In the Aftermath of Pirker: Questions of Policy Versus Law on Unmanned Aerial Systems (UAS)

By: Sarah J. Nilsson, JD, PhD, MASAssistant Professor of Aviation Law and Regulations

College of AviationEmbry-Riddle Aeronautical University

3700 Willow Creek RoadPrescott, Arizona 86301sarah.nilsson@erau.edu

Abstract

The regulatory versus policy landscape for unmanned aerial system (UAS) users in the United States (US), as of September 2015, is not an easy one to navigate. The entire country is buzzing with the sight and sound of this new technology, not just in terms of engine noise but more so in terms of the public outcry to the invasion of privacy. The federal government is currently drafting laws that will safely integrate these systems within the National Airspace System (NAS). Concurrently, at least 30 states, unable to wait patiently in the sidelines for such legislation, have implemented their own statutes to address these issues. Meanwhile, the judiciary has set precedent with the Pirker case, leaving more questions unanswered than were answered in the proceedings. Federal Aviation Administration (FAA) officials have issued guidelines and policies to bridge the gap in the law, while trying to educate many private users who are not aviators.

Keywords: Unmanned Aerial Systems, Pirker, Law, Policy, Federal Aviation Administration, Model Aircraft, Regulatory Exemption, Certificate of Waiver or Authorization, Experimental Certificates, Section 333 Exemptions

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In the Aftermath of Pirker: Questions of Policy Versus Law on Unmanned Aerial Systems (UAS)

Introduction

Unmanned aircraft are flying in the National Airspace System (NAS) under very controlled conditions, anywhere from the surface up to above 50,000 feet (FAA, 2015a). Currently unmanned aerial systems (UAS) operations in Class B airspace (over major urban areas and high density air traffic airports) are unauthorized (FAA, 2015a). Yet, in just one year pilot reports of UAS have increased from a total of 238 sightings in all twelve months of 2014, to more than 650 as of August 9, 2015 (FAA, 2015a).

Meanwhile firefighters battling wildfire blazes in the western part of the country have been forced to ground their operations on several occasions for safety reasons when they spotted one or more unmanned aircraft in their immediate vicinity (FAA, 2015a).

In January of this year, CNN news reported that a smuggler’s UAS flying from Mexico had crash-landed just south of the US border of San Ysidro, California in a failed drug delivery (Valencia and Martinez, 2015). Apparently the smugglers’ greed was their undoing as they loaded the UAS with more than six pounds of the synthetic drug crystal meth, exceeding the load capacity of the six-propeller Spreading Wings S900 model (Valencia and Martinez, 2015).

In addition to these issues, the public outcry over the invasion of privacy is loud enough to be heard from space. And the lack of federal regulation has led to conflicting policies and sometimes diametrically opposed laws from state to state. To illustrate this point, one must first familiarize oneself with the precedent created by the Pirker case, and next the policies, not yet laws, emanating from the Federal Aviation Administration (FAA) which have led to the creation of state laws to fill the void left by, as yet unwritten, federal ones.

The Pirker Case

On or about October 17, 2011, a Swiss national, Raphael Pirker, flew his Ritewing Zephyr powered glider aircraft in the vicinity of the University of Virginia, Charlottesville, Virginia for monetary compensation from Lewis Communications for video and photographs taken during that flight (Administrator v. Pirker, 2014a). A few months later, on April 13, 2012, the FAA advised him through a Notice of Proposed Assessment that he was to receive a civil penalty amounting to $10,000 pursuant to 49 USC §§ 46301(a)(1) and (d)(2) and 46301(a)(5) (Administrator v. Pirker, 2014a).

The FAA alleged that Pirker was the pilot in command of the Ritewing Zephyr powered glider, or UAS as they classified it, although he did not possess a pilot certificate issued by the FAA. Furthermore, Pirker was alleged to have deliberately operated the UAS at extremely low altitudes over vehicles, buildings, people, streets,

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and structures. More specifically, Pirker allegedly operated the UAS at altitudes of approximately 10 feet to approximately 1,500 feet over the University of Virginia in a careless or reckless manner so as to endanger the life or property of another in violation of 14 CFR § 91.13 (FAA, 2015b). Additionally, Pirker was alleged to have operated the UAS directly towards an individual standing on the sidewalk causing the individual to take immediate and evasive maneuvers so as to avoid being struck by the UAS. Among other allegations, Pirker operated the UAS within approximately 100 feet of an active heliport at the University (Administrator v. Pirker, 2014a).

