Why a drone can hover over your home, and you can’t stop it

Lost in the controversy over the federal government’s use of military drones is an issue that hits home: commercial drones that can videotape you in your backyard.

Private drones. Source: Creative Commons

Private drones. Source: Creative Commons

Under limited circumstances, the FAA has approved the use, starting in 2015, of drones owned and operated by citizens. Some will be used for commercial purposes; others will used for recreational purposes.

The FAA Modernization and Reform Act of 2012 was approved by Congress and the president. It tasks the Federal Aviation Administration with setting policies for the commercial drone business by September 2015.

The act is mostly focused on air safety issues, but the implications of drones, with photo and infrared cameras, flying over personal air spaces is fraught with privacy issues.

Then there are the implications for commercial drones, news gathering and the First Amendment. Television stations spend millions of dollars on helicopters, which can show live video from a distance. Drones are the fraction of a helicopter’s cost, but they can’t fly as high as a helicopter under normal circumstances.

So what happens if a drone is hovering over your house as journalists gather news? Or what if it is drone owned by a police department? Or a news entertainment show like TMZ?

The Congressional Research Service prepared a detailed analysis of these conflicting issues in January 2013, and its conclusions were that until the civilian drones are tested and in service, the legal problems probably won’t be resolved.

“The legal issues discussed in this report will likely remain unresolved until the civilian use of drones becomes more widespread,” the Congressional Research Service said. “Once these regulations are tested and promulgated, the unique legal challenges that could arise based on the operational differences between drones and already ubiquitous fixed-wing aircraft and helicopters may come into sharper focus.”

In the end, the FAA will be the first government agency to set commercial drones use policies, under its powers to regulate national airspace. Congress will also get involved, at some point.

One immediate issue is the definition of a commercial drone, compared with a “model aircraft.” The operator of a commercial drone needs a special test certificate from the FAA to operate its flying vehicle. Larger models can’t fly near airports and over schools and churches.

Private, noncommercial drones are considered as recreational models.

The Congressional Research Service says smaller drones are exempt from FAA rules that apply to larger recreational drones.

“This prohibition [from FAA rules] applies if the model aircraft is less than 55 pounds, does not interfere with any manned aircraft, and is flown in accordance with a community-based set of safety guidelines,” says the report.

The novelty of commercial and recreation drones poses other legal issues. One Supreme Court case that set standards for ownership rights for the airspace over your house dates back in 1946.

In United States v. Causby, the Supreme Court dealt with a case where low-flying military planes flew over a chicken farm, causing chaos among the birds that resulted in damage to the property owner (i.e., lots of dead chickens).

Modern drones are silent (their noise won’t kill chickens), but they will most likely fly at lower altitudes, potentially putting them airspace that the courts may consider to be the controlled by the owner of the property below it.

Privacy concerns are even more problematic. As any journalist can tell you, the press has a right to photograph or videotape what can be seen from a public location, with some exceptions.

But what point in its flight is a drone above the airspace controlled by a homeowner? And can a drone operator use a thermal imaging camera to video record your house?

The Congressional Research Service rattles off other privacy scenarios: Can homeowners harm a drone if they deem it to be a trespassing threat? What about stalkers, Peeping Toms and wire tappers? Some drones can record sounds from 100 yards away from a source.

Part of the solution to these problems could come from Congress, which can pass laws to better define drone etiquette.

A lot depends on testing and recommendations that needs to come from the FAA in the next three years.

So far, the FAA is selecting six unmanned aircraft systems (UAS) test sites as mandated by Congress. The sites will function as test drone airports, with the purpose of figuring out how to safely manage flights.

But smaller, commercial drones are already being used for various purposes. A recent story from NBC News outlined how operators are widely using drones to capture video and images, by literally flying under the FAA’s radar.

One photographer interviewed by NBC said he has shot 60 hours of high-quality video using a 48-inch-sized drone, with no FAA issues.

Balancing the safety and privacy concerns over commercial and private drones is the useful news of drones for many purposes. They can help farmers manage their lands, realtors sell property, and they can be used to fight fires.

One estimate puts the global value of the commercial and private drone industry at $90 billion in the next 10 years, which will also create jobs.

The FAA also estimates that 10,000 commercial drones could be in use after September 2015, if the various problems are worked out with air traffic controls, licensing and logistics.

The legal matters could take much longer to resolve when it comes to privacy and other Constitutional issues. So you may need to encounter a drone flying over your backyard to claim damages and prove a legal point.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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