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    Up, Up and Away: Rising Legal Regulation of Drone Operation

    Don’t be fooled by drones’ size; these tiny aircraft bring with them major legal issues.

    Kevin David Trost

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    aerial view from a drone

    It is hard to ignore the prevalence of unmanned aerial vehicles or drones in modern society. Once reserved for military surveillance and reconnaissance, drones have become a widespread part of private business and recreation. The Federal Aviation Administration (FAA) estimates that up to one million drones were purchased during the last year alone.1 As privately operated drones are increasingly hovering over our nation’s cities and farms, governments are responding by passing laws to regulate their operation in the interests of public safety and privacy.

    This article addresses the expanding patchwork of municipal, state, and federal laws that has arisen to govern the private use of drones. It analyzes issues of privacy, trespass, and federal-state jurisdiction that are affected by the private operation of drones.

    Background

    The commercial use of drones has exploded over the last several years as drones have become more affordable. Surveyors, photographers, and realtors have started using the machines to obtain unique and impressive aerial images of properties and wedding parties for their clients.2 Television stations have started using the machines for aerial footage that previously had to be obtained by helicopter. Large farming operations have begun using drones to evaluate crop growth, and conservationists have begun using them to unobtrusively monitor wildlife populations.

    Kevin D. Trostcom KTrost axley Kevin D. Trost, U.W. 1998, is a litigator with Axley Brynelson LLP, Madison.

    Several national retailers are publicly exploring the possibility of delivering purchases by drone. Facebook founder Mark Zuckerburg recently acquired a drone manufacturer, and he is considering deploying solar-powered drones that can remain airborne for years at a time and bring Internet service to remote areas of the planet.

    People who use drones recreationally can for the most part operate their machines with few restrictions and limited guidance. Consequently, the private operation of drones has attracted greater attention from the media and legislators as the number of drone incidents affecting public safety has risen. According to the FAA, the number of such incidents reported to the agency increased from 238 in 2014 to 1,133 through December 2015.3

    Several incidents have garnered widespread attention from the media. In January 2015, a hobbyist accidentally crashed his drone on the front lawn of the White House.4 In June 2015, four firefighting planes working to contain a California wildfire had to be grounded for several hours because of the danger of collision with a drone being operated in the area in spite of a FAA flight restriction.5 In August 2015, a drone crashed into several unoccupied stadium seats during the U.S. Open.6 And in November 2015, a drone flew into the 175-foot-tall Ferris wheel at Pier 57 in Seattle and then tumbled to the ground, crashing through an empty café table at the bottom of the attraction.7

    Fortunately, no one was injured in any of these incidents. However, the risks posed by the careless operation of drones have not gone unnoticed. Governmental authorities have increasingly reacted by enacting laws to regulate where and when drones can be operated.

    Municipal Ordinances

    Not waiting for the federal government to weigh in on the issue, many municipalities throughout the country have adopted ordinances regulating drone operation. In Wisconsin, the only community that has adopted its own regulations is Green Bay. In 2015, the city adopted an ordinance prohibiting the operation of drones at an altitude less than 400 feet above the designated boundaries of a special event.8 The city’s ordinances define special events9 to include Packer games and also the city’s annual fireworks display, marathon, and Artstreet event.10 Exceptions to the ordinance are made for law enforcement agencies, persons with permission from the event organizer, and the FAA.11

    Wisconsin Laws

    Wisconsin has had a law affecting drone operation in effect since April 2014.12 Focusing on individual privacy concerns, the law prohibits private citizens from using a drone “with the intent to photograph, record, or otherwise observe another individual in a place or location where the individual has a reasonable expectation of privacy.…”13 Violators of this statute are subject to being charged with a Class A misdemeanor.14 Critics have noted that the law solely addresses the right to privacy of a person and extends no protection to a person’s property (see Privacy discussion below.)

    The law also imposes restrictions on law enforcement’s use of drones. It mandates that law enforcement agencies obtain a warrant before employing a drone to collect evidence in circumstances in which a person has a reasonable expectation of privacy.15 However, there are exceptions that permit the use of a drone to locate an escaped prisoner, aid a search-and-rescue mission, or prevent imminent harm to a person or the imminent destruction of evidence.16 The law also prohibits drones in Wisconsin from being armed with weapons.17

    Recent Wisconsin Legislation

    In its most recent session, the Wisconsin Legislature considered two bills that would affect the operation of drones in the state.40 In March 2016, the legislature passed one of the bills and Governor Walker signed into law 2015 Wisconsin Act 318, which imposes a $5,000 fine for operating a drone over a state correctional institution.41 There is concern that individuals could use drones to deliver contraband or weapons to prisoners.

