FLYING ARTIFICIAL INTELLIGENCE UNMANNED AERIALS SYSTEMS IN THE UNITED STATES

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FLYING ARTIFICIAL INTELLIGENCE:
UNMANNED AERIALS SYSTEMS IN THE UNITED STATES
Jason D. Knight1
INTRODUCTION
Drones, flying robots that have begun to take over the air. Whether in the shape of a small
helicopter or a fighter jet, unmanned aerial vehicles are the future. These aircraft are perfect for dirty,
dull and dangerous jobs. However, as they begin to integrate into the airspace and our imaginations,
America struggles with how to coexist. Technology categorization, government regulation, radio
frequency allocation, insurance issues and privacy all present unique challenges to this new industry.
This article will identify and analyze the flashpoints unmanned aircraft and their operators face.
UAS TECHNOLOGY
Unmanned Aerial Systems (UAS) and Unmanned Aerial Vehicles (UAVs) are the future of
aviation. Though these aircraft have been flying since the mid-twentieth century, it was not until the
twenty-first century that they started to attract public attention. The reason is because UAVs have
begun to infiltrate American airspace at an unprecedented rate. UAVs can be bought at almost every
toy or hobby store in America. Whether controlled by a military aviator or by an amateur pilot with a
smart phone, UAVs are taking-off.
The first step to understanding UAS technology is that the term “drone” is inaccurate. “Drone”
is slang for an unmanned aircraft. The term itself originated in the early days of UAV development.
Engineers and pilots thought the sound of the small propellers was similar to the buzzing of a male
honeybee or drone. The term stuck and became a nickname for these aircraft.2
The second step is to understand why UAS technology is not omni-present in American
airspace. The Federal Aviation Administration has jurisdiction over the National Airspace (NAS). The
NAS consists of a network of air navigation facilities, Air Traffic Control facilities and airports.3 The
FAA has repeatedly stated that the reason it does not regularly certify UAVs to fly is because of safety.
The pilotless nature of UAVs presents a myriad of safety concerns from crashes to radio frequency
interference.
This section will summarize the current typology of UAS. Unmanned aircraft take many forms
in the National Airspace as size, capability, and use all factor into the determination of a UAS type.
Primarily, the aviation community categorizes UAVs by size: full-scale and small UAS (sUAS).
Secondarily, UAS are categorized by grade: hobbyist, enforcement, and commercial. It is important to
1 Jason D. Knight is a technology and policy researcher at Southwestern Law School (J.D. Candidate 2016) in Los Angeles, California. He can be
contacted at jknight@swlaw.edu.
2 The term may have also originated in 1934, when the British military purchased hundreds of radio-controlled unmanned “Queen Bee” biplanes. They
were used for target practice. See Laurence R. “Noise” Newcome, Unmanned Aviation: A Brief History of Unmanned Aerial Vehicles 4 (2004); and Steven
J. Zaloga, Unmanned Aerial Vehicles: Robotic Air Warfare 1917–2007, 7 (2008).
3 The Federal Aviation Act of 1958 established the FAA and made it responsible for the control and use of navigable airspace within the United States.
The FAA created the National Airspace System (NAS) to protect persons and property on the ground, and to establish a safe and efficient airspace
environment for civil, commercial, and military aviation. The NAS is made up of a network of air navigation facilities, ATC facilities, airports, technology,
and appropriate rules and regulations that are needed to operate the system. The NAS describes how these components interact to facilitate safe and
efficient air travel. FAA, National Airspace System Overview Appendix A (2014) (Available at
https://www.faa.gov/air_traffic/nas_redesign/regional_guidance/eastern_reg/nynjphl_redesign/documentation/feis/appendix/media/Appendix_A-
National_Airspace_System_Overview.pdf ).
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keep in mind that these categories are interrelated. Each general type can be subdivided and combined
to create an ever evolving list of aircraft types. Nonetheless, the above categories tend to recur and
have been recognized by manufacturers and operators alike.
Size considerations are determined by weight. Small UAS or sUAS are defined by 55 pounds or
less4. The FAA and has taken different routes regarding the two size classes. The reason is that the two
sizes have different capabilities and liabilities. sUAS for example, can be flown close to buildings, are
difficult to detect. Further, sUAS can be easily acquired by the general public. SUAS are typically used
for surveillance and are able to carry small payloads, such as cameras. In addition, sUAS have several
constraints such as altitude and range. SUAS are controlled by either a handheld radio-controller or by
laptop via WiFi. These control systems also constrain sUAS flights to Line-of-sight (LOS) operation.5
On the other hand, full-scale UAS weigh more than 55 pounds. Full-scale UAVs may be similar
in size to large military and commercial aircraft. These UAVs are effective airborne platforms for
complex sensory arrays and even weapons. Furthermore, full-scale UAS use satellite navigation and
can fly for many hours with long range capability for beyond-line-of-sight (BLOS) operation.6 Despite
these advantages, full-scale UAS have several barriers for the general public. The high cost and the
expertise needed to operate these unmanned aircraft ensures that the military style UAS will not be
seen at a civilian airport any time soon. Regardless of size type, UAS sales will increase exponentially
over the next decade as the FAA relaxes regulation and prices fall.
UAS types are also classified by use. Use categories determine who may fly and who is
grounded. Currently, the UAS community employs a grading system to delineate which UAVs are
toys7 and which UAVs are not.8 Grade considerations are first determined by size and then by
capability. Capability factors include, method of operation,9 flight endurance, and payload.10 These
factors then place a UAS into a grade category: hobbyist, enforcement, or commercial.
Hobbyist Grade
Hobbyist grade UAVs are model aircraft. They are defined as “[a] sUAS used by hobbyists and
flown within visual line-of-sight under direct control from the pilot, which can navigate the airspace,
and which is manufactured or assembled, and operated for the purposes of sport, recreation and/or
competition.”11 Hobbyist grade UAS are loosely regulated by the FAA's Small Unmanned Aircraft
System Rule Making Committee and the Academy of Model Aeronautics.12 The reason is because the
4 Bart Elias, Cong. Research Serv., R42718, Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations In
The National Airspace System 6 (2012).
5 Press Release, FAA, Fact Sheet-Unmanned Aircraft Sys. (UAS) (Feb. 19, 2013) (Available at http://www.faa.gov/news/fact_sheets/news_story.cfm?
newsId=14153).
6 Id.
7 See Small Unmanned Aircraft Sys. Rule Making Comm., FAA, Comprehensive Set of Recommendations For sUAS Regulatory Development (2009)
(Available at http://www.modelaircraft.org/faa/recommendations.pdf); and R. J. Van Vuren, Air Traffic Service, FAA, AC 91-57, Model Aircraft
Operating Standards (1981) (Available at
http://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentid/22425).
8 “A UAS is the unmanned aircraft (UA) and all of the associated support equipment, control station, data links, telemetry, communications and navigation
equipment, etc., necessary to operate the unmanned aircraft. The UA is the flying portion of the system, flown by a pilot via a ground control system, or
autonomously through use of an on-board computer, communication links and any additional equipment that is necessary for the UA to operate safely.”
FAA, Nat'l Policy, Unmanned Aircraft (UAS) FAQ (2014) (Available at http://www.faa.gov/about/initiatives/uas/uas_faq/#Qn1).
9 Method of operation refers to how the UAV is operated. Methods can be either line-of-sight (LOS) or beyond-line-of-sight (BLOS).
10 Brandon Stark, Brendan Smith, & YanQuan Chen, A Guide for Selecting Small Unmanned Aerial Systems for Research-Centric Applications (2013) (on
file with Author).
11 Small Unmanned Aircraft Sys. Rule Making Comm., FAA, Comprehensive Set of Recommendations For sUAS Regulatory Development (2009)
(Available at http://www.modelaircraft.org/faa/recommendations.pdf).
12 “The Academy of Model Aeronautics is a world-class association of modelers organized for the purpose of promotion, development, education,
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capabilities and characteristics of the hobbyist grade are limited. Despite the limited nature of the
hobbyist grade, this class is the subject of controversy. Hobbyist grade capabilities blur the line of
whether these sUAS are solely model aircraft or something more.13
The first capability factor is method of operation. In other words, who or what is controlling the
aircraft. Hobbyist grade UAS are remotely piloted by a human operator with a handheld device.14 This
distinction is important because the human operator never lets the UAV out of sight. In fact, the UAS
must never leave the LoS of the pilot-in-command (PIC) or visual observer (VO).15 Despite this safety
requirement, many new sUAS have auto-pilot capability.16 Barriers to programming autopilot software
have diminished as open-source software such as Arduino17 becomes more available to the public. This
new control option is why the hobbyist grade is controversial, as semi and fully-autonomous aircraft
are not strictly designed for recreational use.
The next capability factors are flight endurance and payload. Currently, most sUAS use battery
power or internal combustion. Flight endurance tends to last between thirty minutes and one hour for a
rotorcraft18 and fixed-wing aircraft respectively.19 However, advances in Lithium ion (LiPo) batteries
are beginning to push the boundaries of flight endurance, meaning that flight times could increase
exponentially with battery life. As for hobbyist grade payload capacity, most hobbyist grade UAS
carry lightweight payloads such as small cameras or none at all. The net effect of increased flight
endurance and payload capacity is that Hobbyist grade sUAS will start to resemble the enforcement
and commercial grades.
Enforcement Grade
Enforcement grade UAVs are designed primarily for law enforcement and other paramilitary
applications. Currently, enforcement grade UAS have semi-autonomous capabilities and similar flight
endurance to that of the hobbyist grade. The major difference, is the payload capacity of the
enforcement grade. Police departments, Department of Homeland Security, and other US enforcement
agencies have begun to rely quite heavily on UAS.20 Despite the differences, the capability factor
analysis is the same as the hobbyist grade.
Methods of operation vary within the enforcement grade.21 Currently, many enforcement grade
UAS use semi-autonomous flight because BloS operation is essential in their dangerous working
environments. These UAS can operate hundreds of miles from the control center and require the use of
advancement, and safeguarding of modeling activities. The Academy provides leadership, organization, competition, communication, protection,
representation, recognition, education, and scientific/technical development to modelers.” Academy of Model Aeronautics, About AMA (2014) (Available
at http://www.modelaircraft.org/aboutama/whatisama.aspx). See also R.J. Van Vuren, Air Traffic Service, FAA, AC 91-57, Model Aircraft Operating
Standards (1981).
13 This controversial issue will be discussed in the Regulatory section.
14 Handheld devices typically consist of two joy sticks and various pitch controllers; a smartphone with a UAS control application; or a laptop that utilizes a
WiFi connection to control the aircraft.
15 LoS capability for most Hobbyist grade UAS is around 5 km or 3 miles. This means that assuming clear weather conditions and no obstructions, the
human operator will not lose visual contact of the aircraft. Further, most hobbyist grade UAS use what is called a clear channel system, which means that
the aircraft cannot fly behind a solid obstruction like a mountain or a metal building.
16 Brandon Stark, Brendan Smith, & YanQuan Chen, A Guide for Selecting Small Unmanned Aerial Systems for Research-Centric Applications (2013) (on
file with Author).
17 Arduino is a single-board microcontroller, intended to make the application of interactive objects or environments more accessible. The hardware
consists of an open-source hardware board designed around an 8-bit Atmel AVR microcontroller, or a 32-bit Atmel ARM. Arduino, Define (2014)
(Available at http://arduino.cc/en/Reference/Define).
18 A rotorcraft is an aircraft that uses vertically mounted propellers to generate lift like a helicopter.
19 Id.
20 Chad C. Haddal & Jeremiah Gertler, Cong. Research Serv., RS21698, Homeland Security: Unmanned Aerial Vehicles and Border Surveillance (2010).
21 See Enforcement Grade Specifications Table in Appendix 1 Credit: Brandon Stark, Brendan Smith, & YanQuan Chen, A Guide for Selecting Small
Unmanned Aerial Systems for Research-Centric Applications (2013) (on file with Author).
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satellite navigation or LandSat.22
In addition, although flight endurance is similar to that of the hobbyist grade, some agencies
have begun to upgrade their arsenal. Enforcement grade UAS have flight endurance ranging from ten
minutes to an hour for multi-rotor aircraft. Fixed-wing aircraft flight endurance ranges from forty
minutes to twenty-four hours.23 Flight endurance is a function of the duty requirement of these aircraft.
These UAS must be able to stay airborne for several hours because they must routinely fly over
hundreds of miles of border fence; keep an eye on high speed pursuits; and surveil criminal activity.24
Furthermore, enforcement grade UAS payload capabilities are what makes these UAVs truly
paramilitary. Enforcement grade UAS can carry a variety of sensors, including live video cameras,
thermal imagers, and potentially lethal weapons.25 These UAS also have 'hotswap' capabilities or the
ability to switch payloads while the motors are running. Though these payload abilities allow for
greater flexibility, it is these capabilities that are controversial. American citizens continue to express
concern about how law enforcement utilize UAVs in the field.26 However, pressure from the public and
government ensures that UAVs will not be armed with heatseeking missiles in the near future.
Commercial Grade
“Flight missions considered to be 'dirty, dull, or dangerous' are regarded as prime candidates for
the use of unmanned aircraft.”27 The commercial grade presents the highest potential of all UAS types,
but are also subject to governmental scrutiny. Commercial UAS will fill many jobs ranging from film
making to regulating crop yields and vary wildly with their job descriptions. Though the commercial
grade is fiercely contentious, the capability factor analysis does not change.
Most commercial UAS activities are prohibited. Regardless, the FAA has recently begun to
license certain industries, like the oil industry, for operation. Challenging flight conditions and duty
requirements mean that UAS operators must select the right method of operation for the job. Smaller
commercial UAS will be akin to the hobbyist grade and will never leave the operator's LoS. These
sUAS and may be controlled via laptop computer or handheld controller. Alternatively, full-scale
UAVs may be operated by GPS or LandSat and will be flown much like how modern tractors are
guided on the ground. However, this plethora of different control methods presents an interesting
problem for the FAA. Pilot certification, sense-and-avoid28 standards and radio frequency allocation
issues, must all be addressed in the near future to foster a thriving commercial UAS industry.
Furthermore, flight endurance for the commercial grade is potentially unlimited. Currently, the
22 A U.S. Scientific satellite that studies and photographs the earth's surface by using remote-sensing techniques. Dictionary.com, LandSat Definition,
(2014) (Available at http://dictionary.reference.com/browse/landsat).
23 See Enforcement Grade Specifications Table in Appendix 1 Credit: Brandon Stark, Brendan Smith, & YanQuan Chen, A Guide for Selecting Small
Unmanned Aerial Systems for Research-Centric Applications (2013) (on file with Author).
24 The Future of Unmanned Aviation in the U.S. Economy: Safety and Privacy Considerations Before the Subcomm. on Commerce, Science, & Trans.,
113th Cong. 1 (2014). (statement of Sen. Dianne Feinstein).
25 See Enforcement Grade Specifications Table in Appendix 1 Credit: Brandon Stark, Brendan Smith, & YanQuan Chen, A Guide for Selecting Small
Unmanned Aerial Systems for Research-Centric Applications (2013) (on file with Author).
