Journo-drones: a Flight over the Legal Landscape
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Journo-Drones: A Flight over the Legal Landscape
BY NABIHA SYED AND MICHAEL BERRY
A
erial newsgathering has
long captured the public’s
imagination. In 1906—just
three years after Orville
Wright made the first sustained, pow-
ered flight—George Lawrence used
17 kites and steel wire to suspend a
46-pound camera into the air and
capture panoramic photos of San
Francisco following the epic earth-
quake and ensuing fires that ravaged
the city. Fifty-two years later, John
Silva changed the landscape of tele-
vision news reporting through the
KTLA5 “Telecopter,” ensuring that
news helicopters could deliver live wikimedia
traffic updates and car chases alike
to the masses. Drones represent the
latest technological advance in the than two feet in diameter and weigh sensors to gather data about weather,
storied history of bird’s-eye news- just a few pounds. And they are inex- temperature, radiation, and other envi-
gathering. As journo-drones begin pensive. Today, a small Parrot AR ronmental information that can be
to fly on the scene, journalists will drone, which can fly a few hundred used to supplement video recording.
need to navigate through existing feet in the air for about fifteen minutes, In the United States, The Daily,
state and federal laws and a rapidly costs only $300.1 The cost of a more News Corporation’s now-defunct tab-
growing thicket of new regulations sophisticated drone can range from let newspaper, was the first news outlet
and statutes. In this article, we seek to roughly $1,000 to $40,000, depending to use a drone for newsgathering. In
explain the emerging legal framework on its size, the distance it can travel, 2011, The Daily flew camera-equipped
for journo-drones and examine areas and the time it can stay in the air.2 drones to survey the flood-ravaged
in which further regulation and rule- Drones offer journalists many ben- landscape of North Dakota and the
making may develop. efits for newsgathering. First, and most devastation wrought by tornadoes in
obviously, drones have the ability to Alabama.5 Although on-the-ground
Why Journo-Drones? capture incredible images, offering reporting might have given a close-up
Like the Telecopters of yesteryear, vantage points that previously could of destroyed buildings, and helicop-
journalists today are eager to put only be captured by helicopters at ter imagery could have displayed the
drones to work. Those drones, known far greater cost.3 In addition, drones destroyed horizon, The Daily’s news
in the technology industry and among offer viewpoints that helicopters can- drones were able to switch between
regulators as small unmanned aircraft not capture. Drones’ small size permits these vantage points effectively, offering
systems (sUAS), come in many shapes accessibility into otherwise hard-to- people perspectives that otherwise
and sizes. Some look like model air- reach areas, allowing versatility in could never have been seen. The Fed-
planes or helicopters. Others look vantage points that range seamlessly eral Aviation Administration (FAA)
nothing like the manned aircraft that from up above to up close, into tight was not impressed. The agency quickly
we have seen in the past, taking the spots, and in between obstacles. They investigated whether The Daily’s use
form of futuristic minispaceships with also are much less noisy than helicop- of drones violated FAA regulations.
multiple rotors. The drones that most ters, allowing them to record much Although the FAA did not take any
journalists would like to use span less less obtrusively. Because drones are action against The Daily, the news
unmanned, they also eradicate the need of legal scrutiny was enough to chill
for human safety considerations that many journalists from experimenting
Nabiha Syed is an associate in the New restrict manned aircraft. For example, with using drones for newsgathering.
York office of Levine Sullivan Koch & drones can easily fly over forest fires, The Daily’s early experience with
Schulz, LLP. Michael Berry is a partner in into dangerous conflict zones, and even drones gave a hint at their value as a
the firm’s Philadelphia office. The authors into erupting volcanoes, all without new reporting tool. That experience
thank Sophie Benjamin and Marla Kelley risking human life.4 In addition, drones does not stand alone. For example, in
for their assistance with this article. can be equipped with a wide array of 2012 a hobbyist flying his drone over
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.the Trinity River in Texas noticed a to ensure the safety of aircraft and the entities (i.e., federal, state, and local
nearby creek with red rivulets, which, efficient use of airspace.”14 Safety is government agencies) can obtain a
upon closer inspection, were streams of at the heart of the FAA, as the 1958 “certificate of authorization” to use
pig blood flowing from a local slaugh- act was passed in the aftermath of a drones.21 For example, U.S. Cus-
terhouse. After the “hobbyist reported tragic midair collision between a Trans toms and Border Protection holds a
his findings to [local officials,] . . . a World Airlines Super Constellation certificate of authorization and main-
lengthy investigation ensued.”6 Like- and a United Air Lines DC-7 over the tains a large cache of drones that
wise, in 2013, while Colorado was in Grand Canyon, which killed all 128 serves as a “lending library” for other
the midst of horrific rains and flood- people on board the planes.15 public entities.22 Civil entities (i.e.,
ing, a private company used drones to In the years that followed, the FAA private companies) can seek a “spe-
map the floods in an effort to educate began to implement rules to allow air- cial airworthiness certificate.”23 Very
the public and assist authorities.7 craft to safely navigate the skies. At few of these certificates have been
Internationally, drones have been the same time, people began to build issued, with nearly all of them going
used to capture dramatic footage of and use model airplanes as a hobby. to defense companies like Honey-
protests in Kiev, typhoon damage in In 1981, the FAA issued Advisory well and Raytheon and one going to
Thailand, cricket games in Australia, Circular 91-57, which asks hobbyists ConocoPhillips to monitor oil drill-
and Olympic events in Sochi.8 Report- to avoid flying their model airplanes ing in Alaska.24 Obtaining a special
ers in other countries also have used above 400 feet; within three miles of airworthiness certificate requires
drones to circumvent traditional lim- airports; and near full-scale aircraft, an especially rigorous showing of
its on access: in Australia, one media populated areas, or noise-sensitive how the drone system is designed
company used a drone to observe areas such as parks, schools, hospi- and constructed, including software
refugee encampments on Christmas tals, and churches.16 The Advisory development, control, and quality-
Island after being denied permission Circular, which was not promulgated assurance procedures.25 No media
to view the area.9 as a formal FAA rule, called for hob- entity has received a special airworthi-
Just as drones have their advan- byists’ voluntary compliance as a ness certificate. In general, neither the
tages, they also pose risks. Those risks means to ensure public safety. For certificates of authorization nor the
have made headlines over the past nearly a quarter century, it stood as special airworthiness certificates are
year. For instance, last fall, a drone in the FAA’s only administrative guid- broad grants of permission: almost
Manhattan caromed off a building, ance on small unmanned aircraft. all are granted narrowly for specific
falling hundreds of feet and landing Then, in 2005, as drone technol- times, locations, and operations.26
at the feet of pedestrians on the side- ogy developed and began to enter the Although the 2007 policy statement
walk below.10 In Brooklyn, a man was domestic marketplace, the FAA issued indicated that it would undertake a
killed when his own drone hit him in a memorandum outlining an interim safety review of drones and possibly
the head.11 And a wedding photogra- policy for approving drones for domes- provide new rules as a result, no rules
pher’s drone accidentally flew into a tic use.17 That memorandum stated were ever proposed.
