Attack of the drones

Polly Botsford

* Illustration by Billy Butcher

As we enter ‘The Age of the Drone’, Global Insight assesses the legal implications of their use and misuse as well as the protections currently in place.

William H Merideth is known as ‘the drone slayer’. Using a Benelli M1 Super 90 shotgun, he successfully shot down a drone that was hovering over his property in the appropriately-named Bullitt County, Kentucky, in America. The drone, owned by enthusiast David Boggs, was a DJI Phantom, one of the most popular consumer drones on the market, fitted with a camera and almost half an hour of flight time.

Merideth was subsequently arrested for endangerment and criminal mischief. In the local court, he claimed the drone was being used to spy on his 16 year old daughter who was lying by the family pool. Boggs argued he was taking pictures of the scenery. There was factual dispute as to how close to the ground the drone actually was but, in the end, the local judge dismissed the criminal charges against Merideth. He has now become a minor celebrity as the drone slayer – t-shirts are available replete with the slogan: ‘We the people have had enough’.

But, in reality, they haven’t – nowhere near. The market for recreational drones is growing rapidly, with predicted growth to a value of around $4bn over the next five to ten years. In the US alone, the Federal Aviation Administration (FAA) forecasts sales of about four million recreational drones by 2020. The use of commercial drones is also set to explode. In a recent report by PricewaterhouseCoopers (PWC), the firm estimates the market’s future value at a staggering $127bn. Drones will be delivering your Amazon packages (within hours of your order being placed) with Amazon Prime Air. Meanwhile, Google will be sending you groceries through its drone delivery system, Project Wing. Law enforcers are already using drones alongside insurers, farmers, news agencies and mining companies.

Merideth’s response to his neighbour’s drone is symptomatic of uncertainty in the law (as well as of the US’s second amendment right to bear arms): without certainty as to what is acceptable and what isn’t, people find their own solutions. Governments are, finally, introducing regulations and codes to put some parameters on drone use. However, the legal fallout from the new ‘age of the drone’ is still going to be considerable because drone use raises a whole host of legal issues including health and safety, security, data protection, nuisance, privacy, product liability, negligence and so on. The regulatory framework is only the first step in the evolution of ‘drone law’.

Be safe, be legal

Regulations are now finally in place to varying degrees in jurisdictions such as Australia, countries within the EU and China (where most drone manufacturing takes place). The rules work like pilot licences for manned aircraft. In the UK, there is a ‘Dronecode’ for hobbyists, and commercial drone operators have to get permission from the Civil Aviation Authority which includes taking a theory and flight test.

In the US, there was almost a decade of prevarication on what rules to put in place. But these have now been brought in: hobbyists have to abide by community-based safety rules and keep away from airports. Commercial drone users now need to register the drone itself and then make an application to the FAA which includes passing background checks for security purposes (first introduced for pilots following 9/11). The US framework is confusing, however, because individual states are also passing their own separate laws and ordinances on drone use.

“ The laws are lagging behind the technology…companies have to separately apply for exemptions to the rules. It would be better if innovators and policymakers could work together on the rules

Lisa Ellman
Partner, Hogan Lovells, Washington, DC

From the commercial user’s point of view, the regulations are far from satisfactory as they have some very significant limitations: in many jurisdictions there are specific prohibitions on flying at night, flying ‘beyond the visual line of sight’ (so you have to be able to see the drone when you are operating it) and flying near people and property. Lisa Ellman, a partner at Hogan Lovells in Washington, DC, says, ‘The laws are lagging behind the technology. At the moment, because of these restrictions, companies have to separately apply for exemptions to the rules. It would be better if innovators and policymakers could work together on the rules.’ (Ellman was, in fact, the lawyer who obtained the first ever FAA exemption for her client, CNN, which allows the news agency to fly its drones ‘over people’.)

But regulators argue that safety is a priority and that tight controls are needed in light of the litany of drone-related incidents such as hobby aircraft getting in the way of emergency services helicopters, or narrowly missing a collision with a nuclear submarine.