26 The public has just begun to hear about how police departments around the country are beginning to integrate UAS into their fieldwork. See Joel Rubin,
LAPD Adds Drones to Arsenal, Says They'll Be Used Sparingly, LA Times, (June 13, 2014) (Available at http://www.latimes.com/local/lanow/la-me-ln-
lapd-adds-drones-to-arsenal-20140530-story.html); and TechDirt, LA Sheriff's Dept. On New Surveillance Program: We Knew The Public Wouldn't Like
It, So We Kept It A Secret, TechDirt (June 3, 2014) (Available at https://www.techdirt.com/articles/20140415/07371926919/la-sheriffs-dept-new-
surveillance-program-we-knew-public-wouldnt-like-it-so-we-kept-it-secret.shtml).
27 Bart Elias, Cong. Research Serv., R42718, Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations In
The National Airspace System 6 (2012).
28 Sense and Avoid Capability: The term “sense and avoid capability” means the capability of an unmanned aircraft to remain a safe distance from and to
avoid collisions with other airborne aircraft. Keith Ballenger, FAA, UAS General Overview: Per Sec. 331 of 2012 FAA Reauthorization Act (March 26,
2013) (Available at https://www.aiaa.org/uploadedFiles/About-AIAA/Press-Room/Key_Speeches-Reports-and-
Presentations/2013_Key_Speeches/CA_Aerospace_Week_2013/Ballenger-CAUAV2013.pdf).
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market is flooded with different duty types. The range is large, for example, the Hummingbird29 which,
literally looks like a hummingbird, can fly for twelve minutes. Full-scale UAVs like the Penguin B
UAV,30 can sustain flight for twenty hours.31 In addition, there are also UAS that can stay airborne
indefinitely, such as the NASA Pathfinder, which demonstrates the feasibility of perpetual solar-
powered flight.32 Nonetheless, as power storage technologies improve, flight endurance for commercial
UAS will take flight.
The commercial grade payload capability is perhaps the most controversial of the capability
factors. Most commercial UAS regardless of size have the 'hotswap' capability and can carry just about
anything within its load limits. Currently, most commercially available UAS advertise live and infrared
video. Yet, when demand increases, different types of payloads will be commercially available such as
weather instruments and even Amazon products.33 As market forces influence the UAV sector, the
potential for new technology is endless.
The UAS industry will boom. The FAA and US government forecast that the sector will be a
primary industry in the US. The government has even identified all of the industries that will be
affected by this disruptive technology. For example, “border surveillance, suspect tracking, traffic
monitoring, disaster response/relief, damage assessment, atmospheric/weather research, critical
infrastructure monitoring, damage surveying, aerial photography, wildlife monitoring, pipe/power line
surveillance, agricultural applications, movie production, arial news coverage, mail/freight transport,
flood mapping, real estate mapping, mining, sporting events coverage.”34 It is inevitable, as more
applications and innovations emerge so will creativity and productivity. However, the industry will
have to hold back the reigns as the U.S. regulatory scheme takes shape.
UAS REGULATIONS
The road to unmanned aerial system integration into the National Airspace is arduous. The first
two decades of the 21st century demonstrated the government's apprehension regarding UAVs. In 2007,
the Federal Aviation Administration announced, “no person may operate a UAS in the National
Airspace System without specific authority.”35 However, this stance is in flux. Litigation, industry
pressures, and a congressional mandate36 continues to push the FAA to open the airspace.
As of 2014, the FAA has made some progress towards UAS integration. The Administration
maintains a limited licensing regime to allow a select group of operators to fly each year. Further, in
2013, the FAA mandated the creation of six UAS test sites to better understand the technological
limitations and address the safety concerns inherent to UAS. Despite these advances, the FAA
continues to delay the delivery of a comprehensive legal framework for UAS. Until a complete plan is
29 Ascending Technologies GmbH, 2013.
30 UAC Factory, 2013.
31 See Commercial Grade Specifications Table in Appendix 1 Credit: Brandon Stark, Brendan Smith, & YanQuan Chen, A Guide for Selecting Small
Unmanned Aerial Systems for Research-Centric Applications (2013) (on file with Author).
32 Press Release, NASA, NASA Dryden Fact Sheet: Pathfinder Solar-Powered Aircraft (May 7, 2008) (Available at
http://www.nasa.gov/centers/armstrong/news/FactSheets/FS-034-DFRC.html).
33 Press Release, Amazon, Amazon PrimeAir (Dec. 2, 2013) (Available at http://www.amazon.com/b?node=8037720011).
34 Harrison, Glennon J., Cong. Research Serv., R42938 Unmanned Aircraft Systems (UAS): Manufacturing Trends, 5 (Jan. 30, 2013).
35 FAA, Unmanned Aircraft Operation In The National Airspace System, Federal Register 6689-6690 (Feb. 13, 2007).
36 FAA Modernization and Reform Act of 2012, H.R. 658, 112th Cong. (2012). H322/S320, 607(a)(b)(d)(e)(f), House bill - § 322, requires the Secretary of
Transportation to develop a plan, in consultation with aviation and Unmanned Aircraft Systems (UAS) industry representatives, within nine months of
enactment, for the safe integration of civil UASs into the National Airspace (NAS). This plan must contain a review of technologies and research to assist
in this goal, recommendations for a rulemaking on the definition of acceptable standards, ensure civil UASs have sense and avoid capability, develop
standards and requirements for operator and pilots of UASs, and recommendations. The plan must include a realistic time frame for UAS integration into
the NAS, but no later than September 30, 2015. The plan must be submitted to Congress within one year of enactment. The FAA is required to initiate a
Notice of Proposed Rulemaking (NPRM) for site integration of UAS within 18 months of the date of enactment of the integration plan.
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implemented, the FAA relies on a carve-out approach on an as-needed basis to address specific
industries and stakeholders.
A LIMITED LICENSING REGIME
Until the FAA rolls out its integration plan, UAS operators must comply with the current
licensing regime. Operators must obtain specific authority from the FAA in a 'file-and-fly' system37.
Generally, two certification schemes are available. First, public entities such as government agencies
and universities, may file a COA or Certificate of Authorization. Second, regular civilians may seek a
Certificate of Airworthiness. Despite the seemingly simple dichotomy, these certification schemes are
significant barriers to UAS operations. The large amount of capital, expertise and their laborious nature
creates a kind of artificial cap on the number of UAS operators.38
Certificate of Authorization
Certificates of Authorization or COAs are only available to public entities.39 Since 2009, the
FAA has issued more than 1,30040 COAs. Though the FAA has streamlined the application process, the
types of entities and mission plans accepted are limited. Further, the FAA limits the duration and scope
of operations and strictly enforces compliance procedures. Some even argue that COAs are a dying
breed and will not be legally relevant for very long. Nonetheless, until the FAA replaces this license
scheme, operators must obtain and comply with the COA system.
Once a public entity decides to file for a COA, it must carefully follow FAA compliance
procedures. The two main aspects to compliance are to fly a “public” aircraft and to have a mission
plan. A public aircraft is “[a]n aircraft used only for the United States Government; an aircraft owned
by the Government and operated by any person for purposes related to crew training, equipment
development, or demonstration.”41 The second prong is the mission plan. A mission plan must include
an aircraft and a flight plan that is non-commercial,42 serve a government function,43 and must be
controlled by qualified crew members.44 Subsequently, the public entity must file its application with
the FAA45 and describe the proposed operations along with the technical specifications of the aircraft.46
Simultaneously, the applicant must also contact an ATO (Air Traffic Organization), which is normally
37 Bart Elias, Cong. Research Serv., R42718, Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations In
The Nat'l Airspace System 6 (2012).
38 It is important to keep in mind, that both of these schemes are for large scale UAS, over 55 pounds. The Small UAS certification scheme is expected to
take a different direction and is administrated by the Small Unmanned Aerial System Rule Making Committee, which is anticipated to appear in 2015.
39 Public Entities include: universities, municipalities, states, military branches, fire and police departments, and other non-commercial or federally funded
institutions.
40 COAs released since 2009: 146; 2010: 298; 2011: 313; 2013: 373, since Oct. 31, 2013. Press Release, FAA, Fact Sheet Unmanned Aircraft Systems
(UAS) (Jan. 6, 2014) (Available at http://www.faa.gov/about/initiatives/uas/).
41 FAA, 14 CFR Part 1, Definitions and Abbreviations (2014) (Available at http://www.ecfr.gov/cgi-bin/text-idx?
rgn=div5&view=text&node=14:1.0.1.1.1&idno=14).
42 The operation cannot be commercial. A non-commercial flight plan is one that does not include “transportation of persons or property for compensation
or hire....” Further, a COA will be issued for a flight plan that includes, “operation [] necessary to respond to a significant and imminent threat to life or
property.” This second definition has been the most relevant in the last year. With the advent of Superstorm Sandy, tornadoes, and other natural disasters,
many COAs have been issued under this definition of non-commercial use. Id.
43 The operation must perform a government function. A government function is “an activity undertaken by a government, such as national defense,
intelligence missions, firefighting, search and rescue, law enforcement, aeronautical research, or biological or geological resource management.” Id.
44 Flight operations is to furnish qualified crew members. A qualified crew member must have an appropriate level of understanding of FAA Part 14 CFR
applicable to operational airspace. Further, pilots or PIC (Pilots In Control) must identified at all times and maintain a private pilot certification or higher
unless otherwise specified. Id.
45 Although a COA required for public entities, there are specific instances in which COAs are required. See FAA, Nat'l Policy, Unmanned Aircraft Sys.
(UAS) Operational Approval: N 8900.207 F-1 (2013) (Available at http://fsims.faa.gov/wdocs/notices/n8900_207.htm).
46 See FAA, Air Traffic Control Org. Policy: N JO 7210.766 5-9 (2011) (Available at http://www.faa.gov/documentlibrary/media/notice/N7210.766.pdf).
See also FAA, Sample COA Application, v1.1 (2008) (Available at http://www.faa.gov/documentlibrary/media/notice/n%208900.207.pdf).
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a local airport. After the applicant has provided the necessary data, the FAA conducts a safety
assessment. If the FAA determines that the operations and technical specifications are sufficient, the
ATO issues a COA. In addition, an ATO may issue a Special COA or for when natural disaster occur.
However, these COAs are issued on an extremely limited basis.47
Upon the issuance of a COA, the operator is constrained to its scope and duration. Typically, a
COA is limited in duration to one year and must renew annually. The operator may not venture outside
the scope of the mission plan, such as whether the UAS is piloted semi-autonomously or completely
autonomously. Further, limitations on geographic area and airspace apply. For example, public UAS
operations normally take place within active restricted,48 warning,49 and prohibited areas.50
Additionally, the COA holder must follow the COA General Procedures and COA Procedures,51 which
outline who is authorized to pilot a UAV and how to handle UAS equipment.
Despite the limited nature of a COA, those who have received COAs have made great progress
in the UAS industry. Unmanned aircraft have been used to fight fires in the western US and have aided
in rescue efforts after natural disasters. Yet, as the UAS industry evolves, the COA process may or may
not survive. Regardless, until the FAA changes its policy, the COA is apart of the public entity standard
operating procedure.
Certificate of Airworthiness
A Certificate of Airworthiness is issued to every type of aircraft flying in the NAS today. The
purpose is to ensure that all aircraft and their components will not pose a threat to the public. Currently,
the FAA views UAS Certificates of Airworthiness similarly to Experimental Aircraft.52 An
experimental aircraft certificate is centered around safety and must be filed under one of three
47 There are several exceptions and restrictions that apply to a COA holder. The exception to the standard COA application is the Special COA. A Special
COA is issued during an emergency such as a natural disaster or fire. The FAA employs a three part test to determine whether a Special COA should be
issued. The three parts of the test are found under AFS-80. The first part of the test is the presence of an emergency, or a “situation exists that is defined as
a condition of distress or urgency, where there is , or that has, the extreme possibility of loss of life.” The second prong is the character of the emergency of
that a, “proponent has determined that manned flight operations cannot be conducted efficiently.” The third prong is the location and that the UAS
credentials that ensures that the, “proposed UAS is operating under a current approved COA for a different purpose or locations.” However, a Special
COA can be rejected. If the flight is for demonstration, to test new capabilities, training, in Class B airspace (Class B Airspace: around key airport traffic
areas, usually airspace surrounding the busiest airports in the US according to the number of IFR operations and passengers served), or over a populated
area the Special COA application will fail. FAA, Nat'l Policy, Unmanned Aircraft Sys. (UAS) Operational Approval: N 8900.207 (2013) (Available at
http://www.faa.gov/documentlibrary/media/notice/n%208900.207.pdf).
48 Restricted Area: Restricted areas are areas where operations are hazardous to nonparticipating aircraft and contain airspace within which the flight of
aircraft, while not wholly prohibited, is subject to restrictions. Activities within these areas must be confined because of their nature, or limitations may be
imposed upon aircraft operations that are not a part of those activities, or both. Restricted areas denote the existence of unusual, often invisible, hazards to
aircraft (e.g., artillery firing, aerial gunnery, or guided missiles).
49 Warning Area: Warning areas are similar in nature to restricted areas; however, the United States government does not have sole jurisdiction over the
airspace.
50 Prohibited Area: Prohibited areas contain airspace of defined dimensions within which the flight of aircraft is prohibited. Such areas are established for
security or other reasons associated with the national welfare.
51 The Procedures for the COA Operation will vary by COA. However the general operation guide can be found in FAA, Air Traffic Control Org. Policy:
N JO 7210.766 5-9 (2011) (Available at http://www.faa.gov/documentlibrary/media/notice/N7210.766.pdf).
52 A special airworthiness certificate in the experimental category is issued to operate an aircraft that does not have a type certificate or does not conform to
its type certificate and is in a condition for safe operation. Additionally, this certificate is issued to operate a primary category kit-built aircraft that was
assembled without the supervision and quality control of the production certificate holder. Press Release, FAA, Experimental Category (2011) (Available
at http://www.faa.gov/aircraft/air_cert/airworthiness_certification/sp_awcert/experiment/).
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operational categories:53 research and development,54 crew training,55 and market survey.56 However,
because of the inherent characteristics of UAVs, this comparison is fundamentally flawed. In response,
the FAA has begun to tailor airworthiness requirements to UAVs to address the differences between
manned aircraft and UAVs, namely the role of the pilot.
Furthermore, the wide variety of UAS types poses a problem for UAS type certification. The
wide variety of unmanned aircraft from fixed-wing glider types to multi-rotor craft presents a mine
field of safety concerns and performance capabilities. The first class or type category developed by the
FAA was determined by aircraft weight. Two types emerged. The first weight type is the full-scale
Unmanned Aerial Vehicle, which starts at 55 pounds. A UAV below the 55 pound cutoff is deemed a
Small Unmanned Aerial System (sUAS). In conjunction, the FAA has suggested that the full-scale
UAS and sUAS pilot certification schemes will develop in parallel to the UAS weight classes.57
Small UAS Certification
Small UAS type certification is contentious. The FAA struggles with sUAS certification
because of the blurry line between sUAS and model aircraft. Deciding whether an unmanned aircraft is
a model aircraft or a sUAS is the subject of a heated debate.
Model aircraft are typically flown for non-commercial, recreational use. Such aircraft are
constrained to small portions of designated airspace. Pilots, “[must] maintain altitudes lower than 400
feet above the ground, select sites away from populated and noise sensitive areas, give right of way to
full-scale aircraft, and advise airport operators and air traffic facilities if operating within 3 miles of an
airport.”58 In addition, the model aircraft association, the Academy of Model Aeronautics (AMA)
abides by its own standards for safety and pilot conduct. These rules outline where a model aircraft
pilot may fly and how to operate the model aircraft in flight.59 Consequently, the FAA has historically
allowed model aeronauts to self-regulate.60
On the other hand, sUAS currently fall under the jurisdiction of the FAA. The reason is that
sUAS used in commercial applications and outside of sanctioned AMA airports can pose a serious risk
53 The manufacturer must also submit a Program Letter. The Program Letter includes aircraft specifications including a physical description and method of
operation. Pilot qualifications and rating must also be specified. In addition, the Program Letter must contain an addendum which contains contingency
protocols and safety procedures. See FAA, FAA Order 8130.34B Airworthiness Certification of Unmanned Aircraft Sys. And Optionally Piloted Aircraft:
Order 8130.34B 2-4, 3-1(2011) (Available at http://www.faa.gov/documentLibrary/media/Order/8130.34B.pdf).
54 Research and Development is currently the most popular category because UAS are still in an infant stage. As set forth in §21.191(a), “[an] applicant
may conduct research to determine whether an idea warrants further development.” The types of operations permitted include, testing new design concepts,
aircraft equipment installations, operating techniques, and new uses for aircraft. This category is best for manufacturers because as new technology
emerges, the manufacturer must have a test platform. Furthermore, private universities who cannot qualify for a COA should apply for this category.
55 Crew training is a very limited category. Under §21.191(c) the flight crew must be the same crew that “would normally be the manufacture's employees
necessary to be trained in experimental aircraft.” Further, the training must be done with the supervision of CFI (Certified Flight Instructors) who are
certified under FAA 14 CFR part 61.
56 According to §21.191(f), a Market Survey Experimental Certificate can be issued for the purpose of market surveys, sales demonstrations, and customer
crew training. Since these categories can be construed differently, the FAA requires compliance with §21.195(d)(2) and (d)(3). These sections require the
disclosure of the “estimated time or number of flights required for the market survey operation and the area or itinerary over which the operations are to be
conducted.” Furthermore, if any customer training is necessary, a CFI is also required. In addition, the FAA built in a flight hour requirement to ensure that
the aircraft is safe to operate. This information is found in §21.195(d)(1)(b), which states that an operator must produce, “evidence that the aircraft has been
flown for at least 50 hours, or for least 5 hours if it is a type certified aircraft which has been modified.”
57 UAS that weigh more than 55 pounds fall into two major categories, Unmanned Aircraft Systems (UAS) and Optionally Piloted Aircraft (OPA). An
Unmanned Aircraft System is an aircraft that is completely commanded from outside the cockpit either by remote control, semi-autonomously, or
autonomously. An Optionally Piloted Aircraft (OPA) is an aircraft whose controls can be affected from outside the cockpit, yet reserves manned control
within the cockpit. The Special Airworthiness Certificate required for both UAS and OPA is FAA Form 8130-7, Special Airworthiness Certificate with
guidelines under FAA Order 8130.34B. FAA, FAA Order 8130.34B Airworthiness Certification of Unmanned Aircraft Sys. And Optionally Piloted
Aircraft: Order 8130.34B (2011) (Available at http://www.faa.gov/documentLibrary/media/Order/8130.34B.pdf).
58 See Small Unmanned Aircraft Sys. Rule Making Comm., FAA, Comprehensive Set of Recommendations For sUAS Regulatory Development 37 (2009)
(Available at http://www.modelaircraft.org/faa/recommendations.pdf).
59AMA, Academy of Model Aeronautics National Model Aircraft Safety Code, (Jan. 1, 2014) (Available at http://www.modelaircraft.org/files/105.PDF).
60 R. J. Van Vuren, Air Traffic Service, FAA, AC 91-57, Model Aircraft Operating Standards (1981).
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to the public. SUAS can be difficult to see and detect as they can sneak up on unsuspecting people and
property. In addition, sUAS can be built in a garage and flown by people who have no knowledge or
training in NAS navigation.
Huerta v Pirker
The definition of whether a small unmanned aircraft is a model aircraft or a sUAS is the subject
of the first UAS legal dispute, Huerta v. Pirker.61 On March 6, 2014, an Administrative Law Judge
(ALJ) dismissed allegations that Raphael Pirker62 violated Federal Aviation regulations when he flew a
UAV without the specific authority of the FAA. The preliminary decision63 rocked the world of
unmanned aviation because it essentially removed the FAA's jurisdiction over sUAS in the NAS. It did
so by classifying sUAS as model aircraft.
Facts of the Case64
On October 17, 2011, Raphael Pirker acted as a pilot in command of a “Mewing Zephyr
powered, glider aircraft”, in the vicinity of the University of Virginia, Charlottesville, Virginia. The
FAA alleged that the aircraft was an Unmanned Aircraft System (UAS). It was further alleged that
Pirker's flight operation, was for compensation, in that payment was received for video and
photographs taken during flight.65
On July 27, 2013, the FAA issued an order assessing Pirker a $10,000 civil penalty based on
allegations that he operated a UAS. The order alleged that he deliberately operated the aircraft at low
altitudes over vehicles, buildings, people, streets, and structures.66 The order also alleged that Pirker
violated 14 C.F.R. § 91.13(a),67 in that he operated the aircraft in a careless or reckless manner so as to
endanger the life or property of another.
Subsequently, Pirker filed a notice of appeals. The FAA then filed an order assessing the civil
penalty as a complaint. Pirker then filed a motion to dismiss on September 27, 2014. He argued that the
complaint should be dismissed as a matter of law. In his motion, Pirker argued that there are no current
FAA regulations, which applied to Pirker's operation as alleged in the complaint. The FAA responded
in opposition to Pirker's motion. The Administrative Law Judge allowed the parties to make an
additional responsive filing. In his supplemental filling, Pirker argued that his Ritewing Zephyr power
glider should not be treated as an aircraft for regulatory compliance purposes. Pirker also argued that
the FAA could not regulate the airspace where he operated the aircraft. The FAA subsequently filed an
opposition citing its broad statutory and regulatory authority with regard to aviation safety as the basis
for its order. The FAA then requested the ALJ to defer to the FAA's interpretation of that authority.
61 Huerta v. Pirker, CP-217 (NTSB March 6, 2014).
62 Raphael Pirker, aka Trappy, is a founder of Team Black Sheep, a business specializing in aerial video. He is a somewhat controversial figure in the
UAV community because of his urban high-speed proximity flights. Raphael Pirker, FPVWiki, (June 18, 2014) (Available at
http://fpvwiki.wikispaces.com/Raphael+Pirker).
63 The NTSB Administrative Law Judge's dispositional order is not a final Board decision in this matter. This order is appealable to the the full- five Board
and is not of precedential value. See 49 C.F.R. § 821.43. Huerta v. Pirker, CP-217 at 1 (NTSB March 6, 2014).
64 The facts of the case have been edited from a combination of the NTSB Order and the Appellate briefs from both parties.
65 Huerta v. Pirker, CP-217 1 (NTSB March 6, 2014).
66 The order, among other things, alleged that Pirker operated the aircraft: directly towards an individual standing on a University of Virginia sidewalk
causing the individual to take immediate evasive maneuvers so as to avoid being struck by the aircraft; though a tunnel containing moving vehicles, under
a crane; below treetop level over a tree-lined walkway; within approximately 15 feet of a statue within approximately 50 feet of railway tracks; within
approximately 50 feet of numerous individuals; within approximately 20 feet of an active street containing numerous pedestrians and cars; within
approximately 25 feet of numerous buildings on the University of Virginia campus; on at least three occasions under an elevated pedestrians walkway;
above an active street; directly towards a two-story building on the campus below its rooftop and making an abrupt climb in order to avoid hitting the
building; and within approximately 100 feet of an active heliport.
67 § 91.13 Careless or reckless operation. (a) “Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or
reckless manner so as to endanger the life or property of another;”
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On March 6, 2014, the ALJ issued a decisional order granting Pirker's motion. The FAA filed a
timely appeal of that order.
The Decisional Order
“...[I]t is charged that Respondent acted in violation of the provisions of Part 91, Section
91.13(a), Federal Aviation Regulations (FARs). Respondent has filed a Motion to Dismiss, seeking
dismissal upon the assertion that the Complaint is subject to dismissal, as a matter of law, in the
absence of a valid rule for application of FAR regulatory authority over model aircraft flight
operations.
14 C.F.R. Part 11 C.F.R. § 1.168 states as the FAR. definition of the term “Aircraft” “a device
that is used or intended to be used for flight in the air....” And Part 9.1, section 1.1 states that Part,
prescribes rules governing operation of aircraft. Premised upon those FAR provisions and those of 49
U.S.C. Section 40102(a)(6)69 , Complainant argues that Respondent was operating a device or
contrivance designed for flight in the air and, therefore, subject to Complainant's regulatory authority.
The term, "contrivance" is used in the 49 U.S.C Section 40102(a)(6), definition, “aircraft”,
whereas Part 1, Section 1.1, defines an “aircraft” as a “device”; however, the terms are basically
synonymous, as both refer to an apparatus intended or used for flight.
It is argued by Complainant that, under either definition of the term, “aircraft”, the definition
includes within its scope a model aircraft. That argument is, however, contradicted in that Complainant
FAA has, heretofore, discriminated, in his interpretation/application of those definitions.
Complainant has, historically, in their policy notices, modified the term “aircraft” by- prefixing
the word “model”, to distinguish the device/contrivance being considered. By affixing the word,
“model” to “aircraft” the reasonable inference is that Complainant FAA intended, to distinguish and
exclude model aircraft from either or both of the aforesaid definitions of “aircraft”.
To accept Complainant's interpretive argument would lead to a conclusion that those definitions
include as an aircraft all types of devices/contrivances intended, for, or used for, flight in the air. The
extension of that conclusion would then result, in the risible argument that a paper aircraft, or a toy
balsa wood glider, could subject the "operator" to the regulatory provisions of FAA. Part 91, Section.
91.13(a).
Complainant's contention that a model aircraft is an “aircraft”, as defined in either the statutory
or regulatory definition, is diminished on observation that FAA historically has not required model
aircraft operators to comply with requirements of FAR Part 21., Section 21.1.71 et seq. and FAR, Part
47, Section 47.3, which require Airworthiness and Registration Certification for an aircraft. The
reasonable inference is not that FAA has overlooked the requirements, but, rather that FAA has
distinguished, model aircraft as a class excluded from the regulatory and statutory definitions.
[...]
Complainant FAA issued Advisory Circular (AC) AC 91-5770, entitled “Model. Aircraft
68 14 C.F.R. § 1.1, Aircraft means a device that is used or intended to be used for flight in the air.
69 49 U.S.C. § 40102(a)(6) “aircraft” means any contrivance invented, used, or designed to navigate, or fly in, the air.
70 Advisory Circular (AC) 91-57 “(a). Select an operating site that is of sufficient distance from populated areas. The selected site should be away from
noise sensitive areas such as parks, schools, hospitals, churches, etc.; (b). Do not operate model aircraft in the presence of spectators until the aircraft is
successfully flight tested and proven airworthy; (c) Do not fly model aircraft higher than 400 feet above the surface. When flying aircraft within 3 miles of
an airport, notify the airport operator, or when an air traffic facility is located at the airport, notify the control tower, or flight service station; (d). Give right
of way to, and avoid flying in the proximity of, full-scale aircraft. Use observers to help if possible.”
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Operating Standards”, stating the purpose as “encouraging voluntary compliance with safety standards
for model aircraft operators...” That Complainant FAA issued an AC urging model aircraft operators to
voluntarily comply with the therein stated “Safety Standards” is incompatible with the argument that
model aircraft operators, by application of the statutory and regulatory definition, “aircraft” were
simultaneously subject to mandatory compliance with the FARs and subject to FAR regulatory
enforcement.”
[...]
It is concluded that, as Complainant: has not issued an enforceable FAR regulatory rule
governing model aircraft operation; has historically exempted model aircraft from the statutory FAR
definitions of “aircraft” by relegating model aircraft operations to voluntary compliance with the
guidance expressed in AC 91-57, Respondent's model, aircraft operation was not subject to FAR
regulation, and enforcement.
[…]
Specifically, that at the time of Respondent's model aircraft operation, as alleged herein, there
was no enforceable FAA rule or FAR Regulation, applicable to model aircraft or for classifying model
aircraft as an UAS.”
Aftermath of Pirker
The aftermath of Pirker is still unclear. However, since the decision the FAA has begun to
change its stance one policy at a time. Industry pressures and an incredibly high demand for
commercial UAS has pushed the FAA act.
Almost immediately after the FAA filed for an appeal, special interests rushed to react. Six
Briefs of Amicus Curiae71 were filed in an attempt to sway the National Transportation Safety Board
panel in their favor. The briefs were filed by a myriad of manufacturers, former FAA officials, and
media groups. In essence, the common thread of the briefs was to force the FAA to implement its
integration plan.72
In reaction to the immense pressures, the FAA moved. A mere three months after the
Administrative Court issued its Decisional Order. The FAA decided to carve out exceptions for a
handful of specific industries to conduct UAS operations. In June of 2014, the FAA announced it
would grant exemptions for five industries. The industries include the film and television industry;
precision agriculture; power line and pipeline inspection; oil and gas flare stack inspection; and mining.
The FAA acknowledged, “[i]f the exemption requests are granted, there could be tangible economic
benefits as the agency begins to address the demand for commercial UAS operations. However, all the
associated safety issues must be carefully considered to make sure any hazards are appropriately
mitigated. The petitioner must still obtain operational approval from the FAA.”73 The result came
quickly, on June 10, 2014, the FAA issued a Certificate of Waiver (COW) for the first FAA sanctioned
commercial UAS flights over land. The COW was issued to an energy company in Alaska for the
71 The parties that submitted Briefs of Amicus Curiae include, Angels Eyes UAV (UAV manufacturer http://angeleyesuav.com/)
http://www.ntsb.gov/legal/pirker/AmicusBriefAngelEyesUAV.pdf; Curran and Curran Clients (Law firm representing a consumer group)
http://www.ntsb.gov/legal/pirker/AmicusBriefCurranandCurran.pdf; NAAA (National Agricultral Aviation Association http://www.agaviation.org/)
http://www.ntsb.gov/legal/pirker/AmicusBriefNAAA.pdf; News Media (Newspaper and magazine publishers, braodcast and cable television companies,
wire services, website operators and nonprofit journalists' association 'News Media collectively')
http://www.ntsb.gov/legal/pirker/AmicusBriefNewsMedia.pdf; Attorney Debbie Weecks (http://weeckslaw.com/)
http://www.ntsb.gov/legal/pirker/AmicusBriefAttorneyDebbieWeecks.pdf; Former FAA Officials
http://www.ntsb.gov/legal/pirker/AmicusBriefFormerFAAOfficials.pdf. All documents regarding Huerta v Pirker available at
http://www.ntsb.gov/legal/pirker.html.
72 FAA, Integration of Civil Unmanned Aircraft Sys. (UAS) in the Nat'l Airspace System (NAS) Roadmap (2013) (Available at
http://www.faa.gov/about/initiatives/uas/media/uas_roadmap_2013.pdf).
73 Press Release, FAA, FAA to Consider Exemptions for Commercial UAS Movie And TV Production (June 2, 2014) (Available at
http://www.faa.gov/news/press_releases/news_story.cfm?newsId=16294).
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purpose of oil pipeline inspection.74 The exemption created a new type of certification and was a hard
fought victory for these industries.
