These flying robots are quickly becoming a go-to technology for a variety of industries and for a multitude of applications. Once largely relegated to military operations, drones are becoming more accessible for commercial and recreational use, creating potential implications for the legal industry. As such, this column aims to provide a better understanding of commercial drones and prepare legal professionals for advising current and prospective clients to identify and mitigate risks associated with this emerging business platform.
Small unmanned aircraft systems (sUAS), or drones, that are used for commercial — that is, not hobby or military — purposes are closely regulated by the Federal Aviation Administration (FAA). The commercial uses for drones as an organizational competitive tool are just starting to be discovered; new tactical uses emerge daily. Do you have clients currently engaged in these activities or considering moving into any of the business activities for which drone technology might be useful? If so, you must be prepared to advise your clients on the risks, controls, legal implications/impact, registration requirements, etc., related to commercial drone usage.
First, a few definitions:
Intent, rather than technology, establishes the difference between a recreational radio-control aircraft and a UAS. If flown simply for enjoyment or fun, the flight is recreational. However, if the flight is purposeful and done with the intent to perform a task, it is commercial in nature. Such tasks can include aerial competition/races, selling photos or videos taken from the UAS or contract services, such as industrial equipment or factory inspection or municipal search and rescue.
Uncontrolled and unchecked, drones pose a significant threat and risk to organizations. Consider for a moment just a few of these issues associated with emerging drone usage. How would your client address these issues and answer these questions? Would you feel comfortable accepting the answers they provided?
“While the technology may be complex, the law seems fairly straightforward. There’s no ‘drone exception’ to negligence claims, as far as we’re aware,” states Stephen Palley, Founder of Palley Law, PLLC, in Washington, D.C., in an article for the American Bar Association’s Law Practice Today blog. “Whether someone is injured by a drone or injured by a negligently operated crane, common law tort remedies still apply. Criminal laws do too.”
For now, the rules and regulations guiding the use of drones are tightly focused, leaving very little room for deviation. (At the federal level — Title 14 of the Code of Federal Regulation (14 CFR) Part 107, to be precise — you’ll find the FAA is very exacting in regulating the operation of commercial drones.) Noncompliance will be costly. Advise clients to monitor all regulations that pertain to the operation of drones and ensure compliance. Eventually some regulations will be modified, but until then, know and play by the rules.
“If you are only an occasional user of drone technology in your business, the best course is to subcontract the actual operation of the drone or drones to a company in the full-time drone piloting business,” says James G. McConnell, an Attorney with Construction Law Services. “They will assure your drone use complies with FAA regulations and that the operators are properly licensed and certified to meet your operational needs. If you need to have full-time drone operators employed by your own company, make sure they get all required training and certifications before putting your drones into service.”
These tips will help you and your clients assess their preparedness for real-time commercial drone operations:
Has your client’s organization established a remote pilot in command (PIC) position?
Is your client’s organization ready to identify, collect, retain and manage the sensitive private medical information that is required to ascertain the medical flight readiness of your drone PIC and visual observer?
What information will the organization require of employees or third-party contractors to substantiate that they are medically fit to operate the drone?
Does evidence exist to substantiate that the individual responsible for drone inspection and maintenance, and determining that the drone is in a condition for safe operation, is certified to do so? And does the organization use an FAA-approved maintenance schedule for all its drones?
How does the organization plan to employ and satisfy mandatory see-and-avoid (SAA) — also referred to as detect-and-avoid (DAA) requirement — for its drone?
How will the organization demonstrate the capability to provide oversight of all third-party providers entrusted with managing, maintaining and/or operating the organization’s drone program?
Are data obtained via drone technology — in full compliance of the law — protected as company propriety information and as intellectual property?