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Legal Aspects of Unmanned Systems – Part 1: Civilian Uses

Brave New World: Unmanned Systems and Us

I have always been intrigued by technological advances. I am repeatedly amazed at the depth of human curiosity and ingenuity. Throughout history humans have developed machines to assist, and when possible even replace, physical work. Today, technology enables the development of machines that can substitute both physical and intellectual processing by utilizing unmanned and even autonomous systems.

Premier descente en parachute ... Jacques Garnerin ... le 22 Octobre 1797, Library of Congress Prints and Photographs Division,  http://www.loc.gov/pictures/item/2003674131/

Premier descente en parachute … Jacques Garnerin … le 22 Octobre 1797, Library of Congress Prints and Photographs Division, http://hdl.loc.gov/loc.pnp/ppmsca.03476.

Take for example self-driving cars. Won’t it be great to sit as a passenger in a car that will drive you to your destination without having to get stressed by traffic? Imagine how much work or reading you could do while your unmanned car is taking you to your end point. Personally, I am dreaming of a robot that will go grocery shopping and cook my dinners so that when I return home from work I will have freshly cooked homemade delicious meals; even better, I would love it if the robot could do the dishes as well.

Although the robot I dream of is not yet in existence (to the best of my knowledge), unmanned systems are already being utilized in a variety of applications, including unmanned aircraft systems, unmanned surface vehicles, and unmanned underwater vehicles.

Concerns regarding the use of such technology for either civilian or military purposes have been expressed by various governments, non-governmental organizations, and individuals. In this post I look at some of the legal aspects associated with unmanned systems for civilian uses, particularly in relation to those used in aviation. In a follow-up post I will look at the legal aspects of unmanned weapon systems.

Potential Uses of Unmanned Systems

Unmanned systems technology may be used, among others, in industry and services, humanitarian work, wildlife conservation, and environmental protection.

Industry and services

The use of automated systems in the production and service of fast food, for example, has been expected to bring “dramatic productivity enhancements,” such as by enabling the constant update of electronic menus. “Connecting the point of the sale to the oven’s operating system allows precise amounts of food to be cooked, which helps cut down on costs.” The replacement of human efforts by such systems might, however, also result in the elimination of many jobs.

Drone surveillance helps search and rescue in Nepal, Photo by Flickr user Jessica Lea/DFID, PRO DFID - DFID - UK Department for International Development, ‎April‎ ‎29‎, ‎2015. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-nd/2.0/

Drone surveillance helps search and rescue in Nepal, Photo by Flickr user Jessica Lea/DFID, PRO DFID – DFID – UK Department for International Development, ‎April‎ ‎29‎, ‎2015. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-nd/2.0/

The application of unmanned systems technology in unmanned aerial vehicles (UAVs; sometimes called drones) has drawn increasing interest by various industries. Pizza delivery is just one example where drones could expedite service. Another example is package delivery. In April 2015, Amazon was reportedly granted authorization by the U.S. Federal Aviation Administration (FAA) to begin “testing a delivery drone prototype for its Prime Air service, a venture that aims to transport packages to Amazon customers in under 30 minutes.”

Humanitarian projects

UAVs have increasingly been utilized for search and rescue operations as well as for hurricane hunting. UAVs with 3-D mapping technology had been involved in “Haitian relief efforts after Hurricane Sandy, by farmers seeking to manage far-flung crops and fields, by mining companies monitoring changes to open pit mines, and by festivals to monitor crowd size for security reasons…”  UAVs could also be useful in the delivery of small medical supplies, such as getting vaccines to remote or hard to access areas.

Wildlife conservation, environmental protection and other purposes

EPA Drones Spy on US Farmers!, Photo by Flickr user Mike Licht, ‎June‎ ‎17‎, ‎2012. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-nd/2.0/

EPA Drones Spy on US Farmers!, Photo by Flickr user Mike Licht, ‎June‎ ‎17‎, ‎2012. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-nd/2.0/

Other UAV uses have included surveillance and mapping of large pieces of land for scientific research, firefighting, and film and video production.

Legal Aspects of UAV Technology

Safety and security

One of the concerns regarding UAVs is related to the safety of their operation. Security is another concern. In January 2015, for example, a UAV accidentally crashed on the White House grounds. Moreover, according to the U.S. Federal Aviation Administration (FAA) there have been more than 650 reports this year from pilots of a variety of aircraft, including many large airliners, of drones flying near their aircraft. In Israel, it was recently reported that passenger planes preparing to land at Ben-Gurion International Airport came within dozens of meters of a drone. Fortunately, the two planes involved were not damaged.

Privacy rights

One of the most contentious issues concerning the integration of UAVs into airspace appears to be that of protection of privacy. A search of Congress.gov under the terms “unmanned aerial vehicles” or “drones” identifies several bills introduced in the U.S. Congress that have called for restricting the operation of UAVs to limit harm to privacy rights.

The proposed bills appear to address perceived ambiguity in the application of the Fourth Amendment to UAVs. Under the Fourth Amendment “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In accordance with U.S. Supreme Court Justice Harlan’s concurring opinion in Katz v. United States (389 U.S. 347, 361, (1967)), the determination that a search occurred within the framework of the Fourth Amendment generally requires “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable”” (objective expectation of privacy).

It has been suggested that it is difficult to exhibit an actual subjective expectation of privacy in an era where UAV technology enables the surveillance of entire cities, and when the collection of aggregated data may reveal intimate details on about people’s lives. It had further been suggested that subjective expectations of privacy are constantly changing as “technology changes and we become more accustomed to surrendering more of our privacy” (as has arguably already happened considering we “allow a company like Google to track our locations” in return for getting GPS assistance).