Upon receipt of the FAA’s Notice of Proposed Assessment, Pirker retained an attorney from the firm of Kramer, Levin, Naftalis & Frankel, LLP and appealed to the National Transportation Safety Board (NTSB) Administrative Law Judge (ALJ) (Administrator v. Pirker, 2014a). On March 6, 2014, the opinion came down from Judge Patrick G. Geraghty, that Pirker’s motion to dismiss should be granted and the Order of Assessment be dismissed. The reason was simply because his UAS was not an “aircraft” but instead a model aircraft subject only to the voluntary compliance with safety guidelines stated in Advisory Circular 91-57 (FAA, 1981). Additionally, Judge Geraghty was of the opinion that the Policy Notices 05-01 and 08-01 were issued and intended for internal guidance for FAA personnel and were not a jurisdictional basis for asserting 14 CFR § 91 enforcement authority on model aircraft operations (FAA, 2005, 2008). Neither did Policy Notice 07-01 establish a jurisdictional basis for asserting 14 CFR § 91.13 enforcement on Pirker’s model aircraft operation (FAA, 2007). More importantly, out of this ruling came this statement: “Specifically, that at the time of Respondent’s model aircraft operation, as alleged herein, there was no enforceable FAA rule or FAR Regulation [sic] applicable to model aircraft or for classifying model aircraft as an UAS” (Administrator v. Pirker, 2014a, p. 8).

Naturally, the FAA attorneys were displeased at Judge Geraghty’s ruling and appealed, this time as procedure in an enforcement action dictates, to the full board of the NTSB (Administrator v. Pirker, 2014b). On November 18, 2014, the full board ruled that the term “aircraft” for the purposes of 14 CFR § 91.13 means “any device used for flight in the air” and therefore includes any aircraft, manned or unmanned, large or small, thereby including Pirker’s Ritewing Zephyr powered glider (Administrator v. Pirker, 2014b). Pirker’s case was thus remanded to the ALJ for a full factual hearing to determine whether he had operated his UAS in a careless or reckless manner so as to endanger the life or property of another, contrary to 14 CFR § 91.13 (Administrator v. Pirker, 2014b).

On January 22, 2015 Pirker announced that rather than go to trial once again, he would settle the charges with the FAA for $1,100, which was a fraction of the original $10,000 penalty (Aviation International News, 2015). The two-page settlement agreement signed by both Pirker’s attorney and the FAA’s supervisory attorney stated that Pirker did not admit to any allegation of fact or law contained in the FAA’s assessment order and that he settled to avoid the expense of litigation (Aviation International News, 2015).

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Current UAS FAA Policy

After Judge Geraghty, in March 2014, ruled in favor of Pirker, stating that his Ritewing Zephyr was a model aircraft, but before the full NTSB board overturned that decision in November 2014, stating that his Ritewing Zephyr was indeed a UAS, the FAA in June 2014 issued a press release that offered guidance to model aircraft operators (FAA, 2014a). In this release the FAA attempted to issue an interpretation of the 2012 Modernization and Reform Act and restated its authority to take enforcement action against hazardous operations (FAA, 2014a). When the FAA Modernization and Reform Act was signed into law in 2012, Section 333 of this Act granted authority to the FAA to establish an interim policy that bridges the gap between the current state and National Airspace System (NAS) operations as they will be once the small UAS rule is finalized. Current FAA policy is based on whether the unmanned aircraft is used as a public aircraft, civil aircraft, or as a model aircraft (FAA, 2014b).

Current UAS FAA Policy for public operations (governmental)

Where public use of UAS is concerned, the FAA developed guidance in a memorandum titled “Unmanned Aircraft Systems Operations in the US National Airspace System – Interim Operational Approval Guidance” which was referred to earlier in this paper as Policy Notice 05-01 (FAA, 2005). In this Policy Notice 05-01, the FAA set out guidance for public use of UAS by defining a process for evaluating applications for Certificate(s) of Waiver or Authorization (COAs) for UAS to operate in the NAS. This was to address the FAA’s concern for safety, not only due to interference with commercial and general aviation aircraft, but also with other airborne vehicles and persons or property on the ground (FAA, 2005).

At this time COAs are available to public entities that want to fly a UAS in civil airspace (FAA, 2015c). These entities include law enforcement, firefighting, border patrol, disaster relief, search and rescue, military training, and many more. The COA allows the operator to use a defined block of airspace and includes special provisions unique to the proposed operation (FAA, 2015c). COAs are issued for a specific period, typically up to two years. Most COAs require coordination with an appropriate air traffic control facility and may require a transponder on the UAS to operate in certain types of airspace. Because UAS technology cannot currently comply with “see and avoid” rules that apply to all aircraft, a visual observer or an accompanying “chase plane” must maintain visual contact with the UAS and serve as its “eyes” when operating outside airspace restricted from other users. As of September 2015, the FAA claims the average time to issue an authorization for non-emergency operations is less than 60 business days. The FAA has an expedited procedure in place to grant a one-time COA for time-sensitive emergency missions, such as disaster relief and humanitarian efforts (FAA, 2015c).

In order to ensure safety, the operator is required to establish the UAS’s airworthiness either through FAA certification, DoD airworthiness statement, or by other approved means. Applicants also have to demonstrate that a collision with another

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aircraft or other airspace user is extremely improbable as well as complying with appropriate cloud and terrain clearances as required. This concept is tied to the roles of pilot in command and observer and includes minimum qualifications and currency requirements (FAA, 2014c).

