Eyes to the Sky

Privacy and Commerce in the Age of the Drone

Matthew Feeney

• Publisher: Cato Institute
• Year: 2021
• ISBN:
  9781952223099
• Topic: Jura
• Subtopic: Naturwissenschaft- & Technologierecht

"This book is a vital addition to understanding the way forward for drones in our national airspace." —Jeramie D. Scott, senior counsel, Electronic Privacy Information Center

Drones are among the most exciting and promising new technologies to emerge in the last few decades. Photographers, firefighters, filmmakers, engineers, and retailers have all used drones to improve public safety, innovate, and enhance creativity. Yet drones pose unique regulatory and privacy issues, and lawmakers at the federal and state levels are adopting policies that both ensure the safety of our national airspace and restrict the use of warrantless aerial surveillance. At a time when low-flying drones are affordable and ubiquitous, how useful are the airspace regulations and privacy laws designed for traditional airplanes and helicopters? Is there a way to build a regulatory and legal environment that ensures entrepreneurs and hobbyists can safely use drones while also protecting us from intrusive aerial surveillance?

In Eyes to the Sky: Privacy and Commerce in the Age of the Drone, experts from legal, regulatory, public policy, and civil liberty communities tackle these pressing problems. The chapters in this volume highlight not only what we can learn from the history of drone regulation but also propose policies that will allow for an innovative and dynamic drone sector while protecting our privacy. As drone technologies rapidly advance, Eyes to the Sky offers readers the current state of drone capabilities and regulations and a glimpse at exciting and disturbing uses of drones in the near future.

CHAPTER ONE

“CRAWL. WALK, FLY”: A HISTORY OF UAS REGULATION IN THE UNITED STATES

SARA BAXENBERG

The ongoing development of regulations for unmanned aircraft systems (UAS or “drones”) in the United States demonstrates the challenges of integrating a new technology into a heavily regulated field. These challenges have been particularly significant given the complexity of the U.S. National Airspace System (NAS), the Federal Aviation Administration’s (FAA) mandate to ensure aviation safety, and society’s deep-seated aversion to aviation-related accidents. Although regulatory progress has ultimately been much slower than either the FAA or the UAS industry anticipated, the agency has made substantial strides in the decade since receiving its first mandate to integrate unmanned aerial vehicles (UAVs) into the airspace. The lessons learned in this time may—and hopefully will—lead to faster progress over the next decade.

THE REGULATORY STARTING POINT: GROUNDED BY DEFAULT

In 2012, when the FAA received its legislative mandate to integrate UAS into the national airspace, the agency was faced with a monumental task. While operating under a robust and largely incompatible existing regulatory environment, the FAA needed to find a way to enable scalable UAS operations in a complex airspace, all while maintaining the United States’ unparalleled aviation safety record. Because UAS did not fit easily into preexisting regulatory categories, the legal landscape into which the UAS industry was born, in the United States at least, was one of grounding by default: UAS operations were generally prohibited until the FAA could find a way to permit them. To change that and get UAS off the ground while protecting existing airspace users, the FAA has referred to its regulation of UAS operations as requiring a “crawl, walk, run” approach.¹ The metaphor is accurate, but the process has involved far more crawling than either the industry or the FAA expected.

The challenge of integrating UAS into the national airspace is best understood by examining the regulatory environment that existed when consumer drones started to proliferate. The FAA was created in 1958 to coordinate the operations of military and civil aircraft after a series of high-profile accidents. More than 40 years later, in the years leading up to the 2012 congressional mandate, the United States boasted both the most complex, active airspace in the world and an exceptional safety record. To reach this point, the FAA had instituted expansive and complex regulatory frameworks, governing areas such as operational authorization, the design and equipage of aircraft, pilot qualifications, flight routes, and coordination with air traffic control.

