COMMENTARY: Navigating the legal issues surrounding drones
I have seen more unmanned aerial vehicles in the past two months than I saw in the previous two years. Maybe this is coincidence, but I don't think so. The issue of UAVs—also known as drones—is fascinating. The consideration of legal issues pertaining to drones is equally fascinating.
Drones have utility in agriculture; in fact they can be used in several ways in a farming operation. First of all, drones permit farmers to get a visual view of their fields from vantage points that were not previously accessible. An overhead view of a field during the growing season can assist farmers in planning drainage activity for the fall and can also assist them in determining fertility needs moving forward. Finally, if there is spray drift—a hot topic with dicamba for the past two years—the view from a drone can assist in determining both the amount of drift damage and the severity of such damage.
The possibilities for drones go on and on. For example, livestock farmers can use drones to assist in location of livestock and also to assess the health of a herd. And the ability to locate predators and their origin is also greatly enhanced with the use of an unmanned aerial vehicle.
But as with any technological advancement, there are questions. And with drones, the legal questions far exceed the answers at the present time.
There are two very broad categories of legal issues pertaining to drones. The first category has to do with constitutional issues pertaining to drones. The second category simply has to do with regulation of drones.
Constitutional issues pertaining to drones revolve around (1) the right to privacy and (2) illegal search and seizure. That is, how much privacy are we, as citizens, entitled to? In the old days, we could pull the shades or shut the fence around our property, and we would know that we were safe from view. However, with the advent of UAVs, we don't know who sees what is going on inside our property. Are we entitled to privacy at all?
The answer is yes, you are entitled to freedom from government interference in the quiet use and enjoyment of your property, but only to a certain extent. The level of that extent is still developing in the eyes of the law.
With regard to illegal search and seizure, this is very interesting to me. For example, if you have illegal contraband on your property, it used to be that the government couldn't enter your property without a warrant or if the illegal contraband was "in plain sight." Well, does the "in plain sight" doctrine extend to illegal contraband that is in plain sight from 1,000 feet above, as viewed by a drone? How about 2,000 feet? Or 3,000 feet? What if the contraband is on your property, but you don't know it, and a neighbor with a drone reports it to law enforcement? Again, the questions outnumber the answers.
Regarding regulation of drones, the Federal Aviation Administration last year announced the UAS Integration Pilot Program, which the FAA calls "an opportunity for state, local and tribal governments to partner with 'the private sector' to accelerate safe UAS integration." UAS stands for Unmanned Aircraft System and generally represents the UAV, the ground-based controller and the system of communications connecting the two.
The FAA says they have four objectives for the IPP. First, the FAA desires safe integration of UAS into the National Airspace System by testing and validating new "beyond visual line of sight" operations and their technologies. Second, they want the UAS security and safety risks muted by better communications between operators and regulatory officials. Third, the FAA seeks to promote innovation to serve public benefit. Finally, they seek to identify models to balance local and national interests regarding UAS integration.
Seem like a mouthful? It is. But it is a huge legal field, and it promises to get more interesting!