Guest Post: Dawn Zoldi on the latest on law and domestic drones
There are few more timely topics these days than the domestic use of drones, and at our 24th Annual National Security Law Conference, we heard from one of the nation’s top experts, my friend Dawn Zoldi, a retired U.S. Air Force Colonel and the current Associate General Counsel for Business Matters at the U.S. Air Force Academy (Office of the Air Force GC).
Dawn is a two-time LENS conference panelist, having previously participated in our March 2013 Battlefields, Boardrooms and Backyards: the New Face of National Security Law Conference, on the Technology, Privacy and Security Panel, in addition to this year’s Short Bursts: Quick Updates on Hot Topics. In this post, she summarizes key take-aways from this year’s discussion about domestic drones.
Want to hear an even more an in-depth treatment of drone-related legal, policy and ethical issues? I invite you to consider attending the upcoming International Conference on UAS 2019 in Atlanta, Georgia, particularly the one day CLE Legal Track, where I’ll be providing a Keynote, “Law, Lawfare and Tech: An Argument for Collaboration.” Registration goes live on April 15th.
You can watch the full “Hot Topics” panel here , but what follows are some highlights (and a few research links!) from Dawn’s presentation at the conference on the current landscape of domestic drones:
Hot Topics: The Law and Domestic Drones
by Dawn M.K. Zoldi*
My panel was on “Hot Topics,” and nothing is hotter in the UAS world, than the 2018 FAA Reauthorization Act and some of the follow-on activity it has generated.
The Act focused on safety, privacy, and security, laying out Congress’ expectations for forward progress on enabling commercial UAS operations in the National Airspace (NAS). With regard to safety, closely tied to security, the Act included new provisions on registration/identification (ID) – including remote ID and external markings, Unmanned Traffic Management (UTM), and expanded operational authorities.
Drone registration – no more “hobbiest” exemption
Several provisions address registration/remote ID, including the repeal of the 2012 FAA Modernization and Reform Act (FMRA) hobbiest exemption, the creation of a regulatory framework for hobbiests that includes registration/remote ID requirements; and the establishment of a 5-year FAA pilot program to use available remote detection and ID technologies. (To see the December 2018 FAA Request for Information remote IDs click here),
Congress also directed continued FAA efforts to plan and implement UTM, which must include Beyond Visual Line of Sight (BVLOS); permit testing and evaluation of remote ID/tracking technologies; consider blanket waivers of Part 107 small UAS rules; review spectrum allocation; and determine if certain providers may operate before the final UTM plan is complete.
Autonomous package deliveries
The Act made several strides in the area of expanded operations, such as requiring the FAA to update regulations to permit autonomous package deliveries by the end of 2019 (you’re welcome, Amazon!); focus on risk-based operations (repealing Sec. 333 of the FMRA); publish templates to permit users to successfully obtain expanded permissions; and further the UAS Integration Pilot Program for expanded operations at the state/local/tribal level. (Note—on Feb 13, 2019 the FAA issued an Advance Notice of Public Rulemaking – Safe and Secure Ops of UAS and a draft NRPM for Operations of SUAS Over People).
Until now, the Congress had not addressed the FAA’s role in privacy; rather, it has been a matter for the States. Much to the delight of privacy advocates, the 2018 Act actually contains privacy provisions!
Aside from a general policy statement that all U.S. UAS operations shall “respect & protect personal privacy consistent with the Federal Constitution, and Federal, state, and local law…”, the most radical requirement in this Act is for all commercial UAS users (except the media) to have written privacy policies governing the collection, use, retention, dissemination and deletion of UAS data, violations of which will amount to unfair and deceptive practices under the Federal Trade Commission’s Act.
(*Editor’s note: Dawn’s been advocating for this type of regulatory approach for years – see “Domestic Regulation of National Airspace: An Evolution and Suggested Way Ahead”; “Drones at Home: Domestic Drone Legislation – A Survey, Analysis and Framework”; and “Protecting Security and Privacy: An Analytical Framework for Airborne Domestic Imagery” ).
Security and counter-UAS
In the realm of security, it is clear from recent headlines that the UAS threat is not emerging; it is real, international, and varied (Note: Gen Dunlap has written about this recently – see here).
The 2018 Act contains significant updates in the areas of counter-UAS (cUAS), protection of facilities, and criminalizing bad drone behavior. For cUAS, the coin of the realm is collaboration and planning between the FAA and other experienced Federal agencies, including the Department of Defense.
The Act authorizes the FAA to deploy cUAS at five airports and to start a charter for rule-making. Most significantly, Sections 1601-1603, referred to as the “Preventing Emerging Threats Act of 2018,” expands Federal cUAS authority to the Department of Justice and the Department of Homeland Security, including the U.S. Coast Guard, to mitigate credible threats to certain facilities and assets posed by errant or hostile UAS. Consistent with the theme of protecting facilities, the Act expanded the types of critical infrastructure over which no-fly zones may be sought (e.g., railroads).
The Act also creates a host of new “drone crimes” including: equipping a drone with a “dangerous weapon;” knowingly or willfully operating a UAS with the intent to direct or cause a UAS to enter “restricted buildings or grounds” (e.g., White House); knowing or reckless interference with wildfire suppression or related law enforcement or Emergency response efforts; knowing and reckless interference with manned aviation of any sort that causes an imminent safety hazard to those onboard; & knowingly engaging in unauthorized UAS ops within runway exclusion zones.
It will be interesting to watch this area of law and policy continue to evolve. This is an exciting and evolving field of practice. For drone operators and attorneys, the sky is the limit!
*The comments contained in this post represent the views of the author, and do not represent the views of the Department of Defense, the U.S. Air Force, the Office of the General Counsel (USAF), or the U.S. Air Force Academy.