It’s a bird! It’s a plane! It’s a spybot! The cops! A package from Amazon! Or one of a growing number of uses for nonmilitary drones, those small, remote-controlled flying machines increasingly hovering overhead.
How do you feel about eyes in the sky? Should they be banned? Welcomed? Restricted? The Federal Aviation Administration (FAA), whose task it is to create civilian drone use policy, will issue new drone regulations a year from now, and it doesn’t matter if you’re a radical, a liberal, a conservative, or a libertarian, there’s bound to be something in those rules that will induce outrage.
Paul Voss, an associate professor in engineering at Smith College, doesn’t think the FAA ought to regulate what landowners fly at low altitudes over their own property. Meanwhile, several towns in Colorado—an open carry state—are toying with resolutions that would allow gun owners to blast drones from the sky. America’s skies are about to become a battleground that will rekindle thorny debates over private property, government power, commerce, security, privacy, liability, and the social implications of technology.
Who Owns the Skies?
The crux of the issue lies in the above question, posed by UCLA law professor Stuart Banner in an eponymous 2008 book. What’s your answer? Everybody? Nobody? Try neither, and lay the blame at the feet of the Wright brothers. Their modest 120-foot flight in 1903 captured the imaginations of innovators with fervor familiar to present-day techies. It was less than three years before a plane soared above 300 feet, five before one traveled more than a kilometer, and 11 before guns were attached. By the time Lindbergh cleared the Atlantic in 1927, the skies were filled with aircraft.
That bothered a lot of property owners who, since Colonial times, operated under the English common law tradition “cuisu est solum, eius est usque ad coleum et ad infernos,” a Latin phrase that asserted an owner held the land plus everything between heaven and “the depths of hell.” Long before residents of Western Massachusetts grumbled about noise from Westover, nervous property owners sought to ban manned flights above their homes. There were few regulations until 1926, when Congress passed the Air Commerce Act and set up the FAA’s predecessor. Tellingly, control of the skies fell to the Department of Commerce until 1967.
In 1946, the Supreme Court’s ruling in United States v. Causby declared that old standards of airspace ownership were outmoded for the “modern world.” Thus was born the notion of “national airspace.” The SCOTUS mentioned space above 500 feet as the “minimum safe altitudes for flight” in one breath, but stated that landowners had “exclusive control of the immediate reaches of the enveloping atmosphere” in the next. The latter phrase has led many to claim airspace of lower than 500 feet.
The FAA disagrees. It came into existence 12 years after the Causby decision and, in 1966, was transferred from Commerce to the Department of Transportation. Among its charges is to regulate navigable airspace and to maintain safety within it. Few dispute the worthiness of those goals, but the FAA has steadily expanded its heavenly limits. To where exactly? We might not know for sure until 2017, when the FAA completes a five-year project to “roadmap” the skies. Currently, the FAA asserts that everything is national airspace—from the moment a vehicle leaves the ground to its apogee.
This makes all drone flights subject to FAA policy guidelines issued in 2007, back when only a handful of geeks imagined widespread civilian drone use. The FAA views those guidelines as “regulations,” a position disputed by Attorney Brendan Schulman, who argues FAA guidelines violate procedure necessary for formal rule-making under the Administrative Procedures Act.
One federal judge has ruled Schulman correct, but until Congress and/or appeals courts determine otherwise, the FAA asserts broad powers. Under FAA Advisory Circular 91-57, “model aircraft” can fly at altitudes of lower than 400 feet as long as operators avoid hospitals, schools, populated areas, and are more than three miles from an airport.
Currently the FAA distinguishes between only “hobby” and “commercial” flights, the latter tightly regulated and broadly defined. Any venture in which money changes hands, or has the potential to do so, is considered commercial. Aerial photography is specifically mentioned, the prevailing view being that when a camera is attached to a drone, commercial presumptions come into play. To conform to FAA commercial flight standards the following are necessary:
• The operator is required to hold a pilot’s license, or obtain an FAA-issued Certificate of Authorization (COA)
• The vehicle must be FAA-certified
• The vehicle must remain within visual sight of the operator at all times
Those in non-compliance can be fined up to $10,000 and the machine in question can be confiscated by law enforcement. The latter is common, according to Phoenix-based venue safety and liability expert Attorney Steven Adelman, who notes that police routinely seize drones being flown during events such as outdoor concerts and fairs. Adelman advises clients that they currently cannot use drones if they wish to avoid possible legal action or liability complications. Not even Major League Baseball or the National Football League is exempt. The FAA issued a warning to the Washington Nationals, who used a drone for a 2014 spring training game, and is currently investigating the Florida Panthers for drone-filming an August NFL preseason match-up.
