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Drone technology outpaces regulation, say legal experts, FAA

Drone technology outpaces regulation, say legal experts, FAA

By John Glynn

A prediction:  By the end of this decade it is estimated that 30,000 unmanned drones will occupy our national airspace.

A fact: To date, there are no federal laws regulating drones in the United States.

The proliferation of these unmanned aircrafts has sparked a national debate on their usage and has brought with them some cutting-edge issues such as commercialization, security and cyber espionage, according to David Z. Bodenheimer, a partner in the law firm of Crowell & Moring LLP in Washington, D.C. Bodenheimer led a panel of experts in a discussion on “The Present Future of Air Space: Emerging Legal Issues of Drones and Commercial Space Travel” on Thursday during the ABA Annual Meeting in Boston. But legal and privacy issues are the two garnering the headlines as drone use becomes more popular and commonplace.

Drones come in all sizes and shapes and are used for everything from defense purposes to crop dusting to filming weddings to surveying the pipeline in Alaska to search and rescue, as was the case in the recent Colorado mudslides.

 “While military attack and government surveillance UAS (unmanned air systems) have captured the public’s fascination, the greater public benefit lies with civil UAS,’’ said panelist Marc Warren, former acting chief counsel for the Federal Aviation Administration.

Unmanned air systems have been in use since the founding of aviation and were first widely used by the United States in Vietnam, panelist Jay McConville of Lockheed Martin Unmanned Integrated Systems, pointed out.

“There will continue to be a robust defense application of UASs,’’ McConville said. “But the commercial civil use of the unmanned aircraft is the ground that is most fertile to explore and bring new capabilities.”

Crucial to the growth in use of unmanned aircraft systems is regulation.

“Right now we have a situation where we have a regulatory and legal breakdown,” said Warren. “The law frankly has not kept pace with innovation and technology in operational application of these UASs.”

In 2007, the FAA issued a national policy that said no person may operate a UAS in the national airspace without its approval. In 2012, Congress passed the FAA Modernization and Reform Act, which mandated the FAA to integrate unmanned aircraft into the national airspace system by Sept.30, 2015.

“The FAA is concerned about safety and is moving methodically to develop rules,” Warren said. ”This is complicated stuff and frankly I don’t think we will see full integration by 2015. “We will see moderate steps, but not full integration.’’

The widening use of drones and the push for federal regulation have created a firestorm over privacy issues.

 “Privacy really is the No.1 concern among all interests when it comes to unmanned aircraft systems,’’ said Hillary B. Farber, professor at the University of Massachusetts School of Law. “You really can’t escape the headlines almost day after day when it comes to UAS and privacy.”

Farber said the small UAS, the ones designed to blend into surroundings and the ones not available to the public, are of most concern.

“They are made to mimic birds and insets and obviously there is a surreptitious quality about them. It is this type of characteristic that has lawmakers, special interests groups and private citizens rather concerned.”

While Congress has been slow to pass legislation regulating UAS, states have responded much more quickly in restricting the scope and use of unmanned aircraft. Since early 2013, 13 states have passed legislation which range from a moratorium on UAS to prohibiting a person from using an unmanned aircraft system without first obtaining a warrant, according to Farber. In 2014, new rules have been introduced in 26 states.

“All but five states have enacted or proposed to regulate UASs,’’ Farber said. “Think about that. In the last two years we have seen just a flurry of activity on the state level with respect to regulating these unmanned aircraft systems. And it’s all been spurred by privacy concerns by lawmakers.”

Panelist Matthew T. Henshon, a founding partner in Henshon Klein LLP in Boston, said the issue of privacy is going to be ever changing because technology is moving so fast. “Privacy is going to continually be redefined both by the courts and, frankly, by industry,” he said.

The three-hour forum, sponsored by the ABA Section of Public Contract Law, also covered the topic of “How the Space Industry Does Business: A Look at Spaceflight, Space Act, and Everything-in-Between Contracts.”

Moderator Giugi Carminati of Houston firm Berg & Androphy led panelists in a discussion of such subject areas as understanding the basics of Space Act Agreements, commercial space transportation capabilities, reimbursable Space Act Agreements, and how can commercial launch providers meet FAA requirements for cross-liability waivers. Carminati was joined on the panel by Chuck Dickey, general counsel for Civil Space Lockheed Martin Space Systems Company; Patricia A. Ewing, vice president and senior counsel of Orbital Sciences Corp., Dulles, Va.; Sabrina Jawed, an attorney of the Space Law Branch in the Office of Chief Counsel of the FAA in Washington, D.C.; and Julie Jiru, contracts officer with SpaceX in Hawthorne, Calif. 

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