United States: FAA Proposes Long-Awaited Commercial Drone Guidelines As White House Issues Privacy Memo On Government Drone Use

Last Updated: February 24 2015
Article by Aravind Swaminathan

On Feb. 15, 2015, the Federal Aviation Administration released a set of long-awaited proposed rules for commercial drone operation that paves the way for commercial drone usage in the United States by 2017. At the same time, the White House released a memorandum setting forth policies for safeguarding privacy, civil rights and civil liberties in domestic drone use by federal agencies. These landmark developments in drone regulation signal the Obama administration's increasing recognition of the importance of commercial drone use.

The FAA's Proposed Drone Regulation

The FAA's proposed rules apply to the operation of small unmanned aircraft systems (UAS) (i.e., drones) weighing 55 pounds or less for non-hobby or non-recreational purposes. The proposed rules introduce a regulatory framework that would integrate UAS operation into the national airspace system (NAS), allowing uses such as crop monitoring and inspection, research and development, educational and academic uses, rescue operations, aerial photography, and inspection of power lines, pipelines and antennas. The proposed rules do not affect recreational drone use, which is already permitted as long as users obey certain safety requirements.

The most significant of the proposed rules is that, during operations, an unmanned aircraft must stay within visual line of sight of either a person who is operating the aircraft (the operator) or a "visual observer" who is assisting the operator by maintaining constant visual contact with the aircraft. Though the operator must always have the "capability" for visual line of sight of the aircraft, the proposed rule would not require the operator to "exercise this capability" if he or she is augmented by at least one visual observer. Multiple visual observers can be used, but since the operator must always be "capable" of seeing the aircraft, the proposed rule would prohibit a relay or "daisy-chain" of multiple visual observers. The operator and visual observer(s) do not have to be within vocal range as long as they are able to communicate by radio or other communication devices.

Other significant proposed rules are:

  • The operator must be able to see the aircraft with vision unaided by any device (other than corrective lenses); binoculars, onboard cameras and other vision-enhancing devices cannot be used to satisfy the visual line-of-sight requirement (since these devices do not have sufficient peripheral vision);
  • Maximum airspeed of 100 miles per hour and maximum altitude of 500 feet above ground level;
  • The aircraft may not be operated over any person not involved in its operation;
  • The aircraft may only be operated during daylight hours (official sunrise to official sunset, local time);
  • No person may operate more than one unmanned aircraft at one time;
  • Aircraft may not be operated from a moving vehicle or aircraft (but can be operated from watercraft); and
  • The operator must maintain the aircraft in safe operating condition and must inspect it for safety prior to flight.

Furthermore, the FAA proposed rules that would require that operators of small UASs be certified for commercial operation (though no certification is required for visual observers). Under the proposed rules, the operator must:

  • Be at least 17 years old;
  • Pass the FAA's initial aeronautical knowledge test and a recurrent test every 24 months;
  • Be vetted by the Transportation Security Administration;
  • Make the aircraft and associated documents available to the FAA for inspection, upon request; and
  • Report accidents that result in injury or property damage to the FAA within 10 days.

The proposed FAA rules are now open for a 60-day period of public commentary, which the FAA will take into account in formulating its final regulations.

Currently, approximately 20 states have enacted laws addressing drone usage, and a number of others are considering drone legislation. Most of these laws dictate requirements and restrictions for drone use by state and local agencies, but some do apply to commercial drone use. Naturally, some of these laws may be preempted if the proposed FAA rules should take effect, but at this early stage, it is difficult to assess the extent of any such preemption.

White House Memorandum Regarding Drone Use by the Federal Government

In parallel to the FAA's proposed rules, the White House issued a memorandum setting forth guiding principles governing domestic drone usage by U.S. federal agencies aimed at safeguarding privacy, civil rights and civil liberties, while leaving the U.S. Department of Commerce to implement the specifics of such safeguards. The memorandum emphasized that, as with any information collected by the federal government, information that federal agencies collect using drones is subject to the Privacy Act of 1974 (5 U.S.C. §552a) and other laws that restrict the collection, retention and dissemination of personal information. In particular:

(a) Agencies are required to:

  • Collect information using UAS and use such information only to the extent "consistent with and relevant to an authorized purpose";
  • Retain UAS-collected information no longer than 180 days (with certain exceptions); and
  • Not disseminate UAS-collected information outside of the agency (with certain exceptions).

(b) Agencies must ensure that their collection, use, retention and dissemination of UAS-collected information would not violate the First Amendment or discriminate against persons based on ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity, and that proper procedures are in place to address civil liberties complaints.

(c) Agencies must ensure that all drone-related activities are conducted in a manner consistent with the U.S. Constitution.

(d) Agencies must implement certain accountability measures for effective oversight of agency UAS use.

(e) Agencies must provide reasonable transparency regarding their use of UASs, to include public notice regarding authorized use of drones, changes in drone programs that may affect privacy, civil rights or civil liberties, and annual drone use.

The memorandum has comparable legal force to an executive order. 

Conclusion

The FAA will likely be flooded with thousands of comments from interested stakeholders in the coming months. Although the FAA projects being able to implement drone rules by 2017, the rules are still not final. Accordingly, organizations using drones for commercial purposes must still obtain permission from the FAA through a certificate of authorization or other mechanism.

Though the FAA's proposed rules would finally lift what is now a near-ban on commercial drone operations, many are critical that the rules would limit some of the most potentially innovative applications of drone technology. Visual line-of-sight requirements, temporal operating limitations, and geographic, population-based restrictions will likely be of significant focus of the thousands of comments that the FAA is likely to receive from interested stakeholders. Accordingly, the proposed rules and comments should be carefully monitored by organizations interested in commercial drone usage as the FAA works towards final rules expected in 2017. Finally, though the White House memorandum relates only to privacy considerations for drone use by the federal government, commercial drone users should follow the development of these rules as states consider legislation to restrict commercial drone uses that would infringe on privacy rights and expectations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
16 Oct 2018, Other, Washington, DC, United States

Orrick Partner Rohit Sachdev is proud to Chair the inaugural Storage East summit put on by Infocast on October 16-17th in Washington, D.C.

16 Oct 2018, Other, Washington, DC, United States

Orrick Partner Rohit Sachdev is proud to Chair the inaugural Storage East summit put on by Infocast on October 16-17th in Washington, D.C.

17 Oct 2018, Speaking Engagement, New York, United States

Employment partner, Jill Rosenberg is participating in PLI’s Employment law Institute 2018.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions