USDOT and FAA plan to bring drones into the recreation industry

Over the past few years, the consumer and commercial drone market has grown significantly, and this growth will only continue. Credit Suisse predicts that the drone market will reach $ 43 billion by 2024. While the use of drones has many social and economic benefits, there are also significant challenges, especially with regard to jurisdiction, airspace ownership rights and confidentiality.

From their military origin as an alternative to manned military aircraft, drones (aka Unmanned Aerial Systems (UAS) or Unmanned Aerial Vehicles (UAV)), have evolved and are now used in a number of contexts to capture aircraft. high quality images and videos, access remote areas, save money and save lives. Beyond weekend enthusiasts, people from retail, medicine, construction, town planning, agriculture, meteorology, insurance, journalism, real estate, utilities, mines, clean energy and cinematography use drones on a daily basis. Emergency responders, law enforcement, humanitarian and disaster relief workers also use drones to protect and serve the public.

In the 20^e century, laws and regulations concerning the ownership of airspace above private property have focused on the notion of nuisance and full enjoyment of the land. High altitude flights were allowed without regard to owners, while low altitude flights, takeoffs and landings had to consider the impact on property and owners. The 1946 Supreme Court decision in United States vs. Causby, established a first standard to define low-altitude airspace rights. In Causby, a North Carolina chicken farmer sued the federal government for carrying out low-altitude bomber flights (as low as 83 feet) over his once-thriving chicken farm, causing distress to his chickens, decreased egg production and loss of Mr. Causby’s livelihood. The Court reasoned:

We have said that airspace is a public highway. Yet it is evident that if the owner is to have full enjoyment of the land, he must have exclusive control over the immediate spans of the enveloping atmosphere… The owner has at least as much space above the ground as he does. can occupy or use in connection with the land … We believe that the landowner, as an accessory to his property, has a right to [the immediate reaches of the airspace] and that invasions from it are in the same category as invasions from the surface.

In response to the growth in the use of drones in the private sector, Congress in 2012 tasked the United States Department of Transportation (USDOT) and the Federal Aviation Administration (FAA) to develop a plan for the safe integration commercial and recreational drones in the national airspace system. . Yet at 75 years of Causby, laws regarding drone jurisdiction, airspace ownership rights, and privacy remain evolving, both because the federal government is still developing key aspects of its aircraft safety and security requirements. drones and because there are so far few court decisions on whether these requirements comply with legal authorizations. (09/16/2020 U.S. Government Accountability Office (GAO) Report on Drones and Legal Issues of Jurisdiction, Ownership, and Privacy).

In fact, proponents of drones wonder if CausbyThe position of on the property rights of low-altitude airspace is even a binding precedent. Proponents of drones have taken the position that states are preempted to regulate / ban low-level drone operations, arguing that preemption is necessary to ensure the safety and efficiency of the national airspace system. They argue that preemption is necessary to avoid a patchwork of state laws that would hamper technological innovation. (GAO report of 09/16/2020).

Proponents of drones have taken the position that states are preempted to regulate / ban low-level drone operations, arguing that preemption is necessary to ensure the safety and efficiency of the national airspace system.

Complicating matters further is the FAA’s stance on the scope of its airspace regulation. In its statement, “Buting Myths about the FAA and Unmanned Aircraft – Update”, the FAA says it “is responsible for aviation safety from the base.” Although it has not set a minimum flight altitude for drones, the FAA has set a maximum flight altitude of 400 feet, placing drones in relatively close proximity to people and structures on the ground. (GAO report of 09/16/2020).

In its 9/16/2020 report, GAO identified the following as key and unresolved drone jurisdiction and privacy issues:

Whether Congress can use its power under the Trade Clause of the U.S. Constitution to regulate all drone operations, including non-commercial, non-interstate, and low-altitude operations on private property, and if so, whether Congress authorized the FAA to regulate all such operations;

What impact can Fifth Amendment property rights held by landowners in airspace in the “immediate spans” above their property have on federal, state, local and tribal authority over land operations? low-level drones;

Whether and to what extent Congress intended to prevent states, towns and tribes from regulating low-level drone operations;

What responsibility drone operators and federal, state, local and tribal governments may have to landowners under the precedents of the Air Trespassing Act and Constitutional Levies to conduct, regulate or anticipate state regulation of drone operations in low-level airspace, and whether landowners can exclude drones from their overlying airspace; and

Whether existing federal and state privacy laws adequately protect against invasions of physical privacy and personal data confidentiality involving drone operations and what authority do federal, state, local and tribal governments do they have to adopt any additional measures that may be needed.

In short, the legal and regulatory landscape for the operation of commercial and recreational drones is far from being resolved. Drone manufacturers and other stakeholders, including consumer, food and health product retailers, must monitor court rulings and the patchwork of laws and regulations at the local, state, and federal levels.