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The Drone Wars – legal controls lag behind many commercial, private uses

By Jennifer J. Cave and J. Clarke Keller, Stites and Harbison

Jennifer J. Cave, left, and J. Clarke Keller
Jennifer J. Cave, left, and J. Clarke Keller

In recent years, the use of unmanned aircraft systems (“UAS” or drones) has exploded. Although hobbyists fly drones for pleasure, businesses are developing new commercial uses for drone technology daily. Most sold for hobby and commercial use include a video camera mounted beneath, allowing companies to use drones as a safe, low-cost way to perform inspections without sending workers to scale towers or hiring helicopters, which can cost thousands of dollars an hour.

In February, Xcel Energy Inc. became the first utility licensed by the FAA to operate drones in beyond-visual-range deployments to test fly drones to inspect the utility’s 7,000 miles of transmission lines and check natural gas pipelines for small leaks. Other companies have dispatched drones to look for cracks in wind turbine blades, scan oil pipelines with thermal cameras for hot spots that may indicate structural weakness, maintain large, remote solar panel installations in the desert Southwest and to inspect the equipment inside large, coal-fired boilers at power plants. Energy companies have embraced drone technology as a safe and cost effective way to do business.

But what happens when drone technology is used against industry? For example, in 2012, a hobbyist pilot using a $75 drone equipped with a basic camera took photos of a Dallas-area meatpacking plant dumping blood into a river, prompting EPA to investigate the plant. In 2014, French authorities revealed unidentified drones had breached the airspace over 13 of France’s 19 nuclear power plants. In July 2016, the U.S. Department of Energy revealed that its Savannah River Site – which processes and stores nuclear materials – had experienced eight unauthorized flyovers in a two-week span.

Such flyovers can pose a number of problems for energy and manufacturing facilities. They can be used for reconnaissance by hostile groups to collect intelligence on site layout and security movements. Drones could drop explosives to disrupt or disable site operations. Drones can be used for environmental surveillance to seek out noncompliant operations.

Between 2016 and 2020, sales of small drones are expected to increase from 2.5 million to 7 million. Although the federal government has recently issued regulations pertaining to drone operation, what can facility operators do to maintain the privacy and security of their operations in light of the exploding popularity of drones?

The Federal Aviation Administration (FAA) issued regulations for drone operation that became effective Aug. 29, 2016. The regulations require drone be visible at all times either by the pilot or a designated visual observer without the use of binoculars or cameras. This means a drone may only be used during daylight-hours, cannot be operated from a moving vehicle or aircraft, cannot go faster than 100 mph, and cannot go higher than 400 feet above ground level (unless within 400 feet of a structure taller than 400 feet).

Drones cannot fly over people and must operate only in Class G airspace (low altitude and away from airports) unless prior authorization is received from air traffic control. Drone operators must have a remote pilot certificate, which requires a TSA background security screening and passing an aeronautical knowledge test among other requirements. In addition, drones weighing more than 0.55 pounds and less than 55 pounds must be registered and the drone’s serial number or registration number must be marked on the drone. (Heavier drones must also be registered with the FAA.)

These rules are a good start in regulating drone operations, but they do very little to protect the privacy and security of manufacturing and utility operations.

Although regulation of the airspace falls within the jurisdiction of the FAA, over 25 states have acted to address various concerns relating to the operation of drones within their borders. Although Kentucky does not yet have any drone laws, two cases teed up the drone debate in 2015. In the first, a University of Kentucky student crashed a drone inside Commonwealth Stadium at a football game. Although no one was hurt, Peyton Wilson was charged with second-degree wanton endangerment. Wilson was fined $100 and forfeited his drone and iPad.

Earlier in 2015, John David Boggs was flying a drone equipped with a video camera over Bullitt County when William Meridith shot down the drone. Meridith was arrested and charged with felony wanton endangerment and criminal mischief. A judge later dismissed the charges saying that Meridith, due to privacy concerns, “had a right to shoot” the drone. Earlier this year, Boggs filed suit in Federal Court against Meridith seeking declaratory relief and damages. That case is still pending.

The Boggs case in particular highlights the clash between private property rights and the right to free navigation in federal airspace. Although Kentucky has not yet waded into these murky waters, other states have begun regulating in this area. For example, at least 12 states have passed legislation providing privacy protection from other citizens using drones.

California’s legislation makes individuals who knowingly enter into the airspace above the land of another person without permission in order to take pictures or videos liable for physical invasion of privacy. Although this legislation was intended to protect against the use of drones by paparazzi, it could provide protection against unwanted environmental surveillance. In North Carolina, a law prohibits the use of drones to conduct surveillance of real property without consent.

Other states have gone a step further and have provided affirmative projections for “critical infrastructure” from unauthorized flyovers. Under Arizona’s law, it is a felony to intentionally photograph or loiter over or near petroleum production facilities, energy control centers, or chemical manufacturing facilities in furtherance of a criminal offense. Oregon’s law makes it a violation to operate a drone over petroleum and alumina refineries, electric power facilities, and chemical, polymer and rubber manufacturing facilities.

Tennessee’s law restricts operation of drones within 250 feet of a critical facility’s perimeter, making it a crime to do this for the purpose of conducting surveillance or gathering information about the facility. The law defines critical infrastructure as electric power plants, petroleum refineries, manufacturing facilities that use combustible chemicals, facilities that manufacture chemicals or rubber, and petroleum or chemical storage facilities. Oklahoma’s law prohibits operation of drones over petroleum operations, chemical companies, aluminum manufacturers, utilities, power lines, natural gas facilities and government buildings.  The FAA is also expected to announce rules restricting drone use around “critical infrastructure” in the coming months.

Regardless of the fledgling regulatory environment, drones are becoming a serious privacy and security issue for utilities and manufacturers. In addition to tightened regulatory controls, facilities may need to re-evaluate the security of the airspace above their facilities to protect against unwanted environmental surveillance, or worse, by drones in the future.

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