Is It Legal to Own and Fly a Drone?

The FAA released a new set of rules in August 2016, which govern some of the how, when, and why of drones.

It is legal for a private person in the U.S. to own and fly a drone, with certain limitations. The Federal Aviation Administration (FAA) issued a set of regulations that took effect on August 29, 2016, covering many issues such as operator licensing, maximum altitude, proximity to airports, and many more. However, additional questions await further clarification.

You can read the FAA's "Small UAS [Unmanned Aircraft Systems] Part 107 guidelines" on the FAA website. For a good summary of the rules and best practices for recreational and business owners, you can download the B4UFLY app or look up the website (developed by technical and user enthusiasts in conjunction with the Federal Aviation Administration).

What Is a Drone?

A drone is a miniature, motorized, airborne machine. They range in size from feet in length and wingspan to just several inches. They're "unmanned," meaning that no person is on board flying the craft. Instead, a drone operator maneuvers the machine remotely, using a joystick or even a smartphone. Other names for drones include unmanned aircraft systems and model aircraft.

Federal Drone Regulations

The Department of Transportation and the FAA's new regulations apply to drones weighing less than 55 pounds and operated for commercial purposes (some hobbyist and recreational use is also covered). Highlights of the new rules include:

  • No flights over people who are not participating in the operation itself (but there's a waiver procedure, covered below), and an exception exists for persons who are within a stationary, covered vehicle.
  • Operations must be within the pilot's line of sight and during daylight and "civil twilight" hours. (Civil twilight begins when the sun is 6 degrees below the horizon and ends at sunrise. In the evening, it begins at sunset and ends when the sun is 6 degrees below the horizon.) The operator can apply for a waiver and also use an assistant to observe the entire flight and assist the operator.
  • Operators must be at least sixteen years old; hold either a remote pilot airman certificate with a "small UAS rating," or be under the supervision of someone who has such certification; must conduct a pre-flight safety inspection; cannot operate from a moving vehicle, and must not operate the machine carelessly or recklessly.
  • Drones must yield the right-of-way to other aircraft, fly below 400 feet, and stay five miles away from airports. Drones must not exceed 100 mph or carry hazardous materials.

Significantly, the regulations no longer require operators to register their drones, which was required of drones weighing less than 55 pounds. Similarly, drones no longer need to remain at least 500 feet away from people uninvolved in the flight operations.

The federal regulations do not give an individual whose privacy or property is intruded upon by a drone a right to bring a civil tort lawsuit. In other words, you could not sue a drone operator solely on the grounds that the operator violated a federal. But, a violation of the regulations could be offered as evidence of the operator's wrongdoing in a lawsuit for trespass or invasion of privacy (see the discussions below).

Flying Over People? At Night? Beyond the Line of Sight?

The FAA built in a process for drone operators to obtain permission to fly over people, at night, and beyond the operator's line of sight. The FAA will grant a waiver if it is convinced that the operator will conduct its flight safely, though just what constitutes adequate safety is yet to be determined.

Issues Still Unanswered

In the years to come, further rulemaking should address some or all of the following questions, and probably more:

  • What constitutes a flight "over people?" Directly overhead, or not?
  • Should special regulations cover using drones to gather information about people, as opposed to weather, crops, and so on?
  • How should drones be used for emergency situations, such as search and rescue?
  • How can drones be used by the various agencies and departments in charge of weather forecasting (NOAA, the Navy, and the National Science Foundation)?

Many additional unanswered questions were raised by the FAA regulations. Will the registration requirement be retroactive? Will it apply to a build-it-yourself drone? Many drones are homemade, and even commercially-purchased ones can be taken apart so that their parts can be swapped out. At what point does the drone become a different drone, needing new registration? How will the FAA enforce the registration requirement?

Registration—How Effective Is It?

