Guest Post: Dawn Zoldi on the latest on domestic drone law developments
Today’s post comes to us from my friend Dawn Zoldi, one of the nation’s top experts on domestic drone law, who gave us an update on the latest developments in domestic drone law at LENS’ just-completed 25th Annual National Security Law Conference. This post is taken from her conference notes, and I’ll bet you find more than one surprise in it.
Disclaimer: The views and opinions in this article are those of the author and do not reflect those of the DOD, do not constitute an endorsement of any organization mentioned herein and are not intended to influence the action of federal agencies or their employees. Likewise, guest posts also do not necessarily reflect the views of Lawfire,® the Center on Law, Ethics and National Security, or Duke University.
The Latest on Domestic Drone Law Developments
Dawn M.K. Zoldi
The hottest topic right now in domestic drones is Remote Identification, or RID. In an unusual move, on December 27, 2019, the Federal Aviation Administration (FAA) published a “public inspection” copy of its Notice of Public Rulemaking (NRPM) on the Remote Identification (RID) of Unmanned Aircraft Systems (UAS).
The draft was 316 pages, and made for great holiday reading. Only 4 days later, on December 31, 2019, on New Year’s Eve (of course!) the NPRM was officially published in the Federal Register. In just three days, on March 2, 2020, the public comment period closes out, despite multiple requests for extension, which have been denied. As of February 28th, over 30,000 comments have been posted.
What it does:
The proposed Rule would amend part 89, Remote Identification of Unmanned Aircraft Systems, to title 14, chapter I, subchapter F, Air Traffic and General Operating Rules. It proposes to tie RID requirements to the registration of UAS and also requires compliance with design and production requirements to all UAS sold in the United States (U.S.) It would apply to all UAS over .55 pounds, with limited exceptions. Registration for UAS would now be individual (no batch registrations) and would include the operator’s phone number.
The goal of the RID NPRM is to reduce potential security and safety risks and increase the efficiency of U.S. airspace. It purports to do this, in large part, by enabling the FAA and federal security partners to have near real-time situational awareness of UAS flying in the U.S.
The proposed rule would divide the world of UAS into three categories: Standard RID UAS, Limited RID UAS and those UAS without RID. The Standard RID UAS will likely include most commercial drones. The Rule would require this kind of drone to both broadcast, and transmit through the internet, message elements (more on this later) from the drone to the ground station and a UAS Service Supplier (USS – more on this later too). If the internet is not available, then broadcast only is permitted.
However, if the broadcast is lost, the UAS must land as soon as practical. In other words, the drone must have functioning RID equipment from takeoff until landing, without the ability to be disabled.
Limited RID UAS must transmit message elements from the UAS and/or ground station to the USS. These drones must be flown within the line of sight of the operator and are limited to flights within 400 feet from the control session. Like Standard RID, the drone must land as soon as practical in the event of lost transmission. Given the short leash on these drones, this category will mainly consist of recreational flights.
Non-RID UAS will only be allowed to fly within the boundaries of FAA Recognized Identification Areas (FRIAs). These areas are not yet designated and the Rule establishes a pretty elaborate process for Community Based Organizations (CBOs) to do that. Most homebuilts – perhaps the 190,000 American Modelers Association – will fall under this category.
“Message elements” is the term the FAA created in this Rule to describe the information required to be transmitted by Standard and Limited RID drones (any drone being flown outside a FRIA). These include:
- Serial number provided by the manufacturer or session ID assigned by USS (a session ID is a randomly generated mission-specific number)
- Latitude and longitude of control station
- Barometric pressure altitude of control station
- AGL and longitude and latitude of UAV (Standard RID UAS only)
- A time mark identifying the Coordinated Universal Time (UTC) time of applicability of a position source output
- Emergency status
Of note, the “control station” information that will be transmitted equates to the location of the drone operator.
The goal of the Rule, as written, is for UAS RID the message elements to be publicly accessible information. So too would Standard RID UAS broadcasts, which, under the NPRM, must be compatible with “commonly available personal consumer cellular phone, tablet, or other wireless device personal wireless devices.” Law enforcement and security agencies would be able to cross-reference message elements and UAS registration information (which includes the operator address and phone number information).
RID UAS service suppliers (USS), which are key to this RID system, are like cell phone suppliers. A drone user would have to subscribe for a fee and the USS would provide an RID “App,” storage capability, information security, and a publicly accessible website for real-time access to message elements. Again, transmissions of message elements have to go through these USS, third party non-government providers, which would be gathering and disseminating operational information. USS would be qualified by the FAA and be under a contract-like agreement with them to do this (the rule says a “Memorandum of Agreement”).
