Drones and the Law: The Sky's Not the Limit

This article should not be taken as legal advice. It merely reflects the views of its author. Please consult with an attorney to determine what, if any, legal requirements or restrictions apply to the use of Unmanned Aircraft Systems in your area.

In response to booming popularity, many people have been seeking information about the legality of using unmanned remote-controlled aircraft. Dronesthose carrying cameras as opposed to missile launchersare legal. However, all but the tiniest will require registration. And commercial users, for the time being, still face some additional bureaucratic hurdles. In addition, there are a number of rules one needs to follow both to remain legally compliant and, more importantly, stay safe.

This article will focus on small unmanned aerial systems (sUAS), as they are known to the FAA. These fall within the weight range of 0.55 lb (250g) to 55 lb (25kg). Super-small RC aircraft are considered toys in the eyes of the FAA, not worthy of their attention. Before anyone gets offended, let me point out this is just a legal classification. With the miniaturization of electronics, it is quite conceivable a less than 0.55 lb drone will be a high-end piece of equipment, usable for professional video applications. If miniature drones do start getting used frequently in commercial applications, we may expect a change to the current weight-based approach to classification.

Larger-than-55 lb drones are unlikely to be used by consumers or freelance shooters. Most of these would be operated by companies. Though some hobbyist RC planes are nearly large enough to carry a human payload. But most multi-rotor drones (what the FAA really has its sights set on) weigh less than 55 lb, even with camera, batteries, and gimbal in place.


How to register

If you have a drone on the way and just want to register, heres what you need to know:

  • You will need to be older than 13 years of age
  • A citizen or legal permanent resident of the US
  • Pay a nominal registration fee

A brief history

As you are probably aware, legislation specifically targeting sUAS was only ratified in late 2015. Before that, we just had the FAA Modernization and Reform Act of 2012 (sections 331-336) and a lot of confusion as to what power the FAA had over RC aircraft regulation. The FAAs biggest sticking point was that flying UAS for commercial use was effectively prohibited with the exception of the Boeing Insitu ScanEagle and the Aerovironment Puma, and then only for deployment in the Arctic.

By at least 2014 it was clear that laws were in dire need of updating. Why? Two factors:

  • The explosion in popularly of UAS outside the previously niche RC community
  • Inexpensive flight control systems that make consumer multi-rotor helicopters possible

Arguably, the two are interrelated. In the past, RC aircraft were more commonly fixed wing, meaning they required a sizable area to take off and land. And the VTOL systems (Vertical-Take-Off-and-Landing, i.e., helicopters) that did exist where very difficult to fly. Inexpensive, computerized flight controllers have made it comparatively easy to fly multi-rotor systems. Because they are VTOL-capable, and relatively compact, they can be deployed essentially anywhere, and in the hands of a skilled pilot, they can be maneuvered into all sorts of nooks and crannies.

Because today's UAS can be flown with varying degrees of autopilot assistance, from full autopilot modes based on waypoints (for craft with GPS) to full "agility" modes that disable virtually all safeties, multi-rotors have attracted users with less practical flying experience. More people are using them, and more people are using them without applying common sense. Greater maneuverability means more small UAS in the air, with more being used in unexpected contexts. Because of this explosion, the government finally recognized the technology needed to be addressed formally, not to mention the growing desire on the part of businesses to put UAS to commercial use without going through a baroque-approval process.

How to fly legally

Just because drones are legal, it doesnt mean you can use them however you please. What are the limitation?

Here are some general guidelines. But please remember, additional local restrictions may apply. Always consult with RC clubs or local authorities in the area you plan to fly if in any doubt.

  • Keep your UAS less than 400' above ground level (AGL) and remain clear of surrounding obstacles.
  • Keep your UAS within visual range. It may have a navigation system that enables it to fly on full autopilot. Nevertheless, you must be able to see your UAS at all times (an FPV video feed does not count as visual contact).
  • Remain well clear of and do not interfere with manned aircraft operations.
  • Keep out of FAA-controlled airspace. This includes a 5-mile radius around airports.
  • Don't fly near people or stadiums.
  • Don't be careless or reckless with your unmanned aircraftyou could be fined for endangering people or other aircraft.

What is FAA airspace?

For Illustration only: FAA-designated airspace classes and their respective ranges

If these are FAA regulations, then what constitutes FAA airspace? If you're reading this article in the United States, or in its possessions or territories, you are within the FAA's airspace, or the NAS (National Air Space of the United States). There's a widely held belief that below a certain altitude, one is outside FAA jurisdictionsome say below 400 feet, others say below 700 feet. Either way, this is a canard. FAA jurisdiction starts at the ground and extends to the edge of space. Most likely, FAA jurisdiction is being confused with FAA-"controlled" airspace.