What is apparent is that regulations may well need to be updated as the technology advances. As Carlos Sierra, a partner at Mexico-based aviation law firm Abogados Sierra and Senior Vice Chair of the IBA’s Aviation Law Committee, states: ‘In Mexico we have drone regulations but last year we revised them. I have no doubt that in fact they’ll have to be revised constantly. There are so many ways of utilising a drone that were not even thought about one year ago. This is going to have to be an almost annual process.’

A question of identity

Regulation and licensing are important steps in setting a framework for these new unmanned aerial vehicles and in keeping them away from airports, objects and people. But in practical terms, there are doubts about how well these rules can be enforced.

Take the problem of identity: the regulations can only be enforced if the drone user can actually be tracked. If a drone falls out of the sky because its pilot has misdirected it or there has been some system malfunction and it lands on a car, the car’s owner will want to take legal action against the operator (or the employer of the operator). But this may be difficult to do: a drone doesn’t have a number plate and its pilot may be some distance away and not visible. It is one thing if the drone is heavily Amazon-branded but most will be far less identifiable.

Those close to the industry say that there are technological solutions to the problem of identity and tracking. Adam Wisniewski is Director of PWC’s Drone Powered Solutions (which provides expertise on drone use for companies). ‘Innovators are wrestling with this,’ he says. ‘For instance, tech companies are working with products which harness a drone’s GPS location so that eventually regulators or enforcement agencies would have a system similar to the way radar tracks aeroplanes.’

But who has the time and money to do all of this tracking? Drone regulation has fallen into the lap of domestic aviation authorities but they are not in a position to enforce their own rules against each and every violation. They have neither the additional powers nor the manpower to do so. Enforcement is left to existing enforcement agencies, namely the police. Unfortunately, it looks like they may well not have the resources either: police forces claim they are inundated with complaints about trespassing drones and only have the capacity to deal with the most pressing cases.

Added to which, as Wisniewski points out, regulators and enforcers are only beginning to get to grips with how to ‘manage’ enforcement: ‘there is a temptation to take control of a drone which is being illegally used. But that could be very dangerous. If you take control of a drone, where are you going to put it down? Is there enough battery life to get the drone to where you want it? If you take it over, it may suddenly drop down, which could be much more lethal.’

Keep out: privacy laws in operation

Rules on how to operate a drone safely are only the start. Merideth’s main concern was not the drone per se but the camera attached to it. If Merideth was correct and his neighbour was taking photographs of his daughter, what action should he have taken instead of blasting the machine out of the sky? Particularly since shooting drones down may actually be more dangerous than the drone itself because of where it may land and what it could land on.

The problem is that it is not at all clear what his best legal redress would have been. Individual states in the US have a number of local rules aimed at protecting privacy, though, according to Ellman, this is often as a result of ‘fears over law enforcement surveillance’ rather than to stop ‘Peeping Toms’. After all, Americans refer to police drones as ‘eyes in the sky’.

At a national level and at the behest of President Obama, the executive agency National Telecommunications and Information Administration (NTIA) came up with a voluntary code on privacy. But as yet these are rules and codes which have not been properly tested.

“In Mexico we have drone regulations but last year we revised them… There are so many ways of utilising a drone that weren’t even thought about a year ago. This is going to have to be an almost annual process

Carlos Sierra
Partner at Mexico-based aviation law firm Abogados Sierra and Senior Vice Chair of the IBA’s Aviation Law Committee

If Merideth lived in the UK, protection of privacy would be indirectly addressed in the Dronecode by prohibiting drones with cameras to fly: ‘within 50 metres of people, vehicles, buildings or structures.’ However, you can see quite a lot from beyond that range these days. Mark Stephens CBE is an international media and human rights lawyer and Council Member of the IBA’s Human Rights Institute. ‘In the UK we do take privacy more seriously than in the US generally and there have been court decisions which protect privacy,’ he says. ‘In addition, though it does not give rise to a new cause of action, English courts must take into account the European Convention on Human Rights which includes, at Article 8, the right to respect for one’s private and family life and home.’

Stephens explains that if images are being taken and then published somewhere, then there may be a breach of privacy. ‘The questions to consider would be, first, whether there is a reasonable expectation of privacy,’ he says. ‘If someone’s drone is hovering right outside your bedroom window, then, clearly, you would expect privacy. Then, second, one needs to consider whether there is an expectation that any image would be amplified through publication in public media.’