    Although there is no known instance of such a use of drones in Wisconsin yet, this phenomenon has occurred in other states. For example, in January 2015, South Carolina correctional officers discovered a crashed drone in a prison yard with drugs and cellphones attached to it.42 In December 2015, Canadian authorities determined that a drone had been used to deliver a handgun into a notorious prison in Quebec housing alleged mafia and biker-gang members.43 State and federal authorities are investigating technological methods, such as geofencing, to keep drones out of sensitive areas.

    The second bill in the Wisconsin Legislature sought to enhance penalties for crimes that were committed using a drone.44 This bill passed the Assembly. However, unlike the prison ban bill, this bill did not make the Senate’s final agenda and died at the end of the legislative session.

    FAA Regulations

    Recreational Users. In December 2015, the FAA entered the arena of recreational drone regulation when it issued an interim final rule for the regulation and marking of recreational drones, termed “small unmanned aircraft systems” in its regulation.18 A small unmanned aircraft system (UAS) is defined as an “unmanned aircraft that is capable of sustained flight in the atmosphere, flown within visual line of sight of the person operating the aircraft, and flown only for hobby or recreational purposes.”19 This broad definition results in the rule affecting not only owners of drones but also owners of remotely controlled model airplanes and helicopters.

    The rule requires that owners of recreational drones register with the FAA before operating the drone outdoors.20 Failure to register a drone can subject a violator to a civil fine of up to $27,500 and a criminal penalty of up to three years in prison.21 Registration may be accomplished through the FAA’s new registration website, https://registermyuas.faa.gov/. The registration must be in the name of a U.S. citizen at least 13 years old and costs $5.00 for a three-year registration.22

    For drones used solely for recreational purposes, registration is required if the drone weighs between 0.55 lbs. and 55 lbs., which encompasses the majority of drones currently available for recreational use. Upon registration, the owner will receive a registration number, which must be marked on all of that owner’s recreational drones. In the online registration platform’s initial four months of operation, the FAA states, approximately 400,000 registrations were processed.23

    A key component of the revised regulations is that the operator must maintain a visual line of sight with the drone at all times.

    Commercial Users. In June 2016, the FAA released its final rule revising the regulations affecting the commercial operation of drones.24 Before the release of these updated regulations, commercial operators were required to possess a pilot’s license in order to use a drone in their business. For practical reasons, many commercial operators independently contracted with a person holding a pilot’s license to satisfy this requirement. Under the revised regulations, commercial operators no longer need a pilot’s license but must pass a knowledge-based exam and obtain a drone-specific operator’s certificate, termed a remote pilot’s airmen certificate, with a small UAS rating.

    A key component of the revised regulations is that the operator must maintain a visual line of sight with the drone at all times. This requirement is certain to frustrate companies such as Amazon whose executives hope to deliver packages by drone in the near future. Such companies maintain it is impractical and uneconomical to require delivery operators to keep in constant visual contact with the drone. Nevertheless, the regulations allow for operators to apply for case-specific waivers of the regulatory requirements, so there is a process for these companies to seek approval for remote drone deliveries.

    Other requirements placed on commercial operators are that the drones must be operated during daylight hours, stay below 400 feet, weigh no more than 55 pounds, and travel no faster than 100 miles per hour. The new rules took effect Aug. 29, 2016.

    Privacy and Trespass

    The careless, malicious, or salacious operation of drones risks new civil legal claims testing current interpretations of the torts of trespass and invasion of privacy. A married couple owns an abandoned quarry near Richfield, Wis., that they are operating as a clean landfill with the hope of eventually building homes on the property.25 In 2015, a neighbor flew his drone over their property and uploaded the video to Youtube so members of a group opposed to the couple’s plans could check what was occurring on the property. The couple reported the incident to the county sheriff; however, the sheriff advised that no criminal privacy laws had been violated because no person was present. To date, no civil lawsuit has been filed asserting a violation of privacy rights.

    Wisconsin appellate courts have yet to address invasion of privacy or trespass claims arising out of the operation of drones. As illustrated by the Richfield couple’s predicament, privacy laws focus on the rights of persons to privacy with regard to their physical being, not their real property. Under Wis. Stat. section 995.50(2), invasion of privacy is defined as the “intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass” (emphasis added). An aggrieved person would likely need a court to expansively interpret a right to privacy to include those portions of a person’s property not generally visible.

    Trespass is likewise a murky concept because the drone operator might never physically enter the property owner’s land. Juries are instructed that “a person who enters or remains upon property in possession of another without express or implied consent is a trespasser.”26 An operator can argue that in many ways a drone acts similarly to a telescope, which permits a person to view objects from afar.