What is FAA-controlled airspace? Essentially, it is airspace in which manned aircraft operate. The controlled airspace around airports is divided into classes by the FAA, and how these are divided will vary depending on geographical and other factors. However, a good rule of thumb is to assume that all airspace within five miles of an airport, starting at sea level, is controlled, and that operating UAS without explicit FAA approvalapproval you wont getis prohibited.

Newark International Airport

Commercial Use

Commercial use is now sanctioned, with new rules set to take effect in late August. They include dropping the formal requirement for an air-worthiness certificate or Section 333 exemption and a slightly eased restriction on the use of FPV equipment. The pilot can now use FPV as long as a second person maintains direct visual contract. True BVR or autonomous flying is still not allowed, but this adjustment gives the pilot the freedom to opt for FPV rather than visual line-of-sight operation if they choose.

Below are some of the highlights of the new rules. This list is by no means comprehensive. Also, there may be exceptions for some rules if suitable waivers are obtained.

The FAA oversees and regulates airspace for thousands of aircraft simultaneously.

  • The pilot must have a suitable pilot certificate and be 16 years of age or older. (Currently only FAA, not foreign-issued certificates, are accepted). A non-certified pilot can also fly if supervised by a certified pilot.
  • The same 55-lb weight restriction applies as to hobby UAS.
  • Visual contact by either the pilot or another visual observer must be maintained.
  • The aircraft must remain close enough to the actual pilot that it is within effective visual range, even if the pilot is using FPV.
  • Must only be operated in daylight.
  • Must operate in a way that does not interfere with other aircraft.
  • Must fly at not more than 100 mph.
  • Most remain at or below 400' above ground level (AGL); or remain within 400' of a structure.

Non-UAS laws that may apply

Although the FAA is the main authority when it comes to operating vehicles above ground level, the nature of the way small drones are used opens up other legal risks, including:

  • Reckless endangerment (a felony)
  • Invasion of privacy (can easily be upgraded to a federal complaint)
  • Obstruction of police/emergency services duties (a felony)
  • Noise ordinance violation
  • Littering

Of those, invasion of privacy and reckless endangerment, for obvious reasons, will likely serve as the most common basis for lawsuits and prosecution against UAS operators. However, one could envision an imaginative prosecutor coming up with less obvious grounds to build a case, such as fining an operator for littering, in a case where the UAS crashed in a public area and was abandoned by the pilot. Therefore, one shouldn't assume that just because UAS represent something of a new legal frontier that one will be immune from any form of legal action.

Privacy

Because more and more UAS have cameras built in or support the attachment of cameras, privacy and UAS use is becoming a hot topic. Apart from reckless endangerment, privacy could well become a major basis for prosecution or lawsuits against UAS operators. For now, normal privacy laws would seem to apply to image and audio capture from UAS that apply in general. That is to say, for the most part, one is allowed to record or photograph in contexts where there is no "reasonable" expectation of privacy. A major caveat, however, is that UAS's typically operate well above eye level, and there are cases where this is considered to violate reasonable expectations of privacy.

In a park, or on a city street, for example, there is no "reasonable" expectation of privacy, nor is there generally a legal basis to make an invasion of privacy claim, since one is in what is understood to be a public place. The same may even apply to parts of private property "normally" visible from public space, such as a front yard visible from the street. On the other hand, recording the interior of a home or private building is illegal, even if the camera is placed outside. Additionally, exterior spaces on private property, possibly a backyard not normally visible from the street, are quite often, like the interior of a home, considered spaces where one has a reasonable expectation of privacy under the law. What this means for UVA operators is that flying over, say, someone's backyard and recording video or photos stands a good chance of qualifying as an invasion of privacy and should be avoided. This is true even where there is no direct over-flight; in other words, where there is no question of trespassing, but the camera is still able to capture images from parts of the property where reasonable expectation of privacy holds.

Will laws change in this regard? My guess is, as legislation evolves, privacy laws will become stricter as they relate to UAS than they are in general. For now, most users seem to be innocent, shooting video for the sheer enjoyment. However, it's only a matter of time before we start seeing the technology used by private investigators and others as surveillance tools. Although currently restricted, it's also likely we will see their increased use by law enforcement, as well as private security, and again it will be interesting to learn how the privacy debate pans out.

