  Because the FAA’s registration is required for operating a drone in navigable airspace, “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”

A recent New York Times article suggests that the FAA’s preemption arguments may not deter state legislators, including Senator Gaines (R-El Dorado), from continuing efforts to regulate drones at the state level.

Notwithstanding the FAA’s position, we think that the preemptive effect of federal drone regulation will be limited, especially to the extent that local regulations are directed at issues not within the FAA’s purview, such as privacy, security (including law enforcement), and land use (including trespass and zoning). In any event, it is growing increasingly clear that states and local governments are disinclined to wait for the FAA to regulate drone use.

FAA Names Members of UAS Registration Task Force and Seeks Public Input on Proposed UAS Registration Framework

Posted by William Kellermann and Nicole Witt on Oct 30, 2015 in Federal Law | 0 comments

The FAA announced the members of its UAS Registration Task Force. The 26 member task force will be chaired by the Director of the FAA’s UAS Integration Office, Earl Lawrence and GoogleX’s, Dave Vos. Members include representatives from industry, law enforcement organizations, consumer groups, aviation officials’ organizations, and pilots’ associations.

The FAA recently announced the formation of the task force to develop recommendations for expanding the registration of drones as part of an effort to ensure that small drones are used safely. In a document titled “Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS,” the FAA noted that pilots have reported twice as many drone sightings in this year as compared to 2014. Pilots report drones as high as 10,000 feet and as close as half a mile from runways. The FAA also observed that drone use near wildfires has interfered with the work of emergency responders.

The FAA anticipates 1 million new drones will be purchased this holiday season and it is concerned that instances of illegal and unsafe drone use will become more and more frequent. While the FAA has exercised discretion related to the registration of drones in the past, it is considering changing course by requiring greater compliance from drone operators with federal law prohibiting the operation of unregistered aircraft.

The taskforce is charged with forming recommendations related to drone registration. The taskforce will also consider whether the FAA should continue to exclude certain drones from registration based on weight and performance limitations.

In keeping with the creation of the rapid-response task force to develop a process for registration of UAS, the FAA asked for public input regarding relevant rulemaking.  The FAA would like all input by November 6, 2015.  Interested persons may comment online or via traditional methods.

In its request, the FAA identified 10 questions for which it seeks public comment:

1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?
2. At what point should registration occur (e.g. point-of-sale or prior-to-operation)? How should transfers of ownership be addressed in registration?
3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?
4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.
5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?
6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?
7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?
8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?
9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (e.g. PayPal)?
10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?

Legislative Update: California Drone Legislation

Posted by Nicole Witt on Apr 17, 2015 in California Law | 0 comments

This year, California legislators have introduced a number of bills related to drone use. The following is a brief update on legislative action taken on these proposals.

SB 142, introduced by Senator Jackson, would prohibit the use of drones over private property without permission. The proposal passed out of the Senate Committee on Judiciary with amendments to clarify that the bill applies to flying drones over real property. The bill moved to the Senate Floor for a third reading which precedes a floor vote.

SB 262, introduced by Senators Galgiani and Anderson, would condition law enforcement use of drones on compliance with State and Federal Constitutional protections against unreasonable searches and seizures and with California law related to the use of surveillance technology. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Judiciary.

SB 271, introduced by Senator Gaines, would prohibit the use of drones over school grounds. The bill passed out of the Senate Committee on Public Safety and was re-referred to the Committee on Appropriations. Before passage, the bill was amended to provide an exception for drones used after school hours and with the permission of the school principal or other relevant authority. Additionally, the amended proposal provides that it is an infraction to use a drone to take photographs or other images of public school grounds during school hours and without the permission of the school principal. The bill was also amended to reduce the punishment for an infraction.

AB 14, introduced by Assembly Members Waldron, Brown, and Maienschein, and Senator Nielsen, would create a task force to advise the Governor in the creation of a comprehensive state policy related to drone use. The bill failed to pass out of the Assembly Committee on Transportation but the Committee granted reconsideration of the action. A number of amendments were made to the bill including the addition of provisions highlighting California’s unique position and need for drone use related to aviation, aerospace, high technology, agriculture, and public safety. The protection of privacy was also stricken from the specific objectives of a comprehensive state policy.

AB 56, introduced by Assembly Members Quirk and Campos, would limit the use of drones by law enforcement and public agencies. The proposal passed out of the Assembly Committee on Public Safety and was re-referred to the Committee on Privacy and Consumer Protection. This bill is very similar to AB 1327 which was passed by the Legislature and vetoed by the Governor in the last legislative session. AB 56 was amended to require that notice or guidelines must be made available to the public prior to the use of drones by law enforcement agencies. The amended bill also provides that police are permitted to use drones over public lands, highways, and open spaces without first obtaining a warrant.

FAA Sued Over Failure to Propose Privacy Rules Related to Commercial Drone Use

Posted by Nicole Witt on Apr 2, 2015 in Federal Law | 0 comments

On Tuesday, March 31, 2015, the Electronic Privacy Information Center (“EPIC”) filed a petition for review of the FAA’s decision not to address privacy issues in their proposed regulation on commercial drone use.