groom who was posing for romantic that drone operators would “be held
images with his bride-to-be.12 accountable for controlling [their] air- FAA “Enforcement” in a No-Rule
Perhaps the biggest news about the craft to the same responsible standard Regime
risks posed by drones involved Sena- as the pilot of a manned aircraft” and Recognizing the growing demand by
tor Dianne Feinstein’s claim that her explained that the FAA’s regulation companies, journalists, government
privacy had been invaded by one. Sena- concerning careless and reckless opera- agencies, and others to use drones,
tor Feinstein spoke to Politico and 60 tion of an aircraft applied to drones. and frustrated by the FAA’s delay in
Minutes about an incident in which she The 2005 memorandum was sup- promulgating regulations addressing
believes a drone was flown outside the plemented two years later by a new drone technology, in 2012 Congress
window of her house during a protest.13 FAA policy statement on drones.18 enacted the FAA Modernization and
Given these safety and privacy That statement allows hobbyists to Reform Act (“FMRA”).27 The act
concerns, and in light of The Daily’s fly drones under the Advisory Cir- requires the FAA to devise a “com-
early experience, journalism drones cular issued in 1981 but stresses that prehensive plan to safely accelerate
in the United States largely have been the circular “only applies to mod- the integration of civil unmanned
grounded. Yet, the technology contin- elers and thus specifically excludes aircraft systems into the national air-
ues to develop rapidly, and the demand its use by persons or companies for space” by September 2015.28 This plan
to use drones has grown exponentially. business purposes.”19 must address public, civil, and com-
The law has moved more slowly. The 2007 policy statement further mercial use of drones of all sizes,
provides that, except for hobbyists, including those drones that are of the
Early Legal Landscape “no person may operate a UAS in greatest interest to journalists—the
In 1958, Congress enacted the Federal the National Airspace without spe- category of “small” drones (i.e., any
Aviation Act, which established the cific authority.”20 The 2007 policy drone under 55 pounds).29
FAA and directed it to “develop plans statement explains that the FAA will
and policy for the use of the navigable authorize two types of entities to Cease-and Desist Letters
airspace and assign by regulation or use drones, and those entities oper- In the absence of formal rules reg-
order the use of the airspace necessary ate under different regimes. Public ulating drones, the FAA has relied
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.on its 2007 policy statement to issue were subject to FAA regulation and and the FAA’s view on the viability of
cease-and-desist letters to people purported to ban commercial use of the Pirker ruling, prospective drone
flying drones without FAA autho- drones, Pirker argued that these pro- operators would be well advised to
rization. In many instances, the nouncements were unenforceable remain cautious given the FAA’s posi-
agency has sent cease-and-desist let- because they had not been issued tion on its enforcement power and
ters to people and companies flying as formal rules consistent with the the political risks of drawing the ire
drones for commercial purposes, Administrative Procedure Act. Thus, of regulators and politicians as they
whether those purposes are to take Pirker contended, the pronounce- contemplate how to govern drones’
photos of houses for real estate pro- ments could not bind him, and the domestic use.
motions, to deliver dry cleaning, or fine was unenforceable.34
to record images of baseball play- On March 6, 2014, an NTSB Philosophical Approaches to
ers at spring training.30 The FAA also administrative law judge agreed. Regulation
has construed newsgathering to be a According to the judge, if the FAA’s As the Pirker case and appeal have
“commercial use,” sending cease-and- contention concerning the scope proceeded, the FAA, Congress, state
desist letters to media companies that of its existing regulations were cor- legislatures, and local governments
have used drones in their reporting.31 rect, its position “would then result have wrestled with how to regulate
In addition, in 2013, the FAA sent in the risible argument that a flight drones and how to address the safety
cease-and-desist letters to two pub- in the air of, e.g., a paper aircraft, or and privacy issues that they raise.
lic universities with drone journalism a toy balsa wood glider, could sub- The possible fields of regulation fall
programs, one at the University of ject the ‘operator’ to” FAA’s existing into at least six categories that could
Missouri and the other at the Univer- regulations.35 Moreover, that judge implicate newsgathering: operators,
sity of Nebraska-Lincoln.32 The FAA held that at the time of Pirker’s flight, flight, property, devices, behavior,
required both programs to halt their “there was no enforceable FAA rule” and consent. Some of these catego-
operations and apply for certificates that governed Pirker’s drone.36 As the ries may be impractical, while others
of authorization before continuing. judge explained, Congress enacted the pose grave constitutional issues. Nev-
FMRA because “there were no effec- ertheless, these six categories offer a
Huerta v. Pirker tive rules or regulations” in place.37 framework to make sense of the flurry
The FAA has—just once—taken action Not surprisingly, the FAA appealed of federal, state, and local legislation
to punish someone for flying a drone. the Huerta v. Pirker ruling almost and regulation emerging around the
Raphael “Trappy” Pirker, a well- immediately. That appeal is pending. In use of drones.
known drone enthusiast and operator, announcing its decision to appeal the
was hired to obtain aerial photos and ruling, the FAA expressed concern that Regulating Drone Operators
video of the University of Virginia the administrative law judge’s decision Governments might permit only cer-
campus. On October 17, 2011, Pirker would impact the safety of national air- tain people or entities to fly drones.
operated his 4.5-pound Ritewing space and emphasized its view that the For instance, regulations might pro-
Zephyr powered glider to snap a vari- appeal stayed the ruling.38 vide that only government entities can
ety of shots. The FAA alleged that he Following the judge’s decision, use drones. They might provide that
flew the drone at extremely low alti- however, some have questioned only people with a valid, government-
tudes, through tunnels with moving whether the FAA has the author- issued certificate or license can fly
cars below, and in close proximity to ity to send cease-and-desist orders in drones. Alternatively, they might say
railway tracks and individuals, all in the absence of an enforceable law.39 that drones can only be flown for cer-
violation of an FAA regulation stating Indeed, after the Pirker decision was tain purposes.
