March 01, 2018

Bring on the Drones: Legal and Regulatory Issues in Using Unmanned Aircraft Systems

Thaddeus R. Lightfoot

Commercial uses for drones, also known as unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UASs) abound, particularly in the mining, oil and gas, and infrastructure industries. From handling dangerous inspections to collecting topographical data to monitoring stockpile inventories, UAS can be extraordinarily helpful. However, safety and privacy concerns have hindered widespread commercial UAS use, at least until now. New regulations appear to clear the way for American businesses to benefit from the many commercial uses for UAS.

This article discusses the history and current framework for Federal Aviation Administration (FAA) regulation of UAS operations. The discussion will include section 333 of the FAA Modernization and Reform Act of 2012, the FAA small UAS rules effective August 29, 2016, and additional FAA rulemaking Congress mandated in the FAA Extension, Safety, and Security Act of 2016. It also addresses current and potential future uses of drones in industry as well as legal questions arising from the scope of federal preemption of state laws governing drones.

The Air Commerce Act of 1926, as amended, provides the U.S. government with exclusive sovereignty over the airspace of the lands of the United States. 49 U.S.C. § 40103(a)(1). FAA manages the navigable airspace, which means the airspace above the minimum safe altitudes of flight prescribed by the secretary of commerce. 49 U.S.C. § 40113(a). Such airspace is “a public highway.” United States v. Causby, 328 U.S. 256, 264 (1946). FAA calls this public highway the National Airspace System (NAS), which it defines as the common network of navigable airspace and air navigation facilities, including airports. Mark Edward Peterson, The UAV and the Current and Future Regulatory Construct for Integration into the National Airspace System, 71 J. Air L. & Com. 521, 524 n.11 (2006).

The NAS includes a series of seven altitude classes from Class A to Class G. Each class is denominated by above ground level (AGL) or height above mean sea level (MSL). Class A, the most controlled, is the height at which commercial passenger aircraft operate and is between 18,000 feet and 60,000 feet. Class G is airspace below 60,000 feet AGL not near an airport and uncontrolled by an air traffic control tower. Given the pervasive nature of air traffic control in the United States, Class G airspace typically is below 1,200 feet AGL. Timothy T. Takashi, Rise of the Drones—The Need for Comprehensive Federal Regulation of Robot Aircraft, 8 Alb. Gov’t L. Rev. 63, 74–77 (2015). This is the airspace in which UAVs operate; most commercial UAVs operate at an altitude below 500 feet. Hillary B. Farber, Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones, 33 Ga. St. U.L. Rev. 359, 384 (2017).

FAA strictly regulates aircraft operations in the NAS. All aircraft operations in the NAS require a certified and registered aircraft, a licensed pilot, and operational approval. Unmanned Aircraft Systems in the National Airspace System, 72 Fed. Reg. 6689, 6690 (Feb. 13, 2007). UAS meet FAA’s broad definition of “aircraft,” which includes “any contrivance invented, used, or designated to navigate, or fly in, the air.” 49 U.S.C. § 40102. Therefore, absent congressional action or regulatory relief, UAS are aircraft that operate in the NAS. Indeed, before 2012, FAA considered all UAS to be civil aircraft, and all federal aviation regulations applied to UAS operations in the NAS without regard to the size of the UAS or the altitude at which it is flying. 72 Fed. Reg. at 6690.

There have been recent statutory and regulatory developments regarding FAA authority over hobby or model aircraft and UAVs. Historically, FAA did not apply its general aircraft registration statute to model aircraft. In 2007, FAA began to distinguish between “commercial” unmanned aircraft and “recreational” unmanned aircraft. FAA declared that commercial unmanned aircraft operations in the NAS were subject to mandatory FAA regulations but that the regulations were voluntary with respect to recreational (or model) aircraft. Id.