The role of the observer is to observe the activity of the UAS and surrounding airspace, either through line of sight on the ground or in the air by means of a chase aircraft. Generally, this means that the pilot or the observer must be, typically, within one mile laterally and 3,000 feet vertically of the UAS. Furthermore, direct communication between the pilot in command and the observer must be maintained at all times. Unmanned aircraft flight above 18,000 feet must be conducted in accordance with Instrument Flight Rules (IFR), on an IFR flight plan, must obtain air traffic control clearance, must be equipped with at least a Mode C transponder (preferably a Mode S), operating lights and/or collision avoidance lights, and maintain communication between the pilot in command and air traffic control (FAA, 2014c). It is worth noting that as of 2014 the FAA had issued in excess of 609 COAs (FAA, 2015c).

Current UAS FAA Policy for civil operations (non-governmental)

Any operation that does not meet the statutory criteria for public aircraft operation per 49 USC § 40102(a)(41) and § 40125 is considered a civil aircraft operation. There are currently two methods of gaining FAA authorization to fly civil (non-governmental) UAS: (1) Section 333 Exemption and (2) Special Airworthiness Certificate (SAC) (FAA, 2015d).

A Section 333 Exemption is a grant of exemption in accordance with Section 333 of the FAA Modernization and Reform Act of 2012 as well as a civil COA. This process may be used to perform commercial operations in low-risk, controlled environments (FAA, 2015d).

In order to qualify for a SAC, applicants must be able to describe how their system is designed, constructed, and manufactured, including engineering processes, software development and control, configuration management, and quality assurance procedures used, along with how an where they intend to fly (FAA, 2015d). There are two types of SAC categories: (a) SAC in the experimental category and (b) a UAS type and airworthiness certificate in the Restricted Category (FAA, 2015d). SAC in the experimental category may be used for civil aircraft to perform research and development, crew training, and market surveys. However, carrying persons or property for compensation or hire is prohibited in accordance with FAA Order 8130.34. A UAS type and airworthiness certificate in the Restricted Category is issued under 14 CFR § 21.25(a)(2) and § 21.185 for a special purpose or a type certificate for production of the UAS under 14 CFR § 21.25(a)(1) or § 21.17 (FAA, 2015d).

In March 2015, the FAA established an interim policy to speed up airspace authorizations for certain UAS operators who obtain Section 333 exemptions. Under this new policy, the FAA would grant a COA for flights at or below 200 feet to any UAS

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operator with a Section 333 exemption for aircraft that weigh less than 55 pounds, operate during daytime Visual Flight Rules (VFR) conditions, operate within visual line-of-sight (VLOS) of the pilots, and stay certain distances away from airports or heliports. The “blanket” 200-foot COA allows flights anywhere in the country except restricted airspace and other areas, such as major cities, where the FAA prohibits UAS operations. Previously, an operator had to apply for and receive a COA for a particular block of airspace, a process that could take 60 days (FAA, 2015e).

As of the beginning of September 2015, the FAA had granted 1,439 Section 333 Exemptions for the purposes of research and development, marketing surveys, or crew training (FAA, 2015e).

Current UAS FAA Policy for hobby or recreational use

The FAA was clear in its press release that the notice, published in the Federal Register in June 2014, was to provide clear guidance to model operators on the “do’s and don’ts of flying safely” in accordance with the Act and to answer many of the questions it has received regarding the scope and application of the rules (FAA, 2014a). In the notice, the FAA restated the law’s definition of model aircraft including requirements that they not interfere with manned aircraft, be flown within sight of the operator and be operated only for hobby or recreational purposes. The FAA also explained that model aircraft operators flying within five miles of an airport must notify the airport operator and air traffic control tower (FAA, 2014a).

The FAA reaffirmed that these provisions only apply to hobby or recreation operations and do NOT authorize the use of model aircraft for commercial operations. To this end the FAA included on its website (www.faa.gov) an informational video together with a do’s and don’ts fact sheet, intended for the public who may not be as familiar with the NAS as aviators (FAA, 2015e). Governing policy as of September 2, 2015 is now that contained in Advisory Circular (AC) 91-57A (FAA, 2015h). This comes after the brief cancellation and subsequent reinstatement of AC 91-57 by the FAA, sometime in October 2014 (Academy of Model Aeronautics, n.d.). AC 91-57A gives guidance to persons who operate a model aircraft/UAS weighing less than 55 pounds. Among the guidance, one can find sound advice on site selection and use of good judgment. Hobbyists are advised not to fly in the vicinity of spectators until they are confident that the model aircraft has been flight tested and proven airworthy. Model aircraft should be flown below 400 feet above the surface to avoid other aircraft in flight as well as within visual line of sight (FAA, 2015h). Of utmost significance in this revision is the reference in two places within the three-page document of the potential for legal enforcement action (FAA, 2015h).

In short, the FAA made it clear that the Agency would take enforcement action against model aircraft operators who operate their aircraft in a manner that endangers the safety of the NAS as it is their job to protect users of the airspace as well as people and property on the ground (FAA, 2014a). Additionally, the FAA made it clear that

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authorization is required if photographs or video captured during recreational use were then sold to another individual (FAA, 2015d).

State laws

In the absence of any federal laws on the matter, as of September 2015, there have been at least 30 States that have enacted laws directly relating to UAS, beginning in 2013 and continuing through 2015, according to the National Conference of State Legislators (NCSL) (2015a, b, c).

