unmanned aircraft systems legal issues and legislative ...flights over private land are not a taking...

Unmanned Aircraft Systems – Legal Issues and

Legislative Responses

State Bar of New Mexico 2015 Annual Meeting

Bench and Bar Conference October 2, 2015

Tom Dougherty Lewis Roca Rothgerber LLP

©2015 LEWIS ROCA ROTHGERBER |

Overview

1. Legal Issues – Property Rights, Privacy, and Law Enforcement Use

2. State Legislative Responses

3. Federal Legislative Responses


Legal Issues Federal regulations focus on airspace and safety

Privacy and property rights are presently not covered by federal aviation laws and regulations

Where does federal jurisdiction end and state jurisdiction begin?

Open question as to the extent federal law preempts state and local UAS-related legislation

￭ Preemption: express, field, conflict (U.S. Airways, Inc. v. O’Donnell, 10th Cir., 627 F.3d 1318, 1324 (2010))

￭ FMRA did not include express preemption provision


Legal Issues – Airspace and Property Rights

Cujus est solum, ejus est usque ad coelom – Whose is the soil, his it is up to the sky. “That doctrine has no place in the modern world.” United States v. Causby, 328 U.S. 256, 261 (1946)

“The United States Government has exclusive sovereignty of airspace of the United States.” “A citizen of the United States has a public right of transit through the navigable airspace.” (49 U.S.C. § 40103(a))

Navigable airspace – Airspace above the minimum altitudes of flight prescribed by FAA regulations, including airspace needed to ensure safety in takeoff and landing of aircraft. (49 U.S.C. § 40102(a)(32))


Legal Issues – Airspace and Property Rights United States v. Causby, 328 U.S. 256, 261 (1946)

Takings claims related to aircraft takeoffs and landings over commercial chicken farm.

“The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” “The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.”

“The airplane is part of the modern environment of life, and the inconveniences which it causes are not normally compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.”

Causby left unanswered many questions concerning the physical and legal extent of the landowner’s airspace interest as compared to navigable airspace and aircraft operations



FAA claims broad authority to regulate airspace from the ground up to protect persons and aircraft in the air and persons and property on the ground. (49 U.S.C. § 40103(b)(2); 14 C.F.R §91.119)

Question – What is the extent of the landowner’s right in the airspace above his or her property?

Existing body of law concerning airspace and property rights in the context of manned aircraft.

Analyses of similar issues related to UAS operations may build on these precedents.



Trespass

“Every unauthorized entry upon the land of another is a trespass which entitles the owner to a verdict for some damages.” North v. Public Service Co. of New Mexico, 608 P.2d 1128, 1129 (N.M. Ct. App. 1980)

Criminal Trespass – misdemeanor offense; double civil damages available (NMSA § 30-14-1.1)

“Flight by aircraft in the air space above the land of another is a trespass if, but only if, (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other’s use and enjoyment of his land.” Restatement (Second) of Torts, § 159, Intrusions Upon, Beneath and Above Surface of Earth

Applying Causby’s reasoning that the “landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land,” question is whether drone flight over property interferes with the landowner’s use and enjoyment of that portion of the airspace to which he or she can claim a right.

Absent state statute, trespass claim may be decided on a case-by-case, factual analysis.



Nuisance

“[A] private nuisance . . . is an unreasonable interference with the private use and enjoyment of land.” City of Sunland Park v. Harris News, Inc., 124 P.3d 566, 577 (N.M. Ct. App. 2005); see also Scott v. Jordan, 661 P.2d 59, 62 (N.M. Ct. App. 1983)(adopting Restatement (Second of Torts), § 821D definition of private nuisance); Restatement (Second) of Torts, § 821D, Private Nuisance (“A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.”)

Question – When does a drone flight over adjacent property constitute a nuisance?

Absent state statute, nuisance claim may be decided on a case-by-case, factual analysis.