Congress passed the FAA Modernization and Reform Act of 2012 (the 2012 Act) in response to the perceived need for additional statutory clarity. Section 336 of that Act provides FAA may not promulgate any rule or regulation regarding model aircraft, which the statute defines as an unmanned aircraft “flown for hobby or recreational purposes.” Pub. L. No. 112-95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101). However, in December 2015, just in time for Christmas, FAA issued a final rule requiring owners of all unmanned aircraft, including model or hobby aircraft, to register with FAA. Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The rule required all hobby unmanned aircraft owners to obtain and display on the aircraft a unique identification number that FAA would issue for a nominal $5 registration fee. Hobby aircraft owners failing to register faced civil or criminal monetary penalties and up to three years’ imprisonment. Id. at 78,595–96, 78,630. A hobby aircraft owner challenged the FAA regulation, arguing that section 336 of the 2012 Act barred the registration rule. The United States Court of Appeals for the District of Columbia agreed, holding section 336 rendered FAA’s registration rule unlawful as applied to model or hobby aircraft. Taylor v. Huerta, 856 F.3d 1089, 1094 (D.C. Cir. 2017).

The FAA Modernization Act and Reform Act of 2012, FAA Enforcement, and the Small UAS Rule

Section 336 of the 2012 Act exempts from FAA regulation all model or hobby aircraft weighing not more than 55 pounds and flown strictly for hobby or recreational use, so long as the model aircraft is not flown within 5 miles of an airport. Pub. L. No. 112-95, § 336(a), 126 Stat. 11, 77 (2012). But FAA interprets the hobby exemption narrowly and considers any flight of an aircraft, including a UAS, for a direct or indirect benefit, to be a commercial use. 72 Fed Reg. at 6690. To address commercial uses, section 333 of the 2012 Act directed FAA to set expedited operational authorization requirements for UAS operations in the NAS and to undertake a rulemaking allowing commercial small UAS operations. Pub. L. No. 112-95, § 333, 126 Stat. 11, 75 (2012). But the operational authorization requirements are not always straightforward.

FAA’s processes for issuing airworthiness certificates—a determination of an aircraft’s suitability for safe flight and requirement for all aircraft operating in the NAS—were designed for manned aircraft. See Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064, 42,069 (June 28, 2016) (summarizing historical airworthiness certificate process). In 2014, FAA established a process allowing commercial UASs to operate after obtaining a section 333 exemption from an aircraft airworthiness certificate. But the section 333 exemption process is complex, requiring a multipage application that details operations including the size, weight, speed, and operational capacity of the UAV, as well as proximity of the UAV operations to airports and populated areas. The application also requires a showing that the operation is in the public interest. And the pilot of the UAS must hold the same FAA credentials as those necessary to pilot a manned aircraft, including an airman’s certification and the appropriate medical certificate. Id. at 42069–70. There were also substantial delays as FAA processed petitions for section 333 exemptions.

Given the complexity of the regulatory exemption process, some companies chose to fly UASs without first complying with section 333, risking significant consequences. In the most noteworthy enforcement action, Huerta v. SkyPan International, FAA alleged an aerial photography firm flew more than 60 flights in Class B airspace in Chicago and New York City from 2012 to 2014, near high-rise buildings and over heavily populated areas, without a section 333 exemption. FAA proposed a fine of $1.9 million, the largest ever sought. The case settled in January 2017 for $200,000. Before SkyPan, the largest commercial fine was $18,700. Darlene Ricker, Taking Flight, ABA J., July 2017, at 58–60.

The risks of flying without an exemption do not appear limited to purely commercial activities. In August 2015, a Minnesota man used his UAS to take aerial photographs of a “human chain” of persons protesting the killing of Cecil the Lion by a Bloomington, Minnesota, dentist. FAA apparently warned the event organizer by letter before the event took place, explaining that the flight might constitute a “commercial” rather than “recreational” or hobby use. Although the UAS operator had unanswered questions regarding the scope of the FAA warning, he flew his UAS and took aerial photographs of the protest. Even though he did not charge for his services and offered the photographs to local media outlets free of charge, FAA proposed a fine of $55,000 for flying the drone for a commercial purpose without a section 333 exemption. Mike Mullen, Is “Cecil the Lion” Photo Worth $55,000, City Pages (June 13, 2016), www.citypages.com/news/is-this-cecil-the-lion-drone-photo-worth-55000-8351165.

In addition to establishing the aircraft airworthiness certificate exemption, section 333 of the 2012 Act directed the secretary of transportation to determine whether certain UASs may operate safely within the NAS. Under this authority, in June 2016 the FAA promulgated regulations for nonhobbyist use of small unmanned aircraft systems (sUAS). 81 Fed. Reg. at 42,064. The regulations—codified at Part 107 of Chapter 14 of the Code of Federal Regulations, which took effect on August 29, 2016—define an sUAS as having a gross weight of 55 pounds or less at takeoff, including all accessories or attachments. 14 C.F.R. § 107.3. They reflect a major milestone in that the regulations allow operators greater flexibility to use sUAS for routine activities without requiring case-by-case prior review and approval by FAA and enable operators to approach FAA on a case-by-case basis to relax or remove certain Part 107 restrictions on the operation of sUAS.