Privacy cases tend to be the preserve of the rich and famous. Other, less costly avenues may be to seek protection against an operator of a drone with a camera by using data protection laws or the CCTV Code of Practice which has been amended to include drones. But, again, like the aviation rules, potential claimants may well face the same difficulties of identity and tracking.

The airspace debate

Boggs, the owner of the drone in the drone slayer case, has not let sleeping dogs lie. He has filed a separate claim against Merideth over the loss of his $1,800 drone. At issue is whether or not he was trespassing on Merideth’s land. Boggs argues his drone was flying at about 200 feet above the ground and that this does not amount to trespassing as this is public airspace. In the US, it is not clear where public airspace stops and private airspace begins. The airspace 400 feet or more above ground level is public space because it is usable by aircraft, but under that height, there is no law that distinguishes between the public and the private.

The state of California did try to introduce a strict liability violation for flying below 350 feet over someone’s back yard but the governor there vetoed it. ‘It would have been a very poor piece of legislation,’ says Ellman, ‘as it would have really hindered the burgeoning drone industry in California and it would have left drone users with very little room for manoeuvre – literally only the 50-foot space between 350 feet above ground level and 400 feet which is where aircraft can go’.

Boggs’ case has the potential to open up the airspace debate because it is a federal not local case, though its decision would only be binding on other district courts in the US.

It is not only the US where airspace will become an issue. In the UK, the law is equally vague: a 1970s case stipulates that you own as much airspace as is ‘necessary for the enjoyment of your property’. Manned aircraft cannot fly lower than 200 metres above your roof but that does not directly affect drones. The closest English case to deal directly with a flying object entering the airspace above private land is one which dates from 1815 and concerns the flight of a hot air balloon. The then Lord Chief Justice, Lord Ellenborough, did not consider that such a flight would amount to trespassing.

Watching over you

One last possible scenario involving Merideth is: would he have been as concerned if it hadn’t been his neighbour’s drone allegedly taking photos of his teenage daughter but a law enforcement agency checking up on him? And could he do anything about it? In the US, the potential for state surveillance using drones has come to light over the past few years. It is far from clear, however, how much it is actually happening.

In a report published earlier this year, the Pentagon stated that drones used for spying over US territory had occurred fewer than twenty times between 2006 and 2015 and that flights were ‘rare and lawful’. American civil liberties groups remain unconvinced.

If someone’s drone is hovering right outside your bedroom window, then, clearly, you would expect privacy

Mark Stephens CBE
International media and human rights lawyer and IBA Human Rights Institute Council Member

In the UK, the short answer is that individuals may well not have rights to stop this type of surveillance as a result of the UK government’s so-called ‘Snoopers’ Charter’, otherwise known as the Investigatory Powers Bill. The draft bill proposes new powers for government agencies to access individuals’ data. Stephens says there are real civil liberties concerns here as the right of access is ‘unfettered, basically. In effect, there is no judicial oversight of these powers.’

The age of the drone brings with it a whole host of legal and human rights conundrums in a similar way that the internet and social media have. The regulatory framework will adapt as the legal parameters begin to take shape. As Sierra puts it: ‘we don’t have a sense yet of where the real problem areas will be. The drone is nothing more than an object which can be used for anything from terrorist attacks to supplying medicines.’

Perhaps the best that can be achieved is that boundaries are established and that trust is built between most people who will choose to operate within those boundaries. As Wisniewski concludes: ‘drone traffic will be like car traffic. You can put laws in place, speeding restrictions, traffic lights and so on. But the reason it works and traffic flows is not the rules themselves but the fact that each of us trust the others to, broadly-speaking, follow those rules. We trust each other to stop at the red light or pedestrian crossing. We trust each other to indicate when we are turning right. We need to get to the same place with our drone rules. If we over-regulate, then people will try and get round the law. If we under-regulate then we are failing to protect ourselves: we have to find the right level.’

Polly Botsford is a freelance journalist and can be contacted at polly@pollybotsford.com