Opinion | Vail Law: The law of drones

Until the last decade or so, drones were largely unheard of. Now, they are ubiquitous. From battle drones in Ukraine and the Gulf, to a yet another recent near-miss with a passenger aircraft near Newark, to the spectacular 9-11 light display above Manhattan, drones have become nearly as familiar as the common cold. And, with ubiquity, of course come laws.

Preeminent are federal regulations, Federal Aviation Administration (“FAA”) enforcement actions, state laws and regulations, UAS applications and operations, UAS and Fourth Amendment considerations, privacy issues, and property rights (who owns the airspace?).

“U” might have noticed my repeated use of “UAS” and that’s our starting point. Although most of us simply call them drones, the proper name for these buzzing, increasingly frequent additions to our lives are Unmanned Aircraft Systems, or “UAS.” It is important to consider that, at law, an UAS is, in fact, an aircraft and as such, is subject to many of the same rules and regulations to which manned aircraft are beholden.

Pursuant to the FAA Modernization and Reform Act of 2012, there are three basic distinctions that apply to UASs: recreational fliers, “Part 107 operators” (non-recreational — commercial or other non-recreational use) and governmental use. Each is treated differently. Although previously, in order to commercially operate a drone, the operator had to possess a pilot’s license, now only a “Remote Pilot Certificate” is required.

For context, a “small” UAS is defined as one weighing less than 55 pounds and a “micro” UAS is one that weighs 8.8 ounces or less (drones under 0.55 lbs or 250 grams) are exempt from registration requirements for recreational use, though they are not a separate operational category). Generally, consumer drones can stay aloft for not more than 40 minutes or so before their battery is drained.

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Some rules that apply to commercial operators include: flights must remain below 400 feet, operators must maintain “line of sight” of the drone at all times, the drone may not travel faster than 100 miles per hour, must not fly within controlled airspace (such as an airport) without prior FAA authorization, and operations over people are restricted unless the drone meets specific FAA safety categories or the individuals are directly involved. There are specific federal restrictions for flying near critical infrastructure such as the White House, power plants or stadiums.

As noted above, different rules apply to hobbyists and while there may not always be a specific rule, if a hobbyist employs a UAS in a careless or reckless manner, s/he may be prosecuted. For example, flying near an airport could be construed to be reckless or careless behavior. In order to ensure care in flying, the FAA has developed an “app” — B4UFly — which will inform the hobbyist what is in the vicinity in which s/he intends to fly — and what to steer clear of — before s/he flies. The app employs the smart phone’s GPS so it is specific to the site.

Except for micro drones used solely for recreation, all UASs must be registered with the feds, even those of hobbyists. Failure to register can result in significant penalties.

Generally, FAA rules regarding the NAS (National Air Space) pre-empt state and local rules. However, states and municipalities may regulate UASs where their use may affect traditionally local concerns such as zoning, public welfare, health, safety and advertising. Federal law broadly governs navigable airspace, and state or local rules may be preempted where they intrude into that space even absent a direct conflict, although traditional local concerns such as land use and privacy may still be regulated.

Even if there are no state laws specifically addressing drones, that is not to say that existing laws would not or could not be applied to them. For example, in using a drone, it is possible to trespass and possible to create an actionable nuisance.

Both civil and criminal actions may arise from the improper use of a drone. Drones may cause property damage or invade one’s privacy. If a drone camera captures and employs someone’s image, it may raise issues of appropriating someone’s likeness for commercial purposes. Criminal issues may include: reckless endangerment, assault, privacy violations, noise disturbances, trespass, eavesdropping and violations of state aviation and/or vehicle laws.

What about use by law enforcement and the Fourth Amendment right against unreasonable searches and seizures? May a law enforcement drone surveil you without a warrant? What if a drone happens to peek in your backyard and stumble upon an illegal activity? Would the evidence be admissible at trial? The law is still evolving, with increasing statutory frameworks and emerging case law. While there are few cases yet directly on point, there are analogies aplenty that states are trying to fit into the specific circumstances surrounding drones. What the law suggests, however, is that courts have often found no reasonable expectation of privacy in what is visible from public airspace, though how that principle applies to drones — particularly at low altitudes — remains unsettled when a law enforcement drone observes what the general public could observe whether by use of a drone or by other means.

A few states have enacted drone-specific laws such as those prohibiting the use of drones for fishing or hunting or to interfere with hunting by employing a drone.

What about a drone buzzing above your backyard? Can you shoot ‘er down? Ah … no. Under federal law, it is illegal to shoot down an aircraft and, remember, a UAS is an unmanned “aircraft” system. What’s more, shooting in an urban area may violate federal law prohibiting damage to aircraft, as well as state criminal and civil laws. There is some question too as to whether you even own the airspace above your home and, if you do, to what height and under what circumstances?

Drones have issues. If you are a commercial operator — or are engaging one — you must and should have a written contract that spells out both standard contractual issues and those issues specific to the use of drones. These should include liability and indemnity issues, insurance issues, licensure issues and more.

It appears that drones will increasingly become a part of our lives. But before they are as ubiquitous as barking dogs, the law still has a little catching up to do.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His novels are available at fine booksellers everywhere. His latest, The Summer Market (A Story of Bourgeoise Damnation), set entirely in Vail, will be released this winter.