May 23, 2016 Articles

What Companies Need to Know about Current and Proposed Drone Laws

As the devices become more prevalent, they often (literally) collide with a world not quite ready for their arrival.

By Amanda Fitzsimmons and Monica D. Scott

Unmanned aircraft systems (UAS), commonly referred to as drones, are an exciting technology that has captured the imagination of everyone from the occasional hobbyist to large corporations using UAS to streamline business operations. However, as UAS become more prevalent in everyday life, they often (literally) collide with a world not quite ready for their arrival. Whether it is a near impact with a commercial jetliner above Los Angeles International Airport, interfering with firefighting operations, or taking down power lines, UAS are currently all over the news. With so much attention, it is no wonder that California legislators have set their sights on regulating UAS. In 2015 and 2016, California legislators introduced over a half a dozen bills seeking to regulate flying UAS over everything from K–12 schools to wildfires to prisons. These bills have met with varying degrees of success.

In this article, we examine the current state of the law regulating UAS in California and the intersection between California and federal UAS law, and we analyze some recently proposed UAS legislation and how it may affect commercial UAS operators.

Current California UAS Laws
Although there are currently few laws specifically aimed at regulating UAS on the books, it is not for the California Legislature’s lack of effort. In 2015, Governor Jerry Brown vetoed several proposed bills, including sweeping legislation that proposed to ban UAS flight within 350 feet of private property. Governor Brown did, however, sign AB 856 into law, which amended Civil Code section 1708.8 and expanded privacy protections to “airspace above the land of another person without permission.”

Originally, Civil Code section 1708.8 prohibited the physical invasion of privacy—that is, when a “person knowingly enter[s] upon the land of another without permission to capture any type of visual image, sound recording or other physical impression of a person engaging in a private, personal, or familial activity in a manner which is offensive to a reasonable person.” Cal. Civ. Code § 1708.8(a) (emphasis added). AB 856 was enacted to close a loophole publicized when pop singer Miley Cyrus filmed a UAS flying over her house and posted the video online: Paparazzi were using UAS to fly over celebrities’ property, including over fences and locked gates, to capture intimate details of their private lives or otherwise spy. AB 856 changed the definition of “physical invasion of privacy” to include the “airspace” above someone else’s property. A person who is found to have physically invaded the “airspace above the land of another person” is liable under the newly amended section 1708.8(a) for up to three times the amount of any general and special damages caused by the invasion, as well as a civil fine of $5,000 to $50,000.

Notably, section 1708.8(j) makes clear that “[i]t is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold.” This is in sharp contrast to other existing privacy laws, such as California Penal Code section 632.7, which prohibits the recording of, as opposed to the mere listening to, conversations without all parties’ consent.

While AB 856 was touted as measure to restrict paparazzi use of UAS, the legislative history could be viewed (and later argued) as suggesting a broader intent. In July 2015, commentary on the bill submitted to the California Senate Judiciary Committee referenced the fact that many mainstream companies in the package and delivery service industries have announced plans in the near future to incorporate the use of UAS into their business offerings. AB 856 Bill Analysis, Senate Judiciary Committee (July 2015) (last visited Apr. 1, 2016). Because section 1708.8 requires that the person trespassing “knowingly enter[] . . . in order to capture any type of visual image, sound, or recording or other physical impression,” companies looking to use UAS in a commercial capacity would likely not fall under the purview of section 1708.8(a). However, companies should be cognizant of section 1708.8(a) as UAS technology evolves and new features are added.

The Intersection of Federal and California Law
Although California is determined to regulate both hobbyist and commercial use of UAS, it is unclear whether and to what extent California has the authority to do so. The commercial use of UAS is technically banned in U.S. airspace under existing Federal Aviation Administration (FAA) rules. However, the FAA has granted a limited number of section 333 exemptions (known in the industry as section 333s). Section 333 exemptions allow companies to operate UAS for a commercial purpose with certain restrictions and only within certain airspace parameters. Nevertheless, California and more than 30 other states have passed legislation that similarly restricts the use of UAS, including UAS being used for commercial purposes. The states’ regulation of UAS gives rise to legal uncertainties for companies seeking to use UAS commercially. For instance, it is very possible that a company that receives a section 333 exemption may be prohibited under a state law from using the UAS in a manner otherwise permitted under its section 333.

One key area of uncertainty for UAS operators, whether commercial or not, arises because of an ambiguity in the law over private versus public “airspace”—an ambiguity that has existed since the Wright brothers invented the airplane. In 1946, the U.S. Supreme Court formalized this ambiguity in United States v. Causby, 328 U.S. 256, by simultaneously finding that “that the airspace is a public highway” and that landowners are entitled to “exclusive control” over the “immediate reaches of the enveloping atmosphere.”

Although the Causby Court declined to delineate a specific boundary between private and public airspace, the federal government has nevertheless declared that it “has exclusive sovereignty of the airspace of the United States,” 49 U.S.C. § 40103(a), and generally regulates the flying of aircraft above 500 feet. See, e.g., 14 C.F.R. § 91.119(b)–(c). This zone of regulation, however, generally depends on the type of aircraft. 14 C.F.R. § 91.119(d). Further complicating things is that the federal government has also defined “navigable airspace” as including “airspace needed to ensure safety in the takeoff and landing of aircraft.” 49 U.S.C. § 40102(a)(32). These different definitions of minimum safe altitudes and navigable airspace matter for existing and future California (and other state) legislation purporting to regulate UAS because Congress has also defined “aircraft” for purposes of FAA regulation extremely broadly as “a device that is used or intended to be used for flight in the air,” 14 C.F.R. § 1.1, which necessarily includes UAS. In addition, in 2012, Congress ordered the FAA to incorporate unmanned aircraft into the national airspace when it passed the FAA Modernization and Reform Act (49 U.S.C. § 40101 et. seq.). Congress’s actions suggest that the Federal government believes its authority to exercise exclusive jurisdiction over the airspace extends to UAS usage in such airspace.

