certified cargo dronesDrone Regulation in USA – Lexology

August 19, 2021by helo-10
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General framework

Basic rules and regulators

What basic rules govern the operation of remotely piloted aircraft and unmanned aircraft (drones) in your jurisdiction? Which regulatory bodies are charged with enforcing these rules?

In accordance with several legislative and regulatory initiatives over the past several years, the US government – led by the Federal Aviation Administration (FAA) – has been rolling out new regulations, rule-makings, and pilot programmes to speed the integration of unmanned aircraft systems (UAS) into the National Airspace System (NAS). Currently, there are three main operational categories permitted under US law, each with its own set of rules and regulations:

  • recreational or hobbyist operations;
  • commercial or non-recreational operations; and
  • public aircraft operations.

FAA is the regulatory agency with primary oversight of UAS operations, with the involvement of other agencies as discussed herein.

The US federal government has exclusive jurisdiction to regulate aviation safety and operations in US navigable airspace, including UAS operations. Nevertheless, many states and municipalities have their own restrictions on use of UAS. In general, where they related to airspace or safety issues, they are pre-empted by federal law. However, those related to state and local police powers, including land use, zoning, privacy, trespass and law enforcement are not pre-empted. While this summary touches upon such state and local laws, it does not include a comprehensive review of these rules.

This chapter does not address US military operation of UAS.

What are the penalties for non-compliance with the laws and regulations governing drones?

While the monetary limits vary depending on whether the subject of an enforcement action is an individual, a small business entity or a larger business entity, and on the particular violation involved, civil penalties of up to $33,333 per violation, as well as criminal penalties, may be assessed for failure to comply with UAS operational requirements and limitations. A UAS operator may also have his or her remote pilot licence suspended or revoked in response to certain violations.

Some examples include:

  • Failure to register a UAS may result in civil penalties of up to $33,333, and criminal penalties up to $250,000 or imprisonment for up to three years, or both.
  • A civil penalty of up to $20,408 and a criminal penalty of up to $250,000 or imprisonment for up to two years applies to anyone who operates a UAS and deliberately or recklessly interferes with wildfire suppression, law enforcement or emergency response efforts.
  • Knowingly or recklessly interfering with a manned aircraft or knowingly operating within an airport runway exclusion zone could result in a criminal penalty of up to $250,000 or imprisonment for up to one year, or both. If serious bodily injury or death results, the term of imprisonment may be increased to up to 10 years for reckless violations, and up to life in prison for knowing violations.

Most UAS violations are treated in accordance with FAA’s general Compliance Program, which focuses on resolving non-compliance through informal compliance actions, such as education or counselling, whenever possible. If FAA does not believe a compliance action will be effective, but the violation does not require formal legal enforcement, FAA will take administrative action, such as issuing a letter of correction or a warning. If neither compliance action or administrative action would be sufficient (or if such actions have been taken but non-compliance continues), FAA will take legal enforcement action, such as suspending or revoking a remote pilot certificate, or issuing a civil penalty.

However, for cases involving interference with wildfire suppression, law enforcement or emergency response efforts, FAA policy requires legal enforcement action without exception.

Classification

Is there any distinction between public and private drones, as well as between leisure use and commercial use?

Yes, public UAS operations must meet the same statutory criteria as public manned aircraft operations. All operations that do not meet the public aircraft operations criteria constitute civil operations. Civil UAS operations are either recreational or commercial in nature. For example, UAS operations to take photographs for personal use would be recreational in nature, whereas operations to take photographs for compensation (eg, wedding photography) or sale would be commercial.

Public aircraft operations

Generally, a public aircraft is an aircraft (i) owned or leased exclusively by the US government, or by the government of a US state, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of those governments, or a tribal government, (ii) that is operated for purposes that meet the statutory criteria of a ‘governmental function’, and (iii) that is not operated for commercial purposes (ie, operations for compensation or hire).