In 2012, EPIC sent a letter to the FAA highlighting the threat posed to privacy and civil liberties by both commercial and government use of drones. The letter discussed use of drones by the Bureau of Customs and Border Protection and local law enforcement agencies. EPIC also suggested that privacy is threatened by commercial use of drones. EPIC observed the development of “paparazzi drones” as well as increased drone use by private detectives. In part, EPIC requested that the FAA “examine and report on the impact on privacy to individuals within the scope of their comprehensive plan to safely integrate civil drones into the national airspace.”

Under the criteria laid out in 14 CFR § 11.73 for consideration of a petition for rulemaking, the FAA denied EPIC’s request because the issue was not “an immediate safety concern.” Additionally, the FAA noted that it “has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system” and EPIC’s comments would be considered in that effort. As noted in our February 17, 2015 post, the proposed rule is silent on the issue of privacy but, on the same day the proposed rule was released, the President issued a memorandum which requires the National Telecommunications & Information Administration to create voluntary rules for privacy, accountability, and transparency in commercial drone use.

EPIC’s petition asks the court to review the FAA’s denial of the request for rulemaking. EPIC also requests the court set aside the FAA’s proposed rule on commercial drone use for its failure to propose drone privacy rules and remand to the agency.

Progress Toward A “Highway in the Sky”

Posted by Nicole Witt on Mar 12, 2015 in In The News | 0 comments

Here is a link to a Fortune article about products that are being developed by Exelis Inc. as part of a partnership between NASA and private companies to create technologies that could be used in an unmanned aircraft traffic system. While the recently released FAA proposed rule on commercial drone use requires that flights must take place within the visual line of sight of the operator, this article suggests that the development of the aircraft traffic system “could persuade the FAA to allow flights beyond the line of sight, provided the operator is using such a tracking system.”

See the full article here.

Legislators Ask, Is California Law Ready for Drones?

Posted by Nicole Witt on Mar 1, 2015 in California Law | 0 comments

Two days after the FAA released its proposed rule to regulate commercial drone use in the United States, the California Senate Judiciary Committee held an oversight hearing to examine the potential benefits and risks associated with the expansion of drone technology. The hearing was entitled, “Drones: Is California Law Ready? The Potential, the Perils, and the Impact to Our Privacy Rights.”

Senator Hannah-Beth Jackson (D-Santa Barbara), the Senate Judiciary Committee Chairwoman, suggested the expansion of drone technology presents difficult public policy questions including, “how to welcome these new technologies into our lives without surrendering our right to privacy?” Senator Jackson inquired into existing state-level regulation of commercial drone use across the nation, how unauthorized drones might impact fire-fighting efforts, and whether the leaders in drone technology innovation are considering issues of safety and privacy. Senator Jackson suggested that, in considering the regulation of drone use, critical questions might be, where are drones benefiting society and where are they not? Additionally, Senator Jackson stated that she believes the express right to privacy in the California Constitution gives California the authority to go beyond any steps taken by the federal government to protect privacy rights as implicated by expanding drone use.

Senator Joel Anderson (R-San Diego) submitted that, in regulating drone use, care should be taken in achieving the right balance in order to ensure that technology is not being unreasonably restricted. The Senator drew a comparison between emerging drone technologies and street mapping, as both encountered a tension between privacy concerns and commercial benefits. Senator Anderson asked the witness from the Motion Picture Association about the cost, quality, and safety of using manned versus unmanned aerial vehicles in the film industry. Lastly, the Senator asked about the use of drones in quantifying the effects of global warming and in the exploration of active volcanoes. During his time, Senator Bill Monning (D-Carmel) asked whether drones could be used for dropping fire retardant and whether drones are being used to apply pesticides.

The direction of legislators’ comments and questions highlights the potential risks and benefits of drone use in California and emphasizes the great uncertainty that exists in the landscape of drone regulation today. Watch the full Senate Judiciary Committee hearing here.

New FAA Proposed Rule Does Not Slow California Lawmakers’ Efforts to Regulate Drone Use

Posted by Nicole Witt on Feb 21, 2015 in California Law | 0 comments

On February 15, 2015, the FAA released its proposed regulations on commercial drone use entitled, “Operation and Certification of Small Unmanned Aircraft Systems.” Just days following the release of the proposed rule, two new bills were introduced in the California Legislature related to drone use and the California Senate Judiciary Committee held an oversight hearing related to the benefits and risks of drone use in California.

During the committee hearing, Senate Judiciary Chairwoman Hannah-Beth Jackson (D-Santa Barbara) stated that she was pleased the FAA has issued its much delayed proposed regulation but noted that State lawmakers should not wait for Washington to act. Rather, the emergence of drone technology raises important issues of state law including questions of property law and privacy rights. See Senator Jackson’s entire opening statement.

Four days after the FAA issued its proposed rule, Senator Gaines (R-Roseville) introduced SB 271 which would make it an infraction to operate a drone on or above a school with K-12 students. The bill provides for fines of up to $150 for the first infraction and up to $500 for subsequent infractions.

On February 18, 2015, Senators Galgiani (D-Sacramento) and Anderson (R-San Diego) introduced SB 262 which specifically authorizes law enforcement use of drones so long as the use complies with Constitutional protections against unreasonable searches and California law regarding law enforcement use of surveillance technology.

While it is still unclear what preemptive effect the FAA’s rulemaking will have, it appears that California lawmakers are not waiting to find out and are moving ahead to address  issues raised by the expansion of drone technology.