Alabama adopted, in 2013, House Resolution (HR) 381, to recognize the benefits of a thriving UAS industry in their state (NCSL, 2015a).

Alaska adopted House Concurrent Resolution (HCR) 6 that created a legislative Task Force on UAS that was charged with creating written recommendations and legislation that allows for UAS to be used in a way that protects privacy. In addition to members of the legislature, the task force was to be comprised of representatives from state agencies, aviation organizations, and academia. Alaska also enacted House Bill (HB) 255 that requires law enforcement agencies to adopt procedures that ensure: (1) the appropriate FAA flight authorization is obtained; (2) UAS operators are trained and certified; (3) a record of all flights is kept and (4) there is an opportunity for community involvement in the development of the agencies’ procedures. Under Alaska law, police may use UAS pursuant to a search warrant, pursuant to a judicially recognized exception to the warrant requirement, and in situations not involving a criminal investigation. Additionally, images captured with UAS may be retained by police under the law for training purposes or if it is required as part of an investigation or prosecution. This law also authorizes the University of Alaska to develop a training program for operating UAS. The state senate also adopted a resolution, HCR15, to extend the operating time and expand the duties of the state UAS task force (NCSL, 2015b).

Arkansas HB1349 prohibits the use of UAS to commit voyeurism. HB1770 prohibits the use of UAS to collect information, or photographically or electronically record information, about critical infrastructure without consent (NCSL, 2015c).

California adopted in 2013, Assembly Joint Resolution (AJR) 6 and Senate Concurrent Resolution (SCR) 16, to recognize the benefits of a thriving UAS industry in their state (NCSL, 2015a). Then in a dramatic turn of events, California adopted Senate Bill (SB) 142 preventing UAS from operating less than 350 feet above ground level with the airspace overlaying another person’s real property (NCSL, 2015c).

Florida Senate Bill (SB) 92 defined a UAS and limited its use by law enforcement. Under this legislation, law enforcement may use a UAS if they obtain a warrant, there is a terrorist threat, or “swift action” is needed to prevent loss of life, or to search for a missing person. Additionally, the law enables someone harmed by an inappropriate use of UAS to pursue civil remedies and prevents evidence gathered in violation of this code from being admitted in any Florida court (NCSL, 2015a). SB766

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prohibits the use of a UAS to capture an image of privately owned property or the owner, tenant, or occupant of such property without consent if a reasonable expectation of privacy exists (NCSL, 2015c).

Georgia adopted in 2013, HR80, HR81, and SR172 to recognize the benefits of a thriving UAS industry in their state (NCSL, 2015a).

Hawaii SB661 created a chief operating officer position for the Hawaii UAS test site. It also established a UAS test site advisory board to plan and oversee test site development and appropriate funds to establish the test site (NCSL, 2015c).

Idaho adopted in 2013, SCR103 to recognize the benefits of a thriving UAS industry in their state (NCSL, 2015a). Idaho also enacted SB1134 to define UAS and require warrants for their use by law enforcement, as well as establish guidelines for their use by private citizens and provide civil penalties for damages caused by improper use (NCSL, 2015a).

Illinois enacted two laws in 2013, both of which define a UAS as any aerial vehicle that does not carry a human operator. The first, HB1652, prohibits anyone from using a UAS to interfere with hunters or fishermen. The second, SB1587, allows UAS to be used by law enforcement with a warrant, to counter a terrorist attack, to prevent harm to life, or to prevent the imminent escape of a suspect among other situations. Furthermore, if a law enforcement agency uses a UAS, the agency must destroy all information gathered by the UAS within 30 days, except that a supervisor at the law enforcement agency may retain particular information if there is reasonable suspicion it contains evidence of criminal activity. The law also requires the Illinois Criminal Justice Information Authority (CJIA) to report on its website every law enforcement agency that owns a UAS and the number they own. Each law enforcement agency is responsible for giving this information to the CJIA in Illinois (NCSL, 2015a).

In 2014, Illinois enacted SB2937 creating regulations for how law enforcement could obtain and use information gathered from a private party’s use of UAS. This law requires police to follow warrant protocols to compel third parties to share information, and if the information is voluntarily given to police, authorities are required to follow the state’s law governing UAS data retention and disclosure. The law also loosens regulations around law enforcement’s use of UAS during a disaster or public health emergency (NCSL, 2015b).

In 2015, SB44 created a UAS Oversight Task Force, which is tasked with considering commercial and private use of UAS, landowner and privacy rights and general rules and regulations for the safe operation of UAS. The task force is to prepare recommendations for the use of UAS in Illinois (NCSL, 2015c).

Indiana in 2013 adopted a resolution Senate Resolution (SR) 27 urging their legislative council to study UAS issues. In 2014, in HB1009, Indiana created warrant requirements and exceptions for the police use of UAS and real-time geo-location tracking devices. The law also prohibits law enforcement from compelling individuals to reveal passwords for electronic devices without a warrant. If law enforcement in Indiana

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obtains information from an electronic service provider pursuant to a warrant, the provider is immune from criminal or civil liability. Furthermore, the law provides that if police seek a warrant to compel information from media entities and personnel, then those individuals must be notified and given the opportunity to be heard by the court concerning issuance of the warrant. Finally, this new law creates the crime of “Unlawful Photography and Surveillance on Private Property” thereby making it a class A misdemeanor. A person commits this crime if he or she knowingly and intentionally electronically surveys the private property of another without permission. This law also requests that the state’s legislative council study digital privacy during the 2014 interim (NCSL, 2015b).