The Certificate of Waiver was not just a new, artificial certification scheme. Under §333 of the
FAA Modernization and Reform Act of 2012, “the Secretary of Transportation shall determine if
certain unmanned aircraft systems may operate safely in the national airspace system before
completion of the plan and rulemaking....”75 Under this provision, the Transportation Secretary,
Anthony Foxx effectively converted the Certificate of Authorization (COA) process into the Certificate
of Waiver (COW). The purpose of the COW is to allow specific industries to apply for the specific
authority to conduct UAS operations. The main difference of course is that the COW process has been
streamlined and is not limited to 'public entities'. Despite the strides made, the FAA is still cautious as
demonstrated by issuance of the first COW to the remote northern slope of Alaska. Furthermore, the
implementation of the COW process leaves problem for those industries not granted the opportunity to
apply.
Those industries and UAS operators left in the wake of §333 exemptions still hold their breathe
for the final Pirker decision. Individual operators without access to COWs have been and will continue
to fly guerrilla style UAS operations. Amateur and semi-professional photographers continue to take to
the skies.76 Some of these photographers even face the threat of having their UAVs shot or taken down
by irate crowds.77 Furthermore, real estate agents have been cited by local police departments across the
nation for illegally conducting aerial property surveys with unlicensed UAVs.78 A similar pattern was
demonstrated with illegal file sharing associated with with the Peer-to-Peer (P2P) networks. The case
A&M Records, Inc. v. Napster, Inc., held that the P2P service Napster could be held liable for
contributory infringement of the plaintiffs copyrights.79 Similarly, those companies whose employees
who fly unlicensed UAVs could also be found liable for civil penalties. Further, since the Pirker case
seemingly removed all jurisdiction over sUAS from the FAA, these guerrilla UAV pilots do not fear
any recourse for their actions.
In an effort to fill the statutory void left by the Decisional Order, the FAA began to address the
74 “The U.S. Department of Transportation’s Federal Aviation Administration has given approval for energy corporation BP and unmanned aircraft
systems (UAS) manufacturer AeroVironment to fly an AeroVironment Puma AE for aerial surveys in Alaska—the first time the FAA has authorized a
commercial UAS operation over land. 'These surveys on Alaska’s North Slope are another important step toward broader commercial use of unmanned
aircraft,” said Transportation Secretary Anthony Foxx. “The technology is quickly changing, and the opportunities are growing.'” See Press Release, FAA,
FAA Approves First Commercial UAS Flights Over Land (June 10, 2014) (Available at http://www.faa.gov/news/press_releases/news_story.cfm?
newsId=16354).
75 SEC. 333. SPECIAL RULES FOR CERTAIN UNMANNED AIRCRAFT SYSTEMS.
(a) IN GENERAL. Notwithstanding any other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act,
the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion
of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.
(b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In making the determination under subsection (a), the Secretary shall
determine, at a minimum:
(1)which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and
populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to
national security; and
(2)whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code,
is required for the operation of un- manned aircraft systems identified under paragraph (1).
(c) REQUIREMENTS FOR SAFE OPERATION.—If the Secretary determines under this section that certain unmanned aircraft systems may
operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national
airspace system. See FAA Modernization and Reform Act of 2012 §333, H.R. 658, 112th Cong. (2012).
76 An unlicensed amateur UAV pilot with an onboard camera captured live footage of a building fire in Dayton, Ohio. See Press Release, Apparently It’s
OK to Fly a Video Drone Over a Fire in Dayton, Fox Affiliate WRGT (April 3, 2014) (Available at http://www.mediabistro.com/tvspy/apparently-its-ok-
to-fly-a-video-drone-over-a-fire-in-dayton_b118564).
77 At a sporting event celebration, an angry crowd of people repeatedly threw shirts, cups, and other object at an unlicensed UAV and caused it to crash.
See Press Release, Watch LA Kings Hockey Fans Destroy Anonymous Drone During Stanley Cup Celebration, CBS Radio Affiliate 91.3 Jack FM (June
17, 2014) (Available at http://931jackfm.cbslocal.com/2014/06/17/watch-la-kings-hockey-fans-destroy-anonymous-drone-during-stanley-cup-celebration/).
78 Press Release, LAPD Cracks Down On Drone Aircraft Use By Real Estate Agents, LA Times (Jan. 26, 2012) (Available at
http://latimesblogs.latimes.com/lanow/2012/01/lapd-cracks-down-on-drone-aircraft-use-by-real-estate-agents.html).
79 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001).
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uncertainty. In June of 2014, the FAA issued an interpretation of §336 of the Modernization and
Reform Act. The Administration interpreted existing guidelines to create five criteria to delineate a
small unmanned aircraft is a model or a sUAS.80 The criteria include whether (1) the aircraft is flown
strictly for hobby or recreational use; (2) the aircraft is operated in accordance with a community-based
set of safety guidelines and within the programming of a nationwide community-based organization;81
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design,
construction, inspection, flight test, and operational safety program administered by a community-
based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to
any manned aircraft; and (5) when flown within 5 miles of an airport, the operator of the aircraft
provides the airport operator and the airport air traffic control tower...with prior notice of the
operation....”82 If the answer to all of these criteria is affirmative, then the small unmanned aircraft is
considered a model aircraft.
Further, to remove any doubt, the FAA issued a set of “dos and don't” for model aircraft
conduct. If an unlicensed Pilots in Command conduct resembles operation deemed, “not hobby or
recreational,” the Pilot in Command could be liable for civil penalties. The chart is reproduced below.
Hobby or Recreation Not Hobby or Recreation
Flying a model aircraft at the local model aircraft club. Receiving money for demonstrating aerobatics with a
model aircraft.
Taking photographs with a model aircraft for personal use. A realtor using a model aircraft to photograph a
property that he is trying to sell and using the photos in
the property’s real estate listing.
A person photographing a property or event and selling
the photos to someone else.
Using a model aircraft to move a box from point to point
without any kind of compensation.
Delivering packages to people for a fee.
Viewing a field to determine whether crops need water
when they are grown for personal enjoyment.
Determining whether crops need to be watered that are
grown as part of commercial farming operation. 83
Although these guidelines provide some certainty to the sUAS industry, it is still up to the
NTSB to issue a final order. Until the panel of judges publish their opinion, the unlicensed operators
must abide by these rules or face enforcement by FAA inspectors.
UAS Pilot Certification
Who is in Control? There is always a human in the loop who has a higher authority than the
autopilot during the flight. Pilots are known as PIC or Pilots in Command and are always accompanied
80 Press Release, FAA, FAA Offers Guidance to Model Aircraft Operators (June 23, 2014) (Available at
http://www.faa.gov/news/press_releases/news_story.cfm?newsId=16474&cid=TW223). See FAA, 14 CFR Part 91, Interpretation of the Special Rule for
Model Aircraft (2014) (Available at http://www.faa.gov/about/initiatives/uas/media/model_aircraft_spec_rule.pdf).
81 By definition, a model aircraft must be “flown within visual line of sight of the person operating the aircraft.” P.L. 112-95, section 336(c)(2). (For
purposes of the visual line of sight requirement, “operator” means the person manipulating the model aircraft’s controls.) Based on the plain language of
the statute, the FAA interprets this requirement to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or
her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the aircraft; and (3) people other than the
operator may not be used in lieu of the operator for maintaining visual line of sight. Under the criteria above, visual line of sight would mean that the
operator has an unobstructed view of the model aircraft. Id.
82 See FAA Modernization and Reform Act of 2012 §336(a)(1)-(5), H.R. 658, 112th Cong. (2012) (Available at http://www.gpo.gov/fdsys/pkg/CRPT-
112hrpt381/pdf/CRPT-112hrpt381.pdf).
83 FAA, 14 CFR Part 91, Interpretation of the Special Rule for Model Aircraft 11 (2014) (Available at
http://www.faa.gov/about/initiatives/uas/media/model_aircraft_spec_rule.pdf).
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by a VO or Visual Observer. The pilot in command is the person who has final authority and
responsibility for the operation and safety of the flight.84 The PIC and VO must work together to
ensure the safety of the aircraft and the surrounding people and property. In addition, the PIC should
have the ability to override any autonomous mission and have the ability to safely operate the UAS
remotely. In general, the FAA imposes restrictions on all PICs. Typically the FAA requires a PIC hold
a private pilot's license for full-scale UAVs. As of yet, the FAA has not instated any regulations for
sUAS PICs.
One PIC must be designated at all times. The PIC of an aircraft is directly responsible for the
operation of the aircraft.85 So far, all full-scale UAS PICs must have a minimum of a private pilot's
license unless certain conditions are met. The FAA uses three factors to determine whether the PIC
needs to hold a private pilot's license: mission parameters,86 special operations,87 and limited
operations.88 The FAA also requires effective documentation of each UAS flight. The PIC must log
hours to note PIC flight time and any anomalies. Liability tends to be fluid when it comes to aircraft.
During a non-military UAS operation, there are at least three personnel in communication, the UAS
operator, spotter, and the Ground Control Station (GCS) operator. In addition, like manned aircraft, the
PIC is the one who is responsible for the UAS and any damage caused it. The reason the liability is
placed on the PIC is to foster a culture of safety. As the UAS industry grows, it is reasonable to assume
that the FAA will place a licensing regime similar to manned aircraft. Although the unmanned aircraft
itself is innately different, the knowledge and skills required to navigate the NAS are the same.
TEST SITES
As required by the FAA Modernization and Reform Act of 2012, the FAA established six test
ranges. The purpose of the ranges is to gather data about climate and geographic diversity; the location
of ground infrastructure; and research needs.89 Once a user has attained specific authority to fly, the
operator may execute their flight plans. On December 30, 2013, the FAA announced the test site
locations. The six test sites around the country include: State of Nevada;90 University of Alaska;91 North
84 FAA, 14 CFR Part 91, §1.1 (2014) (Available at http://www.faa.gov/regulations_policies/handbooks_manuals/aircraft/amt_handbook/media/faa-8083-
30_ch12.pdf).
85 Pilots must not perform crew duties for more than one UAS at a time. Pilots are not allowed to perform concurrent duties both as the pilot and Visual
Observer (VO). Unless undergoing initial qualification training, pilots must be qualified on the aircraft being flown. Only one PIC per aircraft is
authorized, and the PIC must be in in a position to assume control of the aircraft. Small Unmanned Aircraft Sys. Rule Making Comm., FAA,
Comprehensive Set of Recommendations For sUAS Regulatory Development 37 (2009) (Available at
http://www.modelaircraft.org/faa/recommendations.pdf).
86Mission factor test weighs the difficulty of the mission against basic skills required to conduct the mission. The four factors are 1) The location of the
planned operations; 2) the mission profile; 3) size of the aircraft; 4) whether operations are conducted with visual line-of-sight. If any of these factors
require the knowledge that private pilot rating provides, the PIC must be licensed. Id. At 20.
87 Special operations test, where the FAA has determined that certain situations call for specialized training. There are six flight profiles that require
specialized skill: flights 400 feet above ground level; instrument Flight Rating (IFR) where visual flying is impossible; night operations; joint use or public
airfields; flights that include a chase plane; and at any time the FAA has determined the need, based on the UAS characteristics, mission profile, or other
operational parameters. If any of these situations arise, the FAA requires a PIC with a private pilot's license. Id.
88 Limited operations test. This test sets out the factors for a non-licensed PIC. All of the following factors must be met for a non-licensed PIC to fly a
UAS: PIC has successfully completed FAA private pilot ground instruction and passed the FAA Private Pilot written exam or FAA recognized equivalent
daylight hour operations; the operation is conducted in a sparsely populated area; operations are approved and conducted solely within the visual line-of-
sight in Class G airspace; visual line-of-sight operations are conducted no further than ½ nautical miles laterally from the UAS pilot and at an altitude of no
more than 400 feet from ground level; operations are conducted no closer than 5 nautical miles from any FAA designated airport or heliport; the operation
is conducted from a privately owned airfield, military installation, or off-airport location. Id. At 21.
89 Press Release, FAA, Unmanned Aircraft Systems (UAS) Test Sites (Dec. 30, 2013) (Available at
http://www.faa.gov/news/press_releases/news_story.cfm?newsid=15576).
90 State of Nevada Nevada’s project objectives concentrate on UAS standards and operations as well as operator standards and certification requirements.
The applicant’s research will also include a concentrated look at how air traffic control procedures will evolve with the introduction of UAS into the civil
environment and how these aircraft will be integrated with NextGen. Nevada’s selection contributes to geographic and climatic diversity. Id.
91 University of Alaska was told to develop standards for UAS categories, state monitoring, and navigation. In addition, U of A was selected because of
great geographic diversity including test locations in Hawaii and Oregon. Id.
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Dakota Department of Commerce;92 Texas A&M University-Corpus Christi;93 Virginia Technical
University;94 and Griffiss International Airport in New York.95 The function of the test sites is to allow
UAS operators to experiment. Therefore, those operators given permission to utilize the sites may
operate uninhibited under the guidance of the site administrator.
Moving forward, UAS certification will ebb and flow. As UAS start to takeoff at test sites and
beyond, the learning curve will be steep. Industry standards and safety concerns will guide this
flightpath for the future. Although it is unclear how and when UAS will occupy American airspace, it
is inevitable that “drones” will share the air. Artificial life will find a way.
FREQUENCY ALLOCATION
Radio frequencies are important. Without an orderly allocation of radio frequencies, the result
would be a world of static. Without frequency allocation, there would be no reliable AM or FM radio
stations. Each station would interfere with one another and only the strongest transmissions would be
heard. The concept of radio interference in the UAS context is even more important. Each UAS needs
at least two radio frequencies. One frequency is to pilot the aircraft, known as the 'uplink'. A second
frequency is needed to relay payload and sensor signals back to the pilot, called a 'downlink'. Without
dedicated frequencies for each of these data links, interference would occur and could cause a UAS to
crash.
Frequency spectrum allocation is the solution to radio interference. Since the enactment of the
Communications Act of 1934 and the creation of the FCC (Federal Communications Commission), the
government has rationed out pieces of the radio spectrum to the public. The radio spectrum is apart of
the electromagnetic spectrum and spans from 3kHz to 300GHz. When the FCC allocates space within
the radio spectrum, it's called a “band”. The range which the band occupies within the spectrum is
called the “bandwidth”. Each band is assigned to different interest groups such as the military,
television networks, and amateur radio operators (HAM operators). However, space in the spectrum is
limited . Since the 1930s, bandwidths have shrunk to accommodate new technologies like television
and the Internet. As the bands got chopped up, space for new industries, has come at a premium.
Because the UAS industry is dependent on radio signals, the race is on to allocate UAV radio spectra.
How Frequency Spectrum Allocation Works
Radio spectra is scarce. Several administrative bodies must cooperate to efficiently allocate and
maintain frequency organization. The two American regulatory agencies are the FCC and the NTIA
(National Telecommunications and Information Administration). The FCC manages public and
domestic spectrum, while the NTIA manages government and military spectrum. However, radio
spectrum is not confined to political borders. Therefore, the FCC and NTIA must also collaborate with
the ITU (International Telecommunication Union), which sets international standards for spectrum
management. These three agencies work together to balance dynamic market forces and the public
interest.
92 North Dakota Department of Commerce was tagged for the development of UAS airworthiness and to validate highly reliable telecommunications link.
This test site was also chosen because of its temperate continental climate zone with a variety of airspace conditions. Id.
93 Texas A&M University-Corpus Christi was mandated to create safety requirements and protocol for UAS. Id.
94 Virginia Tech was selected to conduct UAS failure mode testing and to identify and evaluate operational and technical risks areas. This test site range
includes locations in both Virginia and New Jersey. Id.