The Part 107 regulations establish a much less complex regulatory framework allowing for routine commercial use of certain sUAS today, while maintaining flexibility to accommodate future technological innovations. The regulations create a new type of pilot, known as the remote pilot in command. 14 C.F.R. § 107.19. All operations of UAS under Part 107 must be by a person holding a remote pilot in command certificate or by a person under the direct supervision of another person holding such a certificate. 14 C.F.R. § 107.12. To obtain the certificate, a person must pass an aeronautical knowledge test at an FAA-approved knowledge testing center, undergo a vetting process with the U.S. Transportation Security Administration, and be at least 16 years old. 14 C.F.R. § 107.61. Once issued, a remote pilot in command certificate is valid for 24 months. 14 C.F.R. § 107.64.

Part 107 of the regulations also includes numerous requirements for safe sUAS operation. They authorize sUAS to carry cameras, probes, payload, cargo, and other accessories and attachments if they do not impair flight. Id. All flights must be conducted within the unaided visual line of sight of the remote pilot in command, and each pilot in command may control only one drone at a time. 14 C.F.R. §§ 107.31, 107.35. Minimum weather visibility must be three miles from the control station, and the sUAS must stay at least 500 feet below and at least 2,000 feet horizontally from any cloud. 14 C.F.R. §§ 107.29, 107.51. Part 107 authorizes flights only during daylight hours. 14 C.F.R. § 107.29. However, if the sUAS is carrying anticollision lighting it may also operate during “civil twilight,” which is 30 minutes before official sunrise and 30 minutes after official sunset. Id. The maximum altitude of the sUAS flight is 400 feet; if a structure is taller than 400 feet, the sUAS may only fly within 400 feet of the top of the structure. 14 C.F.R. § 107.51. Maximum ground speed is 87 knots or 100 miles per hour. Id. Part 107 prohibits the use of an sUAS to carry another’s property for compensation. 14 C.F.R. § 107.205.

Under Part 107, sUAS may fly only in certain classes of the NAS. 14 C.F.R. § 107.41. Typically, sUAS operations will occur in Class G airspace and usually below an altitude of 700 feet AGL in airspace not near an airport and not under the control of an air traffic control tower. Operations in Class B, C, D, and E airspace—typically at altitudes above 700 feet AGL and near an airport—require permission from air traffic control. Id. There are several additional important Part 107 operational limits, including a prohibition on sUAS operating over persons other than the remote pilot in command unless they are protected by structures with roofs. 14 C.F.R. § 107.39.

FAA has the authority to waive certain Part 107 restrictions if an operator files a waiver petition. 14 C.F.R. § 107.205. Waiver of certain restrictions under Part 107 may authorize: nighttime operations; operations from a moving vehicle or aircraft; operations beyond visual line of sight; operations over persons other than the remote pilot in command; and operations otherwise restricted by airspace, groundspeed, altitude, minimum visibility, and distance from clouds. Id. As of this writing, FAA has granted nearly 1,200 waivers of Part 107 restrictions. Most of FAA’s waivers authorize night flights, but many also allow flights beyond the visual line of sight of the remote pilot in command. www.faa.gov/uas/request_waiver/waivers_granted. Almost all the waivers have been in Class G airspace and not near airports. Successful waiver applications under Part 107 share certain characteristics. Typically, the applications are customized and contain specific details, including exact flight dates and flight locations.

The Part 107 rules and waiver process have largely supplanted but not replaced the section 333 exemption process. Certain restrictions, including the 55-pound weight limit and the ban on carrying hazardous materials, are not subject to waiver under Part 107. If an operator seeks to fly a drone weighing more than 55 pounds or carrying hazardous materials, the flight must be covered by a section 333 exemption.