What is a Drone?
Is FAA policy ridiculous? Before you answer, try to recall when you first saw enthusiasts flying anything more complex than a radio-controlled model airplane. Some observers compare the growth of drones to a Wild West scenario, but a better analogy might be early music file sharing. Remember how MP3 files ratcheted older practices of tape-trading to new levels? Remember Napster? As we shall see, the FAA has dirty hands, but in 2007 few policymakers imagined buying a cheap drone from Walmart for $50, or a really good camera-ready vehicle for less than $500.
The very word “drone” conjures disturbing images, such as the Pentagon’s death-from-the-skies killing machines or law enforcement spybots. In July 2013, Northampton became the first city in the nation to pass a resolution calling upon the FAA and the Commonwealth “to respect legal precedent and constitutional guarantees of privacy, property rights, and local sovereignty pertaining to drone aircraft and navigable airspace.” Amherst and Leverett followed suit last spring. Those resolutions also condemned military and law enforcement drones carrying weapons.
You won’t find many references to “drones” in FAA material. That’s because everything from a radio-controlled toy helicopter to a lethal Pentagon programmed bomb falls under the same category: Unmanned Aircraft Systems (UAS). Voss notes that the FAA’s definition of aircraft (“any contrivance used in the air”) is so broad that even Frisbees, baseballs, and bullets could be regulated as unmanned aircraft. The FAA claims that flying contraptions as small as six inches across, even hobby toys, are now aircraft subject to agency control.
Few have sworn off flinging Frisbees or hunting because of the FAA, and numerous commercial drones fly in defiance of it. That’s because drones are both useful and potentially lucrative. There are many uses of drones that have nothing to do with bombs, law enforcement, or spying. Academics like Voss use model aircraft for atmospheric studies, aeronautical research, and teaching. Farmers employ drones for crop-dusting that endangers the health of human pilots. Drones can also be used in storm research, 3D mapping, wildlife monitoring, building and pipeline inspections, firefighting, and search and rescue missions. At present, though, photographers and realtors use drones more than most.
The University of Massachusetts recently produced an aerial video of renovations to McGuirk Stadium, and such august institutions as National Geographic dispense advice on the best photographic drones. Strictly speaking, if UMass paid anyone for its video, the FAA would consider it illegal, and what National Geographic or realtors are doing makes them scofflaws.
Are they like early aviators—ahead of the technological curve, waiting for archaic laws to adjust? The FAA has levied just two fines since 2010, one of which was assessed against photographer Raphael Pirker, who shot aerial video for the University of Virginia. In March, Attorney Schulman persuaded a federal judge to overturn Pirker’s fine, but the FAA immediately appealed and the case is pending. What comes next will determine if Pirker becomes the Jane Roe of the civilian drone movement, or the next Shawn Fanning (Napster). A lot depends on who pulls hardest on FAA strings.
Who is the FAA?
By statute, the FAA regulates airports, air traffic and safety, and commercial space transportation, the last being the only commercial power expressly in its purview. Government bureaucracies are supposed to be neutral, but it will surprise no follower of American politics to learn that lobby groups influence how regulations are written, or that sometimes they do the actual writing.
Jeff Napolitano, the program coordinator for the American Friends Service Committee for Western Massachusetts, notes that military contractors are pressuring Congress “to modify rules on who owns airspace.” Contractors spent heavily on military drones. “That’s why Kollmorgen was bought out by L3KEO. Their optics system can be used on drones. But with wars winding down, the big guys have run out of a market in Afghanistan and overseas. The government has at least 10,000 drones on hand … expensive drones they want to sell.” One way to do so is to “squeeze out small manufacturers.” The recent police shooting in Ferguson, Missouri has called new attention to how police forces increasingly look like something out of Robocop. That’s because defense contractors have had success in selling expensive gear to law enforcement.