Considering the ongoing change of public perceptions of privacy that are associated with UAV use, the identification of “societal values” as an indication of an objective expectation of privacy, based on Oliver v. United States (466 U.S. 170, 182-83 (1984)) may also be difficult.

It is expected that as UAV technology use increases, legislative and judicial determinations will have to be made in the U.S. and in other countries to address the complex privacy implications of drone use.

Drones, ‎, Photo by Flickr user Gregor Hartl, Ars Electronica, April‎ ‎25‎, ‎2012.  Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-nd/2.0/

Drones, ‎ Photo by Flickr user Gregor Hartl, Ars Electronica, April‎ ‎25‎, ‎2012. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-nd/2.0/

Additional legal implications

Concerns about UAV operations, other than those related to safety, security, and privacy aspects, include their effect on the rights of landowners over whose property drones might fly; the application of criminal law regarding their use to engage in stalking, harassment, and other criminal acts; ensuring protection of the data collected by drones; as well as liability and insurance issues.

Regulation of UAVs

Countries around the globe are beginning to address the possible implications of UAV operations.

In the U.S., Congress tasked the FAA with integrating UAVs into the national airspace system by September 2015. The FAA Modernization and Reform Act of 2012, P.L. 112-95  addresses safety requirements associated with the operation of UAVs. It is worth noting that, under section 336 of the Act, model aircraft are generally not subject to FAA regulations except when they are used in a way that endangers the safety of the U.S. national airspace system. To qualify for the exemption, the model aircraft need to be flown strictly for hobby or recreational use, comply with community-based safety rules, weigh less than 55 pounds, not interfere with the operation of manned aircraft, and operators must provide airports and air traffic control towers with prior notice when flying their aircraft within 5 miles of an airport.

The FAA, together with organizations representing the drone industry, currently have a campaign called “Know Before You Fly” to inform drone operators of the rules.

Drone 2, Hobbyist drones flying over an open field, Photo by Flickr user Michael MK Khor, March‎ ‎04‎, ‎2014. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0

Drone 2, Hobbyist drones flying over an open field, Photo by Flickr user Michael MK Khor, March‎ ‎04‎, ‎2014. Used under Creative Commons License, https://creativecommons.org/licenses/by/2.0

A number of foreign countries and entities have adopted rules regarding the operation of UAVs. The Law Library’s foreign law specialists have noted such developments in several articles for the Global Legal Monitor.

European Union

An April 2014 article by Theresa discusses the adoption of a Communication by the European Commission entitled “A New Era for Aviation, Opening the Aviation Market to the Civil Use of Remotely Piloted Aircraft Systems in a Safe and Sustainable Manner.” The Communication prioritizes critical areas in which standards need to be developed, including safety authorizations, security operations, privacy and data protection and liability and insurance.

New Zealand

A recent article by Kelly describes the adoption of new and amended civil aviation rules on unmanned aerial vehicles and remotely piloted aircraft systems in New Zealand. The rules also exempt the operation of unmanned aircraft weighing less than 25 kilograms (about 55 pounds) from the need to seek Civil Aviation Authority (CAA) approval, but subject their use to certain geographical, time, and safety parameters. Interestingly, the rules require operators of UAVs to obtain consent from persons and property owners before flying the aircraft over them or their property.

Kelly writes that those who wish to conduct unmanned aircraft operations that do not qualify for the exemption must obtain a certificate from the CAA. To do so they must show that they have conducted an adequate operational risk assessment and have developed procedures to ensure safe operation of the UAVs.

Russia

Peter writes that on June 10, 2015, amendments to the country’s air code passed a first reading in the Russian parliament. If adopted, the amendments will subject the operation of UAVs weighing more than 30 kilograms (about 66 pounds) to mandatory civil aviation certification. Peter reports that “[f]ollowing the first reading adoption of this legislation, the Moscow City Council conducted hearings and issued a resolution ordering the passage of city legislation that would ban uncontrolled UAV flights over the city, regardless of their size and weight.”

Sweden

Elin reports on an April 13, 2015, decision by the Administrative District Court of Malmö in Sweden in which it was determined that using a drone to take pictures of an outdoor public garden is not camera surveillance that requires a prior permit. Elin notes, though, that “[t]he decision should not be seen as a blank check to use drones to take photographs in public places,” as the judge apparently emphasized that “using drones for photographic purposes could still violate other laws, such as those on assault or sexual assault, under certain circumstances.”

Taiwan

Wendy reports that Taiwan’s Civil Aeronautics Administration (CAA) recently announced that a revision of Taiwanese laws on the licensing and operation of UAVs will be completed by mid-September. Similar to other countries, mandatory certification of the vehicle and of the operator will be required for the operation of commercial UAVs weighing 25 kilograms or more. In Taiwan, operation of recreational devices that weigh less than 25 kilograms will be under the supervision of the local government. Wendy notes that “[t]he new measures will establish a regulatory framework that, among other features, will provide for a coordinated response to the increasing number of UAVs and drones in Taiwan’s air space.”

Conclusion

There is no doubt that UAVs will increasingly be utilized in many areas affecting our lives. Facing this reality, lawmakers and enforcement agencies around the world have undertaken to develop or adapt measures to adequately meet the new challenges created by the operation of UAVs in various sectors. Such measures typically aim to ensure that UAV operations comply with safety and security requirements while respecting personal rights.

As the technology associated with UAVs and other unmanned systems develops and creates additional benefits to users there will undoubtedly be further discussions about which activities could constitute an interference with our personal rights, the extent to which such interference is acceptable or not, and the types of restrictions that should be placed on the use of the technology in the interests of privacy, safety, and security.

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