The regulations require drones to be registered, a simple procedure that can be done online. However, the registrant need not pass a test (unlike getting a driver's license, for example). Furthermore, how useful will registration be, in the event that the operator breaks the rules? Even registered drones will not be identifiable unless the authorities have the machine in-hand. That's because, unlike an airplane, a typical drone does not have a transponder, which would transmit information about the drone to airports or other authorities. So, if a drone causes a near-miss collision with an aircraft and flies away, there's no way to know whose drone was involved. If the interference results in an accident in which the drone is downed and recovered, the machine can be traced, but the harm will have been done.

State and Local Laws

While waiting for the federal government to weigh in on drone regulations, many states and localities have gone ahead with their own laws and ordinances. Almost every state has passed related legislation. Cities have been active, too. For example, since September 2015, Los Angeles has prohibited operations within five miles of an airport, and the operator may not stand within 25 feet of another person.

But just because cities and even states have passed legislation doesn't mean that these rules will be upheld. They'll need to get past the doctrine of federal preemption, a legal rule that prevents states and localities from passing legislation in areas that the federal government has announced is solely the purview of the feds. Did Congress intend to fully occupy the field of drone legislation? If so, states and cities have no right to make their own rules. And, even if the feds have not announced their intent to completely own the field, if states and localities pass laws that are impossible to follow without running afoul of the federal rules, these lesser laws must bend to the federal scheme.

This second type of federal preemption was at work in a case from Newton, Massachusetts. That city passed an ordinance that required registration, banned private use under 400 feet under private property unless the property owner agreed; banned all flight over public property unless the city agreed; and required that all flights be within the line of sight of the operator. A federal judge ruled that these aspects of the ordinance conflicted with federal law and were thus preempted by it (other aspects of the ordinance were allowed to stand). (Singer v. City of Newton, 1:17-CV-10071-WGY (D. Mass. Sept 21, 2017).)

Property Rights

People who own property beneath the navigable airspace have constitutionally-protected property rights, as well as protection against personal injury under tort law (the body of law that concerns injuries and damages). These rights have come into play when traditional civilian and military aircraft have operated and caused intrusions, damages, or injuries. Often, the conflict is resolved by the aircrafts' owners paying compensation to the landowner for "trespass" or damage by the aircraft operator. Courts have broadened the notion of trespass for this purpose to cover noise, vibrations, and other types of impact that occur even when a plane does not fly directly over the property in question.

For example, vibrations from a plane flying near but not over property may crack windows. Or, livestock could be harmed from loud noises or stress from aircraft noise.

According to the U.S. Supreme Court, the airport operator is typically the party liable for injury or damage caused by civilian aircraft flying out of that airport (as opposed to government-owned and operated aircraft.

But, you can launch your drone from your backyard and many people do. So, if the drone operator does not fly out of an airport, who is responsible for injury or damage caused by the drone? This is another area that the FAA should address in its drone regulations.

Privacy Rights

Property owners may also have privacy rights established by state law and covering activity on their property. But, that right is limited by the property owner's reasonable expectation that his or her conduct is not observable by others. And, courts have held that a person does not necessarily have a reasonable expectation of privacy, even behind a fence or garden wall, if individuals inside a passing private airplane can see activity within the enclosure.

A drone clearly makes observation within such enclosed private property all the more possible. And, of course, the visitors to a public place (such as a park) do not have a reasonable expectation of privacy because they can be readily observed by others. It is safe to assume for the present that, if you can be seen by others (even if no one is in your vicinity at the time), you do not have a reasonable expectation of privacy if a drone flies over and photographs you. But, if a drone is getting into areas that the general public does not usually go, you may have a greater claim that your privacy was invaded by it.

One state, California, has passed legislation that took effect on January 1, 2016, which specifically makes a person liable for the physical invasion of someone's privacy when that person knowingly enters "into the airspace" above the land of another without permission. The law applies when the entry was done to capture any type of visual image, sound recording, or other physical impressions of the landowner engaging in a private, personal, or familial activity; and the invasion must happen in a way that would be offensive to a reasonable person. (Cal. Civil Code § 1708.8.) Popularly, this new law is known as the "Paparazzi" law, because it was inspired by complaints by celebrity Kanye West, who was annoyed by a drone hovering above his home.

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