that “no person may operate an air- issued, a federal lawsuit was filed
craft in a careless or reckless manner directly challenging the FAA’s author- Regulating Flight
so as to endanger the life or property ity. In April 2014, Texas Equusearch, Governments might regulate the flight
of another.”33 In light of this alleged a non-profit search-and-rescue orga- of drones, specifically when, where,
violation, the FAA levied a $10,000 nization that uses drones to find and how drones can be flown. For
civil penalty against Pirker. (The pri- missing persons, filed a petition for example, some governments might
vate company that had hired Pirker to review in the federal district court consider allowing private drone use
operate the drone faced no fine, nor in Washington, D.C. alleging that it only during daylight hours, in places
did it receive a cease-and-desist letter.) received a cease-and-desist letter from with few people, and within the oper-
Pirker fought the enforcement the FAA ordering it to “stop immedi- ator’s line of sight (i.e., the operator
action in front of the National Trans- ately” its rescue efforts because they must be able to see the drone at all
portation and Safety Board (NTSB), are “illegal.”40 Equusearch claims that times). Alternatively, they might say
arguing that the FAA did not have it has no commercial purpose and that drones can only be flown for cer-
any authority to fine someone oper- is asking the court to set aside the tain purposes.
ating a drone because it had not FAA’s order. In its filings, Equusearch
issued any formal rules governing argues that the FAA has no power to Regulating Property Involved
their use. Although the FAA’s 2005 issue cease-and-desist letters in the Governments might regulate drones’
memorandum and 2007 policy state- absence of formal rules. Regardless ability to record images based on the
ment claimed that drone operators of the merits of this legal argument property involved, treating public and
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.private property differently or distin- decade.42Although the Roadmap does Time Limitations
guishing between congested areas and not elaborate on what rules will ulti- The Roadmap states that small-drone
open spaces. Likewise, the regulations mately bind small drones, the 72-page nighttime operations will be reviewed
could restrict or prohibit recording in document does flag several catego- with a goal of “increased night oper-
places where people have a reasonable ries of possible regulation that should ations for public entities by 2015.”45
expectation of privacy. be of interest to any drone operator This statement might suggest that the
interested in newsgathering: pilot cer- FAA will not permit private citizens
Regulating Devices tification, line-of-sight requirements, to fly drones at night.
Governments might regulate the time limitations, technological con-
recording devices on drones, for straints, and other constraints. One Technological Constraints
example, by restricting drones’ use of category not addressed is privacy. There are a number of technological
telephoto lenses or night-vision tech- means of ensuring safety and accounta-
nology. As drones are increasingly Pilot Certification bility of drones, such as detect-and-avoid
seen as platforms for other types of The Roadmap made clear that the technology to prevent crashing; return-
data journalism, including air qual- FAA wants to ensure that each aircraft to-base functionality to prevent lost
ity sensors or barometers, this kind of is “flown by a pilot in accordance with drones; information-assurance mecha-
regulation may be of particular note. required procedures and practices.”43 nisms to prevent hacking; and possible
Thus, some form of drone pilot cer- tools to allow for identification of
Regulating Behavior tification seems likely. At this point, drones, such as radio-frequency iden-
Governments might regulate record- it is not clear whether any licensing tification (RFID) tags or registration
ing people engaged in certain process would be as involved as the numbers. The Roadmap alludes to each
behavior. For instance, following process for obtaining certification to of these technologies.46 Should the FAA
California’s anti-paparazzi laws, leg- fly a manned aircraft or whether some require any of these systems for drone
islators might attempt to limit drones more easily attainable process will be flight, the market and cost of drones
recording people engaged in personal proposed. Should a pilot’s license be could change considerably. One of the
or familial activities. required for the use of small drones, reasons that drones are so appealing at
Regulating Consent fewer people will be qualified to fly the moment is that they are low in cost
Finally, governments might regulate them. If the licensing process is akin to and easy to purchase. Mandating that
the surreptitious use of drones. This the process needed to become certified drones contain sophisticated technol-
objective might be accomplished by to pilot a manned aircraft, the barrier ogy will drive up their cost and likely
requiring drone operators to obtain to entry will be high, and media com- will affect media outlets’ ability to use
consent before flying over private panies likely will need to work closely them for newsgathering.
property or filming someone. Alter- with other companies to produce and
natively, drone operators might be license content for drone use—not dis- Other Constraints
required to provide notice of where similar from how helicopter footage is The Roadmap declares that the forth-
they are flying or filming, or govern- obtained. In any case, some baseline coming small-drone regulations “may
ments might require drones to be level of training and licensing is likely have operational, airspace, and perfor-
made more visible by requiring them to be required, particularly given the mance constraints.”47 The Roadmap
to be certain colors or sizes. variant environmental factors that can itself does not address what these con-
affect the flight of drones and thereby straints might be, but if, for example,
The FAA Takes Action—Roadmap increase the physical danger that they the forthcoming regulations prohibit
As the Pirker case was progress- can pose. flying over populated areas, that pro-
ing before NTSB, the FAA moved hibition effectively would ban drones
closer toward fulfilling its congres- Line-of-Sight Requirements from many metropolitan areas and
sional mandate under the FMRA. In The Roadmap indicates that small greatly constrain the type of reporting
November 2013, the FAA released drones will have to be operated within that can be undertaken. Similarly, if
its first annual Integration of Civil visual line of sight; that is, operators the FAA continues to follow a regime
Unmanned Aircraft Systems in must always be able to see their drones similar to the existing certificates of
National Airspace System Roadmap as they fly.44 Should the FAA ultimately authorization and special airworthi-
(Roadmap).41 The Roadmap is not a require that a drone remain in visual ness certifications, then small drones
set of regulations; rather, it is a guide line of sight as opposed to radio line may not be able to fly until gaining
for the type of regulations that the of sight (that is, remotely controllable), specific authority per flight to do so—
FAA hopes to eventually implement. then certain types of reporting (such severely hampering the use of drones
Notably, the Roadmap distinguishes as flying over forest fires, natural disas- for breaking news but likely not affect-
between the integration of larger ters, or even large protests) might be ing closed-set filming or preplanned
commercial drones and small drones, impossible. This kind of regulation thus events. Preregistration of a flight plan
whose proposed rule making is now would reduce some of the “access” ben- (submitting intent-to-fly and loca-
scheduled for late 2014; the integra- efits of drone journalism, i.e., a drone tion information but no requirement
tion will happen quite slowly, over can quickly retrieve content from loca- to receive approval) may strike a bal-
a period involving technical test- tions that are too remote or unsafe for ance between documentation and
ing and rule making that may span a an individual or team of journalists. newsgathering.
