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24

Jun,2015

These Private Eyes Are Watching You: Privacy Laws for Drone Operators

You’ve saved, shopped online, watched “unboxing” videos on YouTube, and read the owner’s manual, and now it’s time for you to take your new drone for its maiden voyage. The one question that may still be unanswered, however, is: how can you enjoy your drone, while not violating privacy laws? Imagine you decide to take your UAV for a flight across town to capture some video footage of the summer festival. Look down there; the crowds are swarming around the cotton candy booth, the line for the Ferris wheel is swelling, and the Foreigner cover band is killing it on stage. You’re getting all the action on film, thanks to your UAV! However, the question is whether all the people you filmed waiting on line for a corndog have a claim against you for invasion of privacy.
 
The answer to this question requires a highly complex legal analysis, because the law is volatile and extremely uncertain. Right now, as you are reading this blog post, there are congressmen chain-smoking, scratching their heads, and sweating over their fourth cup of coffee as they draft new privacy regulations for drone operators. The FAA is hoping to make privacy a major focus in their new UAV regulations, set to come out who knows when. Suffice it to say, drones will probably be a thing of the past by the time the Federal government gets its act together and passes some privacy regulations that make sense. Earlier this year, the FAA was sued by the Electronic Privacy Information Center (EPIC) because the FAA’s initial drone regulations failed to address privacy. EPIC pointed to the fact that a drone’s ability to gather personal data such as a location “poses a public safety problem for millions of individuals.” The case is still pending in a Federal court of appeals in Washington, D.C. Harley Geiger, advocacy director for the Center for Democracy and Technology says, “until privacy concerns are dealt with or made clear by some government entity, the drone industry will continue to develop at a slower-than-possible pace because the general public won’t embrace the industry.”
 
So where does that leave you as a drone operator? Congress says that drone operators should look to the states for privacy related regulations. Some states, including Florida, are placing restrictions that seemingly make the state a no-drone-zone. Take a look at the language from Florida’s new Unwarranted Surveillance Act:
 
A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.
 
As per this language, you do not have a reasonable expectation of privacy if you’re observed from a helicopter, but do have an expectation of privacy when observed from a drone.
 
There are exceptions for commercial operators, however. Land surveys, power grid inspections, cargo delivery, and possibly even professional photographers and realtors may fall into this exception. The operative language from the statute is whether the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license. The exception does not apply a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.
 
While Florida is attempting to pass these poorly worded laws; other states are developing drone regulations like a teenager’s beard…very patchy. Oregon is prohibiting a drone operator from using it to fire a bullet, shoot a laser, or crash into an aircraft. In North Carolina, “it shall be a Class 1 misdemeanor for any person to fish or to hunt using an unmanned aircraft system,” per N.C. Gen. Stat. Ann. Section 14-401.24. And in Illinois, it is a crime to “use … a drone in a way that interferes with another person’s lawful taking of wildlife or aquatic life,” per Illinois Compiled Statutes, 720 ILCS 5/48-3. As a result, drone operators must look to state privacy laws, which traditionally provide extremely limited privacy rights in connection with actions taken in public or which are available from the public view. The generally thinking is: if the subject matter is visible from public view, you are not violating privacy laws. Hopefully future drone laws in Florida will revert to this general rule and expunge exceptions for drone operators.
 
How can you avoid intruding on someone’s privacy? Where is the public/private line for drone operators? Despite there being very little law on the issue, many drone operators have gotten themselves on the wrong side of Larry Law recently because of the fine line between public and private. In 2014, a New York man was arrested for flying his drone close to a medical facility. Patients complained that the drone operator was deliberately spying into the examination rooms. The drone operator was acquitted of the charges, because he wasn’t intentionally peeking into the building, and his actions were of little or no harm.
However, there are situations in which the public/private line is not as obvious. What will the courts do in the area of divorce investigations? Take for example a case where a spouse hires a private investigator to fly a drone over Central Park in pursuit of photographic evidence of a cheating spouse and his mistress. The issue is whether or not the subject matter is public (because they are in a public space), but they are engaged in a very private situation. It’s hard to say here, because while the two were in a public place where privacy expectations are lowered, it isn’t too much of a leap to predict that this drone has entered an area that is clearly private. In Florida, this would be an illegal invasion of privacy because private investigators are almost exclusively prohibited from gathering intelligence with their drones.
 