Recreational operations

Recreational operators must comply with 49 U.S.C. section 44809, which requires that the UAS be operated:

  • strictly for recreational purposes;
  • in accordance with a community-based organisation’s set of safety guidelines that are developed in coordination with FAA;
  • within the visual line of sight of the person (VLOS) operating the aircraft or a visual observer co-located and in direct communication with the operator;
  • in a manner that does not interfere with and gives way to any manned aircraft;
  • solely in Class G airspace from the surface to not more than 400ft above ground level, unless the operator obtains prior authorisation from FAA before operating in Class B, C, D or E airspace.
  • in compliance with all airspace restrictions and prohibitions;
  • by an operator who has passed an aeronautical knowledge and safety test; and
  • with appropriate registration and marking.

FAA has not yet approved any particular community-based organisation safety guidelines. However, the Academy of Model Aeronautics, which has worked with FAA on recreational operations policies, has developed a safety handbook for recreational fliers, which may be of use.

Operations outside these criteria will need to comply with commercial rules.

Commercial operations

14 C.F.R. Part 107, finalised in mid-2016, contains FAA’s rules and operating limitations for commercial operation of small UAS (sUAS) (defined as UAS weighing less than 55lb (25kg) at take-off, including ‘everything onboard or otherwise attached’). Provided all of the requirements in the regulations are met, sUAS operators do not require specific authorisation or licensing to operate under Part 107; the exception is operators wishing to obtain waivers from certain operational limitations. Commercial operations using UAS weighing 55lb or more must be specifically authorised by FAA, as described in question 4.

Operations under Part 107 must conform to the following conditions and restrictions:

  • UA must weigh less than 55lb.
  • VLOS only; the unmanned aircraft (UA) must remain within VLOS of the remote pilot in command (PIC) and the person manipulating the flight controls of the sUAS with vision unaided by any device other than corrective lenses. Alternatively, the UA must remain within VLOS of a visual observer (VO). Use of a VO is permitted, but not required.* Æ
  • PIC must have a remote pilot certificate.
  • May not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle.*
  • Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting.*
  • Must yield right of way to other aircraft.*
  • First-person view camera cannot satisfy ‘see-and-avoid’ requirement but can be used as long as requirement is satisfied in other ways.
  • Maximum groundspeed of 100mph (87 knots).*
  • Maximum altitude of 400ft above ground level (AGL) or, if higher than 400ft AGL, remain within 400ft of a structure.*
  • Minimum weather visibility of three miles from control station.*
  • Minimum distance of sUAS from clouds no less than (i) 500ft below the cloud and (ii) 2,000ft horizontally from the cloud.
  • Operations in Class B, C, D and E airspace are allowed with the required ATC permission.
  • Operations in Class G airspace are allowed without ATC permission.
  • No person may act as a remote PIC or VO for more than one UA operation at one time.*
  • No operations from a moving aircraft, or from a moving vehicle unless the operation is over a sparsely populated area. * Æ
  • No careless or reckless operations.
  • No carriage of hazardous materials.
  • Requires preflight inspection by the remote PIC.
  • Operator must not have any physical or mental condition that would interfere with the safe operation of an sUAS.
  • External load operations are allowed if the object being carried by the UA is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft.

* Requirement is waivable if the operator obtains authorisation from FAA by demonstrating that the anticipated operation can safely be conducted under the terms of a certificate of waiver.

Æ Not waivable for operations involving the carriage of property of another by aircraft for compensation or hire.

Additionally, transportation of property for compensation or hire is allowed under Part 107 provided that:

  • the aircraft, including its attached systems, payload and cargo weigh less than 55lb total;
  • the flight is conducted within VLOS and not from a moving vehicle or aircraft; and
  • the flight occurs wholly within the bounds of a state and does not involve transport between (i) Hawaii and another place in Hawaii through airspace outside Hawaii; (ii) the District of Columbia and another place in the District of Columbia; or (iii) a territory or possession of the United States and another place in the same territory or possession.

Is there a weight-based classification system for drones resulting in the application of different rules?

Yes, as noted in question 3, Part 107 operating rules apply only to sUAS, which weigh less than 55lb. Operation of recreational UAS also is limited to UAS weighing less than 55lb, ‘unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization’.