    However, a key difference is that a drone may physically cross into another’s real property while still connected to the operator by a live video link on the remote control. Under such circumstances, a court may be persuaded that a drone should be considered an extension of the person operating it, allowing the operator to be held liable for trespass if the drone crosses property lines.

    Meet Our Contributors

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    Kevin D. TrostBe ready for the unexpected.

    The only time in my life that I have been the victim of theft was in open court with the judge on the bench (not in Wisconsin). When my motion was called, I rose from the counsel table with my notes and motion to argue from the podium. I left my briefcase at the counsel table. When I returned from arguing the motion my briefcase was gone. Neither the judge nor his staff nor the bailiff saw anything.

    Courthouse security was able to review video footage of everyone who entered and left the courthouse that morning. They noticed a young lady who entered the courthouse emptyhanded but left 45 minutes later clutching a briefcase.

    Later that day I received a call from a woman stating she had found a briefcase containing my business card in an alley outside the courthouse. She offered her address where I could pick up the briefcase. I contacted the police, who retrieved my briefcase and arrested the woman after verifying that she fit the description of the lady in the courthouse video footage. She had been at the courthouse for a hearing in a matter where she was a criminal defendant! She pled guilty to charges filed by the district attorney.

    com KTrost axley Kevin D. Trost, Axley Brynelson LLP, Madison.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email org klester wisbar wisbar klester org. Check out our writing and submission guidelines.

    State or Federal Jurisdiction

    Another unresolved issue is the point at which the operation of a drone becomes a strictly federal matter. The federal government claims the exclusive right over the airspace of the United States.27 The FAA has been delegated authority to prescribe regulations governing the flight and operation of aircraft, including drones, in the “navigable airspace” of the country.28 The FAA asserts that a state’s ability to pass laws regulating the use of airspace depends on the impetus for the law.29 The FAA claims exclusive jurisdiction to create and enforce laws based on airspace use and safety.

    Accordingly, under its view, states and municipalities are prohibited from imposing limits on where drones may be operated or requiring operators to complete certain training. The FAA concedes that laws passed to address privacy, land use, and local law enforcement powers are within the purview of state and local governments and are not preempted. Nevertheless, it is unlikely state and local governments will agree that their powers to restrict the operation of drones in their communities are circumscribed. This is particularly true when a drone is flying merely several feet off of the ground near local landmarks or events.

    The U.S. Supreme Court has yet to resolve the issue of when state statutory and common law gives way to the federal government’s jurisdiction over the navigable airspace of the United States. The closest the Court came to addressing the topic was in a lawsuit brought by a chicken farmer near the end of World War Two.30 The farmer’s land was adjacent to a military airport where planes flew as low as 80 feet above the chicken coops.31 Chickens died as they were startled by the planes and flew headfirst into the walls of their coops.32

    In determining that the farmer’s takings lawsuit was not defeated by the government’s immunity defense, the Supreme Court found that property owners retain the right to “exclusive control of the immediate reaches of the enveloping atmosphere.”33 The Court stated that a property owner’s exclusive control includes “at least as much of the space above the ground as he can occupy or use in connection with the land.”34 While this decision may not be instrumental to defining an exact height over which the federal government exercises exclusive control, it at least recognizes that a property owner maintains control for some distance above the blades of grass in the yard.

    The FAA’s own interpretation of what constitutes “navigable airspace” may ultimately assist in defining the limits of the federal government’s exclusive jurisdiction. The FAA has interpreted the term navigable airspace to mean the space “at and above the minimum flight altitudes” and that includes the “airspace needed for safe takeoff and landing.”35

    These minimum flight altitudes vary between urban and rural areas. For urban areas or areas where there are assemblies of persons, the FAA has set the minimum flight altitude at 1,000 feet above the highest obstacle within a 2,000-foot radius.36 For rural or uncongested areas, minimum flight altitudes are 500 feet or even lower over open water.37

    A case recently filed in the U.S. District Court for the Western District of Kentucky may soon offer a modern judicial impression of the issue. In 2015, William Merideth shot down a drone that was hovering over his property, stating that it was invading the privacy of his two teenage daughters.38 The local prosecutor refused to pursue charges against Merideth for illegally shooting a firearm within the municipality after multiple witnesses averred that the drone was hovering approximately 10 feet off the ground in Merideth’s backyard.39

    In January 2016, drone operator David Boggs sued Merideth in the local federal court seeking, among other things, compensation for his ruined $1,800 drone. Boggs contends the federal court has subject matter jurisdiction due to the federal government’s regulatory control of the airspace. A jurisdictional dispute is expected over whether the state laws of Kentucky are preempted by federal law due to the federal government’s exclusive sovereignty over national airspace.