95 Griffiss International Airport in New York was chosen to evaluate a verification and validation process, that is to identify UAS flying in the NAS.
Further, Griffiss was picked to test sense-and-avoid technology amid congested airspace. Id.
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The United States' system of frequency distribution is a three-tiered system. The system
distributes spectrum in three ways: allocations, allotments, and assignments. The largest unit is called
an allocation. An allocation is a block of spectra called a band. Each allocated bands then caters to a
specific service, like cell phone networks.96
Allocation blocks are then subdivided into smaller bands called an allotment. Each allotment is
designated for a specific service and can sometimes be allocated to a specific industry. Once the
allotment is in place, the band can be subdivided again into a “channel.” A channel is a specific
frequency within the allotment. For example, the FM radio band spans from 87.5 to 108.0 MHz, each
radio station occupies one channel. When a listener wants to hear her morning FM radio music show,
she switches her radio to the FM band. The listener tunes to a specific channel, like FM 89.9, and
enjoys the broadcast.
However, not all users simply listen to broadcasts, they also transmit. The FCC and NTIA may
require specific channel plans and procedures when an allotment is issued. The purpose is to avoid
interference because interference can cause miscommunication. For example, if two different users,
like a public safety and a business user both transmit on the same channel, they can cut off each other's
signals. When this occurs, it creates static and could result in damage to people or property. This is why
the FCC and NTIA tightly regulate certain allotments and enforce transmission protocols.
The third type of frequency distribution is an assignment. An assignment, also called a license,
is a permission to transmit on certain a channel. Assignment rights are limited. An assignee may only
transmit at a specific location under certain conditions. Further, the NTIA and the FCC may sometimes
issue an assignment for a general geographic area.
When an agency allocated, allots, or assigns a frequency, it must consider several factors. The
FCC and NTIA use a two prong system to balance market forces and the public interest. The first prong
is service priority, the second is user specifications.
Service priority is the first prong and is driven by market forces. There are two tiers to this
analysis, the 'primary allocation' and the the 'secondary allocation'. The primary allocation is granted to
the service which has priority in using the allocated band. Whereas, secondary users must share the
band and give way to the primary user.97
The second prong is user specification. This portion is powered by the public interest. The FCC
uses a three-tier analysis to quantify which users and services maximize the public interest in light of
competing interests. The three factors are the public need and benefit; technical considerations; and
equipment limitations. The public need and benefit tiers are guided by a number of factors, such as the
level of radio dependence required for the safety of a given operation.98 Technical considerations must
also be taken into account and the FCC analyzes whether the new technology is viable in the first place.
Additionally, the Commission considers if radio interference will be caused99 and assesses equipment
96 FCC, Title VII, Spectrum Allocation, Assignment and Enforcement, (Jan. 23, 2014) (Available at http://transition.fcc.gov/connectglobe/sec7.html).
97 In the event that there are multiple services within the band, each service has equal rights of use. These rights include freedom of signal interference and
freedom of use during the time period allotted. The second tier is the secondary allocation. Secondary users and services share the band with user with the
primary allocation. Secondary users have less rights and must accept interference from the primary user and must not cause interference to the primary
user. However, all secondary users have equal rights amongst other secondary users. Id.
98 The public need factors include, “dependence of the service on radio rather than wirelines or fiber; market demand for the service; relative social and
economic importance of the service, including safety-of-life and protection-of-property factor; probability of establishment of the service and the degree of
public support which is expected for the service; [and] impact of the new service on existing investment in the proposed frequency band.” Id.
99 Technical considerations include, “necessity for the service to use particular portions of the spectrum, including propagation characteristics and
compatibility with services within and outside the selected frequency band; amount of spectrum require; signal strength required for reliable service;
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limitations in regards to the practical usefulness of the intended service.100
After the FCC balances the public interest against the market forces, it will allocate radio
spectrum. However, as more technologies and different services develop, the FCC must allocate this
scarce resource carefully. The imminent rise UAS calls for the FCC to coordinate with the FAA to
decide which frequency bands will be allotted. Bandwidth must also be considered to facilitate safe
UAS operations in the national airspace.
Unmanned Aircraft Systems Spectrum Requirements
UAS are dependent on radio bandwidth, but not all UAS need the same amount of bandwidth.
Generally speaking, the maximum amount of spectrum required for UAS is 34 MHz for terrestrial
systems and 56 MHz for satellite systems.101 However, since UAS come in different shapes and sizes,
the spectrum allotment must reflect this diversity. Small UAS that fly within LoS only require radio
spectra for command-and-control. However, full-scale UAS and beyond line-of-sight (BloS) operators,
require two additional types of radio signals. The first is signal is to communicate with ATC (Air
Traffic Control). The second line of communication supports sense-and-avoid functions. Sense-and-
avoid signals allow the aircraft to avoid collisions with buildings and other aircraft.102 As UAS begin to
integrate into the NAS, there are two main issues on the horizon. UAS must integrate seamlessly into
current air traffic control procedures. In addition, safety-of-flight levels cannot change for the worse.103
Seamless integration of UAS into current air traffic control procedures begins with the
identification of a possible UAS band. Currently, there are no designated UAS operation bands. Some
domestic UAS operate in the band called the ISM (Industrial, Scientific, Medical) bands. The ISM
bands are unprotected airwaves. These bands cater to unlicensed radio equipment and act as a buffer
from interference created by radio wave emitting machinery.104 However, the practice of operating on
ISM bands is unsustainable. As bandwidth demand increases, market forces will demand that UAS
move to a protected band.105 Some advocates have suggested placing UAS in the Aeronautical Mobile
(R) Service band, between 108 MHz and 6 GHz.106 This band is reserved for aircraft moving through
the NAS and is wide enough to contain the many channels required for UAS operations.107 However,
this proposal is contentious because of fears regarding aircraft-to-aircraft radio interference.
Furthermore, deciding when and how to segregate manned aircraft from unmanned aircraft in the
Aeronautical Mobile (R) Service band may impose a high burden on ATC during regular operations.108
relative amount of radio and other electrical interference likely to be encountered; [and] viability of the technology.” Id.
100 The relevant limitations equipment limitations are, “upper practical limits of the useful radio frequency spectrum and, in general, what higher limit can
be expected in the future due to technological advance; operating characteristics of transmitters, including practical limitations (that is, size, cost and
technical characteristics); [and] receivers available and/or being developed, including their selectivity and practical usefulness for the intended service.”
101 Int'l Telecomm. Union, M.2171, Characteristics of Unmanned Aircraft Sys. And Spectrum Requirements to Support their Safe Operation in Non-
Segregated Airspace 1 (2009).
102 Id. at 4.
103 Id. at 1.
104 The purpose of the ISM band is protect other licensed bands from a device that, “emits electromagnetic energy on frequencies within the radio
frequency spectrum in order to prevent harmful interference to authorized radio communication services.”FCC, Title 47 Telecommunication Part 18,
Industrial, Scientific, and Medical Equipment (2014). This band includes three radio spectrum ranges. The FCC and ITU collaborated to allot the ISM
bands and placed several limitations on them. Below is an excerpt of FCC 'General operating conditions, §18.111', which sets out the domestic limitations
on the ISM bands. These ranges are 902 to 928 MHz; 2.400 to 2.4835 GHz; and 5.725 to 5.875 GHz. Int'l Telecomm. Union, M.2171, Characteristics of
Unmanned Aircraft Sys. And Spectrum Requirements to Support their Safe Operation in Non-Segregated Airspace 1 (2009) (Available at
http://www.itu.int/dms_pub/itu-r/opb/rep/R-REP-M.2171-2009-PDF-E.pdf).
105 Id.
106 Didier Petit & Alain Delrieu, Spectrum for UAS (Unmanned Aircraft Systems): Status of WRC-2007 Preparation and Proposal for a New Agenda Item
for WRC-2011 (2007) (Available at http://www.telemetryspectrum.org/itc2007proceedings/6_4UASPetitDelrieu.pdf).
107 NTIA, High Frequency (3-30 MHz) Spectrum Planning Options, Chapter 2 HF Spectrum Requirements, Special Pub. 96-332 (1996) (Available at
http://www.ntia.doc.gov/legacy/osmhome/reports/hfspo/hfspoch2.html).
108 This type of segregation would involve whether the UAS is a primary user or a secondary user of the band at a government airport. Id.
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In addition, until the FCC and cooperating agencies allocate a band for UAS, unmanned aircraft
may engage in frequency sharing. This method is already is use when news helicopters operate within
Temporary Flight Restriction (TFR) radio bands.109 Within a TFR band, a governing agency such as a
fire department or Homeland Security, allocates specific frequencies for authorized aircraft. The
aircraft operating in these bands share the channels and actively coordinate to prevent radio
interference. The main disadvantage with this approach is that TFRs tend to only appear during a
natural disaster or an emergency and around military bases.110 However, it is conceivable that the same
frequency sharing approach could be applied to UAS outside of TFRs. Active unmanned aircraft could
use software to coordinate with other UAVs within the area. In fact, this approach is in preliminary
stages at FAA designated UAS test sites. UAS operators at the sites are experimenting with frequency
sharing to determine whether it is a feasible solution.111
One of the most important objectives of frequency allocation is maintenance of safety-of-flight
levels. It is crucial aspect of safe UAS operation. Once a band is designated for UAS operations, the
next step is to make sure that important unmanned system elements maintain their integrity. One such
element is the command-and-control link or C2. The C2 system is the lynchpin of a UAV from a
telecommunications perspective. The system relays commands to and from the aircraft to control flight
maneuvers and payloads. Furthermore, the C2 system also enables the sense-and-avoid system.112 Both
of these components are essential to the safe operation of a UAS and are dependent on a reliable radio
link. Therefore, it is imperative that the airwaves are available and secure.
UAS Cyber Attacks
UAS are vulnerable to cyber attacks. Without sufficient encryption, a UAS can be hacked.
There a variety of ways a UAV can be infiltrated. Radio jamming and radio frequency signal mimicry
can allow a savvy criminal to misdirect or take control of a UAV.113
A hacker can attack a UAS with radio signals. A common method to takeover a UAV is to
decrypt the aircraft's navigation system. Many UAVs use signals from an onboard Global Positioning
System (GPS). Operators tend to encrypt or protect these signals to ensure the aircraft does not
inadvertently pick up another user's signals. However, criminals with the right knowledge can use a
relatively simple protocol to circumvent these security measures. In essence, a hacker will jam114 the
UAV communication link. At this moment, the aircraft will usually revert to autopilot and engage a
holding pattern to await instructions from the control station. Once the hacker has successfully jammed
the radio signal, the UAV will search for a C2 signal. The hacker will then use a technique called
“spoofing.” Spoofing sends a false C2 signal to the aircraft, which allows the hacker to assume
control.115 This method can also be used with WiFi signals and any other radio dependent control
109 Amanda N. Gustafson, News Helicopters: Keeping An Eye On The Sky, Rotor Magazine, Ed. 24 68 (2008) (Available at
http://www.rotormagazine.org/portals/24/pdf/spring2008/p68.pdf).
110 Michael W. Brown, FAA, A Pilot's Guide to Understanding Restrictions in Today's National Airspace System (2003)
(http://www.faa.gov/pilots/safety/notams_tfr/media/tfrweb.pdf).
111 The FAA Test Site at North Dakota Department of Commerce was chosen to validate highly reliable telecommunications link. In addition, Griffiss
International Airport in New York was picked to test sense-and-avoid technology amid congested airspace. Press Release, FAA, Unmanned Aircraft
Systems (UAS) Test Sites (Dec. 30, 2013) (Available at http://www.faa.gov/news/press_releases/news_story.cfm?newsid=15576).
112 Randal W. Beard, Autonomous Vehicle Technologies for Small Fixed-Wing UAVs, 2 Journal of Aerospace Computing, Information, and Communication
92 (Jan. 2005).
113 Clay Wilson, Cong. Research Serv., RL31787, U.S. Information Operations, Electronic Warfare, and Cyberwar: Capabilities and Related Policy Issues
61 (2007).
114 Radio Jamming is a process in which the hacker finds the operative frequency and uses an interference protocol to disrupt and stop the radio receiver
from working. Id.
115 Todd Humphreys, assistant professor of aerospace engineering at the University of Texas, Austin demonstrated this method for the Department of
Homeland Security. He hacked a university-owned UAV using equipment valued at less than $2,000. The hacking took only minutes. Katia Moskvitch,
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platform. In addition, cyber criminals does not need extreme sophistication to spoof a UAV. For
example, in 2008, Iraqi militants were able to intercept aircraft navigation systems onboard a U.S.
military Predator UAV and capture the aircraft. The hackers used a $26 software tool called
SkyGrabber from a Russian company called SkySoftware.116 These acts proved that UAS hacking with
radio waves is real danger posed to unmanned aircraft.
UAS cyber crimes can also happen closer to home. Hackers can use unmanned aircraft to
commit a myriad of crimes. The first and most obvious crime is the conversion of the aircraft itself. In
addition, a criminal can engage in burglary117 or fraud in connection with computers.118 A criminal can
use a hacked aircraft as an instrument of burglary to pick up personal property and fly away with it.
Even more sinister, a criminal can even utilize UAV technology to steal private information. For
example, cyber criminals can use a UAS to wirelessly hack into a victim's smartphone and steal
personal information.119 As crimes like these become more prevalent, it is even more important for
civilians and the military to protect against radio enabled, cyber attacks. Whether the cyber-attack is on
a missile carrying Predator or a small quad-copter sUAS, radio encryption is essential.
In conclusion, when UAS begin to integrate into the NAS, the airwaves will be acutely affected
by their presence. Radio frequency allocation and frequency protection are only a few of the issues that
will arise once more UAS operators get off the ground. Integration requires the cooperative action of
government agencies and manufactures to ensure the safety of the airwaves and the airspace.
UAS INSURANCE
Insurance for unmanned aircraft is one the fastest growing industries in the UAS sector.
Although the FAA does not impose or plan to impose legal insurance requirements on UAVs, many
operators view it as a necessity. UAS are basically expensive flying computers inside an airframe.
UAVs contain sensitive instruments that carry hefty repair and replace costs. Thus insurance companies
must consider what factors go into a UAS risk matrix.120 Underwriters must take into account who is
liable for when a mission fails or causes injury. Regardless of when the FAA and local legislatures
develop a legal framework for UAV risks, the insurance industry must be ready.121
Aviation insurance is unique. The nuances and risks of flight create a minefield of issues
insurers must consider when writing a policy. Commercial aviation insurance policies are usually
written based on available accident data and aircraft airworthiness. In addition, an underwriter looks at
where the mission will fly and accounts for the level of pilot certification. These factors are deceptively
Are Drones The Next Target For Hackers?, BBC Future, (2014) (Available at http://www.bbc.com/future/story/20140206-can-drones-be-hacked). See also
Mike Mount & Elaine Quijano, Iraqi Insurgents Hacked Predator Drone Feeds, U.S. Official Indicates, CNN, (2009) (Available at
http://www.cnn.com/2009/US/12/17/drone.video.hacked/) and Guy Raz, Hacking Drones And The Dangers It Presents, NPR, (2012) (Available at
http://www.npr.org/2012/07/08/156459939/hacking-drones-and-the-dangers-it-presents).