UAS and Infrastructure

Applications of UAS in the oil and gas, mining, and infrastructure industries are limitless. Congress has already recognized that potential. Shortly after FAA promulgated the final Part 107 regulations in June 2016, Congress approved the FAA Extension, Safety, and Security Act of 2016. Pub. L. No. 114-190, 130 Stat. 615 (2016) (2016 Extension). The 2016 Extension directs FAA to consider operator requests to operate UAS beyond visual line of sight and at night for work related to pipeline systems and critical infrastructure facilities. Id. at § 2210, 130 Stat. 635–36. The authorized work can be related to construction of new pipelines or maintenance of existing pipeline systems. Id. The 2016 Extension also authorizes UAS operations beyond visual line of sight or at night to build, inspect, or repair oil and gas production, refining, or processing facilities or to evaluate natural or manmade disasters that may have caused damage to pipelines, oil and gas facilities, electric generating or transmission facilities, and other critical infrastructure. Id.

Oil and gas operations also are beginning to evaluate the use of UAS for air emissions monitoring and leak detection. Currently, companies typically undertake methane leak detection in the hydraulic fracturing process and in oil and gas production infrastructure by attaching high-tech sensors—such as infrared, light detection and ranging (LIDAR), or multihyperspectral—to vehicles and helicopters. Lucas Satterlee, Climate Drones, The Envtl. F., July-Aug. 2017, at 44–45. But UAS fitted with such sensors may be capable of performing similar functions without risks to vehicle operators or pilots and at a lower cost. Id.

Mining operations are particularly suited to UASs because mines tend to be remote, far from airports and population centers. Many mining inspections may pose significant hazards to human inspectors. UAS could handle dangerous inspections, collect topographical data, and monitor stockpile inventories. They also could accurately map mineral exploration, develop accurate terrain models, and use multispectral imagery to evaluate the nature and extent of different ore bodies with different spectral signatures. See Propeller Aero, Six Smart Ways Mining and Aggregate Businesses Are Using Drones (July 6, 2017), www.propelleraero.com/blog/six-ways-mining-and-aggregates-businesses-use-drones.

The reverse of using UAS to assist oil and gas, mining, and other companies with critical infrastructure is to protect critical infrastructure from interference or damage by errant drones. Congress recognized the concern in the 2016 Extension. The statute directs FAA to establish a process under which owners of or operators for a “fixed site facility” could prohibit or restrict UAS operations. 2016 Extension, § 2209, 130 Stat. 634–35. One of the congressional goals in the statute was to protect “fixed site facilities” from potential terrorist attacks. Fixed site facilities are “(1) critical infrastructure, such as energy production, transmission, and distribution facilities and equipment; (2) oil refineries and chemical facilities; (3) amusement parks; and (4) other locations that warrant such restrictions.” Id. Effective April 14, 2017, using its authority for “special security instructions” under 14 C.F.R. § 99.7, FAA also has prohibited UAS flights over 133 military facilities nationwide. www.faa.gov/news/updates/?newsId=87865. And there are special restrictions on the use of UAS within the 30-mile radius of the Washington National Airport-Special Flight Rules Area. www.faa.gov/uas/where_to_fly/no_drone_zone.

Federal Preemption and State Regulation

An open question regarding UAS regulation is the extent to which federal law preempts state and local laws governing UAS use. Congress granted FAA the statutory authority to regulate all aspects of air safety and aircraft in flight. 49 U.S.C. §§ 40103, 44502, and 44701–35. As the Supreme Court explained, “Planes do not wander about the sky like vagrant clouds. They move only by federal permission . . . [an aircraft’s] privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government.” Northwest Airlines v. State of Minnesota, 322 U.S. 292, 303 (1944) (Jackson, R., concurring). Because federal regulation of aviation is pervasive, federal courts frequently invalidate local attempts to regulate aircraft, holding federal law preempts such local regulation. See, e.g., City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 639 (1973) (invalidating local ordinance placing curfew on jet flights because such municipal ordinances would “severely limit the flexibility of FAA in controlling air traffic flow.”); Montalvo v. Spirit Airlines, 508 F.3d 464, 473–74 (9th Cir. 2007) (holding “federal law occupies the entire field of aviation safety” and preempts any state regulation attempting to reach into the navigable airspace).

Many commenters on the Part 107 sUAS rule urged FAA to include a preemption provision in the rule. 81 Fed. Reg. at 42,194. FAA declined, instead referring to a December 2015 memorandum from FAA’s Office of Chief Counsel discussing preemption. Id. According to the FAA memorandum, state and local government police power is not subject to federal regulation. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec. 17, 2015, at 3. However, the FAA memorandum notes that federal courts carefully scrutinize state and local regulation of aircraft overflight. Id. at 2. The memorandum warns of a “patchwork quilt” of “differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient traffic flow.” Id.

