Drone Legal Issues

Authored by Bryan Springmeyer Bryan Springmeyer is a California corporate attorney who represents startup companies. The information on this page should not be construed as legal advice.

Last updated October 20, 2015

This article is meant to summarize some of the key legal issues for drone startups.

1. Federal Laws Regarding Commercial Operation

The primary issue of focus has been laws related to commercial operation of unmanned aircraft systems (UAS, or drones).  Unfortunately, the status of the laws is still in flux (as of August 2015).  The default position under federal aviation laws is that any aircraft operation requires certification, registration (of the aircraft), licensure (of the pilot), and approval.

The key legislation related to commercial drone operation is the FAA Modernization & Reform Act (FMRA), whereby Congress set out a four-year plan for the introduction of UAS into US airspace.  The legislation calls on the FAA (Federal Aviation Administration) to promulgate rules for the acceptable use of UAS.  On February 15, 2015, the FAA released their proposed rules.

Among other requirements, the proposed rules allow drones under 55 pounds to be flown for commercial use during daylight hours in the sight of certified operators.  The proposed rule would also exclude delivery uses of drones.  The FAA is currently considering public comments (submitted through April 2015) on the proposed rule before issuing a final rule.  Unsurprisingly, there are comments opposing the proposed rule from big enterprises (Amazon). It may take a while for the FAA to weigh all of the comments and promulgate a final rule. In a Congressional hearing on October 7, 2015, FAA Deputy Administrator Michael Whitaker indicated that the FAA would have final rules promulgated by June 17, 2016.

Section 333 of the FMRA also allows for the Department of Transportation (DOT) to exempt certain operations from certification. Many enterprises are looking to this option while they wait for the FAA to finalize their rules.  Thus far, over 1,000 petitions have been granted.  Other requirements (aircraft registration, pilot licensure) still apply if a Section 333 exemption petition is granted.

2. State and Local Laws

States and local governments have begun to enact legislation dealing with UAS.  On September 30, 2014, California passed AB 2306, expanding California Civil Code Section 1708.8, which defines invasion of privacy, to include the use of devices (presumably including drones) to capture private images or sound recordings in an offensive way. AB 856 was passed on October 6, 2015, further expanding 1708.8 to include in the definition flying into airspace over private property to capture private images or recordings in an offensive way.

SB-142 which would have made it a trespass to fly an unmanned aircraft lower than 350ft over real property (irrespective of other conduct) was vetoed by Governor Brown on September 9, 2015.

SB271 was introduced in California (restricting use of drones on/above K-12 schools), as was SB262 (allowing law enforcement to use drones consistent with constitutional protections against unreasonable searches). Neither of these bills has progressed since their introduction in February 2015.

3. Private Rights of Action

Although I have not followed private lawsuits regarding drone operation, I anticipate that a lot of individuals will attempt to use private actions to stifle drone use.  The two legal theories that most quickly come to mind are trespass and invasion of privacy.