So the question remains: are you liable for the people you filmed while flying your drone over the town festival? The Federal government says, “we don’t know, ask the states.” The states say, “you might be liable, but you will have to check our law.” Essentially, it all boils down to which state you are operating your drone in and how it views invasion of privacy. A good rule of thumb is that if the subject matter is reasonably in public view on ground level, you could argue that you did not violate privacy.
 
Whether you operate your drone for business purposes or just for fun, you should be cognizant of everyone else’s privacy concerns. If you have any questions or concerns, don’t hesitate to call the drone lawyers at The Ison Law Group. Call us toll free at 1-855-LAW-1215 or 863-712-9475.

15

Jun,2015

The Potential Future of Commercial Drone Use Regulation: Limitations and Requirements Found in the Newly Proposed “Commercial UAS Modernization Act”

Recently, U.S. Senators Cory Booker and John Hoeven introduced Senate Bill 1314, “Commercial UAS Modernization Act,” with the intent of regulating the commercial use of Unmanned Aircraft Systems (UASs), commonly referred to as drones, within the U.S. National Airspace. If you are planning to start a new business that operates a UAS, or want to incorporate the use of a UAS into your current business, pay attention to the proposed requirements for commercial UAS operators outlined in the “Commercial UAS Modernization Act.”
 
As of now, any person that desires to commercially operate a UAS must petition the FAA under Section 333 of the FAA Modernization and Reform Act of 2012 for exemption of certain Federal Aviation Regulations (FARs). Since the FAA began granting Section 333 exemptions for commercial UAS operators, the FAA’s streamlined Section 333 process has not included a requirement that the operator of a UAS hold any type of insurance policy for the operation of that UAS. That, however, would change under the Commercial UAS Modernization Act which would require a UAS operator to attest to the FAA Administrator that the operator has a liability insurance policy covering the operation of the drone.
Fortunately for UAS operators, the proposed bill remains silent as to the amount of liability coverage that a UAS operator should hold. If the final bill does not require a specific amount of liability insurance coverage, the UAS operator should select an appropriate amount of insurance coverage that will protect the operator from personal liability in the event that the UAS crashes, causing serious injury or death or property damage.
 
In addition to potential insurance requirements, the Commercial UAS Modernization Act also requires any individual commercially operating a drone to undergo testing – a requirement the FAA does not impose when granting Section 333 exemptions. Currently, the FAA does not require a commercial drone operator to take any aeronautical tests specific to drone operations. Moreover, the FAA does not require the commercial drone pilot to undergo any flight exams specific to drone operations. The bill, however, instructs the FAA to develop an aeronautical knowledge test for commercial drone pilots and would require the commercial drone pilot to demonstrate an ability to appropriately fly the drone before commercially operating the drone.
 
Of course, restrictions and regulations are only words on paper. Thus, the bill provides teeth to these regulations by enabling the FAA to bring an enforcement action against the commercial operator of a UAS who allegedly violates a section or regulation. Specifically, the bill empowers the Secretary of Transportation to bring a civil action against any person, in a district court of the U.S., to enforce the sections or requirements set forth in the Commercial UAS Modernization Act.
 