But states and municipalities are regulating UAS operations. More than 20 states approved drone laws in 2015, as have major cities such as Chicago, Los Angeles, Miami, and Santa Clara. Michael N. Widener, Local Regulation of Drone Activity in Lower Airspace, 22 B.U. J. Sci. & Tech L. 239, 241 (2016). In 2017, 38 states considered UAS bills, and 17 states passed legislation. www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx. In general, these legislative enactments impose restrictions on overflight areas and control the use of UAS that may invade privacy. Widener, 22 B.U. J. Sci. & Tech L., supra at 241.

In a case of first impression, a federal district court recently held federal law preempts certain provisions of a city ordinance that attempted to regulate UAV operations. The case involves an ordinance enacted by the City of Newtown, Massachusetts, and challenged by an FAA-certified sUAS pilot who owns and operates multiple UAVs for commercial purposes in the city. Singer v. City of Newton, No. 7-10071-WGY (D. Mass. filed Sept. 21, 2017). The ordinance applies to “pilotless aircraft,” which it defines as “an unmanned, powered aerial vehicle, weighing less than 55 pounds, that is operated without direct human contact from within or on the aircraft.” Id. at 4. Violations of the ordinance are punishable by a fine of $50 following a one-time warning. Id. at 5. According to the court, federal law preempted four provisions of the ordinance that the plaintiff challenged: (1) a requirement that owners register all pilotless aircraft with the City of Newton; (2) a ban on operation of pilotless aircraft below an altitude of 400 feet over private property without the express permission of the property owner; (3) a ban on operation of pilotless aircraft at any altitude over public property without prior permission of the City of Newtown; and (4) a ban on operations of pilotless aircraft beyond the visual line of sight of the operator. Id. at 10–16. The court let stand the remaining provisions of the ordinance because the plaintiff did not challenge those. Id. at 16. Among the unchallenged provisions were a ban on operations of pilotless aircraft in “a manner that interferes with any manned aircraft” or to “conduct surveillance or invade any place where a person has a reasonable expectation of privacy.” Id. at 5.

At least one municipality considered and rejected a UAS ban in the wake of possible federal preemption. City leaders in Andover, Minnesota, recently contemplated a UAS ban after reading stories of “camera drones hovering creepily outside bedroom windows or buzzing around wildfires in swarms so thick it made it hard for bucket planes to reach their targets.” Jennifer Brooks, Drones Deliver New Legal Questions, Mpls. Star-Tribune, June 25, 2017, at A7. But upon reviewing preemption issues, the city administrator “found out how little control we have” and decided not to pursue a UAS ban. Id.

Some in Congress are attempting to draw a legislative line between where FAA control of the NAS ends and local control begins. FAA has been subject to criticism that it is attempting to assert NAS jurisdiction “from the top of blades of grass to infinity.” Widener, 22 B.U. J. Sci. & Tech L., supra at 240. In Causby, the Supreme Court rejected the doctrine of cujus est solum ejus est usque ad coelum, that a property owner’s estate extends from the depths of the earth to “the periphery of the universe.” United States v. Causby, 328 U.S. 256, 260–61 (1946). Causby held low overflights that disrupted a chicken farm—as low as 83 feet above the property—could constitute a taking under the Fifth Amendment if an aircraft invades the “immediate reaches above the land” at “such a low altitude as to interfere with the then existing use” of the land by the owner. Id. at 266 (citation omitted). Airspace “apart from immediate reaches above the land” is part of the public domain and an aircraft’s use of such airspace is “normally not compensable under the Fifth Amendment.” Id. at 266. The Court declined to set “precise limits” for airspace in the public domain, declaring instead that “[f]lights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” Id.

Now several members of Congress are supporting legislation that would allow state, local, and tribal governments to draw the precise limits that Causby declined to set. Proposed legislation would limit FAA regulation of UAS operations to an altitude of greater than 200 feet and allow state and local governments to regulate UASs flying at below 200 feet. Brooks, Mpls. Star-Tribune, June 25, 2017, supra at A1. But Congress is merely considering such legislation and has yet to pass any precise limit to FAA regulation of UAS operations.