Notwithstanding this long-standing ambiguity, UAS operators may gain some clarity on this issue soon thanks to a case that was recently filed by a UAS operator in the U.S. District Court for the Western District of Kentucky. The case arose after William Merideth, a local Kentucky resident, shot down a UAS hovering over his land. The UAS was owned and operated by John Boggs, a hobbyist, who claimed that he was operating the UAS about 200 feet above ground—an assertion disputed by Merideth. After Kentucky authorities brought charges against Merideth for felony endangerment and criminal mischief, a criminal court judge dismissed the charges, concluding that the UAS had trespassed on Merideth’s property, giving him the right to shoot it down.

On January 4, 2016, Boggs filed suit in Kentucky federal court to recover $1,500 for damage to his UAS. In the complaint, Boggs asserts, among other things, that he was not trespassing on Merideth’s property because the U.S. government has exclusive sovereignty over all airspace, and he requests declaratory judgment that he “was operating an ‘aircraft’ in navigable airspace exclusively controlled by the federal government.” On March 3, 2016, Merideth filed a motion to dismiss arguing, among other things, that the federal court lacks jurisdiction and the action belongs in small claims court. The motion will be fully briefed by mid-April 2016. See Boggs v. Merideth, No. 3:16-cv-6-DJH (W.D. Ky. filed Jan. 4, 2016). Given this gray area, it is perhaps unsurprising that § 1708.8(a) does not specifically define the limit of private versus public “airspace.” Regardless, until this ambiguity is resolved, it is likely to be exploited against companies using UAS for commercial operations, and will certainly continue to be a significant area of uncertainty for such companies.

Proposed California UAS Legislation
Notwithstanding federal preemption issues, there appears to be no slowing California’s efforts to regulate UAS usage. After some recent setbacks late last year when Governor Brown vetoed legislation that restricted the flying of UAS over schools, prisons, and wildfires, California legislators are now, more than ever, determined to be on the cutting edge of regulating this new technology.

Just weeks into 2016, legislators proposed several new UAS bills. One of these bills, AB 1662, or the “Hit-Run” UAS bill, was introduced after news surfaced that an 11-month-old baby was injured when a hobbyist’s UAS crashed on the ground near the baby’s stroller, causing shrapnel to fly into the baby’s head. AB 1662 requires the operator of a UAS involved in an accident resulting in an injury to an individual or damage to property to, among other things, immediately land the UAS at the nearest safe location and provide valid identification. Under the proposed legislation, failure to do so could result in penalties, including misdemeanor charges.

Another recently proposed bill, SB 868, seeks to amend the Public Utilities Code; set limits on the use of UAS near critical infrastructure, such as bridges, power plans, state parks, and wildlife refuges, as well as private property; and require “commercial” UAS operators to maintain insurance. Interestingly, unlike section 1708.8(a), SB 868 sets some specific proposed limits on UAS operation. For instance, UAS are not permitted to operate within 500 feet of “critical infrastructure,” within 1,000 feet of a heliport, and within 5 miles of an airport. But SB 868 does not set specific limits on UAS operation with respect to private property, instead stating ambiguously that a UAS cannot be operated “within the immediate reaches of the enveloping atmosphere.” Under SB 868, a violation would constitute a crime, punishable by a fine of not more than $1,000 or imprisonment of not more than six months. Similar to the legislation vetoed by Governor Brown last year, SB 868 does not require that an individual’s privacy be violated for there to be a violation. SB 868, particularly with respect to private property, appears sweeping in its scope, without any consideration for the legitimate, noninvasive activities, of commercial UAS operators.

Finally, in March 2016, California Assemblyman Mike Gatto introduced AB 2724, also referred to as the Drone Registration/Omnibus Negligence prevention Enactment (DRONE) Act of 2016, which applies to both UAS manufacturers as well as owners. Specifically, AB 2724 requires UAS manufacturers to include a copy of the FAA safety regulations applicable to the UAS with the UAS as well as notification of the FAA’s registration requirement (if the UAS is required to be registered with the FAA). Further, for UAS equipped with GPS, the UAS must also have geofencing technological capabilities prohibiting the UAS from flying within five miles of an airport. AB 2724 requires UAS owners to purchase “adequate” liability insurance, including coverage for bodily injuries, death, and property damage.

Companies looking to implement commercial UAS into their day-to-day business operations, whether in California or elsewhere, should pay close attention to the UAS laws that are already on the books in California and what legislators are proposing in 2016. At least for the foreseeable future, it appears as though California’s legislators will continue their push for sweeping, all-encompassing UAS laws, which may affect commercial UAS operators in unintended ways. Further, ambiguities in the definition of “airspace” may further complicate this new area as the federal government and the FAA continue to prescribe regulations in this area as well.

Keywords: litigation, privacy and data security, drones, regulation

Amanda Fitzsimmons and Monica D. Scott – May 23, 2016