116 SkyGrabber, designed to intercept music, video and TV satellite programming for free, worked because video transmissions from the UAVs to grounds
control stations were being sent unencrypted. Jaikumar Vijayan, DARPA Unveils Hack-Proof Drone Tech, Computer World, (2014) (Available at
http://www.computerworld.com/s/article/9248604/DARPA_unveils_hack_proof_drone_tech).
117 18 USC § 2112 Burglary, Personal Property of United States.
118 18 USC § 1030 (5)-(7) Fraud And Related Activity In Connection With Computers.
119 A new hacker-developed UAV can lift a victim's smartphone’s private data from the victim's GPS location to mobile applications’ usernames and
passwords, without the victim's knowledge. The UAV uses a new software, Snoopy, which can turn a benign video-capturing unmanned aircraft into a
nefarious data thief. Snoopy intercepts Wi-Fi signals when mobile devices try to find a network connection. Snoopy-equipped UAVs can aid in identity
theft and pose a security threat to mobile device users. Lauren C. Williams, New Drone Can Hack Into Your Smartphone To Steal Usernames And
Passwords, Think Progress, (2014) (Available at http://thinkprogress.org/home/2014/03/20/3416961/drones-hack/).
120 Robert H. Jerry, Understanding Insurance Law, 5th, Matthew Bender & Company, Inc. 7-8 (2012).
121 Jason Knight, Brendan Smith & YangQuan Chen An Essay on Unmanned Aerial Systems Insurance and Risk Assessment, 55 IEEE Xplore, 10th
IEEE/ASME Intl. Conf. on Mechatronic and Embedded Sys. and Apps. (2014).
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similar to actuarial classes in the automotive industry.122 The deception comes from the variables
involved. On the highway, a driver encounters a relatively consistent mix of variables like pedestrians
and drunk drivers. In the air, flight conditions change from minute to minute. In response, insurers must
analyze each mission independently for risks affecting the flight envelope123 and the aircraft.124
Aircraft insurance is also unique in that the federal government does not generally impose
insurance requirements on pilots or aircraft owners. The government reasons that the process of
obtaining a pilot's license and an airworthiness certificate is sufficient to forego a federal insurance
mandate. Under FAA regulations, a pilot must complete a rigorous training regiment to obtain her
pilot’s license.125 Further, certification maintenance requires that a pilot who wishes to transport
passengers must complete at least three takeoffs and three landings every 90 days, in the same
category, and type certification.126 In addition, a pilot must maintain minimum health requirements
during a biannual medical examination. Therefore, aviators must either buy a policy or self-insure to
avoid high out-of-pocket costs.
Insurance for unmanned aircraft is a niche. Only a handful of insurance firms write UAS
polices. The firms that do write policies rely on two steps to qualify a UAS operator. First, the PIC
must maintain a minimum certification of a private pilot’s license (PPL).127 Second, all parties essential
to the mission plan are required to attend a mandatory FAA private pilot ground school. The ground
school requirement ensures that all involved are educated on the consequences of flying in the NAS.128
Some even speculate that the FAA will also eventually require a baseline ground school for both PICs
and Visual Observers (VO).129 However, until this requirement emerges, underwriters continue to fill
the regulatory void.130
Further, although unmanned aircraft are different from their manned counterpart, there are some
parallels. Similarly to manned aircraft, coverage minimums are segregated and calculated by aircraft
weight class and mission profile. Underwriters reflect how the FAA bisects UAS into two size
categories. Small UAS (sUAS), 55 pounds or less, and full-scale UAS.
Whereas, full-scale UAS will carry similar coverage minimum to manned aircraft, sUAS will
have a very different set of policies. SUAS are smaller and cannot lift heavy payloads. Therefore,
sUAS may be required to carry extra coverage similar to that of non-passenger liability.131 Further,
122 Actuary: a person who compiles and analyzes statistics and uses them to calculate insurance risks and premiums. Id.
123 Capabilities of a design in terms of airspeed and load factor or altitude. The term is somewhat loosely applied, and can also refer to other measurements
such as maneuverability. When a plane is pushed, for instance by diving it at high speeds, it is said to be flown "outside the envelope", something
considered rather dangerous. See Sinclair, Edward J., The Army Aviator's Handbook for Maneuvering Flight and Power Management, 24 United States
Army Aviation Branch 25 (March 2005).
124 J. Roskam, Airplane Flight Dynamics And Automatic Flight Controls, DARCorporation (1995).
125 FAA, 14 CFR Part 61.15, Offenses Involving Alcohol Or Drugs (2014). See also Scott Spangler, Insurance and the Future of Commercial Drone
Operations, DronePort (March 14, 2014) (Available at http://www.droneport.com/insurance-and-the-future-of-commercial-drone-operations/ ).
126 FAA, 14 CFR Part 61.57, Recent Flight Experience: Pilot In Command (2014) (Available at
http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgFar.nsf/FARSBySectLookup/61.57).
127 FAA, 14 CFR Part 61.3(c), Requirement For Certificates, Rating, And Authorization (2014) (Available at
http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgFar.nsf/FARSBySectLookup/61.3). See also FAA, 14 CFR Part 61.23, Medical Certificate:
Requirement and Duration (2014) (Available at http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgFar.nsf/FARSBySectLookup/61.23).
128 D. J. Hahn, General Aviation Aircraft Insurance: Provisions Denying Coverage For Breaches That Do Not Contribute To The Loss, 64 Air Law &
Commerce 675 (1999).
129 Individuals who are critical to mission operation through communication with the PIC but do not directly control the aircraft.
130 Jason Knight, Brendan Smith & YangQuan Chen An Essay on Unmanned Aerial Systems Insurance and Risk Assessment, 55 IEEE Xplore, 10th
IEEE/ASME Intl. Conf. on Mechatronic and Embedded Sys. and Apps. (2014).
131 The basic scheme for aircraft with an under 60 person or 18,000 pounds of cargo is under §205.5(b)(1)(b) which provides for $300,000 multiplied by
75% of the passenger seats or cargo capacity carried plus $2,000,000 per aircraft. Aircraft with capacity over 60 person or 18,000 pounds of cargo, the
scheme is $300,000 multiplied by 75% of the passenger seats or cargo capacity carried plus $20,000,000 per aircraft. FAA, 14 CFR Part 205.5 (b),
Minimum Coverage (2014) (Available at http://www.gpo.gov/fdsys/granule/CFR-2012-title14-vol4/CFR-2012-title14-vol4-sec205-5/content-detail.html).
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since sUAS do not have the ability to carry large payloads, the extra requirement will be akin to an air
carrier or foreign air carrier.132 Using this analogy, an operator must have at least $300,000 of coverage.
This coverage minimum is aimed at the inherent risks of sUAS operation such as low altitude flights. In
addition, some policies may include an additional coverage requirement for operations near cities,
buildings, structures or over gatherings.
Furthermore, differences in sUAS and full-scale UAS navigation affects risk levels. Typically
the software and guidance systems on sUAS and full-scale UAS are different. Most sUAS use radio
control (R/C) and some full-scale UAS use satellite navigation. Though some sUAS have the ability to
fly BLoS, sUAS are usually only permitted to operate within LoS.133 Additionally, lost link procedures
should be firmly in place for enhanced safety.134 In contrast, full-scale UAS controlled via satellite may
operate BLoS and for longer duration than sUAS. Thus, full-scale UAS will need higher minimum
requirements to account for the risks of BLoS operation.
The second parallel to manned aircraft is mission or use profile. UAS can potentially be
deployed for a wide array of missions from precision agriculture (lower risk), to disaster relief missions
(higher risk). As operators dream up more creative mission plans, underwriters need to categorize the
basic features of each mission. For example, mission plans may be placed into elemental profiles such
as entertainment and news gathering; search and rescue; delivery; and industrial. As insurers start to
identify these use profiles, the FAA may also react. When new risks to people and property appear, the
FAA may impose tandem minimum coverage requirements for use profiles. Unfortunately, if the FAA
does react this way, UAS operators may be faced with a high financial burden. Operators who utilize a
variety of use profiles may be forced to carry overlapping insurance policies to conform. Yet, until the
FAA acts it remains to be seen, and the insurance industry will find a way to protect operators and gain
from this model.
Types of UAS Risk Factors & Liability Coverage
Operating unmanned aircraft in the NAS can be risky. In response, insurance firms have
formulated a litany of liability policies to counteract these risks. The policies work together to weave a
seamless web of coverage that is designed to mitigate risk and provide a safety net in the nascent
industry.
UAS Risk Factors
Many modern commercial airlines use autonomous operations or autopilot. Autopilot is very
common in the 21st century and commands the same functions a human pilot controls. Onboard
computers are fully capable of roll stabilization, heading control, altitude control, and even autonomous
landing.135 So, it is interesting that most insurance policies exclude UAS. The reason is because UAVs
are not covered under the definition of a traditional aircraft. Regardless, underwriters must still quantify
risk and decide how much coverage is needed.
Naturally, insurance providers are cautious. Insurers are concerned with minimizing unknown
and unacceptable risk, while still providing coverage for relatively acceptably risky behaviors. In the
current market, underwriters take each UAS client on case-by-case basis. As more UAS firms start up,
insurance companies will tire of constantly reinventing and rewriting policies. Therefore, the insurance
132 “An air carrier or foreign air carrier directly engaged in the operation of aircraft under a certificate, regulation, order, or permit issued by the
Department of Transportation or the Civil Aeronautics Board.” See 14 CFR, Sec. 1.1 Definitions (2014) (Available at http://www.ecfr.gov/cgi-bin/text-idx?
rgn=div8&node=14:1.0.1.1.1.0.1.1).
133 This is to due to radio control capability constraints and susceptibility to loss of R/C link.
134 B. Stark, C. Coopmans, & Y. Chen, Concept Of Operations For Personal Remote Sensing Unmanned Aerial Systems, 69 Journal of Intelligent &
Robotic Systems, 1-4 & 5–20 (2013) (Available at http://dx.doi.org/10.1007/s10846-012-9710-9).
135 D. Haddon & C. Whittaker, Aircraft Airworthiness Certification Standards For Civil UAVs, UK Civil Aviation Authority (Aug. 2002).
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industry needs to create a system to identify and implement a set of parameters. Initially, underwriters
will fashion a set of standard risk factors. Next, insurers must determine how to allocate and mitigate
risk.136
Risk comes in two flavors, identified and unidentified. Identified risks are subdivided into
acceptable and unacceptable risks.137 Insurance firms try to limit the amount of unknown risk and then
exempt or exclude unacceptable risks. Underwriters are just starting to cope with the risks inherent to
UAS operation. The industry quantifies relevant risk factors with questionnaires138 to identify and
assess these risk factors. Once the insurer has a better picture of the mission plan and the aircraft, she
begins to piece together a risk matrix. This matrix consists of three main areas: who is in control; what
is the mission; and whether the mission is sufficiently safe.
Who is in Control?
There is always a human in the loop. The PIC must always maintain a higher level of command
over the autopilot during flight. The PIC should have the ability to override any autonomous mission
and have the ability to safely operate the UAS remotely. Most full-scale UAS require a PIC to maintain
a PPL. However, there is no obligation for a sUAS operator to hold a pilots license or be trained in an
FAA flight school.139 It is still unclear as to where the liability falls during the operation of any UAS.
Nonetheless, most underwriter rely on the FAA's definition for manned aircraft PIC. According to 14
CFR 1.1,140 the PIC holds full responsibility and liability over the aircraft.
What is the Mission?
UAV mission profiles are varied. Mission planning and execution determine where and with
whom the risk lies. Coverage may vary depending on terrain and what operations the UAS performs.141
Individual mission profiles can occupy polar opposites on the risk factor spectrum. Media coverage and
the film industry present the highest risks whereas, agriculture and environmental remote sensing
flights are the least risky. Furthermore, it is in the best interest of the underwriter and actuary to require
a “Concept of Operations” or CONOPS. CONOPS outline any and all operations, including systems
failures and changing flight conditions.142
Is it Safe?
Safety is a concern in any flight operation, but is particularly sensitive in the UAS industry. The
136 Jason Knight, Brendan Smith & YangQuan Chen An Essay on Unmanned Aerial Systems Insurance and Risk Assessment, 55 IEEE Xplore, 10th
IEEE/ASME Intl. Conf. on Mechatronic and Embedded Sys. and Apps. (2014).
137 M. Baser, S. Yorulmaz, & S. Akgu ̈ L, The Role of Unmanned Aerial System (UAS) In Decision Process By Operational Environment’s Risk Level,
Unmanned Aircraft Systems (ICUAS), 160-166 (2013).
138 Underwriters are meticulous in terms of aircraft specifications and proposed mission profile as to decrease the amount of unknown risk, while
determining unacceptable and acceptable risk profiles. The questionnaire was adapted from a standard aircraft questionnaire with a few key areas in mind:
who is control of the UAV; what are the essential elements of the mission; and operator safety procedures. Each of these areas aids in allocating risk and to
determine what aspects of the mission can be refined to mitigate any of the known risks. The determination of risk factors makes sets the tone for the
formation of UAV/UAS actuary data. ason Knight, Brendan Smith & YangQuan Chen An Essay on Unmanned Aerial Systems Insurance and Risk
Assessment, 55 IEEE Xplore, 10th IEEE/ASME Intl. Conf. on Mechatronic and Embedded Sys. and Apps. (2014).
139 Some allocated COAs require a private pilot to be present during the operation of a sUAS. Id.
140 FAA, 14 CFR, Sec 1.1 Definitions, (2014) (Available at http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=14:1.0.1.1.1.0.1.1); See also 49 U.S.C.
106(g), 40113, 44701 (2014) (Available at http://www.law.cornell.edu/cfr/text/14/part-77).
141 Factors included in this analysis are whether the operation is flown over populated cities, forests, desert, high winds, etc.; mission altitude, flight
envelope and takeoff weight; and LOS or BloS. In many cases, the operation is for either media coverage and film or remote sensing operations such as
precision agriculture or environmental monitoring.
142 As outlined by the FAA, CONOPS completely and concisely relays mission specifics, stakeholders and liability for missions to be performed using the
aircraft. See FAA, Develop Conops and Preliminary Security Requirements (b).” (2014) (Available at https://www.faa.gov/about/office org/headquarters
offices/ato/service units/operations/isse/items/b%20-%20CONOPS.cfm). See also B. Stark, C. Coopmans, & Y. Chen, Concept Of Operations For
Personal Remote Sensing Unmanned Aerial Systems, 69 Journal of Intelligent & Robotic Systems, 1-4 & 5–20 (2013) (Available at
http://dx.doi.org/10.1007/s10846-012-9710-9).
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history of UAS is not typically associated with safe and reliable flight, but rather a crucial tool in
warfare or as aircraft prone to accidents. This is concerning especially because of the rise in affordable
commercially-off-the-shelf (COTS) UAS. While there are a few systems that are reliable, many of the
systems on the market are unreliable and all are unsafe when placed in untrained hands.143
Types of Liability Coverage
Owner’s Liability
Owner's insurance encompasses bodily injury and property damage. This category also covers
damage to the aircraft and components known as “hull damage”. Third party insurance is also covered
under owner’s insurance and may cover pilots who fly the aircraft, other than the owner, depending on
the policy.
Owner’s liability in the UAS context can be tricky. UAS underwriters tend to focus on UAS
mission plans and use.144 Each mission plan presents individual risks and the level of coverage must
correlate. Personal injury, property damage, and 3rd party injury are a primary concern of an Owner's
Liability policy. Additionally, an underwriter may write a policy for hull damage. Hull damage on a
UAS pertains to the loss or damage to the UAV and associated equipment on an agreed value basis.