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Test Sites statement” detailing who will oper- Some exceptions exist for taking off
In December 2013, one month after ate the drone, where the drone will be and landing.62 Under Oregon’s law,
releasing the Roadmap, the FAA flown, what kind of data will be col- the property owner can seek injunc-
announced the establishment of six lected, how that data will be used, tive relief, “treble damages for any
test sites.48 The sites are designed to whether the information will be sold injury to the person or the property,”
be laboratories where policy mak- to third parties, and the period of and attorney fees if the amount of
ers and developers can assess various time for which the information could damages is under $10,000.63 Oregon’s
issues with drones and observe how be retained.53 The Markey bill also drone law also criminalizes certain
they operate in different settings. To requires that the FAA “create a pub- types of conduct, such as crashing
that end, the six sites are geographi- licly available website that lists all into an aircraft or firing bullets from
cally and climactically diverse, and approved licenses and includes the drones, to enhance safety.64
each will focus on different technol- data collection and data minimization Texas’s drone law, tellingly named
ogy and operational issues.49 statements, any data security breaches the Texas Privacy Act, permits drones
The FAA, through its test sites, suffered by a licensee, and the times to capture images only under enumer-
offered an indication of how it might and locations of drone flights.”54 ated circumstances.65 For example, it
approach the privacy question. In Similarly, the Safeguarding Privacy allows images to be captured by elec-
announcing the test sites, the FAA and Fostering Aerospace Innova- tric and natural gas utilities for some
stated that it was “not . . . taking spe- tion Act of 2013, proposed by Sen. purposes and by real estate brokers
cific views on whether or how the Mark Udall (D-Utah), would pro- looking to sell property, as long as no
federal government should regulate hibit any business or individual from person is identifiable in the image.66
privacy or the scope of data that can “willfully conduct[ing] surveillance The law also permits drones to cap-
be collected by” drones.50 Instead, it of another person” using drones and ture images of people on “public real
instructed each test site to create its would require drones to be clearly property,” of people “on real prop-
own privacy rules, explaining that test marked “with the name, address, and erty that is within 25 miles of the
sites and the drones that fly in them telephone number of the owner.”55 United States border,” and “with the
must comply with federal, state, and Though none has passed, these bills consent of the individual who owns
other laws protecting an individual’s suggest how privacy concerns may be or lawfully occupies the real property
right to privacy. The FAA also has addressed at the federal level. captured in the image.”67 Texas, how-
required each site to have publicly In the absence of federal legis- ever, has outlawed using drones to
available privacy policies as well as a lation and regulation, a number of capture images of people or privately
written plan for data use and reten- states have leaped into the legal quag- owned property “with the intent to
tion. Finally, the FAA requires that mire.56 To date, 43 different states conduct surveillance on the individ-
the test sites implement an annual have considered drone legislation, ual or property.”68 Significantly, the
review of privacy practices and allow with nine passing laws regulating law does not define surveillance. This
for public comment.51 the use of drones.57 All nine of those offense is a misdemeanor, and the
states have placed restrictions on the law states that a person can defend
Legislation Looms government’s use of drones. Almost against the law by showing that she
Commercial drone use has not escaped all of these laws revolve around pro- has destroyed the image as soon as
the attention of federal and state leg- tecting citizens’ privacy, particularly she realizes it was captured and has
islators. Unsurprisingly, privacy is from intrusion by law enforcement.58 not disclosed it to anyone else.69 The
a central concern, and that concern Two states have placed moratoriums law likewise makes it a misdemeanor
could impact journalists’ ability to on government agencies’ ability to use to possess, disclose, distribute, or oth-
use drones for newsgathering. drones until the summer of 2015.59 erwise use an image after capturing it
In Congress, legislators have pro- Three states—Oregon, Texas, and in violation of the law.70
posed three major bills focusing on Idaho—have passed laws regulating pri- In addition to these criminal pro-
the privacy implications of both vate use of drones, which could have an visions, Texas has created a private
data collection and data storage. impact on journalists in those states.60 cause of action for owners and ten-
For example, the Preserving Ameri- Each state has taken a different tack. ants of private property. That action
can Privacy Act of 2013, proposed Oregon centers its rule on private allows them to enjoin an “imminent
by Rep. Ted Poe (R-Tex.) and Rep. property. In doing so, it has created a violation” of the criminal provisions
Zoe Lofgren (D-Cal.), would pro- private cause of action that a private and to seek civil penalties, includ-
hibit private drone operators from property owner can assert against ing $5,000 for “images captured in a
capturing “highly offensive” data a drone operator if (1) a drone has single episode” and $10,000 for the
involving “personal or familial activ- flown less than 400 feet above the disclosure or distribution of “any
ity . . . in which the [person] ha[s] a owner’s property at least one time, images captured in a single episode.”71
reasonable expectation of privacy.”52 (2) the property owner has notified An owner and tenant also can recover
Meanwhile, the Drone Aircraft Pri- the drone operator that he does not actual damages if she can show that
vacy and Transparency Act, offered consent to the drone flying over his the images were disclosed or distrib-
by Sen. Ed Markey (D-Mass.), would property, and (3) the operator sub- uted with “malice.”72 Furthermore,
require that drone users obtain a sequently flies the drone less than the prevailing party can collect rea-
license and submit a “data collection 400 feet above the property again.61 sonable attorney fees.73
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Finally, Idaho has passed the most has not acted on any of the drone bills seclusion that the plaintiff has thrown
sweeping legislation on private drone yet, bills pending in that state should about his person or affairs.”84
use. Its law prohibits people from be watched closely because its courts Given small drones’ dexterity in
using drones “to photograph or oth- do not recognize any torts remedy- flight and ability to film inconspicu-
erwise record an individual, without ing alleged invasions of privacy and ously, it is conceivable that drone