    Conclusion

    As the operation of drones becomes increasingly regulated, both commercial and recreational operators must ensure that their aircraft are properly registered and then used carefully: not infringing on other people’s rights and avoiding prohibited areas. Two apps, Hover and B4UFly, will allow an operator to identify if there are any no-fly zones in a particular area.

    Ultimately, there is likely to be litigation involving drones that impacts legal issues of trespass and privacy and potentially defines the point at which the federal government’s exclusive jurisdiction over the national airspace commences. As such cases move through the courts, we will likely gain a greater understanding of when the operation of these machines impinges on the rights of the people whose land they are traveling over and whose images they may be recording.

    Endnotes

    1 Michael Addady, “The Number of Drones Expected to Sell During the Holidays is Scaring the Government,” Fortune (Sept. 29, 2015).

    2 Joseph Dussault, “Seven Commercial Uses for Drones,” Boston Globe, Web, Mar. 14, 2014.

    3 Ralph Morris & George Thurston, “Interim Final Rule Regulatory Evaluation,” U.S. Dep’t of Transp., FAA, Dec. 2015, at 6-7.

    4 Bart Jansen, “Small Drone Crashes Near White House Despite Ban Against Flights in D.C.,” U.S.A. Today (Oct. 9, 2015).

    5 Polly Mosendz, “Drones Interfere with Firefighters Battling California Wildfire,” Newsweek (June 26, 2015).

    6 Wayne Coffey & Joseph Stepansky, “NYC Teacher Arrested after Drone Crashes into Stands at U.S. Open,” New York Daily News (Sept. 4, 2015).

    7 Eric Limer, “Drone Slams into Seattle Ferris Wheel,” Popular Mechanics (Nov. 12, 2015).

    8 Green Bay Municipal Code § 27.310(2).

    9 Green Bay Municipal Code § 6.201(9).

    10 Id.

    11 Green Bay Municipal Code § 27.310(2).

    12 Drone Privacy Protection Act, SB 196.

    13 Wis. Stat. § 942.10.

    14 Id.

    15 Wis. Stat. § 175.55.

    16 Id.

    17 Wis. Stat. § 941.292.

    18 Morris & Thurston, supra note 3.

    19 FAA, Unmanned Aircraft Systems (UAS) Frequently Asked Questions/Help, question 1.

    20 FAA Press Release, “FAA Announces Small UAS Registration Rule” (Dec. 14, 2015).

    21 FAA, Unmanned Aircraft Systems (UAS) Frequently Asked Questions/Help.

    22 FAA Press Release, supra note 20.

    23 FAA, FAA News and Updates, FAA Administrator Talks Drones at SXSW, Mar. 14, 2016.

    24 FAA, FAA Fact Sheet, Fact Sheet – Small Unmanned Aircraft Regulations (Part 107) (June 21, 2016).

    25 Stephen Davis & Bryan Polcyn, “Aerial Trespassing? Local Battle Over Drone Use Highlights Patchwork of Laws and Regulations,” Fox6now.com (Nov. 15, 2015).

    26 Wis. JI-Civil 8012.

    27 49 U.S.C. § 40103.

    28 49 U.S.C. § 40103(b)(1).

    29 FAA, Office of the Chief Counsel, “State and Local Regulation of Unmanned Aircraft Systems Fact Sheet” (Dec. 17, 2015).

    30 United States v. Causby, 328 U.S. 256 (1946).

    31 Id. at 258-59.

    32 Id.

    33 Id. at 264.

    34 Id.

    35 14 C.F.R. § 1.1.

    36 14 C.F.R. § 91.119(b).

    37 14 C.F.R. § 91.119(a).

    38 Boggs v. Merideth (Dckt. # 16-CV-6) (W.D. Ky.)

    39 Matt McFarland & Andrea Peterson, “You May Be Powerless to Stop a Drone from Hovering Over Your Own Yard,” Washington Post (Jan. 13, 2016).

    40 2015 S.B. 497; 2015 S.B. 498; 2015 A.B. 670; 2015 A.B. 671.

    41 Act 318; “Update: Wisconsin Senate Passes Prohibition on Flying Drones over Prisons,” Associated Press, March 15, 2016.

    42 Michael Schmidt, “Airmail Drone is Vexing for Prisons,” New York Times (April 22, 2015).

    43 Daniel Renaud, “Un Drone aurait livre une arme a la prison Riviere des Prairies.” La Presse (Dec. 13, 2015).

    44 2015 S.B. 497; 2015 A.B. 671.