Iowa enacted House File (HF) 2289 that makes it illegal for a state agency to use a UAS to enforce traffic laws. This new law requires a warrant, or other lawful means, to use information obtained with UAS in a civil or criminal court proceeding. It also requires the department of public safety to develop guidelines for the use of UAS and to determine whether changes to the criminal code are necessary (NCSL, 2015b).

Louisiana enacted HB1029, creating the crime of unlawful use of a UAS. This law defines the unlawful use of a UAS as the intentional use of a UAS to conduct surveillance of a targeted facility without the owner’s prior written consent. The crime is punishable by a fine of up to $500 and imprisonment for six months. A second offense is punishable by a fine up to $1,000 and one-year imprisonment (NCSL, 2015b). SB183 regulates the use of UAS in agricultural commercial operations (NCSL, 2015c).

Maine Legislative Document (LD) 25 requires law enforcement agencies to receive approval before acquiring UAS. This bill also specified that the use of UAS by law enforcement should comply with all FAA requirements and guidelines. LD25 requires a warrant to use UAS for criminal investigations except in certain circumstances and sets out standards for the operation of UAS by law enforcement (NCSL, 2015c).

Maryland, through HB100 in 2013, appropriated $500,000 for the state’s unmanned aerial system test site (NCSL, 2015a). In 2015, SB370 specified that only the state could enact laws to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems. This preempts county and municipal authority. The bill also required a study on specified benefits (NCSL, 2015c).

Michigan adopted in 2013, HR280 and HR87, to recognize the benefits of a thriving UAS industry in their state (NCSL, 2015a). In 2015, SB54 prohibits using UAS to interfere with or harass an individual who is hunting. SB55 prohibits using UAS to take game (NCSL, 2015c).

Mississippi SB2022 specifies that using a UAS to commit “peeping tom” activities is a felony (NCSL, 2015c).

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Montana enacted SB196 that limits when information gained from the use of UAS may be admitted as evidence in any prosecution or proceeding within the state. The information can be used when it was obtained pursuant to a search warrant, or through a judicially recognized exception to search warrants. This law defined UAS as an aircraft that is operated without direct human intervention from on or within the aircraft not including satellites (NCSL, 2015a).

Nevada adopted in 2013, SCR7, to recognize the benefits of a thriving UAS industry in their state (NCSL, 2015a). Also, in Assembly Bill (AB) 507, Nevada appropriated $4,000,000 to the interim Finance Committee for allocation to the Governor’s Office of Economic Development for the Unmanned Aerial Vehicle (UAV) program in the event Nevada is selected as an FAA test site (NCSL, 2015a). In 2015, AB239 included UAS in the definition of aircraft and regulated the operators of UAS. It also prohibited the weaponization of UAS and prohibited the use of UAS within a certain distance of critical facilities and airports without permission. The bill specified certain restrictions on the use of UAS by law enforcement and public agencies and required the creation of a registry of all UAS operated by public agencies in the state (NCSL, 2015c).

New Hampshire SB222 prohibited the use of UAS for hunting, fishing, or trapping (NCSL, 2015c).

North Carolina, in 2013 in SB402, placed a moratorium on UAS use by state and local personnel unless the Chief Information Officer (CIO) for the Department of Transportation approves the use. Any CIO granted exception has to be reported immediately to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division (NCSL, 2015a). In 2014, North Carolina enacted SB744, a bill creating regulations for the public, private and commercial use of UAS. This new law prohibits any entity from conducting UAS surveillance of a person or private property and also prohibits taking a photo of a person without their consent for the purpose of distributing it. The law creates a civil cause of action for those whose privacy is violated. Furthermore, the law authorizes different types of infrared and thermal imaging technology for certain commercial and private uses including the evaluation of crops, mapping, scientific research and forest management. Under this law, the state Division of Aviation is required to create a knowledge and skills test for operating UAS. All agents of the state who operate UAS must pass this test. The law enables law enforcement to use UAS pursuant to a warrant, to counter an act of terrorism, to oversee public gatherings, or gather information in a public space (NCSL, 2015b).

North Carolina created several new crimes. The first crime, a class H felony, is using UAS to interfere with manned aircraft. The second crime, a class E felony, is the possession of a UAS with an attached weapon. The third crime, a class 1 misdemeanor, is the unlawful fishing or hunting with UAS. The fourth crime, also a class 1 misdemeanor, is the harassment of hunters or fishermen with a UAS. The fifth crime, again a class 1 misdemeanor, is the unlawful distribution of images obtained with a UAS. The sixth crime, another class 1 misdemeanor, is operating a UAS commercially without a license (NCSL, 2015b).

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North Carolina law also prohibits the launch or recovery of UAS from any state or private property without consent. Additionally, the law extends the state’s current regulatory framework, administered by the CIO, for state use of UAS from July to December 31, 2015 (NCSL, 2015b).