such individual’s written consent, for because the state contains an FAA test operators might intrude in a plain-
the purpose of publishing or otherwise site location. tiff’s private affairs in their attempt to
publicly disseminating such photo- All of these legislative efforts can gather information.85 Although jour-
graph or recording.”74 The law, which be seen as measures to prevent the nalists generally cannot be held liable
would undoubtedly face constitutional rapid expansion of drone use in the for intrusion when the subject being
challenges if enforced, allows a person absence of clear guidance from the recorded is in a public place, even that
to assert a private cause of action and FAA. It remains to be seen whether kind of newsgathering might pose
recover either $1,000, or “actual and more states will rush to pass drone some risk of an intrusion claim when
general damages,” whichever is greater, laws in the aftermath of the Pirker it involves drones.86 Indeed, under
plus attorney fees, and “other litiga- decision or if they will wait to see the certain limited circumstances, drone-
tion costs reasonably incurred.”75 FAA’s proposed small-drone rules assisted recording may come close to
Local governments have also anticipated later in 2014. Either way, the type of stakeout that one federal
jumped into the fray. For example, journalists and their counsel should court has admonished. In Wolf-
Conoy Township, Pennsylvania, keep a close eye on state legislators in son v. Lewis, the court considered a
has passed an ordinance prohibit- the coming months and years. plaintiff’s claims against a television
ing remote-controlled aircraft from station whose camera crew camped
being flown above another person’s Tort Law outside of his home to obtain foot-
property without the property own- Amidst this thicket of legislation, age for a report on the high salaries
er’s permission.76 A violation of that reporters and media attorneys should paid to executives in the health-care
ordinance can be punished by a fine not forget that existing state tort law industry.87 The court entered a pre-
of up to $300.77 and statutes of general applicability liminary injunction prohibiting the
Among the many states considering serve to regulate drones and provide camera crew from invading the plain-
legislation to restrict private drone use, many avenues of potential liability. tiff’s privacy, as well as stalking and
two states that are home to many media Some of the possible legal pitfalls are harassment, finding that the con-
companies, California and New York, the same ones that pose risks for more tinued surveillance “display[ed] a
are considering bills that could impact traditional methods of newsgather- cavalier disregard for the right of
journalists’ ability to use drones for ing and reporting. Others raise new ordinary citizens to enjoy the soli-
newsgathering. Last year, the California concerns. tude and tranquility of their lives”
Senate passed a bill that would extend As with all newsgathering that and their “right to be let alone.”88 The
California’s antipaparazzi, wiretap, involves audio and video recording, court reasoned that such an injunc-
and Peeping Tom laws to cover audio, journalists who use drones must be tion would be narrow so as not to
video, and images obtained by drones.78 aware of common-law torts and stat- impair legal newsgathering activi-
In addition, that bill provides that infor- utes addressing their subjects’ privacy. ties. Given this ruling and similar
mation obtained by government-agency In the common-law context, drone decisions finding intrusions in other
drones would be accessible under Cali- operators must consider the tort of contexts, sustained recording of a
fornia’s Public Records Act.79 intrusion upon seclusion. As news- space or continually tracking some-
Several drone-related bills also are room counsel know all too well, the one with a drone, even if done from
pending in New York. Two proposals intrusion tort has two necessary ele- a public place, may be actionable
underscore the threat that new legisla- ments: (1) a person “intentionally under certain circumstances in some
tion might pose to the press. One bill intrudes, physically or otherwise, jurisdictions.89
would create a felony for “surrepti- upon the solitude or seclusion of The flip side of the intrusion tort,
tiously view[ing], broadcast[ing], or another or his private affairs or con- which addresses gathering information
record[ing] another person . . . at a cerns,” and (2) “the intrusion would in a manner that invades someone’s
place and time when a person has a be highly offensive to a reasonable privacy, is the publication of private
reasonable expectation of privacy.”80 person.”82 As the comments in the facts tort. A person commits that tort
The second provides that a person Restatement (Second) of Torts sec- if he publishes or broadcasts private
would commit a misdemeanor by tion addressing intrusion explain, information about someone else if the
using a drone “to conduct surveillance the tort can be committed through disclosure of that information would
of or to monitor any individual inside “the use of the defendant’s senses, be highly offensive to the reasonable
his or her home or place of worship with or without mechanical aids, to person and the information is not a
or within the closed confines of their oversee or overhear the plaintiff’s pri- matter of legitimate public concern. In
property or other locations where a vate affairs, as by looking into his general, media companies only publish
person would have a reasonable expec- upstairs windows with binoculars.”83 information if it is newsworthy. Nev-
tation of privacy,” unless the person Critically, the intrusion tort requires ertheless, it is conceivable that drone
is doing so for “lawful purposes.”81 the defendant to pry into a private operators might capture images of
Although the New York legislature place or “otherwise invade[] a private people’s private affairs that are then
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.broadcast and give rise to potential appear barely to miss the tops of the intentional and unreasonable inva-
liability.90 trees.”97 The noise literally frightened sion that interferes with a person’s
State tort law also protects peo- dozens of the farmers’ chickens to enjoyment of his land.103 Courts have
ple against physical harm that drones death and destroyed his ability to use allowed nuisance claims when a prop-
might cause. For instance, if a drone the property as a chicken farm. The erty owner is regularly subjected to
crashes into a person, that person can Court sympathized with the farmer’s flying objects, such as golf balls fly-
assert claims for battery or negligence, plight but placed limits on a prop- ing onto his property because an
just as she could pursue a claim if erty owner’s ability to state a takings adjoining driving range fails to repair
she were hit by a ball or other flying claim based on airplanes’ flight over the net that was supposed to block
object.91 his property. It held that a landowner them.104 These kinds of claims pro-
In addition to these common- “must have exclusive control of the ceed because there is a continuing
