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The rise of the drones: Experts discuss legal implications of UAVs in civilian airspace

The rise of the drones: Experts discuss legal implications of UAVs in civilian airspace

By John Glynn

Its many names may sound intimidating — drones, unmanned aircraft systems, unmanned aerial vehicles — but the public should get used to this technology, because it’s not going anywhere.

“When you hear the word drone, you probably think of a large military weaponized system — something that’s capable of persistent surveillance. That’s just not what we are talking about,” said Ben Gielow, government relations manager and general counsel at the Association for Unmanned Vehicle Systems International in Arlington, Va.As the aviation industry increasingly embraces drones, their commercial and civilian use will become more and more common in the next few years, according to a panel of experts at a recent American Bar Association conference on aviation and space law.

Unmanned aircraft come in all shapes and sizes, have thousands of uses and can be purchased by your average person, said moderator Raymond L. Mariani of Murray, Morin & Herman.

“This is the biggest area that is exploding in aviation now,” he said. “They are everywhere. They are becoming cheaper and cheaper.”

Mariani listed several examples of how drones are being used for commercial and civilian purposes. A team at the Harvard-MIT Division of Health Sciences and Technology recently received a grant from the Bill and Melinda Gates Foundation to develop drones to deliver vaccines and medicines to remote locations and disaster zones. People for the Ethical Treatment of Animals has said it plans to use drones to watch for illegal activity among hunters. And a Domino’s franchise in the United Kingdom recently made news for delivering two pizzas using a drone.

“They are flying this pizza over the English countryside for a delivery,” Mariani said. “Something like that may become very real before you know it.”

However, the Federal Aviation Administration has yet to develop regulations for the commercial use of drones in the U.S. While the FAA allows the recreational use of airspace by model aircraft — though it generally limits operations to below 400 feet above ground level and away from airports and air traffic — the agency specifically excludes individuals or companies flying these aircraft for business purposes.

“The FAA makes a determination between model aircraft and unmanned aircraft based on the use or the intent,” Gielow said. “If you have a smile on your face and you’re flying, you are probably a hobbyist. Therefore, the FAA rules do not apply to you. If you do not have a smile on your face and you are using it as a tool to do something, to gather some sort of data, chances are you are an unmanned aircraft system.”

The FAA Modernization and Reform Act, passed by Congress on Feb. 14, 2012, requires the agency to integrate unmanned aircraft into the national airspace system. The law gives the FAA specific deadlines to meet, including the crucial date of Sept. 30, 2015, by which time the FAA must allow for “the safe integration” of drones into the national airspace system.

While two drones have recently gained FAA certification for commercial use, the rest of the sector is stuck on the ground as the FAA works out its plans for integration.

“It will be baby steps,” Gielow said of the process. “This will not be a light switch that flips on.”

Panelist Paul McDuffee, associate vice president of government relations and strategy at Insitu Inc., a subsidiary of Boeing Co., brought a sample drone to show the audience — the ScanEagle model, one of the two drones that the FAA approved for commercial use.

“We are in the midst of operating for the very first time unmanned systems in a commercial environment — a legal commercial environment,” he said. “We are not talking about the hobbyists or those who are outside the regulations, doing whatever they think is appropriate.”

McDuffee, who is responsible for driving his company’s future in the civilian and commercial use of unmanned aircraft systems, said the technological, regulatory, economic and public perception issues need to be resolved for the commercial use of drones to become routine.

“There’s lots of research going on — DOD, NASA, FAA, academia — trying to solve the myriad of issues that still lie in front of us for us to operate these things responsibly and legally in the national airspace,” he said.

However, the passage of the FAA legislation to integrate drones started an uproar about privacy and safety concerns. “You insert the word drone and everyone freaks out,” Gielow said.

At least 12 bills aimed at restricting the use of drones have been introduced in Congress this year, he noted. “A lot of them are focused on privacy issues,” he said. “Does the government have the right to use this new tool to gather evidence against you?”

Mariani called this the “eye in the sky” issue that people worry about — the fear that they are being photographed from drones.

“How many people in here have been filmed by an unmanned aerial vehicle?” asked panelist Ladd Sanger, managing partner of Slack & Davis LLP’s Dallas office.

“Everybody has. Because this entire presentation is being filmed by an unmanned aerial vehicle,” he said, as the sample drone he brought flew into the air for the audience to see. He then crashed it into the floor.

The panelists all agreed that crashes will sometimes happen, regardless of whether the drone’s operator is properly trained.

Mariani listed several recent incidents: In July, an Air Force drone crashed on a remote Florida highway.

On Sept. 5, a 19-year-old New York man operating a model helicopter was killed when it hit him in the head. And on Oct. 3, a small helicopter drone crashed on a Manhattan sidewalk when someone attempted to operate it from a high-rise apartment terrace.

“They are going to crash, as you’ve seen, and people are going to get injured. So where’s the insurance policy?” Sanger asked. Most homeowners’ insurance and commercial liability policies include an aviation exception, he said, questioning whether drones are covered under this exception.

Sanger also raised questions about what the technology standards would be for drones. Should they have certain safety requirements — parachutes so they don’t come crashing to the ground or sensors that shut down the drones when they comes to close to objects.

“I submit that it’s going to be a pretty fertile ground because I think a creative plaintiff’s lawyer is going to come up with a system that should have been in it,” he said.

As this industry develops, McDuffee said he wants to “stamp out ignorance” about drones.

“There are so many myths surrounding the unmanned system world — what we are, what we aren’t,” he said. “Are we professionals? Or are we nothing but a bunch of cowboys — amateurs trying to operate in manned aircraft world with experimental airplanes? We are far from that.”

Gielow shares McDuffee’s goal of changing the perception of drones.

“We’re trying to educate decision-makers and the public about what these aircraft are, how they can be beneficial, acknowledge the challenges that we have and hopefully find a way forward,” Gielow said, “because it would be such a shame if we stifle this industry that has such great promise before it’s even allowed to take off.”

The panel, “The Rise of the Drones: The Anticipated Proliferation of Unmanned Aerial Vehicles in Controlled Civilian Airspace,” took place during the ABA Tort Trial and Insurance Practice Section’s Beyond the Horizon: What’s Next in Aviation and Space Law Litigation conference.

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