Air Rights over Private Property

The question of air rights as it relates to UAS is relatively novel since manned aircraft operate thousands of feet above populated areas, far too high to be considered trespassing. Air rights in the sense of, say, hoisting a boom over a neighbor's property are well-defined, and such an action, it's safe to assume, would indeed constitute trespassing. Some may be tempted to assume that since UAS operate in a sort of middle ground, below the elevations at which manned aircraft normally operate, yet potentially above the reach of ground-based apparatuses such as a cherry pickers, they are somehow exempt. While this may, to some extent, be arguable for larger, commercial-grade UAS that come closer to manned aircraft in capability (if they ever get legalized), it hardly seems like a good thing to risk in the case of a quadcopter or other consumer UAS. Consumer UAS don't have the range and are too unreliablemany, if they lose signal, will automatically land wherever they are, or will fly at a fixed, low elevation back to a home point. But even if consumer craft were more capable, the requirement that they have to be kept within visual range (see below) effectively limits how high they can be flown.

In other words, one would still be extremely foolish to operate over someone else's private property without permission. In a small town in Colorado, it's now legal to shoot down UAS that are flying over private property.

Beyond Visual Range (BVR)

BVR flying is currently forbidden by the FAA, and also goes against AMA (Academy of Model Aeronautics) and other guidelines. In other words, you are required to maintain visual contact with your aircraft at all times. It is now permissible for the pilot to use FPV equipment, as long as there is a secondary observer who is within line-of-sight. Since the size of the aircraft and local visibility can vary, there currently isn't a set distance as to how far away a UAS can be from the pilot/observer. However, there must also be a minimum weather visibility of 3 miles from the control stationin other words, Dont fly in a blizzard!

Since BVR systems no longer require the Pentagon's budget to purchase, I would expect to see a lot of pressure to change this law, or otherwise nullify the FAAs assertion. My guess is BVR will get approval for commercial applications, perhaps including Amazon's proposed drone-delivery scheme. This will be contingent on FAA certification of the aircraft model being used, as well as some sort of licensing requirement on the part of the operator. I am not as optimistic that we will see the FAA's blessing for consumer use of BVR, even though many UAS makers are already promoting BVR systems.

Who Enforces FAA Laws?

Normally, the FAA uses its own agents, and has its own enforcement mechanism. At least in theory, normal police can arrest you or otherwise enforce FAA legislation. With the widespread public use of UAS, I would expect this to change. Along with new provisions for consumer UAS will come provisions granting local law enforcement justification over non-FAA controlled airspace. Either that or we can expect to see complementary state or local laws that grant local law enforcement authority over the relevant portion of the airspace on top of any FAA legislation. For FAA-controlled airspace, I would expect things to stay more or less as they are. Unless civilian BVR flying is legalized, I would expect UAS to remain largely excluded from operating in these zones.

RC Clubs

The best piece of advice I can give for anyone whos concerned about legalities is to consult a local RC club in your area. In the US, the best place to look is the Academy of Model Aeronautics, or AMA. Not only can they point you toward RC clubs in your area, they provide a wealth of resources for RC pilots and also offer liability insurance that will cover you for up to two million dollars in damages, provided you operate within the safety guidelines they set.

It's not just for legal issues. RC clubs provide beginners with an invaluable community of support. Members have the experience to tell you where it's safe to fly, what pitfalls you may encounter, and they can even provide training, as well as troubleshooting assistance.

Summary

With the caveat that there are always exceptions, and that you should consult with clubs and fliers in your local area before flying, the basic guidelines for flying legally (and safely) can be summarized as follows:

  • First and foremost, go to the FAA website and register the drone we know youre dying to fly.
  • Dont fly above 400'.
  • Dont fly at any elevation within five miles of an airport.
  • Don't fly around areas where VTOLs (helicopters) or any small commuter aircraft operate.
  • Keep your aircraft within visual range and under full control.
  • Dont fly over populated areas.
  • Don't record video or take photos in contexts where there is an "expectation of privacy."
  • Treat the air over private property as private property.
  • Follow the safely guidelines set forth by the AMA, even those that are not legally enforced.
  • Commercial use has its own set of rules and requires an FAA pilot certificate.

Note: This list is not comprehensive, and in some cases the FAA may grant exceptions.

For the most part, using your drone legally means using your drone safelywhich just boils down to following common sense. The laws are really there to decide what to do in cases where people willfully or negligently choose not to follow common sense. Safe flying!

TEASoftware