Legal Issues – Privacy and Data Collection

Traditional Privacy Claims

Intrusion upon seclusion

Public disclosure of private facts

“False Light” Publicity

Appropriation of Likeness

Common law privacy torts should be applicable regardless of whether claim arises from UAS operation or some other means.

Other Privacy Related Issues

News Gathering

Law Enforcement

Regulatory Actions

Activists

Commercial Competition


Legal Issues – Privacy and Data Collection Broad range of sensors deployable on UAS: high resolution visual imagery,

multispectral imaging (infrared, ultraviolet), audio sensors, LIDAR, low light imaging, chemical detectors, biometrics, etc.

UAS Operational Flexibility + Sensors = Potential Wealth of Data

Additional questions related to management of data collected by UAS

Who owns the data?

Should there be restrictions on the analysis and use of the data?

What measures should be required to protect the data?

How long may the data be retained?

Should the data be deleted at some point?

May the data be disseminated to third parties?

Commercial UAS operators should consider policies and procedures and contracts addressing data issues


Legal Issues – Privacy and Data Collection

FAA has stated that privacy issues are beyond the scope of the present small UAS rulemaking

Electronic Privacy Information Center v. FAA, U.S. Dist. Ct. D.C. Cir., Case No. 15-1075 (March 31, 2015)

Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (February 15, 2015)

Established privacy protections for federal government UAS uses

Directed the National Telecommunications and Information Administration (NTIA) to undertake a multi-stakeholder process “to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use

Comment period closed April 20, 2015; stakeholder meetings ongoing


Legal Issues – Privacy and Data Collection Privacy issues related to UAS may be informed by case law concerning manned aircraft

and Fourth Amendment issues.


Legal Issues - Law Enforcement

Case law concerning manned aircraft and Fourth Amendment issues:

California v. Ciraolo, 476 U.S. 207 (1986) – No reasonable expectation of privacy preventing police observation of private property from aircraft at an altitude of 1,000 feet in public navigable airspace.

Florida v. Riley, 488 U.S. 445 (1989) – No reasonable expectation of privacy preventing police observation of private property from helicopter flying at 400 feet since helicopters are not bound by the lower limits of navigable airspace applicable to fixed wing aircraft.

Analyses of similar issues related to UAS operations may build on these precedents.

Dept. of Justice Policy Guidance, Domestic Use of Unmanned Aircraft Systems (http://www.justice.gov/file/441266/download )

http://www.justice.gov/file/441266/download


Legal Issues – Property Rights, Privacy & Law Enforcement

350’ California? 250’ Nevada 83’ Causby “Immediate Reaches

400’ Florida v. Riley Section 333 Exemption Model Aircraft Rules

500’ FAA; Proposed Small UAS Rules

1000’ FAA; California v. Ciraolo


State Legislative Responses

State and local UAS-related legislation tends to focus on issues related to privacy, property rights, law enforcement uses

According to the National Conference of State Legislatures:

As of August, 2015, 26 states have enacted some form of UAS law

In 2015, 45 states considered 156 bills related to UAS

At least seven states have formed task forces or committees to consider UAS-related regulations or economic development opportunities


State Legislative Responses – Property Rights

UAS Trespass Legislation

Nevada, AB15-239 (250’ AGL)(passed)

California, SB15-142 (350’ AGL)(pending)


State Legislative Responses - Privacy

Several states have enacted UAS-related privacy legislation

Arkansas - HB15-1349 (voyeurism)

California - AB14-2306, AB14-1256 (both re invasion of privacy)

Florida - SB15-766 (capturing image of person or property without consent)

Idaho - SB13-1134 (unwanted surveillance)

Mississippi - SB15-2022 (“Peeping Tom”)

North Carolina – SB15-744 (capturing image of person or property without consent)

Tennessee - SB14-1892 (unwanted surveillance)

Texas, HB13-912

Other states have considered or are considering such legislation (CA, CO, MO, MT, OK, WA)


State Legislative Responses – Law Enforcement Use of UAS Many states have enacted legislation pertaining to law enforcement use of UAS; generally requires

a warrant; may also address evidentiary issues

Florida – SB13-92 (requires warrant unless emergency; evidentiary rules)