Thus the regulatory gauntlet facing the civilian UAS industry long predated the industry’s very existence. Unpiloted remote-control aircraft, in a variety of shapes and sizes, have been built and flown by hobbyists for decades, generally without interfering with other users of the NAS. These aircraft were considered recreational and categorized as “model aircraft.” Because of the long history of self-regulation by this small subset of airspace users and the limited scope of their operations, the FAA allowed them to operate largely unregulated, their operations governed by a sparse advisory circular that did not apply to commercial operators.² However, the development of new technologies—such as powerful batteries, inexpensive gyroscopes, and computerized flight controls—presented new possibilities and uses for unmanned aircraft. These technologies also opened flying up to a much larger slice of the public, who could purchase extremely capable unmanned aircraft off the shelf and fly them with little or no practice. Commercial entities soon began to identify applications for small UAS that could obviate the need for activities on foot or in manned aircraft. Deploying drones for dangerous and expensive tasks could expand companies’ existing capabilities and generally transform numerous aspects of how we live and work. It rapidly became clear that a regulatory framework was necessary to enable these large-scale commercial UAS operations and that the existing regulatory regimes were not a good fit.

By their nature, small UAVs could not meet regulatory requirements designed to ensure the safety of manned aircraft. For instance, they could not be equipped with fire extinguishers or safety manuals on board: they could not be “boarded” at all, and the small size and battery-powered nature of consumer UAVs made including even the slightest unnecessary equipage infeasible.³ Similarly, while FAA regulations defined “navigable airspace” as starting at altitudes of 500 or 1,000 feet and generally required aircraft to operate above that threshold other than on takeoff and landing, unmanned aircraft were designed to operate at—and indeed, would maximize safety and efficiency at—significantly lower altitudes.⁴ And the complex regulatory processes surrounding aircraft certification and pilot training,⁵ which imposed justifiable burdens on large aircraft with significant capacity for cargo or people, were economically infeasible for a $1,000 aircraft with a 30-minute flight range and a mere 10-pound payload. Moreover, these processes were far more onerous than was necessary to ensure safety given the significantly lower risk posed by aircraft weighing only a handful of pounds and operating close to the ground.

The grounding by default that resulted from the inability to fit UAS into existing aviation regulation frameworks presented a significant challenge to UAS integration. It also stands in stark contrast to other areas where new technology has been able to flourish. Innovations such as smartphones, automated vehicles, and even manned aviation itself were born into regulatory environments that enabled rapid development and widespread deployment followed by some degree of regulatory backlash. In contrast, drones have largely struggled to get off the ground at all. This regulatory positioning has undoubtedly contributed to a lag in public acceptance and continues to threaten the success of the industry.

Nonetheless, given the FAA’s development of policies and programs to make small UAS flights possible, UAS integration has begun in earnest. Furthermore, the industry stands poised to enter a regulatory era that will enable widespread proliferation of UAS use and applications over the next few years. This chapter walks through the significant developments that have enabled the UAS industry to reach this point in its development, including

• Congress’s 2012 mandate to the FAA to integrate UAS into the airspace in the FAA Modernization and Reform Act,

• the FAA’s case-by-case authorization process for commercial operations under Section 333 of the act,

• the FAA’s adoption of its Part 107 regulations to broadly enable commercial UAS operations subject to a number of operating limitations,

• the need for technology to enable remote identification of UAVs in flight before the FAA could enable widespread expanded UAS operations, and

• the major steps the FAA has taken in between and since to keep the industry moving forward and build a regulatory structure that can support a truly integrated airspace in the future.

During the course of this nearly decadelong journey, the federal government has used a wide variety of tools to facilitate UAS integration, including legislation, case-by-case authorization and regulatory waivers and exemptions, federal advisory and rulemaking committees, pilot programs and public-private partnerships, emergency regulatory procedures, and traditional notice-and-comment rulemaking. This period has provided important lessons about legislative carveouts, interagency coordination, and the role of industry in informing the regulatory process. These lessons will undoubtedly shape—and, if all goes well, expedite—future UAS regulation.

THE PREREGULATORY PERIOD (2012–2016): LEGISLATION AND SECTION 333 EXEMPTIONS

THE ENABLING LEGISLATION

In the years approaching 2012, with the domestic UAS industry in its nascent stages, drones began to emerge at price points consumers could afford and with capabilities that would open up a new universe of commercial and recreational activities. And yet the FAA’s pervasive regulation of the national airspace had, to date, been built expressly for manned aircraft.