There is no codified set of operating standards for UAS weighing 55lb or more. Entities wishing to operate such UAS for commercial purposes must obtain either an airworthiness certificate or an exemption under 49 U.S.C. section 44807 (Special Authority for Certain Unmanned Systems). FAA will grant such an exemption if it finds the proposed operations to be in the public interest and that it would not adversely affect safety, or would provide a level of safety equal to that provided by the regulation. For example, FAA has granted a number of section 44807 exemptions for commercial agricultural-related services (eg, crop dusting).

If the UAS of 55lb or more will be used only for research and development purposes, an operator can apply for a special airworthiness certificate in the experimental category.

Is there any distinction between completely autonomous drones and remotely piloted drones?

Completely autonomous drones are not currently permitted to operate in the NAS.

Design and manufacture

Registration

Do specific rules regulate the design and manufacture of drones in your jurisdiction?

No, except as noted in question 16.

However, section 345 of the 2018 FAA Reauthorization Act requires FAA to establish a process for manufacturers to self-certify that an sUAS model complies with FAA-accepted consensus safety standards. Implementation of section 345 will require FAA to accept risk-based consensus safety standards related to the design, production and modification of sUAS, authorise the operation of sUAS conforming to the accepted standards, and authorise manufacturers to self-certify compliance with the accepted standards. This process has not yet been established.

Manufacturing authorisation

Must drone manufacturers obtain any licences or other authorisation to carry out their business? Are manufacturers subject to any other specific rules?

No licences or authorisations are required at this time, except as noted in question 16.

Under section 2203 of the 2016 FAA Extension, Safety, and Security Act, manufacturers of sUAS are required to include a ‘safety statement’ with their products offered for sale. The safety statement must provide information about the laws and rules applicable to sUAS, including recreational use. FAA has developed and posted on its website a one-page statement that it deems to meet the statutory requirements, which manufacturers can print and use.

Product liability

Do general product liability rules (or other specific liability rules) apply to the manufacture of drones?

There are no UAS-specific product liability rules.

Registration and identification

Registration

Must drones be registered in a specific national registry? If so, who is entitled to register drones and what requirements and restrictions apply? Is the registry organised as an operator registry or an owner registry?

All owners of UAS weighing more than 0.55lb and less than 55lb must register the UAS with FAA’s small UA registry to operate in the US NAS. This can be accomplished through web registration or by paper registration. This requirement applies to UAS intended for either recreational or commercial operations. However, owners of UAS that will be used only for recreational purposes are not required to register each UAS they operate; instead, they are provided with one registration number that applies to all their recreational UAS. Owners of UAS to be used for all other purposes must register each individual UAS. Note that ‘owner’ for the purposes of registration includes a buyer in possession, a bailee, a lessee of an sUAS under a contract of conditional sale, and the assignee of that person.

To be eligible for registration with the small UA registry, the sUAS must not be registered under the laws of a foreign country and must be (i) owned by a US citizen; (ii) owned by an individual citizen of a foreign country lawfully admitted for permanent residence in the United States; (iii) owned by a corporation not a citizen of the United States when the corporation is organised and doing business under the laws of the United States or a state within the United States, and the aircraft is based and primarily used in the United States; or (iv) owned by the US government or a US state or local government.

UAS must be registered through FAA’s Civil Aviation Registry (N-Number registry used for manned aircraft) if:

  • the UA is 55lb or greater;
  • the owner wants to qualify an sUA for operation outside the United States;
  • the owner holds title to an aircraft in trust; or
  • the small UA owner uses a voting trust to meet US citizenship requirements.

Identification

Are drones identified through a marking system similar to that used for manned aircraft?

Operators of sUAS must ensure that an FAA registration number is affixed to, or marked on, the outside surface of their UA. There is no required method for marking small unmanned aircraft – operators may use engraving, permanent labels or permanent marker, as long as the number is legible and remains affixed to the UA during the operation.

An owner of only recreational UAS will affix the same registration number to all of his or her UA. An owner of UAS operated for any non-recreational purpose will have a unique registration number for each UAS to affix on each UA.

UAS weighing 55lb or more must meet the marking requirements for manned aircraft.