North Dakota adopted in 2013, HCR3012, to recognize the benefits of a thriving UAS industry in their state (NCSL, 2015a). Also in 2013 in SB2018, North Dakota granted $1 million from the state general fund to pursue designation as an FAA UAS test site. Furthermore, is selected, the law would grant an additional $4 million to operate the site (NCSL, 2015a). In 2015, HB1328 provided limitations for the use of UAS for surveillance (NCSL, 2015c).

Oregon HB2710 defined a UAS as an unmanned flying machine, not including model aircraft. This new law allows a law enforcement agency to operate a UAS if it has a warrant and for enumerated exceptions including for training purposes. Oregon law also requires that a UAS operated by a public body be registered with the Oregon Department of Aviation (DOA), which shall keep a registry of UAS operated by public bodies. The law grants the DOA rulemaking authority to implement these provisions. It also created new crimes and civil penalties for mounting weapons on UAS and interfering with or gaining unauthorized access to public UAS. Under certain conditions, an Oregon landowner can bring an action against someone flying a UAS lower than 400 feet over the property. Oregon law also requires that the DOA must report to legislative committees on the status of federal regulations and whether UAS operated by private parties should be registered in a manner similar to the requirement for other aircraft (NCSL, 2015a). In 2015, HB2534 required the development of rules prohibiting the use of UAS for angling, hunting, trapping, or interfering with a person who is lawfully angling, trapping, or hunting. HB2354 changed the term “drone” to “unmanned aircraft system” in the statute (NCSL, 2015c).

Ohio enacted HB292 that created the aerospace and aviation technology committee. One of this committee’s duties is to research and develop aviation technology including UAS (NCSL, 2015b).

Pennsylvania adopted in 2013, a resolution, HR172, urging the United States Department of Defense to reconsider the rank of a new medal recognizing military achievement in combat drone operations (NCSL, 2015a).

Tennessee SB796, enacted in 2013, enables law enforcement to use UAS in compliance with a search warrant, to counter a high-risk terrorist attack, and if swift action is needed to prevent imminent danger to life. However, evidence obtained in violation of this law is not admissible in state criminal prosecutions. Furthermore, those people wronged by such evidence can seek civil remedy (NCSL, 2015a).

In 2014, Tennessee enacted two new laws. The first law, SB1777, makes it a class C misdemeanor for any private entity to use a UAS to conduct video surveillance of a person who is hunting or fishing without their consent. The second law, SB1892, makes it a class C misdemeanor for a person to use UAS to intentionally conduct

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surveillance of an individual or their property. It also makes it a crime to possess those images, again a class C misdemeanor. Finally, it makes it a crime to distribute or otherwise use these same images, a class B misdemeanor (NCSL, 2015b). In all fairness, Tennessee law also identifies 18 lawful uses of UAS, including the commercial use of UAS under FAA regulation, professional or scholarly research and for use in oil pipeline and well safety (NCSL, 2015b).

In 2015, HB153 prohibited using a UAS to capture an image over certain open-air events and fireworks displays. It also prohibited the use of UAS over the grounds of a correctional facility (NCSL, 2015c).

Texas adopted in 2013, two resolutions, HR3035 and SR1084 addressing legislative procedure needed to enact their new UAS law (NCSL, 2015a). Texas then enacted a law, HB912, that enumerates 19 lawful uses for UAS including their use in airspace designated as an FAA test site, their use in connection with a valid search warrant, and their use in oil pipeline safety and rig protection. Texas law created two new crimes that are classified as class C misdemeanors. The first crime is the illegal use of a UAS to capture images, and the second crime is the offense of possessing or distributing the image. It should be noted that an image in this context could be a sound wave, thermal, ultraviolet, visible light or other electromagnetic waves, odor, or other conditions existing on property or an individual located on the property. Finally, Texas law requires the Department of Public Safety to adopt rules for use of UAS by law enforcement and mandates that law enforcement agencies in communities of over 150,000 people make annual reports on their use. Texas HCR217 altered reporting requirements from the original HB912 (NCSL, 2015a).

Texas HB3628 permits the creation of rules governing the use of UAS in the Capitol Complex and provides that a violation of those rules is a Class B misdemeanor. HB2167 permits individuals in certain professions to capture images used in those professions using UAS as long as no individual is identifiable in the image. HB1481 made it a Class B misdemeanor to operate UAS over a critical infrastructure facility if the UAS was not more than 400 feet off the ground (NCSL, 2015c).

Utah SB167 regulates the use of UAS by state government entities. A warrant is now required for a law enforcement agency to “obtain, receive or use data” derived from the use of UAS (NCSL, 2015b, para. 9). The law also established standards for when it is acceptable for an individual or other non-governmental entity to submit data to law enforcement. This new law provides standards for law enforcement agencies’ collection, use, storage, deletion and maintenance of data. If a law enforcement agency uses UAS, the measure requires that agency submit an annual report on their use to the Department of Public Safety and also to publish the report on the individual agency’s website. The new law noted that it is not intended to “prohibit or impede the public and private research, development or manufacture of unmanned aerial vehicles” (NCSL, 2015b, para. 9).