The ability of drones to use the airspace even in a limited way would depend on significant relief from existing regulatory frameworks, and widespread use likely would require new frameworks. Although the FAA has general authority to waive its regulatory requirements,⁶ Congress recognized that efficient and effective integration of UAS into the national airspace system required a more comprehensive effort and regulatory change. The first major legislative action toward UAS integration came at the end of 2011 with the passage of the National Defense Authorization Act for Fiscal Year 2012 (2012 NDAA). The 2012 NDAA directed the FAA to “establish a program to integrate [UAS] into the national airspace system at six test ranges.”⁷ To implement this program, the FAA was required to (a) designate nonexclusionary airspace for UAS operations, (b) develop certification standards and air traffic requirements for test range operations, (c) “coordinate with and leverage the resources of the Department of Defense and the National Aeronautics and Space Administration,” (d) address both public and privately operated UAS, (e) coordinate the program with the FAA’s NextGen airspace modernization project, and (f) “provide for verification of the safety of [UAS] and related navigation procedures before integration into the national airspace system.”⁸ Consistent with this mandate, the FAA established six test sites in 2013 by approving applications from the University of Alaska, the State of Nevada, New York’s Griffiss International Airport, the North Dakota Department of Commerce, Texas A&M University at Corpus Christi, and the Virginia Polytechnic Institute and State University (Virginia Tech).⁹

The landmark legislation in the area of UAS integration—the 2012 FAA Modernization and Reform Act (“FMRA”)—followed closely on the heels of the 2012 NDAA. The FMRA was Congress’s first full-throated attempt to provide legislative direction to enable widespread UAS integration (some provisions would prove more successful than others). Section 332 of the act, Integration of Civil Unmanned Aircraft Systems into the National Airspace System, imposed a number of requirements on the FAA in furtherance of that objective. These included (a) the creation of a comprehensive plan to “safely accelerate” UAS integration, developed “in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry”;¹⁰ (b) the creation of a five-year roadmap to accompany the plan;¹¹ (c) the promulgation of a final rule within 18 months to permit civil operation of small UAS in the NAS;¹² and (d) the promulgation of a final rule within 34 months to implement certain recommendations from the comprehensive plan, such as standards for operation and certification of civil UAS, ensuring that UAS include sense-and-avoid capabilities, and registration and licensing standards for pilots.¹³ Recognizing that some UAS operations likely could be safely allowed before the completion of a rulemaking process, Congress also empowered the secretary of transportation, under Section 333 of the FMRA, to make case-by-case determinations as to whether specific UAS operations could safely be conducted in the national airspace, and to set the criteria for such operations.¹⁴

Section 333 was essential to UAS integration because it authorized the FAA to circumvent federal law requiring aircraft operators to hold an airworthiness certificate.¹⁵ An airworthiness certificate indicates that an aircraft conforms to the relevant type certificate (a separate FAA certification approves the design and manufacture of an aircraft) and is in safe condition for flight.¹⁶ To this point, federal law expressly prohibited “operat[ing] a civil aircraft in air commerce without an airworthiness certificate.”¹⁷ Since 2005, the FAA had been working on developing regulations for UAS but had ultimately determined that exempting UAS from the statutory requirement to obtain an airworthiness certificate would be necessary to enable scalable civil operations. However, the agency lacked the necessary statutory authority to do so.¹⁸ Section 333 provided that mechanism. The FAA ultimately would rely on the authority granted by Section 333 to adopt regulations that enable commercial UAS operations without an airworthiness certificate.

In addition to addressing the use of UAS as civil aircraft—defined by preexisting statute as all aircraft that are not “public,” meaning government owned or operated—the FMRA also directed the secretary of transportation to issue guidance to expedite authorization of public UAS, facilitate public agencies’ ability to use UAS test sites, clarify public entities’ responsibilities while operating UAS without civil air...