Certification and licensing

Basic requirements and procedures

What certificates or licences are required to operate drones and what procedures apply?

The PIC of an sUAS operating under Part 107 must obtain a remote pilot certificate with an sUAS rating, as described further in question 14.

Non-US citizens must obtain permission from the Department of Transportation (DOT) under 14 C.F.R. Part 375 before operating an sUAS under Part 107.

For operations involving transportation of property for compensation or hire that exceed the operational limitations in Part 107 (eg, BVLOS), a UAS operator will need to apply for an air carrier certificate under 14 C.F.R. Part 135. If interstate air transportation is involved, the operator will also need to hold DOT economic authority in the form of an Air Taxi Registration. These authorities are available only to US citizens.

Airworthiness certification or type certification of UAS are required for certain operations, as described in question 16.

Taxes and fees

Are certification and licensing procedures subject to any taxes or fees?

The following are some of the fees that may apply:

  • registration of UAS with FAA – commercial operations: $5 per UAS (renewal required every three years);
  • registration of UAS with FAA – recreational operations: $5 (renewal required every three years);
  • remote pilot certification aeronautical knowledge test – $150 (recurrent test required every two years);
  • DOT Air Taxi Registration – $8; and
  • DOT Part 375 Foreign Civil Aircraft Permit – $25.

No taxes specific to UAS certification and licensing apply.

Eligibility

Who may apply for certifications and licences? Do any restrictions apply?

Eligibility criteria and restrictions are addressed with the description of the various authorisations elsewhere in this chapter.

Remote pilot licences

Must remote pilots obtain any certifications or licences to operate drones? If so, do the relevant procedures differ based on the type of drone or operation?

Part 107 remote pilot certification

A remote pilot operating under Part 107 must obtain a remote pilot certificate with an sUAS rating. To qualify for certification, the applicant must:

  • be at least 16 years of age;
  • be able to read, speak, write and understand the English language;
  • be in a physical and mental condition that would not interfere with the safe operation of a UAS;
  • pass an initial aeronautical knowledge written exam; and
  • pass Transportation Security Administration background security screening.

Operators already holding a Part 61 airmen certificate (ie, a pilot’s licence for manned operations) who have completed a flight review within the past 24 months are not required to take the written aeronautical knowledge test. Instead, they may complete an online course on safe operation of UAS.

To maintain the validity of the remote pilot certificate, the holder must pass a recurrent aeronautical knowledge written test every 24 months.

Remote pilots of recreational UAS

Recreational operators are not required to obtain a remote pilot certificate, but must pass an online aeronautical knowledge and safety test and carry proof of test passage. This test is currently under development by FAA.

Public UAS pilots

No FAA certification requirements are applicable to pilots of public UAS operations.

Foreign operators

Are foreign operators authorised to fly drones in your jurisdiction? If so, what requirements and restrictions apply?

Yes, under certain conditions. The following requirements apply:

  • for recreational operations, a foreign operator must register his or her UAS. FAA will treat the registration as a recognition of ownership rather than a certificate of US aircraft registration; and
  • for commercial operations, an operator must
    • obtain authority from DOT to operate a foreign civil aircraft in the NAS (in accordance with 14 C.F.R. Part 375 or NAFTA blanket permit);
    • obtain a remote pilot certification; and
    • operate in accordance with Part 107 (for sUAS) or an exemption under 49 U.S.C. section 44807 (if the aircraft weighs 55lb or more).

Certificate of airworthiness

Is a certificate of airworthiness required to operate drones? If so, what procedures apply?

UAS used in recreational operations, public operations and for operations conducted under Part 107 (including any waivers granted by FAA) or a section 44807 exemption are exempt from FAA’s aircraft airworthiness certification requirements.