law tort claims, drone operators who immediate reaches of the enveloping possibility that a ball could be hit
record audio need to be aware of their atmosphere” and that a taking occurs onto the private property.105 The same
states’ wiretap statutes. Those stat- only when the government engages in theory could be applied to drone
utes create crimes and private causes activity that has a “direct and imme- operators. If a drone is flown across
of action that can be asserted against diate interference with the enjoyment someone’s property on several occa-
people who intentionally intercept and use of the land.”98 In light of sions, the property owner might use
audio communications if the speakers the Causby decision, the Restatement the law of nuisance to seek an injunc-
have a reasonable expectation of pri- provides that “flight by an aircraft” tion preventing the operator from
vacy.92 Drone operators also should constitutes a trespass if “it enters into flying his drone over the property in
be aware of stalking, harassment, the immediate reaches of the air space the future.106
Peeping Tom, and other statutes next to the land” and “interferes sub-
that circumscribe conduct involving stantially with the [owner’s] use and Conclusion
recording or following individuals.93 enjoyment of his land.”99 As drones begin to take flight in the
Some states might have other stat- Nevertheless, the Restatement also United States, their operators must
utes that drone operators should states that a trespass can be com- navigate a patchwork of property,
know. For instance, in California, mitted “above the surface of the safety, and privacy laws. Legisla-
drone operators need to understand earth.”100 And the comments to the tors and government officials appear
that state’s antipaparazzi law. That Restatement explain that “it is an poised to pile on new statutes and
law creates a cause of action for actionable trespass . . . to fire projec- rules. Although some regulatory
“constructive invasion of privacy,” tiles or to fly an advertising kite or guidance is necessary, the pub-
which is committed when someone balloon through the air above [land], lic should remember that today’s
“attempts to capture, in a manner that even though no harm is done to the drone enthusiasts are not so differ-
is offensive to a reasonable person,” land or to the possessor’s enjoyment ent from George Lawrence and his
an image or recording of a person of it.”101 Indeed, the Restatement early experiments with kites, wires,
“engaging in a personal or familial includes the following illustration: and cameras to explore the world
activity under circumstances in which “A, while hunting birds on a pub- through a new vantage point. To pro-
the plaintiff had a reasonable expecta- lic pond, fires shot across B’s land tect this period of exploration and
tion of privacy, through the use of a close to the surface. The shot do not the nascent drone industry, jour-
visual or auditory enhancing device” come to rest on B’s land, but fall into nalists and press advocates should
if the image or recording “could not another public body of water on the remain engaged in the political
have been achieved without a trespass other side of it. A is a trespasser.”102 process and speak out against pro-
unless the visual or auditory enhanc- This illustration highlights that fly- posed legislation and regulation that
ing device was used.”94 ing drones above a person’s property, might unnecessarily restrict the use
Existing state law also protects even for just a moment, might consti- of drones or thwart the develop-
people’s interest against having drones tute a trespass. Given these conflicting ment of this emerging technology.
flying over their property, most nota- Restatement provisions, it is not clear Instead, we should see how drones
bly through the law of trespass. At how courts will treat drone flight evolve, observe how they are used,
common law, “ownership of the land over private property and what drone allow existing state laws to perform
extended to the periphery of the activity might constitute a substantial their remedial function, and look to
universe.”95 The potentially sweep- interference with a property owner’s journalistic ethics to guide the use
ing nature of that rule, however, was enjoyment of his land. Drone opera- of drones for newsgathering. In the
abrogated following the advent of air- tors, however, must understand their meantime, any reporter thinking
planes and the Supreme Court’s 1946 state trespass laws before flying and about using a drone must understand
decision in United States v. Causby, remain current about the state of the the existing legal landscape and
which involved a Fifth Amendment law in this area as it evolves. closely follow this rapidly changing
takings claim by a chicken farmer A property owner over whose land area of the law.
who lived near a runway.96 The gov- drones routinely fly also might be
ernment used the runway for Army able to assert a claim for nuisance. Endnotes
and Navy aircraft, which would fly A nuisance claim requires a showing 1. Parrot® AR.Drone 2.0, Radioshack,
over the farm “close enough . . . to that the defendant has committed an http://www.radioshack.com/product/
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.index.jsp?productId=19182216&utm_ drone-company-helps-colorado- 16, 2014), http://www.cbsnews.com/news/
source=GooglePLA&utm_medium= emergency-until-fema-says-no. drones-over-america-60-minutes/.
pla&utm_term=55056260&gclid=CJjHxs 8. See, e.g., Ukraine: Dramatic Drone 14. 49 U.S.C. § 40103(b)(1).
foq70CFQLA4AodpAgAAA&gclsrc=ds Footage Captures Battle for Central Kiev 15. History: A Brief History of the
(last visited Mar. 24, 2014). Square—Video, Guardian (Feb. 19, 2014), FAA, FAA, http://www.faa.gov/about/
2. Nick Kelley, Drones Buzz Sochi: http://www.theguardian.com/world/ history/brief_history/ (last modified
UAVs Are Changing the Way We Watch video/2014/feb/19/ukraine-dramatic- Feb. 1, 2010, 6:06 PM).
Sports, Outside Online (Feb. 11, 2014), drone-footage-captures-battle-kiev- 16. FAA, AC 91-57, Model
http://www.outsideonline.com/news-from- square-video; Mark Corcoran, Drones Set Aircraft Operating Standards (June
the-field/Drones-Buzz-Sochi.html. for Commercial Take-Off, Australian 9, 1981), available at http://www.faa.
3. Operating a helicopter for news Broadcasting Corp. (May 24, 2013, gov/documentLibrary/media/Advisory_
coverage costs approximately $1,000 per 8:09 AM), http://www.abc.net.au/ Circular/91-57.pdf.
hour, including the cost of the personnel news/2013-03-01/drones-set-for-large- 17. FAA, AFS-400 UAS Policy
required to fly it. See Andrew Dodson, TV scale-commercial-take-off/4546556; 05-01, Unmanned Aircraft Systems
News Choppers Flying High Once Again, Typhoon Haiyan: New Drone Footage Operations in the U.S. National
TVNewsCheck (Aug. 8, 2013), http:// Shows Destruction of Tacloban, Airspace System—Interim Operational
www.tvnewscheck.com/article/69563/ Philippines, MSN News UK (Nov. Approval Guidance (Sept. 16, 2005),
tv-news-choppers-flying-high-once-again/ 21, 2013), http://news.uk.msn.com/ available at http://www.uavm.com/images/
page/1. video-clips?videoid=4a45b02d-b37c-9a69- AFS-400_05-01_faa_uas_policy.pdf.