In 2015, Utah HB296 allows a law enforcement agency to use an unmanned aircraft system to collect data at a testing site and to locate a lost or missing person in an area in which a person has no reasonable expectation of privacy. It also institutes testing requirements for a law enforcement agency’s use of a UAS (NCSL, 2015c).

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Virginia laws, HB2012 and SB1331, prohibit UAS use by any state agencies “having jurisdiction over criminal law enforcement or regulatory violations” or units of local law enforcement until July 1, 2015 (NCSL, 2015a, para. 15). Numerous exceptions exist, however, enabling officials to deploy UAS for Amber Alerts, Blue Alerts, and use by the National Guard, by higher education institutions and search and rescue operations. These enacted bills also require the Virginia Department of Criminal Justice Services and other state agencies to research and develop model protocols for UAS use by law enforcement in the state and report their findings to the General Assembly and governor (NCSL, 2015a).

Virginia HB2125 and SB1301 require that a law enforcement agency obtain a warrant before using a UAS for any purpose, except in limited circumstances. Virginia’s governor also issued an executive order establishing a commission on UAS (NCSL, 2015c).

West Virginia HB2515 prohibits hunting with UAS (NCSL, 2015c).

Wisconsin SB196 requires law enforcement to obtain a warrant before using UAS in a place where an individual has a reasonable expectation of privacy. The law also created two new crimes. The first crime, a class H felony, is possession of a weaponized UAS. The second crime, a class A misdemeanor, is the crime of use of a UAS for a person who, with intent, observes another individual in a place where they have a reasonable expectation of privacy (NCSL, 2015b).

While on the topic of invasion of privacy it is important to mention an exception to the Fourth Amendment of the US Constitution. Typically the Fourth Amendment protects people from unreasonable searches and seizures by the government. Several exceptions do exist however, and one in particular, the open fields doctrine, should be discussed in this context (US Const. Amend. IV).

The Court in Hester v. United States, held that the Fourth Amendment did not protect “open fields” and as such police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause (Hester v. US, 1924). Furthermore, the Court in Oliver v. United States (1984) ruled that the open fields exception applies to fields that are fenced and posted. This means that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home, which is termed curtilage. Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside. Finally, it has been held that even within the curtilage and notwithstanding a ten-foot high fence around the property, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace (US v. Dunn, 1987).

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Test Sites

As of 2013, the FAA had selected six UAS test sites to allow the agency development of research findings and operational experiences to help ensure the safe integration of UAS into the NAS together with a system featuring NextGen technologies and procedures. The six test sites are: University of Alaska; State of Nevada; New York’s Griffiss International Airport; North Dakota Department of Commerce; Texas A&M University; and Virginia Polytechnic Institute and State University (Virginia Tech) (FAA, 2013).

University of Alaska: The University of Alaska proposal contained a diverse set of test site range locations in seven climatic zones as well as geographic diversity with test site range locations in Hawaii and Oregon. The research plan included the development of a set of standards for UAS categories, state monitoring, and navigation. Alaska also plans to work on safety standards for UAS operations (FAA. 2013).

State of Nevada: Nevada’s project objectives concentrated on UAS standards and operations as well as operator standards and certification requirements. Their research will also include a concentrated look at how air traffic control procedures will evolve with the introduction of UAS into the civil environment and how these aircraft will be integrated with NextGen. Nevada’s selection contributes to geographic and climatic diversity (FAA, 2013).

New York’s Griffiss International Airport: Griffiss International plans to work on developing test and evaluation as well as verification and validation processes under FAA safety oversight. They also plan to focus their research on sense and avoid capabilities for UAS and their sites will aid in researching the complexities of integrating UAS into the congested, northeast airspace (FAA, 2013).

North Dakota Department of Commerce: North Dakota plans to develop UAS airworthiness essential data and validate high reliability link technology. They will also conduct human factors research. North Dakota’s application was the only one to offer a test range in the temperate (continental) climate zone and included a variety of different airspace that will benefit multiple users (FAA, 2013).

Texas A&M University: Located in Corpus Christi, Texas A&M plans to develop system safety requirements for UAS vehicles and operations with a goal of protocols and procedures for airworthiness testing. The selection of Texas A&M contributes to geographic and climatic diversity (FAA, 2013).

Virginia Polytechnic Institute and State University (Virginia Tech): Virginia Tech plans to conduct UAS failure mode testing and identify and evaluate operational and technical risk areas. This proposal includes test site range locations in both Virginia and New Jersey (FAA, 2013).

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Data and other information related to the operation of UAS that is generated by the six test site operators will help the FAA answer key research questions such as solutions for “sense and avoid,” command and control, ground control station standards, and human factors, airworthiness, lost link procedures, and the interface with the air traffic control system. This data will help the FAA to develop regulations and operational procedures for future commercial and civil use of the NAS (FAA, 2013).