UAS intended for advanced operations beyond the limitations of these authorities must obtain airworthiness certification. Operators of such UAS may apply for the following type certification (design approval) or airworthiness certification under existing regulations applicable to manned aircraft:

  • type certificate for special class aircraft (14 C.F.R. section 21.17b) and standard airworthiness certificate for special class aircraft (14 C.F.R. section 21.183);
  • Type certificate for restricted category aircraft (14 C.F.R. section 21.25) and special airworthiness certificate in the restricted category (14 C.F.R. section 21.185);
  • Special airworthiness certificate in the experimental category (14 C.F.R. section 21.191) for the purposes of research and development, demonstrating regulatory compliance, crew training, exhibition, and market survey; or
  • special flight permit for the purpose of production flight testing new aircraft (14 C.F.R. section 21.197).

Operations and maintenance

One drone, one pilot

Does the ‘one drone, one pilot’ rule apply in your jurisdiction?

Generally, yes. Part 107 explicitly states: ‘a person may not operate or act as a remote pilot in command or visual observer in the operation of more than one unmanned aircraft at the same time.’ However, this is one of the provisions in the rule that may be waived if FAA determines that an applicant has demonstrated such operations can be safety conducted under a certificate of waiver. FAA has issued such waivers, which contain operational restrictions tailored specifically to the proposed applications.

Maintenance

Do specific rules regulate the maintenance of drones?

No. FAA has not issued specific maintenance regulations for UAS.

For sUAS commercial operations, Part 107 requires that the sUAS be in a condition for safe operation and that the remote PIC check that the system is safe prior to each flight. The regulations also require a pre-flight assessment of the operations to be conducted and inspection of the UA, ground control station and any payload attached or carried.

Basic operational rules and restrictions

What rules and restrictions apply to flights performed in ‘visual line of sight’ (VLOS) and ‘beyond visual line of sight’ (BVLOS)? Is there a distinction in this regard?

For sUAS commercial operations, unless a person obtains a waiver, operations must be within VLOS. The regulations require that ‘with vision that is unaided by any device other than corrective lenses, the remote pilot in command, the visual observer (if one is used), and the person manipulating the flight control of the small unmanned aircraft system must be able to see the unmanned aircraft throughout the entire flight ….’ FAA has granted waivers permitting BVLOS operations under certain conditions.

What rules and restrictions apply to critical and non-critical operations? Is there a distinction in this regard?

Night-time sUAS commercial operations are prohibited under Part 107. For operation during civil twilight, the rules require that small UAs have anti-collision lighting visible for three statute miles. The daylight operations requirement is subject to waiver if FAA determines that an applicant has demonstrated such operations can be safely conducted under a certificate of waiver. FAA has issued many waivers for night operations.

Transport operations

Is air transport via drone (eg, cargo and mail) regulated in your jurisdiction? If so, what requirements, limitations and restrictions apply?

Part 107 allows for limited transportation of property for compensation or hire, as described in question 3. For operations that exceed the limitations in Part 107, there are no UAS-specific rules. Accordingly, an operator interested in transportation of property without the limitations of Part 107 in most cases would be required to obtain an air carrier certificate under 14 C.F.R. Part 135, which applies to certain manned air carrier operations.

Do any specific provisions governing consumer protection and tracking systems apply with respect to cargo and delivery operations via drone?

No, although FAA is currently drafting proposed rules on remote ID capability, which is ‘the ability of a UAS in flight to provide identification information that can be received by other parties’. FAA is targeting December 2019 for publication of a Notice of Proposed Rulemaking.

Insurance requirements

What insurance requirements apply to the operation of drones?

There are no formal regulations requiring insurance for recreational operations or sUAS commercial operations under Part 107.

If operating under 14 C.F.R. Part 135 or an air taxi registration, the same insurance requirements applicable to manned aircraft would apply.

Safety requirements

What safety requirements apply to the operation of drones?

The safety requirements for recreational operations are described in question 3. Additional requirements will likely apply when FAA accepts a particular community-based organisation’s safety guidelines.

The requirements applicable to commercial sUAS operations also are described in question 3.

If an operator requests a waiver under Part 107 or an exemption under 49 U.S.C. section 44807, it will be required to submit a detailed safety case to FAA to demonstrate the safety of the operations proposed. FAA incorporates additional safety requirements into the certificates of waiver or exemption tailored to the specific operations authorised.

Airspace

Air traffic control

How is air traffic control regulated in your jurisdiction? Which authority provides air traffic control services for drones?