Currently, the FAA can bring an enforcement action against a commercial UAS operator for not complying with the FARs. On October 10, 2014, the FAA Administrator published a guideline (Change 6 to the Compliance and Enforcement Handbook) for FAA inspectors and attorneys relating to the handling of enforcement actions against UAS operators. Among the various issues discussed, the Administrator states that if the operation of a UAS “is contrary to applicable operational requirements, the FAA may cite the operator for violations of those operational requirements in any enforcement action determined to be appropriate.” In short, this means that the FAA believes they currently have the right, regardless of the Commercial UAS Modernization Act, to bring an enforcement action against any commercial UAS operator in violation of the applicable FARs.
 
There is no way of knowing whether Congress will pass Senate Bill 1314, “Commercial UAS Modernization Act,” this year, if at all. For a more detailed look at this bill, click the following link to view the bill in its entirety: https://www.congress.gov/114/bills/s1314/BILLS-114s1314is.pdf.
 
In the meantime, if you want to commercially operate a UAS, you will have to petition the FAA for a Section 333 exemption and abide by those limitations. Call The Ison Law Group toll-free at 855-LAW-1215 or locally at 863-712-9475 to discuss your petition for Section 333 exemption.

14

Jun,2015

The Un-responsive Pilot: request to call the tower and Letters of Investigation – how the FAA wants to use your statements in an enforcement action

Imagine a beautiful Saturday afternoon with calm winds and high ceilings – the type of day that just beckons a pilot to go fly. You hop in your plane and off you go, soaring above all your worries and concerns. As you fly along without a care in the world, you unknowingly fly into class “B” airspace without a clearance. As soon as you realize your mistake, you exit the airspace and head home, except ATC contacts you and requests that upon landing you contact the tower. What do you do? Should you call the tower? Or, do you just go about your business?
 
The answer is simple: do not call the tower. Tell ATC thank you and go about your business. When ATC tells a pilot to call the tower due to a potential violation, no legal authority requires the pilot to call the tower. Beyond the lack of legal authority, no good can come from calling the tower, as the FAA will likely use your statements against you in a potential enforcement action.
 
Likewise, pilots may also question whether they have to respond to a Letter of Investigation from the FAA. Again, imagine the same scenario as detailed above. Only, this time, instead of ATC telling you to contact the tower, you later receive a Letter of Investigation from the FAA in the mail. What do you do? Should you respond to the letter? Or, should you just throw it away and pretend you never got it?
 
Again, the answer is simple: do not respond to the Letter of Investigation. As a pilot, you are not legally obligated to respond to a Letter of Investigation from the FAA. Just like ATC requesting you contact the tower, anything you say in response to a Letter of Investigation could be used against you in an enforcement action. See Funk, 6 NTSB 1016 (1989); Salkind, 1 NTSB 714 (1970).
 
Fortunately, the Pilot’s Bill of Rights, Public Law 112-153, requires the FAA to inform the airman that there is no obligation to respond to the Letter of Investigation. Under the Pilot’s Bill of Rights, the FAA must inform the airman of the nature of the investigation, that an oral or written response to a Letter of Investigation form the FAA Administrator is not required, that no action or adverse inference can be taken against the individual for declining to respond to the Letter of Investigation, and that any response to an Letter of Investigation, or any other FAA inquiry may be used in evidence against the individual.
 
There are certain times, however, when you must respond to an inquiry from ATC or the FAA. After all, not responding to ATC’s request that you contact the tower or a Letter of Investigation from the FAA does not mean the FAA will just give up and leave you alone. If the FAA serves you with a Notice of Proposed Action, you will need to take action as failure to respond to a Notice of Proposed Action can have drastic consequences in your defense of an enforcement action.
 
By now you probably get the picture – anything you say can be used against you in an FAA enforcement action. Unfortunately, this also means that your conversations with ATC can be used as evidence against you. Consequently, an airman should be mindful of his tone and phrasing of words when responding to any and all ATC requests that require a response. The pilot should always be honest while being polite and brief. Given all the opportunities to hang yourself, the FAA bets that you will talk yourself right into proving their enforcement case. Don’t fall into this trap! When responding to a request that requires a response, never divulge more information than requested.
 