Hull damage coverage is typical calculated upon the agreed upon value of the UAV including both
hardware and software.145 Coverage limits are typically written for $1,000,000146, unless otherwise
negotiated. Coverage applies to both risks incurred on the ground and in flight.147
Non-Owner Liability
Next is non-owner insurance. Non-owner insurance is similar to renter’s insurance. This type of
coverage applies to a pilot who is an employee of a corporation, rents aircraft, or regularly borrows
aircraft. Non-owner insurance follows the pilot and not the aircraft. This manifests in two ways, for
individuals and for corporations.148
Non-owner insurance for individuals applies to several parties of UAS operation. Coverage
applies to for-hire PICs, VO, and their clients. Whether one of these parties needs coverage depends on
two factors. The first factor is whether the owner’s policy maintains adequate limits for protection. Due
to potential exclusions and the possibility of catastrophic injury or damage, any non-owner connected
to the UAS operation should assume the owner’s policy does not offer protection. Second, is what
connection the relevant party has to the UAS operation. Connectivity to the operation depends on
whether the party influenced the arrangement or control of UAV operation. Connectivity obviously
applies to those who directly control the UAS like the PIC and VO. However, it becomes unclear for
those outside the perimeter of the control station. The level of participation to the mission or operation
143 Jason Knight, Brendan Smith & YangQuan Chen An Essay on Unmanned Aerial Systems Insurance and Risk Assessment, 55 IEEE Xplore, 10th
IEEE/ASME Intl. Conf. on Mechatronic and Embedded Sys. and Apps. (2014).
144 TransportRisk, Owner UAS Insurance, (March 20, 2014) (Available at http://www.transportrisk.com/nonowneduavinsurance.html).
145 Typically, the damage to the UAV refers to the landing gear, fuselage, control surfaces, and avionics. Associated equipment however, refers to a myriad
of hardware and software. On the hardware side, associated equipment includes the control station, any transmission equipment, and any other equipment
necessary to use of the UAS. On the software side, a UAS operator may seek to cover any loss of code or protected UAS software-related intellectual
property in the event of a catastrophic loss. See H. Chao, A. M. Jensen, Y. Han, Y. Chen, & M. McKee, AggieAir: Towards Low-cost Cooperative
Multispectral Remote Sensing Using Small Unmanned Aircraft Systems, G. Jedlovec, Ed., (2009) (Available at
http://www.intechopen.com/books/advances-in-geoscience-and-remote- sensing/aggieair-towards-low-cost-cooperative-multispectral-remote- sensing-
using-small-unmanned-aircraft-sys).
146 UAV/UAS Underwriting Questions, letter from Victoria Stone, Senior Vice President, Poms & Associates Insurance Brokers, Inc., to Jason D. Knight,
Southwestern Law School Technology Law Research Analyst (Jan. 29, 2014) (on file with author).
147 TransportRisk, Owner UAS Insurance, (March 20, 2014) (Available at http://www.transportrisk.com/owneduavinsurance.html).
148 Jason Knight, Brendan Smith & YangQuan Chen An Essay on Unmanned Aerial Systems Insurance and Risk Assessment, 55 IEEE Xplore, 10th
IEEE/ASME Intl. Conf. on Mechatronic and Embedded Sys. and Apps. (2014).
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controls whether the concerned party may or may not be covered an the owner’s policy. Despite the
liability analysis, any party not directly apart of the UAS operation must assume she is not covered by
anyone else’s policy. The net effect is that even indirect participation may impute liability. Therefore,
all parties should consider non-owner coverage.149
Another type of non-owner policy is a non-owner hull policy and is typically carried by
corporations. Hull damage is excluded from non-owner policies. Known as “Liability Coverage for
Damage to Non-Owned Aircraft”, this type of policy is usually not included in non-owner liability
policies.150 However, in the UAS insurance context, it is imperative, especially during training. Without
this coverage, a non-owner is exposed to liability every time she or her agents crashes the UAV. Unless
the non-owner is prepared with extra parts or is proficient in aircraft repair, a small crash could amount
to a big repair cost.151
Manufacturer Liability
The third risk product is product liability or manufacturer’s liability insurance. These types of
policies apply to those who fabricate aircraft and aircraft components. Typically, each part is insured
and carries its own serial number. The reason is that every piece of the aircraft must be deemed
airworthy. UAS design errors can lead to catastrophic injury and property damage. Therefore, all
producers of UAVs and UAV components must carry manufacturer liability policies to protect against
potential product failure in the field. Manufacturer Liability will be limited in the coming years in
anticipation of the FAA UAS Integration roll out. Until then, many hobby-type policies are written to
protect small scale manufacturers.152
As UAS integrate into the NAS, insurance firms must take a proactive approach. Underwriters
are facing a steep learning curve as new uses and unmanned aircraft types are released into the market.
Underwriters must innovate to tailor liability products and policies to adapt to the fluid landscape of
where and who is flying. However, despite the ebb and flow of market forces, allocating risk and safety
guide the future of the UAS insurance industry.
PRIVACY
There is no enumerated right to privacy in the United States. The US Constitution does not
mention the word privacy anywhere in its hallowed text. However, courts and legal scholars have used
a penumbra approach to fashion a crude right of privacy using the material harvested from the Bill of
Rights.153 The result is a frankenstein system where citizens must 'opt-out'154 of the swarm of cameras
and microphones to find an oasis of privacy.155
149 TransportRisk, Non-owner UAS Insurance, (March 20, 2014) (Available at http://www.transportrisk.com/nonowneduavinsurance.html).
150 Id.
151 Jason Knight, Brendan Smith & YangQuan Chen An Essay on Unmanned Aerial Systems Insurance and Risk Assessment, 55 IEEE Xplore, 10th
IEEE/ASME Intl. Conf. on Mechatronic and Embedded Sys. and Apps. (2014).
152 Id.
153 The first major US Supreme Court case to recognize privacy was (Griswold v Connecticut), 381 U.S. 479 (1965). Justice Douglas used a penumbra that
creates the right of privacy. He used a basic equation from several of the rights enumerated in the Bill of Rights. First Amendment: Assembly: the right to
assemble privately; Speech: the right to speak or not to speak; Religion: right to believe, practice or not practice. Third Amendment: No quartering of
soldiers in homes, the home is the castle. Fourth Amendment: No seizure/search this is making the home and body private. Fifth Amendment: No self-
incrimination, this is private. Ninth Amendment: Reserved all rights enumerated or not to the people. U.S. Const. amend. I, III, IV, V, IX.
154 The U.S. is one of the few countries in the world that uses an opt-out system. That it citizens must subscribe to tools like 'Do-Not-Call' lists, flag emails
as spam, or sometimes use Court orders like injunctions and restraining orders to seek privacy. In contrast, many civil law countries like the United
Kingdom use an 'opt-in' system. The Opt-in system assumes privacy until a citizen electively subjects herself to commercial solicitation or public filming,
etc. Michael D. Scott, Notes From Drafting and Negotiating Technical Agreements, Southwestern Law School (Spring 2014) (on file with Author).
155 Complaining about the rapid growth of instantaneous photographs and newspapers enterprise and numerous mechanical devices which threaten to make
good the prediction that what is whispered in the closet shall be proclaimed from the house tops. Privacy is giving to each individual the right of
determining ordinarily to what extent. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
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Privacy is a major concern for the UAS industry. Photo-vigilantes now have the ability to
purchase a UAV, attach a camera payload and intrude on unsuspecting people. Privacy also applies to
law enforcement where officers fly UAVs with advanced sensory arrays to spy on criminals. Privacy is
also a driver of local anti-UAS legislation in states around the country. No matter the person, the first
question asked about UAS is usually, “what are the privacy implications?”
The most common payload on a UAV is a camera. Whether a video camera or an old-fashioned
still camera, the marketplace is flooded with unmanned aerial camera systems.156 This phenomena has
sparked a nationwide debate about how and when these flying cameras should be used. The answers
are varied because of who is piloting UAV-mounted cameras. The Department of Homeland Security
uses them to patrol the border.157 Local Sheriff's, police, and fire departments have invested in UAS
camera technology.158 Amateur photographers, paparazzi, and even real estate firms159 buy sUAS with
inexpensive cameras to capture anything of interest.160 This section will analyze how the government
and private citizens are using and coping with these new eyes in the sky.
Law Enforcement Unmanned Aerial Camera Systems
Law enforcement agencies have been using aerial camera systems since the 1960s.161 These
cameras were mounted onto the front of police helicopters and were flown above American cities as air
support for squad cars and officers. However, these helicopters posed several risks to the pilots and to
those on the ground as these choppers chased cars and tracked armed criminals. Police departments
across the country needed an upgrade to save costs and prevent air-related accidents. The solution was
law enforcement grade UAVs. The first report of a police department using a UAV was in 2007 in
Houston, Texas. A news reporter caught the local police department discreetly fueling and testing its
UAVs.162 This discovery was a catalyst for a national privacy debate as to whether American law
enforcement should be allowed to operate UAS.
The legal framework to answer whether law enforcement use of UAVs breaches a citizen's right
to privacy already exists in American jurisprudence.163 The solution comes by way of analogy to a
156 Bart Elias, Cong. Research Serv., R42718, Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations
In The National Airspace System 6 (2012).
157 Harrison, Glennon,Cong. Research Serv., R42938, Unmanned Aircraft Systems (UAS): Manufacturing Trends (Jan. 30, 2013).
158 Joel Rubin, LAPD Adds Drones to Arsenal, Says They'll Be Used Sparingly, LA Times (June 13, 2014) (Available at
http://www.latimes.com/local/lanow/la-me-ln-lapd-adds-drones-to-arsenal-20140530-story.html); and TechDirt, LA Sheriff's Dept. On New Surveillance
Program: We Knew The Public Wouldn't Like It, So We Kept It A Secret, TechDirt (June 3, 2014) (Available at
https://www.techdirt.com/articles/20140415/07371926919/la-sheriffs-dept-new-surveillance-program-we-knew-public-wouldnt-like-it-so-we-kept-it-
secret.shtml).
159 Press Release, LAPD Cracks Down On Drone Aircraft Use By Real Estate Agents, LA Times (Jan. 26, 2012) (Available at
http://latimesblogs.latimes.com/lanow/2012/01/lapd-cracks-down-on-drone-aircraft-use-by-real-estate-agents.html).
160 Press Release, CBS Radio Affiliate 91.3 Jack FM, Watch LA Kings Hockey Fans Destroy Anonymous Drone During Stanley Cup Celebration (June 17,
2014) (Available at http://931jackfm.cbslocal.com/2014/06/17/watch-la-kings-hockey-fans-destroy-anonymous-drone-during-stanley-cup-celebration/).
161 In the 1960s, a Canadian subsidiary of Westinghouse developed a gyro-stabilized 35mm mount as a battlefield surveillance tool for the Canadian
military. In 1974 Westinghouse decided to divest its defense division and allowed managers [including the chief designer J. Noxon Leavitt] of the unit
working on a stabilized camera system to go off on their own with a company they called Istec Inc. The product line was a system which allowed an
aircraft-mounted camera to be held steady despite the inherent instability of the aircraft. By 1994, the company was renamed Wescam and the former
owners sold out to then-president Mark Chamberlain. In September 2002 the Canadian success story was taken over by U.S. defense contractor L-3
Communications. The Wescam Entertainment Group was sold to Pictorvision in 2004. Nick Spark, A History of Aerial Cinematography, The Legend of
Pancho Barnes, (Feb. 1, 2010) (Available at http://www.legendofpanchobarnes.com/film/about-the-film/history-of-aerial-cinematography.html).
162 Stephen Dean, New Police Drone Near Houston Could Carry Weapons, NBC Television Affiliate KPRC 2, (Nov. 10, 2011) (Available at
http://www.click2houston.com/news/New-Police-Drone-Near-Houston-Could-Carry-Weapons/4717922).
163 See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000), Minnesota v. Carter, 525 U.S. 83 (1998), United States v Karo, 468 U.S. 705 (1984),
Oliver v. United States, 466 U.S. 170 (1984), United States v. Knotts, 460 U.S. 276 (1983), Steagald v. United States, 451 U.S. 204 (1981), Smith v.
Maryland, 442 U.S. 735 (1979), Rakas v. Illinois, 439 U.S. 128 (1978), City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973), Katz v.
United States, 389 U.S. 347 (1967), Camara v. Mun. Court, 387 U.S. 523 (1967), Griggs v. Allegheny Cnty., 369 U.S. 84 (1962), Silverman et al. v. United
States, 365 U.S. 505 (1961), Johnson v. United States, 333 U. S. 10 (1948), United States v. Causby, 328 U.S. 256 (1946), Hester v. United States, 265
U.S. 57 (1924), and Boyd v. United States, 116 U.S. 616 (1886).
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collection of Supreme Court cases dating back to the 1980s. It was during this time that law
enforcement started to use aerial photography in force. The Court applied its interpretation of the
Fourth Amendment to decide whether manned flyovers constituted a violation of search and seizure
statutes.164 The seminal cases show how the Court will probably interpret the use of enforcement grade
UAVs.
The first case to address this issue was Dow Chemical Co. v. United States.165 This came to the
Courts when in 1978. The Environmental Protection Agency, without Dow Chemical’s consent,
contracted with a commercial aerial photographer.166 Once Dow Chemical realized the agency was
taking photos, the company filed suit in Federal District Court. Dow Chemical argued that aerial
photography to be a search in violation of the Fourth Amendment. The District Court agreed and the
EPA appealed.167 The Sixth Circuit reversed the decision. It ruled that despite precautions to secure the
grounds of the facility, aerial surveillance was outside of the expectation of privacy.168 Upon
acceptance of certiorari, the Supreme Court affirmed the Sixth Circuit’s decision and concluded that
the open areas are dissimilar to the curtilage of a home.
The effect of this ruling opened the door the law enforcement to use technology readily
available to the public.169 The Court found that if someone was lawfully flying in the airspace above the
facility, they would observe and photograph the grounds regardless of their intent.170 The Court
reasoned that, “[a]ny person with an airplane and an aerial camera could readily duplicate,”171 the
photographs at issue. “[T]he taking of aerial photographs of an industrial plant complex from navigable
airspace is not a search prohibited by the Fourth Amendment.”172
On the same day, the Supreme Court decided California v. Ciraolo.173 This time, a police
department flew a small fixed-wing airplane over a residence to observe a marijuana cultivation
operation. The officers then used their observations to obtain a warrant to enter the property and arrest
the defendants.174
The Supreme Court granted certiorari after the California Court of Appeal found that the
warrantless aerial observations violated the Fourth Amendment. The Supreme Court reversed the
California Court and issued a five- to- four decision. Chief Justice Burger wrote for the majority and
164 John Villasenor, Observations From Above: Unmanned Aircraft Sys. And Privacy, 36 Harv. L. Pub. Policy 476-486 (2013).
165 533 U.S. 27 (2001)
166 The photographer provided aerial images of the Dow Chemical manufacturing facility from altitudes of 1200, 3000, and 12,000 feet. Dow Chem. Co. v.
United States, 476 U.S. 227, 229 (1986).
167 Id. at 230.
168 Including installing a perimeter fence and alarm system that provided a subjective expectation of privacy from ground- level intrusions, it did not have
such an expectation with respect to aerial surveillance.Thus, the Sixth Circuit concluded, the acquisition of aerial images without a warrant was not a
Fourth Amendment search. Id. at 229-230.