FAA, NASA and UAS industry stakeholders are actively collaborating on the research and development of a US UAS Traffic Management System that will be separate from, but complementary to, FAA’s Air Traffic Management System.

Restrictions

Are there any airspace restrictions on the operation of drones?

At this time, recreational and sUAS commercial operations are limited to Class G uncontrolled airspace. Access to controlled airspace (limited to flights under 400ft) is granted by waiver. FAA is continuing to expand its Low Altitude Authorization and Notification Capability system, which automates the application and approval process for airspace authorisations. This system has allowed for near real-time authorisations in most areas of the country and is available to both recreational and Part 107 operators.

Additionally, UAS must comply at all times with restricted and prohibited airspace designations, temporary flight restrictions, and notices to airmen, including airspace restrictions over national security sensitive locations.

Take-off and landing

Must take-off and landing of drones take place in specific areas or facilities?

No. However, some state and local governments have enacted restrictions on the take-off and landing of UAS within their boundaries.

Liability and accidents

Cargo liability

Are there any specific rules governing the liability of drones for losses or damage to cargo?

No, except for UAS air carrier operations, to which DOT conditions of carriage requirements for manned air carriers may apply.

Third-party liability

Are there any specific rules governing the liability of drones for damage to third parties on the surface or in the air?

Not specifically. However, drone operation may be considered an ‘ultra-hazardous’ activity under some state laws, making the operator strictly liable to third parties on the ground, or even in the air (ie, a plaintiff would not need to prove negligence).

Accident investigations

How are investigations of air accidents involving drones regulated in your jurisdiction?

The National Transportation Safety Board (NTSB) is required to investigate all civil aircraft accidents. FAA participates in NTSB investigations of civil aircraft. The NTSB regulations define UA accident to mean:

an occurrence associated with the operation of any public or civil unmanned aircraft system that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission, in which: (1) Any person suffers death or serious injury; or (2) The aircraft has a maximum gross takeoff weight of 300 pounds or greater and sustains substantial damage.

Accident reporting

Is there a mandatory accident and incident reporting system for drone operators in your jurisdiction?

Immediate notification to the NTSB is required for accidents and certain serious incidents listed at 49 C.F.R. section 830.5. For accidents, a report must then be filed with the NTSB within 10 days. Reports for serious incidents are only filed upon request by FAA.

Additionally, a PIC must notify FAA of any operation involving at least:

  • serious injury to any person or any loss of consciousness; or
  • damage to any property, other than the small UA, unless one of the following conditions is satisfied:
    • the cost of repair (including materials and labour) does not exceed $500; or
    • the fair market value of the property does not exceed $500 in the event of total loss.

Safety management and risk assessment

Are drone operators required to implement safety management systems and risk assessment procedures within their organisation?

No, but it is a best practice. UAS operators requesting authority to operate outside Part 107 must make a robust safety case in support of FAA granting the requested authority. Many of these operators have voluntarily adopted safety management or risk assessment procedures within their organisations.

Ancillary considerations

Import and export control

Do specific import and export control rules apply to drones in your jurisdiction?

There are currently no specific import classifications for civilian UAS. Rather, they generally will be classified as civil aircraft under the Harmonized Tariff Schedule of the US for import classification and duty assessment (which classifications are generally duty free). However, certain UAS may be classifiable as toys, video cameras or other items based on their primary function. Parts and components of civil UAS may also qualify for duty free treatment under the Agreement on Trade in Civil Aircraft.

The US International Trade Commission is currently investigating certain intellectual property infringements related to UAS. Importing military UAS is more complex as the import may require a licence from the State Department Directorate of Defense Trade Controls (DDTC) for temporary imports, or from the Bureau of Alcohol Tobacco and Firearms for permanent import.

The United States has specific export controls over certain civilian and military UAS. UAS incorporating defence articles, drone airborne launch systems, and drone controls with swarming capability are controlled under the US Munitions List, and exports are strictly controlled by the DDTC. Civilian UAS having certain characteristics in terms of range, payload, or incorporating aerosol dispersing systems are controlled under the US Export Administration Regulations administered by the US Department of Commerce Bureau of Industry and Security (BIS). For example, UAS with a 300km range are subject to enhanced controls under the Missile Technology Control Regime. Similarly, engines, certain sensors and specially designed components may be subject to export licensing requirements.