Unless Congress changes the law, it appears that the scope of federal aviation preemption will remain broad. Where congressional regulation “occupies an entire field,” as it appears to in aviation, “even complementary state regulation is impermissible.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2502 (2012). Accordingly, federal law likely would preempt state or local laws addressing operational UAS restrictions on flight altitude or flight paths; outright flight bans; regulation of navigable airspace; and mandated UAS equipment, certification, registration, or training beyond federal requirements. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign Int’l v. City & County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002). However, laws traditionally related to local police power, such as land use, zoning, privacy, trespass, and law enforcement operations, generally are not subject to federal preemption. Skysign Int’l, 276 F.3d at 1115. State and local governments appear to be on solid ground if they attempt to regulate UAS operations based upon considerations of land use, zoning, privacy, trespass, and law enforcement. Acceptable constraints might include requiring police to obtain a warrant before using a UAS for surveillance or prohibiting certain UAS uses, such as for voyeurism, hunting or fishing, or carrying weapons. FAA Office of the Chief Counsel, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Dec. 17, 2015, at 3.

UAS Use by Enforcement Agencies

Federal agencies such as the U.S. Environmental Protection Agency (EPA) are beginning to use UAS in regulatory inspections. Lucas Satterlee, Climate Drones, The Envtl. F., July–Aug. 2017, at 48–49. FAA regulates UAS operations by the government in the NAS, allowing regulatory agencies to take advantage of the Part 107 rules. FAA, Unmanned Aircraft System Frequently Asked Questions (June 11, 2107), www.faa.gov/uas/faqs/#fwb. UAS operations by enforcement agencies enable extensive, relatively low-cost surveillance of regulated facilities. Satterlee, Climate Drones at 48–49. EPA typically obtains administrative warrants before carrying out aircraft overflights for compliance monitoring and enforcement inspections because obtaining an administrative warrant requires a lesser showing than criminal probable cause. William H. Rodgers Jr., Rodgers’ Environmental Law § 3:34, Enforcement—Recordkeeping, Inspections, Monitoring and Entry (2015). To obtain an administrative warrant, EPA need only establish administrative probable cause, which is a reasonableness test based on specific evidence of a violation or a showing that reasonable legislative or administrative standards for conducting an inspection exist. Camara v. Mun. Court of San Francisco, 387 U.S. 523, 538 (1967). One commentator recently opined that if EPA adopts UASs for aerial surveillance, “there should be very little practical concern under the Fourth Amendment as long as EPA sticks to its policy of obtaining a warrant.” Satterlee, Climate Drones at 49.

UAS searches without a warrant may be another matter. In Dow Chemical Co. v. United States, 476 U.S. 227, 231 (1986), the United States Supreme Court allowed EPA to conduct an aerial inspection of a facility without a warrant. The Court did so because the photographs EPA took were “essentially like those commonly used in mapmaking” and any person “with an airplane and an aerial camera could readily duplicate them.” Id. Therefore, the facility EPA photographed had no reasonable expectation of privacy. But what if EPA is flying a UAS equipped with sensitive equipment unavailable to the public, such as a sophisticated methane sensor? Does that warrantless flight violate the Fourth Amendment? It may matter whether the flight takes place next month or in the next few years. By the end of this decade, UAS with extremely high-resolution cameras and other sophisticated technology may be available to the general public. Hilary B. Farber, Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment, 64 Syracuse U. L. Rev. 1, 22–23 (2014). The increased availability of high-end UAS sensors could undermine a regulated party’s claim of a reasonable expectation of privacy.

UAS operations in the United States are ready to take off. FAA’s Part 107 regulations offer greater flexibility for UAS operations, opening the way for many more potential users to employ UAS to substitute for dangerous and costly inspections of infrastructure in the mining and oil and gas industries. The Part 107 procedures for obtaining a remote pilot in command certificate make the credential more accessible. Persons holding the certificate may fly a small UAS without obtaining additional approvals if operations follow the Part 107 regulations. However, the Part 107 regulations do not supplant other FAA requirements. Parties interested in flying UAS missions should investigate and comply with federal, state, and local requirements for operations.

Thaddeus R. Lightfoot

Mr. Lightfoot is a partner in the regulatory affairs group at Dorsey & Whitney LLP in Minneapolis, Minnesota, and may be reached at lightfoot.thad@dorsey.com.