Steve Fogle Speaks: Eyes in the Skies: The Law of Unmanned Aerial Vehicles

by Jackson Walker

Although expanding in popularity and functionality, unmanned aerial vehicles (UAVs), more commonly known as "drones," have been shrinking in both size and expense over the last several years. What once cost several thousands of dollars and weighed several hundred pounds can now be purchased for under $100 and weigh only ounces or a few pounds.

Technology has once again made our lives both more simple and more complex at the same time.

Drones operate in a three-dimensional world. And, by necessity, the laws and regulations regarding UAVs will also be three dimensional – at the federal, state, and municipal levels. Currently, there is little consensus among these governing dimensions on how to balance the positive aspects of a UAV in legitimate data collection against the potential harm and invasion of privacy posed by unwarranted governmental surveillance or overzealous paparazzi.

At the federal level, the Federal Aviation Administration (FAA) has placed a blanket restriction on the commercial use of UAVs until September of 2015 while it considers guidelines for the safest, most positive and unrestricted use of UAVs. The FAA is also considering test sites across the country to evaluate the potential hazards and develop guidelines for the incorporation of UAVs into the national airspace by September 2015. In the meantime, under the current FAA guidelines, the use of a UAV for a commercial purpose is prohibited. A noncommercial UAV may only be flown during daylight hours, at an altitude of below 400 feet and using only human eyesight direction. No binocular navigation or remote controlled piloting is permitted. These FAA restrictions greatly limit the range and utility of the UAV.

At the state level, legislatures in over half the states have begun to consider legislation to address the use of UAVs in their jurisdictions and/or to limit the safety and privacy concerns raised by UAVs. A few states, such as Florida, Idaho, Montana, Tennessee and Virginia, have already passed UAV legislation under titles such as "Unwarranted Invasion of Privacy or Personal Surveillance" or "Protecting Against Unwarranted Surveillance." The purposes for such regulation appear to be not only to protect public safety and governmental interests, but also to guard the privacy interests of citizens while allowing for beneficial uses such as looking for a lost child, managing a disaster zone, or reporting on newsworthy events.

On June 14, 2013, Texas became the sixth state to enact laws aimed at UAVs. The Texas law, called the "Texas Privacy Act" is by far the lengthiest statute and, therefore, poses potentially the most problems.

The Act begins with nineteen exemptions for which the law does not apply. These include the use of UAVs by a real estate broker to photograph property for market or sale, the use of drones to monitor oil field rigs and pipelines for safety purposes, and any use of a UAV less than eight feet off the ground so long as the device isn't used to perform surveillance of another person or other's property. The remainder of the Privacy Act sets out civil and criminal penalties for using UAVs with the intent to conduct surveillance on another person or another's real property. Because a violation of the Texas law hinges on the subjective intent of the UAV user, litigation over the user's state of mind will ultimately establish the Privacy Act's scope and enforcement.

Much of the law is internally inconsistent, leading one Texas senator to label it "more like Swiss cheese" than an understandable and enforceable regulation. However, despite its problems, the Texas Privacy Act is not wholly without merit. One of the most laudable portions of the bill comes in the final paragraphs that require governmental entities who use UAVs within the State of Texas to record and report their UAV use. This addresses the perception that the government's use of drones may be questionable in some instances and facilitates oversight by the public and newsgatherers.

Another proposed exclusion for newsgathering did not make it into the final bill. While this is unfortunate, organizations who consider using UAVs for newsgathering purposes retain the common law right to gather news in the public arena outlined under the Branzburg, Richmond Newspapers and Globe Newspaper cases. Whether a challenge to the Texas statute will implicate these constitutional arguments will depend on how the UAV is used, how the law is enforced, and other variables which in the short-term future are anything but certain.

Using UAVs for cost-efficient and technologically superb newsgathering seems inevitable. Equally certain are the potential abuses by irresponsible elements both within and without the government. Paparazzi, stalkers, criminals, or simply those with an unethical agenda will undoubtedly explore these new advances in ways we cannot yet imagine. Technology has once again made our lives both more simple and more complex at the same time. What is needed, as was with the advent of the Marconi radio, is thoughtful consideration of how the very best attributes of UAVs can be harnessed while protecting the public against its abusive use by the government or the public.

The only thing certain is that UAVs will be in our future and at some point the law will have to catch up and adjust itself to this new technology.


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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