4. Brian Skoloff & Tracie Cone, 2f64-413917d9b3fd; Angela Charlton, 18. Unmanned Aircraft Operations
Firefighters Use Drones to Battle Yosemite Sochi Drone Shooting Olympic TV, Not in the National Airspace System, 72
Rim Fire, Huffington Post (Aug. Terrorists, Associated Press (Feb. 10, Fed. Reg. 6689-91 (Feb. 13, 2007)
28, 2013), http://www.huffingtonpost. 2014, 11:35 PM), http://wintergames. [hereinafter 2007 Guidance] (to be
com/2013/08/28/drones-yosemite-fire_ ap.org/article/sochi-drone-shooting- codified at 14 C.F.R. pt. 91), available at
n_3833528.html; Phoebe Magdirila, olympic-tv-not-terrorists. For a summary http://www.faa.gov/about/initiatives/uas/
In the Philippines, Drones Are Used for of international legal approaches to reg/media/frnotice_uas.pdf. The FAA
News Reporting and Rescue Operations, drone use; see Zach Garcia, What Flies Modernization and Reform Act of 2012
Tech Asia (Jan. 22, 2014), http://www. When It Comes to Drone Laws Across (FMRA), Pub. L. No. 112-95, 126 Stat.
techinasia.com/philippines-drones-news- the Globe, Mo. Drone Journalism 11 (Feb. 14, 2012), specifically requires the
reporting-rescue-operations/; Leslie Program (Apr. 19, 2013), http://www. FAA to update this guidance. Id. § 332(b)
Kaufman & Ravi Somaiya, Drones Offer missouridronejournalism.com/2013/04/ (3).
Journalists a Wider View, N.Y. Times what-flies-when-it-comes-to-drone-laws- 19. 2007 Guidance, supra note 18, at 6.
(Nov. 24, 2013), http://www.nytimes. across-the-globe/. 20. Id. at 5.
com/2013/11/25/business/media/drones- 9. Corcoran, supra note 8. 21. Fact Sheet—Unmanned Aircraft
offer-journalists-a-wider-view.html?_r=0; 10. Jim Hoffer, Small Drone Crash Systems (UAS), FAA (Jan. 6, 2014),
Thomas Davis, Drone Flies into an Active Lands in Manhattan, WABC-TV N.Y., http://www.faa.gov/news/fact_
Volcano, DroneHire Blog (Mar. 13, N.Y. (Oct. 3, 2013), http://abclocal. sheets/news_story.cfm?newsId=14153.
2014), http://www.dronehire.org/#blog/ go.com/wabc/story?id=9270668. 22. Tim Cushing, CPB “Discovers”
drone-flies-into-an-active-volcano. 11. J. David Goodman, Remote- an Additional 200 Drone Flights It
5. Kashmir Hill, FAA Looks Into Controlled Model Helicopter Didn’t Originally Include in Its FOIA
News Corp’s Daily Drone, Raising Fatally Strikes Its Operator, N.Y. Response, TechDirt (Jan. 15, 2014,
Questions About Who Gets to Fly Drones Times (Sept. 5, 2013), http://www. 1:18 PM), http://www.techdirt.com/
in the U.S., Forbes (Aug. 2, 2011, 3:52 nytimes.com/2013/09/06/nyregion/ articles/20140115/09150425884/cbp-
PM), http://www.forbes.com/sites/ remote-controlled-copter-fatally-strikes- discovers-additional-200-drone-flights-
kashmirhill/2011/08/02/faa-looks-into- pilot-at-park.html?_r=0. it-didnt-originally-include-its-foia-
news-corps-daily-drone-raising-questions- 12. James Nye, Fail! Photographer’s response.shtml.
about-who-gets-to-fly-drones-in-the-u-s/. Drone Smacks Groom in the Head 23. 2007 Guidance, supra note 18.
6. Alexandra Gibb, Droning the Story, As He Looked for the Perfect Shot, 24. See, e.g., Jennifer Lynch, FAA
Tow Center for Digital Journalism Daily Mail Online (Aug. 16, 2013, Releases Lists of Drone Certificates—
(May 29, 2013), http://towcenter.org/ 4:00 PM), http://www.dailymail. Many Questions Left Unanswered,
blog/droning-the-story/; see also Kashmir co.uk/news/article-2395933/ Electronic Frontier Found. (Apr.
Hill, Potential Drone Use: Finding Rivers Fail-Photographers-drone-smacks-groom- 19, 2012), https://www.eff.org/
of Blood, Forbes (Jan. 25, 2011, 11:50 head-looked-perfect-shot.html. deeplinks/2012/04/faa-releases-its-
AM), http://www.forbes.com/sites/ 13. Kathryn A. Wolfe, Dianne list-drone-certificates-leaves-many-
kashmirhill/2012/01/25/potential-drone- Feinstein Spots Drone Inches from Face, questions-unanswered; Wesley Loy, FAA
use-finding-rivers-of-blood/. Politico (Jan. 15, 2014, 4:15 PM), Clears Way for Use of Drones by Oil
7. Kelsey D. Atherton, Before http://www.politico.com/story/2014/01/ Industry Off Alaska, Anchorage Daily
FEMA Arrived, Private Drone Mapped senator-dianne-feinstein-encounter- News (Aug. 24, 2014), http://www.adn.
Colorado Flooding, Popular Sci. with-drone-technology-privacy- com/2013/08/24/3041131/faa-clears-the-
(Sept. 17, 2013, 1:34 PM), http://www. surveillance-102233.html; Morley Safer, way-for-drones.html.
popsci.com/technology/article/2013-09/ Drones over America, 60 Minutes (Mar. 25. Unmanned Aircraft Systems
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.(UAS): Certifications and Authorizations, Come Out of the Shadows, Wired (Mar. On the Future of Unmanned Aviation in
FAA, http://www.faa.gov/about/ 10, 2014, 6:30 AM), http://www.wired.com/ the U.S. Economy; Safety and Privacy
initiatives/uas/cert/ (last modified Mar. 19, threatlevel/2014/03/drone-pilots-flying- Considerations: Hearing Before the S.
2013 10:56 AM). high/, with Jeremy Barr, It’s Probably Not Comm. on Commerce, Sci. & Transp.,
26. Id. Since 2006, FAA reports that “Game On” for Drones, Despite Judge’s 113th Cong. (Jan. 15, 2014) [hereinafter
it has granted approximately 1,400 Ruling, Poynter (Mar. 7, 2014, 7:07 Hearing] (testimony of Michael Huerta,
certificates of authorization and only 100 PM), http://www.poynter.org/latest-news/ Admin., FAA), available at http://www.
special airworthiness certificates, despite mediawire/242530/its-probably-not-game- commerce.senate.gov/public/?a=Files.
widespread interest from the public and on-for-drones-despite-judges-ruling/. Serve&File_id=2b62541a-5da5-4789-
private sectors alike. Id.; see also Unmanned 40. Texas Equusearch Mounted b73e-47aeeb4e9563.