169 The Court noted that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as
satellite technology, might be constitutionally proscribed absent a warrant.” Id. at 238.
170 The Court deemed the area, “open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently
near the area for the reach of cameras.” Id. at 239.
171 Id. at 231.
172 Id. at 239.
173 See People v. Ciraolo, 161 Cal. App. 3d 1081, 1090 (Ct. App. 1984) and California v. Ciraolo, 476 U.S. 207 (1986).
174 On September 2, 1982, police in Santa Clara, California, received a tip regarding backyard marijuana cultivation. After finding the yard surrounded by
high fencing obscuring the view from the street, they obtained a small airplane and flew over the residence at 1000 feet. The officers on the airplane
observed and photographed what they concluded to be marijuana plants growing in the backyard. This evidence was used to obtain a search warrant to
seize the plants. Id. At 105-108.
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clarified what constitutes a “reasonable expectation of privacy.”175 Originally articulated in Justice
Harlan’s concurrence in Katz, reasonableness turns on two prongs. First, the person must “have
exhibited an actual (subjective) expectation of privacy.” Second, the expectation must “be one that
society is prepared to recognize as ‘reasonable.’”176 In Ciraolo, the defendant failed the first prong. It
was true that the fences around the property clearly communicated a “desire to maintain privacy.”
However, the fences only expressed this notion for ground-based observations. The Court clarified that
the lack of overhead coverings for the property did not impute desire to maintain private from air-based
observations.177 Furthermore, on the second prong, the Court reasoned that police observations of the
defendant's yard from above would be deemed by reasonable. Justice Burger argued that from an
objective, society-based view, anyone could fly over the yard and see into the perimeter. Thus if the
observations were visible from a public vantage point, there is no reasonable expectation of privacy.178
The Court concluded that “[i]n an age where private and commercial flight in the public airways is
routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally
protected from being observed with the naked eye from an altitude of 1,000 feet.”179
In addition, the Court has found that any FAA compliant, unrestricted airspace is considered a
public space. In Florida v. Riley,180 a police helicopter was used to observe marijuana green house at
low altitude. The Court found that the officers did not violate the Fourth Amendment.181 Although the
Court ruled in favor of the police, the Court had its reservations. Justice O’Connor in her concurrence,
raised concerns about relying on “compliance with FAA regulations alone” as a 'litmus test' for privacy
from overhead surveillance. Rather, she wrote, “consistent with Katz, we must ask whether the
helicopter was in the public airways at an altitude at which members of the public travel with sufficient
regularity that Riley’s expectation of privacy from aerial observation was not ‘one that society is
prepared to recognize as reasonable.’” Justice O'Connor concluded that because of “considerable public
use of airspace at altitudes of 400 feet and above,” Riley did not have a reasonable expectation of
privacy.182
Though manned overflights of uncovered homes and yards are presumptively public, the Court
has recognized that certain technologies do violate privacy. The case Kyllo v. United States,183
175 Id. at 211.
176 Katz v. United States, 389 U.S. 347, 360-361 (1967) (Harlan, J., concurring).
177 The fences protected against intrusions from “normal sidewalk traffic,” the marijuana plants might well have been visible from a truck or two- level bus.
Therefore, it was unclear that the respondent had “a subjective expectation of privacy from all observations of his backyard.” Ciraolo, 476 U.S. at 211-12.
178 The Court did not dispute that the backyard was in the curtilage of the home, See, e.g., Oliver v. United States, 466 U.S. 170, 180 (1984), but noted that
police observations of curtilage are not necessarily unconstitutional. “The Fourth Amendment protection of the home has never been extended to require
law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”Ciraolo, 476 U.S. at 213. In addition, “the mere fact that an
individual has taken measures to restrict some views of his activities [does not] preclude an officer’s observations from a public vantage point where he has
a right to be and which renders the activities clearly visible.”Id. Because the observations were made from “public navigable airspace . . . in a physically
nonintrusive manner,” the respondent’s expectation of privacy from such aerial observations was not one “that society is prepared to honor.”Id. at 213–
14..” Id.
179 Id. at 215.
180 Florida v. Riley 88 U.S. 445 (1989).
181 In her opinion concurring in the judgment, Justice O’Connor raised concerns about relying on “compliance with FAA regulations alone” as a litmus test
for privacy from overhead surveillance. Id. Rather, she wrote, “consistent with Katz, we must ask whether the helicopter was in the public airways at an
altitude at which members of the public travel with sufficient regularity that Riley’s expectation of privacy from aerial observation was not ‘one that
society is prepared to recognize as reasonable.’”Id. She then concluded that because there is “considerable public use of airspace at altitudes of 400 feet
and above,” Riley did not have a reasonable expectation of privacy from naked- eye observations from that altitude.
182 Id. The Court noted, the “public use of altitudes lower than that particularly public observations from helicopters circling over the curtilage of a home
may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air
safety regulations.”Id.
183 Kyllo v. United States, 533 U.S. 27 (2001). In January 1992, a government agent in a car used a thermal imaging device to measure the external
temperature of the roof and outside wall of the home of Danny Lee Kyllo, who was suspected of growing marijuana. Id. at 29–30. The roof and wall were
found to be abnormally warm, and a search warrant was issued based in part on this information. Id. at 30. Upon execution of the search warrant, marijuana
plants were found and Kyllo was arrested. See Id. A district court and the Ninth Circuit upheld the use of the thermal imager, in part on the grounds that it
“merely indicated amorphous ‘hot spots’ on the roof and exterior wall and not the detailed images of private activity.” United States v. Kyllo, 190 F.3d
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demonstrates the Court's concern about the use of sensory arrays to peer into people's homes. The
Court opined that using sensors like thermal imagers for law enforcement is presumptively
unreasonable. The Court wrote that citizens are “at the mercy of advancing technology including
imaging technology that could discern all human activity in the home.”184 The Court also noted that
“[w]hile the technology used in the present case was relatively crude, the rule we adopt must take
account of more sophisticated systems that are already in use or in development.”185 The Court found
that when “the Government uses a device that is not in general public use, to explore details of the
home that would previously have been unknowable without physical intrusion, the surveillance is a
‘search’ and is presumptively unreasonable without a warrant.”186
In accordance with the precedent, law enforcement can use UAVs on a limited basis. It is not an
attenuated argument to allow unmanned aerial photography over unprotected yards or on public
thoroughfares. Further, if the UAS is granted the specific authority by the FAA through a COA or
COW, law enforcement agencies face few barriers to conducting UAS operations. However, law
enforcement is limited in regards to the UAV payload. As decided in Kyllo, law enforcement may not
use advanced sensory arrays to break the constraints of the visible light spectrum without a warrant. As
more tools become available to law enforcement, the Court will most likely continue to balance public
safety and privacy.
Amateur & Professional UAV Photographers
Privacy and free speech are in tension with each other. On one hand, Americans value the
freedom of press and speech afforded by the First Amendment. On the other, most people do not want a
UAV to take photo of them while sunbathing in their backyard. Despite this tension, many new
companies in the entertainment industry and beyond continue to invest in UAV technology to get that
perfect shot.
Although the UAS is a tool now available to photographers, not all respect the idea of personal
space. When walking on a sidewalk or in a public park, there is no presumption of privacy. When
someone is in public and in plain view, courts reject liability for observation and recordation.187 This
same argument can be applied to airborne observance, whether with a visible light camera, thermal
imager, or other sensory array. The essential reasoning is, “[s]o long as the sensors are in public,
picking up information readily available in the public thoroughfare, the usage is legal. By this logic,
explicit consent for sensor use is unnecessary, because the input detected by the sensor is public.”188
This idea is fortified by recent, “right to record” cases. A handful of courts have interpreted the First
Amendment to protect the right to record audio and video in public places, especially government
officials.189 This right is not completely unlimited though. Courts have disallowed the public recordings
when a “compelling government interest” is at stake, for example, homeland security.190
1041, 1047 (9th Cir. 1999). The Supreme Court reversed the Ninth Circuit in a five- to- four opinion. Id. at 29. The Court argued that “well into the 20th
century, our Fourth Amendment jurisprudence was tied to common law trespass.” Id. at 31. More recent rulings have “decoupled violation of a person’s
Fourth Amendment rights from trespassory violation of his property, but the lawfulness of warrantless visual surveillance of a home has still been
preserved.” Id. At 32. However, in regards to interior searches of the home itself, “there is a ready criterion, with roots deep in the common law, of the
minimal expectation of privacy that exists, and that is acknowledged to be reasonable.” Id. at 34.
184 Id. at 35–36.
185 Id. at 36.
186 Id. at 40.
187 See Restatement (Second) of Torts Section 652.
188 Nabiha Syed, Sensors & Journalism: Consent, False Light, and Libel, Tow Center for Digital Journalism 136 (2014).
189 See, e.g,. ACLU v. Alvarez (7th Cir. 2012); Glik v. Cunniffe (1st Cir. 2011).
190 Askins v. U.S. Dept. of Homeland Sec. (S.D. Cal. Sept. 20, 2013).
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In addition, not all photographers use UAVs to only capture public areas. For example,
paparazzi have a reputation for intrusion. Courts have held that private areas such as inside a person's
home or in a health clinic creates a “zone of privacy.”191 This means that someone with a camera cannot
simply jump over a fence and trespass into someone's yard to snap photos for the tabloids. This same
logic can be applied to UAS and has led to many states to enact UAV focused privacy legislation.
Local & State Legislatures
State and municipal UAS legislation is popping up all over America. As of 2014, forty-three
states have proposed legislation and eleven have enacted UAS laws.192 The laws are aimed at a narrow
group of issues. The majority concern either granting law enforcement the ability to implement UAS
operation for searches and seizures193 or for personal privacy protections against UAV observation.194
So far, no plaintiffs have submitted a complaint to the Courts for somebody flying a UAV over their
property.
Some states, like California, which recognize a basic right to privacy,195 have begun to enact
laws to prevent such conduct. For example, California State Bill 15 passed the State Senate in May,
2013, and is now slated for a final legislative vote. The law recognizes civil and criminal penalties, “for
a person to look through a hole or opening or otherwise view, by means of any instrumentality, the
interior of bedrooms, bathrooms, and various other areas in which an occupant has a reasonable
expectation of privacy....”196 The law then extends liability for this conduct if done with a UAS.
Further, cities have also begun to enact ordinances that protect their citizens. For example,
Beverly Hills, California is considering passing an ordinance, which restricts the operation of private or
commercial UAS over Beverly Hills airspace. The ordinance has privacy in mind and will impose fines
for those pilots who fly over residential areas.197
These laws and many others like it are in the process of enactment across the U.S. They indicate
the discomfort Americans feel towards UAVs. It will take time with some trial and error to strike a
balance between keeping lives private and flying free speech.
UAS Related Privacy Laws Abroad
Other first-world countries have already integrated UAS into their airspace. Countries like the
United Kingdom and Australia have implemented UAV regulatory regimes.198 However, it is important
191 Griswold v Connecticut, 381 U.S. 484 (1965). This idea comes from the Third Amendment that prohibits quartering of soldiers "in any house" in time of
peace without the consent of the owner. Referring to a person's house is as a castle or curtilage rises from this notion.
192 Florida (enacted in 2013); Idaho (enacted 2013); Indiana (enacted 2013, effective 2014); Iowa; Montana (enacted 2013); Oregon (enacted 2013);
Tennessee (enacted 2013, effective 2014); Texas (enacted 2013); Utah (enacted 2013, effective 2014); Virginia (enacted 2013); Wisconsin (enacted 2013,
effective 2014). Allie Bohm, Status of 2014 Drone Legislation in the United States, ACLU (April 22, 2014) (Available at
https://www.aclu.org/blog/technology-and-liberty/status-2014-domestic-drone-legislation-states).
193 “Freedom from Unwarranted Surveillance Act,” Florida State Bill 92, enacted 2013 (Available at
http://www.flsenate.gov/Session/Bill/2013/0092/BillText/Filed/PDF).
194 S.B. 1134 , 62nd Leg., 1st Sess. (Id. 2013) (Available at http://www.legislature.idaho.gov/legislation/2013/S1134.htm).
195 California recognizes the right of privacy in its Constitution. “All people by their very nature free and independent have inalienable rights. Among these
are enjoying and defending life, liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” CA.
Const. art. I, § 1.
196 S.B. 15, Gen. Assemb., Reg. Sess. (Ca. 2013) (Available at http://legiscan.com/CA/bill/SB15/2013).
197 Parimal Rohit, Beverly Hills Could Look Into Regulating Drones, West Side Today, (June 3, 2014) (Available at
http://westsidetoday.com/2014/05/19/beverly-hills-look-regulating-drones/).
198 In the United Kingdom, the Civil Aviation Authority (CAA) requires operators to qualify as a UAV pilot and apply for a license to insure safe operation.
In Australia, Civil Aviation Safety Authority (CASA) regulates the commercial operation of UAS.
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to bear in mind that that civil law countries like the U.K., maintain an “opt-out” privacy system199 and
do recognize a fundamental right to privacy.200 In these countries, the use of UAV to capture
photographs of people without consent can lead to government confiscation of the UAV, fines and
other civil penalties.201 UAS advocates point to the Australian and British systems as a potential model
for UAS in America. However, since UAVs are a new tool in the journalism and media industry, these
countries are still grappling with privacy issues as the “natural right to privacy” and freedom of
expression are in tension.202
CONCLUSION
Unmanned aerial systems have started to takeoff in the United States. The government and
commercial unmanned aviators continue the steady march to integrate UAVs into the National
Airspace. As aviation regulations streamline and relax, more lives will be saved during natural
disasters. The airwaves will become more organized and ensure safe operation or manned and
unmanned aircraft alike. Insurance agencies will protect investments and profit from this new
technology. Eventually, Americans will become accustomed to UAS flying in their neighborhoods,
unafraid of intrusion. The sky is the limit, and society will usher in a new era of flying artificial
intelligence.
ACKNOWLEDGMENT
The author would like to thank Professor Michael D. Scott for the opportunities and guidance
he has afforded. The author would also like to thank Southwestern Law School and the southern
California unmanned aircraft community, may we all succeed together.
199 In the European Union there is an assumed basic level of privacy. A citizen needs specific permission to send or use private information. See Human
Rights Act 1998, Part 1, art 8.
200 A right to privacy exists in the UK law, as a consequence of the incorporation of the European Convention on Human Rights into domestic law through
the Human Rights Act 1998. This can result in restrictions on the publication of photography. Whether this right is caused by horizontal effect of the
Human Rights Act 1998 or is judicially created is a matter of some controversy. The right to privacy is protected by Article 8 of the convention. In the
context of photography, it stands at odds to the Article 10 right of freedom of expression. As such, courts will consider the public interest in balancing the
rights through the legal test of proportionality. See Human Rights Act 1998 §§ 2, 3; Human Rights Act 1998, Part 1, art 8; Mosley v News Group, [2004]
UKHL 22; Murray v Express Newspapers Plc, [2008] EWCA Civ. 446; J. Morgan, Privacy in the House of Lords, Again, 120 Law Quarterly Review 563,
565 (2004).
201 David Goldberg, Mark Corcoran, & Robert G. Picard , Remotely Piloted Aircraft Systems & Journalism Opportunities and Challenges of Drones in
News Gathering, Oxford Reuters Institute for the Study of Journalism 24-28 (2013).
202 Id.
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