Idaho - SB13-1134 (requires warrant)

Illinois – SB13-1587 (requires warrant; data destruction), SB14-2937 (3rd party UAS)

Indiana - HB14-1109 (requires warrant)

Iowa - HF14-2289 (requires warrant; no UAS for traffic law enforcement)

Montana - SB13-196 (requires warrant; evidentiary rules), HB15-330 (no receipt from USG of armed UAS)

Nevada - AB15-239 (requires warrant unless emergency)

North Carolina - SB15-744 (requires warrant)

North Dakota - HB15-1328 (requires warrant)

Tennessee - SB13-796 (requires warrant unless emergency; evidentiary rules)

Texas - HB13-912 (requires warrant)

Utah – SB14-167 (requires warrant)

Virginia - HB15-2125 and SB15-1331 (require warrant)

Wisconsin – SB13-196 (requires warrant)


State Legislative Responses – New Mexico

Recent UAS-related legislation

SB13-556: Freedom from Unwarranted Surveillance Act - required warrant for law enforcement use absent exigent circumstances; prohibited unauthorized surveillance; petty misdemeanor (postponed indefinitely)

SB15-303: Freedom from Unwarranted Surveillance Act - same; added chain of custody provision; authorized “self help”; expanded remedies; use or dissemination of information is 4th degree felony (postponed indefinitely)

SB15-82: Prohibiting the Use of Drones in Hunting – may not use UAS to pursue, harass, drive, rally or locate a protected species; sentencing pursuant to NMSA 17-2-10 (postponed indefinitely)

HM15-81 & SM15-91: Methods for Protection of Wildlife from Drones


State Legislative Responses – Existing Laws and Regulations In addition to possible new legislation, there are existing laws and regulations relevant to UAS operations

N.M.S.A. §64-1-1: “Aircraft" means any contrivance now known or hereafter invented, used or designed for navigation of or flight in the air.

N.M.S.A. §64-1-2: It shall be unlawful for any person to navigate an aircraft within the state unless it is licensed and registered [as required by the lawful rules and regulations of the United States.]

N.M.S.A. § 64-1-3: It shall be unlawful for any person to engage in operating an aircraft within this state in any form of navigation unless he have a license [as required by the United States government.]

N.M.S.A. § 64-1-5: It shall be unlawful for any person to operate any aircraft within this state, in any form of navigation whatsoever, in violation of the air traffic rules adopted by Public Regulation Commission.

N.M.S.A. § 64-1-22, -23: Any person discharging a firearm or setting in flight any missile, projectile or object intended to strike or collide with any flying aircraft shall be guilty of unlawful interference with the flight of an aircraft; fourth degree felony.

19.31.10.13(E), (F), (J): Unlawful to use aircraft or drone to spot or locate or relay location of any protected species; cannot use information gathered by aircraft or drone for 48 hours; exemption possible for management purposes.


Federal Legislative Responses Current UAS-related legislation

S.635, Drone Aircraft Privacy and Transparency Act of 2015 (Markey)

S.387, Safe Skies for Unmanned Aircraft Act of 2015 (Murkowski)

H.R. 2569, Drone Reform Act (Yoho)

H.R. 1939, No Armed Drones Act of 2015 (Burgess)

S.1608, Consumer Drone Safety Act (Feinstein)

H.R. 798, Responsible Skies Act of 2015 (Meeks)

H.R. 1385, Preserving American Privacy Act of 2015 (Poe)

S.1595, Protecting Individuals from Mass Aerial Surveillance Act of 2015 (Wyden)

S.1314, Commercial UAS Modernization Act (Booker)

H.R. 2909, Protecting Firefights and Promoting Innovation Act (Sinema)


Questions?

Feel free to contact me:

Tom Dougherty Lewis Roca Rothgerber LLP [email protected] 303-628-9524

mailto:[email protected]

unmanned aircraft systems legal issues and legislative ...flights over private land are not a taking...

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