Aircraft Systems: Continued Coordination, Search and Recovery v. Federal Aviation 50. As FAA Administrator Michael
Operational Data, and Performance Administration, No. 14-1061 (D.D.C., filed Huerta has explained, the privacy policy
Standards Needed to Guide Research Apr. 21, 2014) will “apply by contract” to the test sites.
and Development: Testimony Before the 41. FAA, Integration of Civil Hearing, supra note 48. A copy of the
Subcomm. on Oversight of the H. Comm. Unmanned Aircraft Systems (UAS) in Federal Register notice detailing the final
on Sci., Space, & Tech., 113th Cong. 5 the National Airspace (NAS) Roadmap test site privacy requirements is printed
(2013) (statement of Gerald L. Dillingham, (1st ed. 2013) [hereinafter Roadmap], at 78 Fed. Reg. 68,360 (2013), available at
PhD, Dir. of Gov’t Accountability Office, available at http://www.faa.gov/about/ http://www.regulations.gov/contentStream
Physical Infrastructure Issues). initiatives/uas/media/uas_roadmap_2013. er?objectId=090000648147d799&dispositi
27. FMRA, Pub. L. No. 112-95, 126 pdf. The Roadmap was explicitly required on=attachment&contentType=pdf.
Stat. 11 (Feb. 14, 2012). as part of the FMRA. See Pub. L. No. 51. As of the date this article was
28. Id. § 332(a)(1). 112-95 § 332(a)(2) (2012). The FAA Joint written, none of the six sites has published
29. Id. § 332(a)(2). Planning and Development Office also privacy or operating policies.
30. Jason Koeber, These Are the developed a “Comprehensive Plan” to 52. Preserving American Privacy Act
Companies the FAA Has Harassed for safely accelerate the integration of civil of 2013, H.R. 637, 113th Cong. § 3119f
Using Drones, Motherboard (Feb. 6, drones into the national airspace system. (2013), available at http://beta.congress.
2014, 3:20 PM), http://motherboard.vice. See FAA Joint Planning & Dev. Office, gov/bill/113th-congress/house-bill/637.
com/blog/these-are-the-companies-the- Unmanned Aircraft Systems (UAS) 53. Drone Aircraft Privacy and
faa-has-harassed-for-using-drones. Comprehensive Plan: A Report on the Transparency Act, H.R. 2868, 113th
31. See Hill, supra note 5 (describing Nation’s UAS Path Forward (Sept. Cong. (2013), available at https://www.
the FAA’s scrutiny of the Daily drone). 2013), available at http://www.faa.gov/ govtrack.us/congress/bills/113/hr2868/
More recently, the FAA reiterated this about/office_org/headquarters_offices/ text.
position in its Roadmap. See infra note 40. agi/reports/media/UAS_Comprehensive_ 54. Press Release, Markey Drone
32. See Koeber, supra note 27. Plan.pdf. Privacy Legislation to Prevent Flying
33. See generally Huerta v. Pirker, No. 42. See Roadmap, supra note 40, at Robots from Becoming Spying
CP-217, at 2–3 (NTSB Office of Admin. Law 58. The FAA estimates that 7,500 small Robots (Mar. 19, 2013), http://www.
Judges Mar. 6, 2014), available at http://www. drones will be in the national airspace markey.senate.gov/news/press-releases/
ntsb.gov/legal/Pirker-CP-217.pdf. over the next five years. Hearing, supra markey-drone-privacy-legislation-to-
34. Id. note 48, at 3. prevent-flying-robots-from-becoming-
35. Id. at 3 (emphasis in original). 43. Roadmap, supra note 40, at 9, 34, 52. spying-robots.
36. Id. at 2–3. 44. Id. at 33. 55. Safeguarding Privacy and Fostering
37. Pirker, No. CP-217, at 7. 45. Id. at 58. Aerospace Innovation Act of 2013, S.
38. Press Release, FAA, FAA Statement 46. Id. at 29. 1057, 113th Cong. §§ 262–63 (introduced
(Mar. 7, 2014), available at http://www. 47. Id. at 34. May 23, 2013), available at https://www.
faa.gov/news/press_releases/news_story. 48. Press Release, FAA, FAA Selects govtrack.us/congress/bills/113/s1057/text.
cfm?newsId=15894. The Pirker decision Unmanned Aircraft Systems Research 56. The proliferation of state and local
includes the following notation: “Please and Test Sites (Dec. 30, 2013), available at drone regulations prompts questions of
note that the NTSB Administrative Law http://www.faa.gov/news/press_releases/ federal preemption. See John Villasenor,
Judge’s dispositional order is not a final news_story.cfm?newsid=15576. Observations from Above: Unmanned
Board decision in this matter. This order is 49. The sites are centered at the Aircraft Systems and Privacy, 2 Harv.
appealable to the full five-member Board University of Alaska, the entire state of J.L. & Pub. Pol’y 457 (Spring 2013),
and is not of precedential value.” Pirker, Nevada, New York’s Griffiss International available at http://www.harvard-jlpp.com/
No. CP-217, at 1. That notation cites to Airport, the North Dakota Department wp-content/uploads/2013/04/36_2_457_
49 C.F.R. § 821.43, which states that “[t]he of Commerce, Texas A&M University, Villasenor.pdf. Those questions are
filing of a timely notice of appeal with the and Virginia Polytechnic Institute and beyond the scope of this article.
Board shall stay the effectiveness of the law State University. Id. The FAA has stated 57. The National Conference of State
judge’s initial decision or order, unless the that long-term integration of drones Legislatures maintains links to state
basis for the decision or order is that the will depend on the test sites for the legislative activity surrounding unmanned
Board lacks jurisdiction.” development of sustainable operational aircraft systems. See 2013 Unmanned
39. Compare David Kravets, After Recent procedures, as well as new technologies Aircraft Systems (UAS) Legislation,
Ruling, America’s Commercial Drone Pilots developed to assuage safety concerns. NCSL, http://www.ncsl.org/research/
Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.You can also read