As pilots, we at The Ison Law Group understand the stress that comes with flying an airplane, or a helicopter for that matter. As if keeping an aircraft in the air is not difficult enough, having to mind your “P’s and Q’s” seems like the straw that will surely break the camel’s back. Yet, the law does not discern between words spoken on the ground or words spoken at 15,000 feet in the air.
 
Long story short, do not make the FAA’s job easier. If you do not have an obligation to respond, do not respond. If you do have an obligation to respond, be polite and brief. In any event, give The Ison Law Group a call toll-free at 855-LAW-1215 or locally at 863-712-9475 to discuss your case.

02

Jun,2015

Don’t Drone In Liability: A brief look at drone liability and ways to protect a business operating Unmanned Aircraft Systems (UAS)

Without a doubt, starting a new business can be one of the most rewarding, and equally terrifying, experiences in anyone’s life. With the commercial availability and success of Unmanned Aircraft Systems (UAS), commonly referred to as drones, many business entrepreneurs are starting new aviation businesses. Whether the UAS business uses drones for aerial mapping/videography/photography, pipeline/hydro-transmission line inspection, real estate, railroad and highway maintenance, film production, agricultural and conservation, or for any other purpose, UAS business owners need to consider the drone liability ramifications should a drone cause damage to a person’s property or injury to a person during the commercial usage of that UAS.
 
From a legal standpoint, current federal law states that “a lessor, owner or secured party of an aircraft is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party” and “the personal injury, death, or property loss or damage occurs because of the aircraft, engine, or propeller, or the flight of, or an object falling from, the aircraft, engine, or propeller.” 49 U.S.C.A. §44112(b) (2015).
 
In a case involving the crash of a fixed wing aircraft and death of a passenger, the Florida Supreme Court in Vreeland v. Ferrer, 71 So. 3d 70 (Fla. 2011), held that 49 U.S.C.A. §44112 preempts Florida’s statutes and applies in cases where people on the ground (surface of the Earth) are injured or killed, but does not apply when the injury, death or property damage is to the passenger of an aircraft. Given the holding of the Florida Supreme Court and unique nature of unmanned drones, liability for drone operators, at least in Florida, will fall under 49 U.S.C.A §44112. Consequently, as the “lessor, owner or secured party of an aircraft,” the UAS business entrepreneur will likely be liable for injuries or damages to people or property on the surface when caused by the UAS drone.
 
So, what does the UAS business entrepreneur do to protect himself? For starters, UAS business owners that operate drones can personally protect themselves from liability by forming either a limited liability company (LLC) or a corporation. While an LLC provides for both a favorable flow-through partnership taxation and limited liability protection for all members, corporations allow for limited liability, continuity of life, free transferability of ownership interests and centralized management. The greatest benefit of a corporation is the limited liability aspects – a shareholder’s financial risk is limited to the amount invested in the corporation and the shareholders is not liable for corporate obligations. Simply put, in most cases, the liability for any injuries or damages due to a UAS crash will stop with the business such that the injured or damaged party will not be able to collect from the UAS business owner’s personal assets.
 
New UAV business owners should also consider insuring their drones before taking to the skies. In the unfortunate event that a drone crashes, a UAS business owner will want to have peace of mind that any damage caused by his drone will be covered by insurance. A quick Google search yields several insurance companies that insure UAS operators for commercial purposes. UAS Business owners should purchase an insurance policy that will fully cover all aspects of the UAS business’ operations. Before inking the contract for drone insurance, read the policy to see what exclusions the policy contains. After all, a UAS business owner would hate to have a drone crash and injure a person because the drone lost signal connectivity, only to later find that the insurance policy excludes accidents that occur under those conditions.
 
Even before the FAA grants a UAS business owner’s petition for Section 333 exemption, the business owner needs to consider the liability aspects of his new business. If you are a UAS business entrepreneur and have questions about your new drone business, give The Ison Law Group a call at either 855-LAW-1215 or 863-712-9475.

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