Living In A State Of De-Nile: Are Commercial Drones Viable?

by Gray Reed & McGraw

Soon, the days of having to wait for your online purchase to arrive may be a thing of the past.  Nile, giant online retailer of everything from books to breakfast cereal, announced that it intended to deploy a fleet of commercial drones to deliver packages mere minutes after your order is placed.  Are there legal hurdles that might ground Nile’s ambitious plan?

             FAA:  Drones Pose Air Traffic Nightmare.  Although the FAA allows for governmental use of drones within U.S. airspace (e.g. surveillance along the borders), those drones are operated by ground-based pilots who are in regular contact with air traffic controllers.  Currently, the FAA bans commercial drones, such as those proposed by Nile.  Smaller drones, operated by individuals, utilize the rules for radio-controlled model planes and avoid the ban by flying within the operator’s sight, by staying below an altitude of 400 feet and away from airports.  Congress directed the FAA to propose safety regulations permitting commercial drones in domestic airspace by September 2015. The FAA has promised draft regulations for small commercial drones (weighing less than 55 pounds) by next year.  Even the most optimistic estimates are that commercial drone regulations for operators like Nile are years from enactment.

             Privacy:  Another obstacle to Nile’s drone deployment will be the myriad of privacy concerns.  Privacy concerns have been the focus for most of the forty-three states that have considered around 100 drone-related bills.  Warning that “companies could use drones for information gathering whether that is taking a photograph of your patio furniture or recording the make and model of your car,” Texas Republican Representative Ted Poe introduced legislation to protect people’s privacy from drones. 

            Possible Implications and Responses. How would you feel about a Nile drone flying over your house and then emailing you with suggested products or services?  Rep. Poe’s Preserving American Privacy Act seeks to prohibit individuals and companies from using drones for photography and surveillance and to prohibit surveillance by government drones without a warrant.  Poe stated, “Congress has to make sure that the use of drones in the future does not infringe on the right of individual citizens to privacy… Just because big brother or private companies can look through a person’s windows doesn’t mean they should be able to.”  Just imagine the detailed, current information Nile must gather to safely deliver a package to your doorstep.  We marvel at the functionality of Google Maps, but it is usually out-of-date and only accurate within several meters.  While this is plenty accurate to navigate to a friend’s party, Nile’s drones, on the other hand, would require constant updates about potential obstacles such as trees, new construction, etc., would have to be able to land on a precise GPS coordinate and would know the physical characteristics of your home better than you.  To effectively deliver a package, they might even track when you are home or when you are away.

             Liability:  Even more important than assigning liability for stolen or damages packages will be the inevitable issue of personal liability.  To deliver a 5-pound package, a Nile drone would be equipped with a substantial motor, a dangerous propeller(s), and would have many obstacles to avoid.  Who would be liable when a drone malfunctions (mechanical, weather, a neighbor’s 13-year-old son shooting it down with a bb gun) and hits and injures a person, pet, vehicle or collides with a downtown skyscraper?  Would we ever feel safe with these autonomous, self-guided flying machines filling our skies?  Even Google’s self-driving cars, which prove safer than cars driven by humans, are not yet a reality because of a morass of potential legal issues arising from our inherent distrust of the technology. 

The idea of packages delivered to your doorstep within minutes is incredibly intriguing. However, the significant legal hurdles suggest that Nile’s extraordinary plan may be more PR stunt than practical reality.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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