Centers of Excellence (COE)

The goal of an FAA Center of Excellence (COE) for UAS is to focus on research, education, and training in areas critical to safe and successful integration of UAS into the nation’s airspace. There are several of these COEs selected from among the nation’s leading UAS and aviation universities that have a proven commitment to UAS research and development and the necessary resources to provide the matching contribution to the government’s investment. They are Drexel University; Embry Riddle Aeronautical University; Kansas State University; Kansas University; Mississippi State University; Montana State University; New Mexico State University; North Carolina State University; Oregon State University; University of Alabama, Huntsville; University of Alaska, Fairbanks; University of North Dakota; and Wichita State University (FAA, 2015f).

The COE research areas are expected to evolve over time, but initially will include: detect and avoid technology; low-altitude operations safety; control and communications; spectrum management; human factors; compatibility with air traffic control operations; and training and certification of UAS pilots and other crewmembers, in addition to other areas. Congress appropriated $5 million for the five-year agreement with the COE, which will be matched one-for-one by the team members (FAA, 2015f).

The FAA NPRM

On February 15, 2015, the FAA published its Notice of Proposed Rulemaking (NPRM) proposing regulations for the commercial use of UAS weighing less than 55 pounds. The 60-day window for public comment closed on April 24, 2015. At this point in time numerous committees at the FAA are reviewing the 4,567 comments received, after which the FAA should publish the final rule. This final rule becomes law 30 days after publication in the Federal Register (FAA, 2015g).

Major provisions of the proposed 14 CFR Part 107 for small UAS fall into four main categories: (1) Operational Limitations; (2) Operator Certification and Responsibilities; (3) Aircraft Requirements; and (4) Model Aircraft (FAA, 2015g).

Operational Limitations

Unmanned aircraft must weigh less than 55 pounds. Visual line-of-sight (VLOS) is permitted only, meaning that the unmanned aircraft must remain within VLOS of the operator or visual observer. At all times, the small UAS must remain close enough to

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the operator for the operator to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. Small UAS may not operate over any persons not directly involved in the operation. Daylight-only operations, meaning from official sunrise to official sunset, local time, are permitted. UAS must yield right-of-way to other aircraft, manned or unmanned. UAS may use a visual observer (VO) but it is not required. First-person view camera cannot satisfy the “see-and-avoid” requirement but can be used as long as the requirement is satisfied in other ways. The maximum airspeed allowed is 100mph (87 knots). The maximum altitude allowed is 500 feet above ground level (AGL). The minimum weather visibility is three miles from the control station. No operations are allowed in Class A airspace, which is from 18,000 feet to 60,000 feet. Operations in Class B, C, D, and E airspace are allowed with the required air traffic control (ATC) permission. Operations in Class G airspace are allowed without ATC permission. No person may act as an operator or VO for more than one unmanned aircraft operation at one time. Careless or reckless operations are prohibited. The operator must perform a preflight inspection. A person may not operate a small UAS if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS. Finally, the rule proposes a micro UAS option that would allow operations in Class G airspace, over people not involved in the operation, provided the operator certifies he or she has the requisite aeronautical knowledge to perform the operation (FAA, 2015g).

Operator Certification and Responsibilities

Pilots of a small UAS would be considered “operators.” Operators would be required to: (1) pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center; (2) be vetted by the Transportation Safety Administration (TSA); (3) obtain a UAS operator certificate with a small UAS rating (which, like current pilot airman certificates, will not expire); (4) pass a recurrent aeronautical knowledge test every 24 calendar months; (5) be at least 17 years old; (6) make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the proposed rule; (7) report an accident to the FAA within 10 days of any operation that results in injury or property damage; and (8) conduct a preflight inspection, to include specific aircraft and control station system checks, to ensure the small UAS is safe for operation (FAA, 2015g).

Aircraft Requirements

FAA airworthiness certification is not required. However, the operator must maintain a small UAS in a condition for safe operation and prior to flight must inspect the UAS to ensure that it is in a condition for safe operation. Aircraft registration is required and it is essentially the same requirements that apply to all other aircraft. Aircraft markings are required and they are essentially the same requirements that apply to all other aircraft. If the aircraft is too small to display markings in standard size, then the aircraft simply needs to display markings in the largest practicable manner (FAA, 2015g).

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Model Aircraft

The proposed rule would not apply to model aircraft that satisfy all of the criteria specified in Section 336 of Public Law 112-95. The proposed rule would codify the FAA’s enforcement authority in part 101 by prohibiting model aircraft operators from endangering the safety of the NAS (FAA, 2015g).

Conclusion

In light of the more than 50 companies, universities, and government organizations that are developing and producing some 155 unmanned aircraft designs (FAA, 2014c), it is readily apparent that the FAA has a critical, if not daunting, task ahead of them as they formulate the laws that will govern UAS. UAS must be integrated into a NAS that is evolving from ground-based navigation aids to a GPS-based system in NextGen.

In the meantime, it will be interesting to watch the legal landscape in these 30 states that have enacted UAS laws as precedents are made and appeals to higher courts in the nation inevitably ensue. Federal law charges the FAA with ensuring the safe and efficient use of US airspace. This authority generally preempts any state or local government from enacting a statute or regulation concerning matters, such as airspace regulation, that are reserved exclusively to the US Government. However, state and local governments do retain authority to limit the aeronautical activities of their own departments and institutions.

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