In addition, US export laws control the export of technology, including technical data, to produce and develop certain UAS and related technologies. This would include disclosure of such controlled technology to a foreign person in the United States. Hence, collaborations between US and non-US companies on drone development or production may require authorisation from BIS or DDTC. BIS is also considering new controls on certain emerging technologies, including micro-UAS, swarming technology and certain flight control algorithms.

Data privacy and IP protection

How are personal data privacy and IP protection regulated in your country with specific reference to drone operations?

In the United States, personal data privacy rights are generally governed by state and local law, while intellectual property rights are generally governed by federal law.

State tort laws protect individuals in the state from civil privacy violations, such as ‘intrusion upon seclusion’, and the ‘public disclosure of private facts’. State criminal laws protect individuals from criminal privacy violations, such as trespassing, wiretapping or stalking. These state laws have evolved over time and are generally technology agnostic and apply to data collection by drone as they do to other conduct. Some states have established technology-specific drone privacy laws that protect against surveillance in certain circumstances where legislators have concluded there is a right to privacy. For instance, the state of Florida passed a state drone law establishing a ‘reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be’. While the United States is currently considering the establishment of a federal consumer data privacy standard following the establishment of the EU General Data Protection Regulation and the enactment of the California Consumer Privacy Act, no federal legislation has progressed to date.

Federal law generally guarantees rights to intellectual property in the United States. The US Patents and Trademark Office serves as the registry of patents and trademarks, and the Copyright Office fuflfils a similar role for copyrights. A person or object in a public space generally does not have intellectual property rights to his, her or its likeness whether captured by drone or any other medium. Data collected by drone is governed in the same manner as works developed by other forms of technology. Therefore, it is important for a drone operator to establish the copyright ownership to data collected prior to the collection of data.

Update and trends

Sector trends and regulatory developments

Which industry sectors have seen the most development in the use of drones in your jurisdiction and which sectors are expected to see further development in future? Have there been any notable recent regulatory developments relating to drones?

Sector trends and regulatory developments35 Which industry sectors have seen the most development in the use of drones in your jurisdiction and which sectors are expected to see further development in future? Have there been any notable recent regulatory developments relating to drones?

In the United States, there has been steady progress towards enhanced drone operations across different sectors. The sectors that have experienced the most significant progress over the past year are agriculture, energy and logistics.

A major step in UAS integration was the finalisation of Part 107 in June 2019. Part 107 allows for the operation of UAS under 55lb for commercial purposes subject to certain restrictions, such as operation within VLOS, in unrestricted (Class G) airspace and not over people. Many of the restrictions can be waived as described in question 3, allowing operators to fly enhanced operations beyond the conditions allowed in Part 107.

In May 2018, the US DOT established the Drone Integration Pilot Program (IPP) where 10 state, local and tribal governments were selected to enable enhanced drone operations. FAA has now granted over 3,000 waivers for enhanced drone operations, including numerous waivers to operate at the IPP sites. The most significant progress has been achieved by companies performing precision agriculture operations, long-line infrastructure inspections and package deliveries. For instance, FAA granted UPS a Part 135 certificate to deliver goods by drone for compensation in October 2019.

There are several regulatory developments that are currently under way in the United States to expand drone operations. In February 2019, FAA released a Notice of Proposed Rulemaking that would allow UAS to be operated over people. However, FAA stated that it will not finalise its rule to permit drone operations over people until the agency has established a drone remote identification standard. Remote identification is required because US law enforcement agencies objected to allowing UAS to fly over people until a rule is in place to establish accountability for the operators that fly UAS over people. FAA intends to issue a Notice of Proposed Rulemaking on drone remote identification by December 2019 and hopes to complete the rule-makings on both flights over people and remote identification in 2020.

The authors would like to thank Sejong Kim for his assistance with this chapter.



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