Turkey: Drones, Now and in Future

Almost every day we hear stories and news about Unmanned Aerial Vehicles ("UAVs"), also known as Remotely Piloted Aircraft Systems or "drones".  The European Aviation Safety Agency, (which is the European Union Authority for aviation safety, focuses on the strategy and safety management, the certification of aviation products and the oversight of approved organisations in European Union Member States) issued a proposal on July 31, 2015 namely Advance Notice of Proposed Amendment 2015-10 defines a drone as "an aircraft without a human pilot on board, whose flight is controlled either autonomously or under the remote control of a pilot on the ground or in another vehicle." ^[1] 

We also have been hearing news about UAVs being used for delivering pizzas^[2], packages^[3], medicines^[4] etc.  Commercial usages of UAVs are expected to highly increase in the years to come.  Amazon.com, one of the world's biggest e-commerce companies, announced that, a future delivery system from Amazon has been designed to safely get packages into customers' hands in 30 minutes or less using small UAVs.^[5]

Drone Regulations in the USA, Canada, France and Turkey

Besides the commercial use of UAVs, new methods are in the pipeline to use them for many other purposes.  But all these news and future predictions are currently limited due to the lack of legal framework.  For instance the commercial use of UAVs is currently illegal in United States of America ("USA").  Regulations of Federal Aviation Association ("FAA") of USA clearly bans the UAV flights for commercial purposes, unless the FAA grants an exemption for flights under restrictive circumstances.^[6]  For example according to the FAA's new proposal released on February 15, 2015^[7], an UAV could permitted to be used for commercial purposes if it weights less than 25 kilograms and will fly under 16.7 meters with the maximum speed of 160 km/h during daylight and if the operator passes an aeronautical knowledge test and a security check.  Such proposal also provides that UAV flights with other than commercial purposes are permitted as long as the operator abides by the FAA safety regulations.

Despite the necessity of obtaining a permit to fly an UAV in the USA, for example in Canada, Canada Aviation Regulations allows certain UAVs to operate without a Special Flight Operations Permit.  These UAVs are a separate class called "micro UAVs" weighing less than 2 kilograms, and small UAVs weighing between 2-25 kilograms with the maximum speed of 161 km/h, which can be operated away from controlled airspace, built-up areas, aerodromes and other restricted locations without any restriction^[8].

In France, one of the first countries to regulate the commercial use of UAVs in 2012, regulations are based on models, weights and other technical categories, so commercial use of drones are much easier compared to USA.  France now has approximately 1250 registered drone businesses while USA has no more than 50 according to Rudy Ruitenberg's article "What the French Know about Drones that Americans Don't", which was published in BloombergBusiness.^[9]

Turkey decided to enact stricter legislations after certain dangerous incidents like drone activities in airports^[10].  There already is a regulation^[11] on the use of UAVs only weighing above 20 kilograms.  According to this regulation, flying the drones weighing less than 20 kilograms by civilians is prohibited.  By the way, the Directorate General of Civil Aviation of Turkey published a draft directive, dated June 11, 2015, called "Instructions on Procedures and Principals of UAV System Registration, Operation, Navigation, Maintenance and Flight Sufficiency"^[12].  According to the same, UAVs weighing less than 25 kilograms needs no permit to be obtained from the government, for uses besides commercial use, such as sports activities and amateur purposes.  In the past, Turkey focused mostly on the military use of the UAS and built its 100% domestic UAV called ANKA.  Today civil and commercial uses of drones are becoming more popular.  One of Turkey's biggest telecommunication companies namely Turkcell, started to use drones to check its network coverage.  Even the Turkish government made its first UAV survey contract with Artu Mapping, which used a drone to map a huge 140 km-long rail corridor, for building a railway for high speed trains between Ankara and Izmir^[13].

Legal Concerns

For creating a legal framework, identification of different UAVs and separating them from each other is crucial.  Even the definition of aircraft is creating confusion when discussing UAVs. For example a recent case took place in the media involving Mr. Raphael Pirker and the FAA.^[14]  Mr. Pirker was fined USD 10.000 for operating a drone and taking pictures in the campus of the University of Virginia.  Mr. Pirker filed a lawsuit against the FAA and the outcome was that a drone was not an aircraft, so FAA cannot have authority to control UAV usage.  The FAA appealed the verdict and during the new trial, "aircraft" defined as "any aircraft, manned or unmanned, large or small".  In the end the fine was reduced to USD 1.100.  This case clearly shows us that extensive legal definition and regulations are necessary.

Making regulations only about UAVs place in aviation and restricting their commercial use will not solve the problems.  The increased use of drones and technological advancements inevitably raises legal issues involving many areas of law, such as data protection, insurance, torts.  There is always a risk of UAVs being used for surveillance, facial recognition, wiretapping and other activities which are threatening privacy and individual rights.  By using UAVs for these purposes, it is possible to gather not only relevant, but also irrelevant data which can pose a threat to privacy.  This kind of use is likely to violate article 8 of European Convention on Human Rights^[15], article 20 of Constitution of the Republic of Turkey^[16] and fourth amendment of Constitution of the United States^[17].

In the Oliver v. United States case, the open field doctrine appeared.  This doctrine indicates that, which can be seen in plain sight, is not protected by Fourth Amendment^[18]. Also according to the U.S. Supreme Court, police can legally view private property from an aircraft without a warrant.^[19]  If we can address drones as aircraft, it is highly possible to using drones to observe and monitor citizens undetected without any warrant.  After concerns of non-governmental organizations and civil right groups, the White House released an executive memorandum on February 15, 2015 against the federal agencies to make them collect only information by using Unmanned Aircraft Systems ("UAS"), or using UAS-collected information, to the extent that such collection or use is consistent with and relevant to an authorized purpose.

Unfortunately, drone accidents are inevitable just like other aircraft accidents.  Although no one is on board of an UAV, people in other aircraft, or on the ground, or properties could get hurt, damaged in the event of an accident.  Therefore building new mechanisms such as new insurance systems, governmental funds to compensate these damages is essential.  Steer Davies Gleave's report on "Study on the Third-Party Liability and Insurance Requirements of Remotely Piloted Aircraft Systems ("RPAS"), which was prepared for European Commission, analyses the liability regimes and the legal requirements for third-party liability insurance in cases of RPAS accidents.^[20]  According to this report, there are no unified regulations or insurance systems or funds to protect the citizens of EU in harmony and there is urgent need for those measures.

Future of Drones

Obviously we are likely to face a number of legal problems in the future relating to UAVs and their effects on our daily lives.  A balance between protecting our rights without restricting the future of UAVs and their commercial use is important.  These future problems can be solved by introducing new aviation legislation in the light of instructive studies such as Riga Declaration^[21] of European Commission, which aims to frame the future of aviation and making UAVs and further technological advancements adapted to our existing legislation, in line with constitutional and individual rights.

Footnotes

^{[1] http://easa.europa.eu/system/files/dfu/A-NPA%202015-10.pdf}