Do some digging and you’ll discover a group called the Association for Unmanned Vehicle Systems International (AUSVI), which calls itself a 7,500-member “non-profit organization devoted exclusively to advancing the unmanned systems and robotics community.” Now look at where AUSVI members come from: Boeing, General Dynamics, Honeywell, Lockheed Martin, Northrup Grumman, Raytheon, L3-Communications…. They helped write both the FAA’s controversial 2007 guidelines and much of the 2012 Modernization and Reform Act that’s mapping national airspace to determine who can use it. In Napolitano’s mind, “The FAA shouldn’t be setting policy on anything. It’s clearly not an independent government agency making decisions without bias.” Voss is even more curt: “When the 2015 regulations come out, they will be written for the aviation industry by the industry and they will effectively keep out competition from innovators and small businesses.”
Ban the Drones?
There are good reasons to welcome drones, but also persuasive reasons to ban them beyond wishing to slap down corporate arrogance. Northampton’s drone resolution was prompted by documented examples of intrusive law enforcement surveillance. But are there also legitimate national security concerns? How hard would it be to load a high-quality drone with explosives and fly it into a public building? That issue was raised in July, when a drone hovered above Seattle’s Space Needle.
What of privacy issues? We know that for-profit companies mine and sell personal data, that paparazzi and pornographers go to great lengths to secure saleable images, and that some members of the public are untrustworthy. (Who would have thought we’d need a law to punish up-skirt photography?) What of the intellectual property rights of musicians being filmed by aerial drones? Can drones be flown safely? Wouldn’t the prudent course be simply to ban drones?
There is already sentiment to do exactly that and it could increase. Referencing the Causby decision, Northampton’s resolution “affirms that within the city limits landowners… have exclusive control of the immediate reaches of the airspace and that no drone aircraft shall have the ‘public right of transit’ through this private property….” But given the Supreme Court’s ever-expanding definitions of corporate personhood, what are the odds that it might declare Causby invalid for the “modern world?” If challenged, Northampton might not be able to restrict low-altitude drone flight rights to one category of “persons” (property owners) but not, say, an Amazon delivery drone. If the FAA’s claim to all outside airspace is upheld, that’s almost certainly the case. Would/could a city then simply ban all drones?
Bans have already occurred. Texas allows almost no private use and in June the federal government banned drones from national parks. Drone use by UPS or Amazon has been specifically forbidden in several states, though neither actually has such vehicles in their fleets. Google Street View has been barred from parts of Baltimore and Washington, DC. Facebook sports a page titled “Keeping Drones Out of Massachusetts.” (The last is concerned that military-style drones could be used on Commonwealth citizens.)
To be certain, existing technology such as cell phones and zoom lenses can and do jeopardize privacy. My own academic research reveals that orbiting satellites “see” things on the ground with distressing clarity. But like Napster file sharing, low-flying drones raise the concern bar. At present, 43 states have passed or have pending legislation to curtail the use of private drones. In Massachusetts, Senator Robert Hedlund and Representative Colleen Garry have filed bills that would place stringent controls over law enforcement drones. U.S. Senator Ed Markey has introduced regulations that would keep in place current language about commercial drone use, require strict controls on data collection, require warrants for surveillance, and force the FAA to post a list of all individuals and organizations that hold drone licenses.
Neither the American Civil Liberties Union nor the Libertarian Party supports banning drones, but each wants significant oversight over federal, state, or local government use. Jessie Robinson, an ACLU staff attorney, states that the ACLU is “watching closely” government and police use of drones. The Fourth Amendment protects citizens against illegal searches and seizures and guarantees legal due process. Robinson worries about government contracting with private drone surveillance companies to engage in “backdoor attempts to go around the Fourth Amendment.”
Arvin Vorha, vice chair of the Libertarian Party, acknowledges that drone use “magnifies all privacy issues.” He maintains, though, that the federal government, not private companies, is the bigger concern. “Privacy abuses have occurred not because companies want to spy, but because the government is telling them to collect certain data. The Fourth Amendment has been trashed by the Patriot Act and it has to go. We want as little government regulation as possible. There are already laws to cover clear and credible risks, so our view is do whatever you want as long as you don’t harm someone else.”
“No one wants the Wild West for drones,” says Voss. “The FAA absolutely should regulate the use of drones in navigable airspace above us. But we also need to preserve the right of landowners, tenants, and local governments to control the airspace near the ground … where we all live, work, and play.”