The idea is that the USS would be the same companies designed to execute the LAANC or Low Altitude Authorization and Notification Capability, a collaboration between FAA and industry to provide access to controlled airspace near airports through near real-time processing of airspace authorizations below approved altitudes in controlled airspace at or below 400 feet. LAANC also provides airspace awareness to drone pilots and air traffic controllers. Some examples of current approved LAANC providers, who will likely also be USS, are AirMap, AiRXOS, Kittyhawk, and Skyward.
The 30,000+ comments to the NPRM thus far raise a number of issues. For modelers and home-builders, the requirement to fly only in a FRIA essentially closes all parks and fields to all UAS unless they purchase a drone with Standard or Limited RID, which defeats the purpose for this very large community.
Placing significant hurdles in the way of recreational drone flights arguably would close off one of the main pathways for young people to explore aviation (which could have national security implications vis-a-vis recruiting for the air and space services in the long term).
The educational community has raised similar concerns. University-level research and development requires maximum flexibility. On the other end of the spectrum, elementary education does as well.
Privacy is another huge concern. The word “privacy” is mentioned in the NPRM only thirty-three times, including footnotes. With regard to how privacy, in the 4th Amendment sense, will actually work for law enforcement and the Intelligence Community (IC) is somewhat unclear. Some believe that the rule sets up a persistent surveillance state, allowing police and security agencies to easily establish a pattern of life for any given drone operator, without the requisite warrant (*this is an article for another day…)
Tied closely to privacy, drone operators have been very vocal about safety issues. The fact that operator location will be available to anyone using a mobile app or with internet access, raises concerns about their well being. Operators have already experienced physical and verbal attacks by irate and misinformed citizens. I’ve personally heard first-hand horror stories from drone operators being shot at while legitimately performing Part 107 commercial services.
Then, of course, there is the unknown costs for the data plan and the equipment needed to comply with RID. These costs are truly unknown, as some of the tech required, does not even exist. At this time, the FAA says 93% of commercial fleets can be updated to comply; however 20% is the number they use for recreational fleets. Either way, everyone is going to have to buy a new controller. For example, in a footnote, the NPRM notes that the “App” for law enforcement triangulation of message elements and registration data is not yet created.
Besides this, the law enforcement community has additional concerns. Tied to cost, even if the tech existed, it’s not clear that could law enforcement agencies afford it. Additionally, it’s been noted that UAS registration information does not include an operator’s social security number or date of birth, which are key to unlocking virtually every law enforcement database needed to get a picture of the operator’s biological profile and past criminal history. The system is flawed insofar as obtaining an UAS registrant’s telephone number is interesting but irrelevant if someone other than the registrant is operating the aircraft. Finally, if the only real way to geo-locate an operator is via the internet, the system would fail with weak or non-existent internet capability.
Folks have also raised legal concerns, from allegations that the NPRM would violate 50 USC 1801, the Foreign Intelligence Surveillance Act (FISA), to whether requiring banning drones that don’t comply with RID would constitute a 5th Amendment “taking” (more on this another day as well…)
The next phase of this process will begin in just a few days, when the FAA’s comment period ends. Then the hard work begins in adjudicating the tens of thousands of comments. Once the final rule is published, which could take a while (one, two years?), under its current terms, no drone could be produced for operation in the U.S. after two years and no UAS could be operated after three years except in accordance with the RID requirements. Under this timeline, we may be looking at a mid-2021 final rule and a possible 2024 horizon before full compliance is required.
To learn more:
If you want to learn more about drone law and policy, this year, the 6th Edition of Commercial UAV EXPO Americas 2020 is hosting a first-of-its-kind one day Law-Tech Connect CLE Workshop on September 15th, to parallel and leverage the companion Commercial UAV Americas program at the Paris Hotel in Las Vegas. Law-Tech Connect is a P3 Tech Consulting continuing legal education (CLE) program focused on U.S. and global legal, regulatory, policy, and ethical issues related to advanced technologies, with an emphasis on drones and advanced tech.
Topics will include: federal/state/local/tribal/global regulations, privacy, security, contracts and business law, artificial intelligence, autonomy and a special personal wellness session geared towards innovation practitioners. CLE credit will be available to attorneys. The event, however, is open to anyone who is interested in how the law will shape the future of drones in the U.S. and globally.
Dawn M.K. Zoldi (Colonel, USAF, Retired) is a licensed attorney and a 25-year Air Force veteran. She is an internationally recognized expert on unmanned aircraft system law and policy, Founder & CEO of P3 Tech Consulting, and a recipient of the Woman to Watch in UAS (Leadership) Award 2019.
As we like to say on Lawfire®, gather the facts, examine the arguments, and decide for yourself!