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  • InsideTrack
  • May 06, 2020

    Legal Research: Are Your Clients Flying Drones Legally?

    Using a drone can land your client in legal trouble. Law librarian Carol Schmitt lists the resources to help you research the issues and current status of drone laws in Wisconsin and the U.S.

    Carol J. Schmitt

    drone flying

    May 6, 2020 – This month in Florida, residents in a retirement community are starting to receive their prescription medications via drone, according to a UPS press release.

    While the program is touted as protecting retirement-age residents from the coronavirus, drone use for delivery was in the works long before “COVID-19” entered our vocabulary.

    In fact, with personal drones now readily available, the level of drone use – also known as unmanned aircraft systems or UAS – has been rising over the past half-decade.

    There are currently over 1.5 million drones registered in the United States. Drones are used for many purposes, such as to provide aerial footage of fires (like in California, or after the April 2019 fire at Notre Dame Cathedral in Paris), aid in search and rescue missions in remote areas where access is difficult, and to deliver supplies to remote areas.

    Drones can be used for mapping projects, or simply flown for fun. As a matter of fact, a library in Japan has been testing drones for its time-intensive annual inventory project (imagine that!).

    However, injudicious use of a drone can land your client in legal trouble.

    What are the rules and laws that govern them, and what are the best resources to use to stay on top of drone law?

    Rules Governing Drone Flying in the U.S.

    A great place to learn about drones is on the Federal Aviation Agency (FAA)’s UAS website. However, before flying a drone or talking to your client about drone use, its best to become familiar with the laws applicable to drones (or UAS).

    The type of use of the drone determines where and when the drone can be flown – and more importantly how an individual drone is registered. The FAA has a great tool on its website to assist individuals in determining what type of drone users they are.

    The types of drone operators:​

    • A commercial user/certified remote operator has a small drone weighing less than 55 pounds. These operators are subject to the 14 CFR 107 guidelines, which governs flying small drones (less than 55 lbs.) in the U.S.  For more information related to commercial users, see the FAA's webpage.

    • A recreational/modeler community user operates under an exception – 49 U.S.C. 44809 – that allows flying drones for recreational purposes that satisfy eight statutory condition, without being required to comply with 14 CFR 107. Drones under this category must fly at or under 400 feet in class G airspace, must receive authorization to fly in classes B, C, D, and E airspace, and always be flown within sight of a pilot. For information related to recreational users see the FAA’s website.

    • Educational users are those who use a drone in a classroom setting or drone training program. Educational operators can either fly under their drones subject to 14 CFR 107 guidelines or under the restrictions of a recreational/modeler community users. More information can be found on the FAA's webpage.

    Carol Schmitt, Masters of Library & Information Studies U.W.-Madison, is a legal research specialist in the Madison office of Reinhart Boerner Van Deuren. She is a board member of the Law Librarians Association of Wisconsin (LLAW), whose members regularly contribute to InsideTrack.

    Public safety and government agencies may operate drones under 55 pounds under 14 CFR 107 or under the 49 U.S.C § 40102(a) and § 40125. Agencies looking to operate or create a drone program should watch the FAA’s webinar, Drone Safety: It’s The Law. Links to the video as well as public safety toolkit can be found on the FAA's Public Safety and Government webpage.

    A good resource for both types of flying (commercial and recreational) is the Know Before You Fly website.

    A great app for recreational drone pilots is the FAA’s B4UFLY Mobile App, which displays interactive maps to show users where they can and cannot fly. The app also provides information about airspaces, airports, and links to resources and regulatory information.

    The U.S. Government Accountability Office has a nice summary of UAS operation on its website, complete with an illustration showing uses of drone and related flying height restrictions.

    Registration and Licensing Drones

    The FAA requires that all users register their drones. Registration can be done online. There is a registration fee of $5 per aircraft, and the registration is valid for up to three years. For more details and links see the FAA's webpage.

    In addition to registering a drone, commercial and education users must obtain a Remote Pilot Certificate from the FAA. This process requires passing a knowledge exam that covers such areas as airspace classifications, small UAS loading and performance, radio communications, airport operations, emergency procedures, and more. For the complete process see the FAA's webpage on becoming a drone pilot.

    Federal and State Legislation: Quick Links

    Drones are subject to both federal and state laws. The FAA is the federal agency responsible for federal regulations and enforcement. Here are some federal and state-level resources on drones:

    Federal Resources

    Wisconsin Resources

    In Wisconsin, statutes that are applicable to drone users include:

    • Chapter 29 Wild Animals and Plants: chapter 29.083(2)(a)8 prohibitions against using drone to interfere with hunting, fishing, or trapping

    • Chapter 114 Aeronautics and Astronautics: chapter 114.045 Limitation on the operation of drones

    • Chapter 114.045 – expressly forbids flying a drone over a correctional facility.

    • Chapter 114.105 – (1)(a) definition of drone, and (3) allows subdivision to enact ordinance limiting the use of drones

    • Chapter 175 Miscellaneous Police Provisions: chapter 175.55 Use of Drones Restricted

    • Chapter 941.292 Possession of a Weaponized Drone

    • Chapter 942 Crimes Against Reputation, Privacy and Civil Liberties: chapter 942.10 Use of a drone

    The Wisconsin Department of Transportation’s webpage on Unmanned Aircraft Systems links to FAA information and federal and state regulations, and provides additional definitions of UAS and examples of recreational and commercial uses.

    State History and Legislative Compilations

    In June 2016, the National Conference of State Legislators (NCSL) published a report,Taking Off: Unmanned Aircraft System Policies,” which focused on topics (legislation, proposals, etc.) related to drones under 55 pounds. This report provides a nice overview of the history of legislation at both the federal and state levels through 2016.

    The NCLS also hosts a webpage, Current Unmanned Aircraft State Law Landscape, with state legislation overviews for all 50 states, beginning in 2013. The site includes links to many individual state resources (but not Wisconsin), federal regulations, and other NCSL resources.

    Privacy and Surveillance and Drones

    Each year the concerns of drone use and individual privacy protections continue to grow.

    Many of the resources previously referenced include coverage and applicability of privacy laws. In 2011, the American Civil Liberties Union (ACLU) published an early report, “Protecting Privacy from Aerial Surveillance Recommendations for Government Use of Drone Aircraft.” Now, the ACLU has an entire page dedicated to privacy issues and the use of drones.

    Drone Info: Odds and Ends

    For further information, check out these resources:

    Statistics: The FAA website UAS by the Numbers states that, as of March 10, 2020, 1.5 million drones are registered, with more than 171,000 certified remote pilots.

    See these webinars and podcasts:

    Read these articles of interest:

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