Sound reasonable? Sample op-eds across the nation and you’ll find civilian drone advocates calling for “common sense” standards. Alas, “common sense” is a moveable target. Not everyone believes that Big Government and Big Business are the only bullies in the air. Can we trust private operators, especially untrained ones, to practice common sense? How do we know if a hovering drone is calibrating its GPS system or aiming cameras at skinny dippers in a private pool? The FAA’s other $10,000 fine was levied against two drone operators in Florida whose vehicle nearly collided with a commercial flight. Nor is it alarmist to worry about Peeping Toms with drones—it has happened.
There are also for-real social risks involved, including the possibility that dangers in our skyways will mirror those of motor vehicle byways. Good drones come equipped with “sense-and-avoid” sensors, but even sophisticated vehicles can be “blinded.” Sensors are easily confused by density, such as woodlands or urban skyscrapers. Many of the Pentagon’s multi-million dollar drones have crashed. One veteran photographer who has used drones for years concedes that every model but one has crashed at least once. Now imagine a UPS drone smacking into a suburban ranch house. How do we parse common sense when public and private collide?
Drone advocates assert that hobby-sized vehicles are very safe, that there have been just six fatalities linked to model aircraft since the 1930s, and that photographic drones are little more than flying hunks of Styrofoam. This is, however, the sort of it-won’t-happen-to-me logic no insurance agent or attorney would counsel. Attorney Adelman thinks a private drone operator ought not fly without special liability insurance. What if, for instance, an unlicensed drone operator hits a light array and causes a fire? Would conventional fire insurance cover such a claim?
All questions come into play if the FAA, as expected, loosens current guidelines. Napolitano notes, “The technology exists and we probably won’t ban it outright.” That option probably disappeared when airplanes weren’t grounded during the early days of flight. Analogous to then, one can anticipate new debates over who owns the skies.
Vorha admits concern, though he places faith in “free market solutions” to correct them. Robinson promises the ACLU will respond to emerging problems on a case-by-case basis, and Voss thinks that if the FAA comes after one of his Smith flight experiments it will shed needed light on the FAA’s overreach. Napolitano asserts, ”We need to have the debate over how to use drones.” The resolutions in Northampton, Amherst, and Leverett may not be perfect, “but they started a much-needed conversation about privacy, property, local control, and how drones should and should not be used in the future.”
Given that the only common ground between Pioneer Valley researchers, hobbyists, Colorado drone hunters, for-profit drone users, the Libertarian Party, supporters of Keeping Drones Out of Massachusetts, and the ACLU is a common distrust of government power, it’s hard to imagine that new FAA regulations will bring peace to the skies. It’s very easy to imagine Pioneer Valley skies as a future battleground.•
Recent Buzz on Drones
Drone debate is heating up. In the past few months:
Ongoing: Although the town of Deer Trail, Colo. rejected a (partly tongue-in-cheek) effort to issue hunting licenses to shoot down drones, more than 600 faux licenses were issued, and it is one of several Colorado towns debating whether to ban or shoot down drones.
July 3: The FAA is investigating whether laws were broken when a drone took aerial shots of the Cold Spring, N.Y. gay wedding of Rep. Sean Patrick Maloney and Randy Flukes. The couple hired the photographer, Parker Gyokeres, which makes this a commercial flight under current FAA rules. Few would have known about it, but footage was posted on YouTube.
July 4: Various locales—drones were flown during and into Fourth of July fireworks displays, precipitating widespread liability and public safety concerns.
July 11: There was a near-collision between a drone and a licensed helicopter in Cleveland. The FGAA is investigating.
July 14: Seattle police investigated a suspected Peeping Tom incident of a drone hovering outside of a woman’s apartment window. Several incidents occurred in 2013.
July 19: Public safety officials scrambled to investigate when a drone hovered above Seattle’s Space Needle and subsequently crashed into it. The drone was traced to an Amazon employee.
July 24: Still another Seattle woman reported a hovering drone outside of her 26th floor apartment building windows.
July 31: Brenton Lee Doyle, 28, was arrested for flying a drone laden with tobacco, cell phones, and pot onto the grounds of South Carolina’s Lee Correctional Institution. This comes on the heels of the arrest of four men last November for a similar stunt at a prison in Calhoun, Ga.
August 27: The Charlotte Panthers used a drone during a preseason NFL game. The FAA is considering sanctions.
August 30: A yet-to-be-named college student was arrested for flying a drone over the stadium during a University of Texas football game in Austin.
September: Although acknowledging reported abuses, a Smithsonian Magazine article titled “Snapshot Nation” lauds the use of drone photography as personal art.
