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Marketplace

Drones fly faster than the law can keep up with

Aug 13, 2015
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A man in Connecticut put a gun on his drone (and was subsequently arrested for it). Doctors from Johns Hopkins used drones to move blood samples. And yet, the biggest unanswered questions around drones involve neither life nor limb.

“We don’t need to get to this crazy world in which robots are trying to take over in order for there to be really difficult, interesting complex legal questions,” says Ryan Calo, professor of law at the University of Washington, “That’s happening right now.”

Here’s a sample:

Privacy

“How do we make sure these drones are not recording things that they shouldn’t,” Calo says, “and those things aren’t winding up …. on Amazon servers,or somehow getting out to the public or to law enforcement?”

Legally, the higher up the camera, the lower your right to privacy. But between five and 500 feet is a big gray area. And Calo says, the drones will have cameras. They’ll have to – for self protection.

“Not only are people taking down drones just to do it, including with shotguns, but now these things will be carrying, you know, iPads” says Calo in reference to Amazon and Google delivery drones. 

As shoplifting becomes skylifting – which is its own problem – drones will have to take in a lot of information to protect themselves, and that could conflict with privacy, he says.

The conflict between drones and privacy has already come to blows: Wiliam Meredith shot down a drone in Hillview, Kentucky, that he says was being used to record his daughters in their backyard. He was charged with wanton endangerment and criminal mischief, and he is fighting those charges in court.

Tresspassing and nuisance

“Trespass and nuisance have typically since the founding been almost solely dealt with at the state and local level,” says Greg McNeal, professor of law and public policy at Pepperdine University and founder of Airmap, a navigation company for drones. He says constitutionally, every town can have its own altitude  trespassing laws, and that could cost fuel and time. 

“So if the Amazon or Google or other delivery drone as it flies over Berkeley, has to go up to 500 feet and as it flies over Mountain View, California, it’s able to dip down to 150 feet, that becomes really problematic,” he says, particularly for long-haul flights.

Rules? What rules?

A huge unanswered question for drones is simply: what are the rules for flying? The FAA is so far behind drone technology it hasn’t come up with final rules for drones in general, let alone automated delivery drones.

Rules proposed in February expressly don’t contemplate autonomous flight, flight beyond the visual line of sight of the operator, or flight by more than one human operator. Those rules “would preclude any kind of useful delivery,” says Brendan Schulman, vice president of policy and legal affairs for drone manufacturer DJI.

“All of these more sophisticated technologies are something the FAA has put off for now because they don’t know how to regulate that,” he says. 

Calo says “when Amazon originally petitioned the FAA to test drone delivery, it took the FAA so long to respond that by the time they did, Amazon had moved on from that drone to another one. That helps dramatize how fast innovation is and slow the government is.”

NASA has filled in some of the government-side gap by developing a system to help drones navigate around one another and sensitive areas, and Amazon has proposed a set of rules it would like to see govern autonomous drone flight. NASA has also worked with Google to test drones in airspace that would otherwise be prohibited by the FAA. 

But the FAA, not NASA, is the entity in charge of setting the legal ground rules. 

“It would be a shame if we had to wait another ten years for regulation,” says Schulman. 

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