Much has been written about drones, the wartime reconnaissance vehicles and silent killers from above.
But how does the versatility of these high-tech machines translate into civilian use, and what are the potential dangers? Already, law enforcement and private enterprise have seen myriad uses for drones. They include searches for lost children, surveillance for criminal activity, monitoring of farm fields and crops, land surveying, evaluating flood conditions and seeking hot spots in forest fires, to name a few.
But where does the use of drones cross over from serving a civic or entrepreneurial purpose to one that intrudes on individual privacy and compromises basic civil rights? What guidance, if any, does federal, state or local law provide to the various users of this technology?
The federal government has recognized the emergence of civilian use of drones. In February 2012, Congress passed the FAA Modernization and Reform Act of 2012 (FMRA). Subtitle B of the act, unofficially referred to as the "Drone Act," charges the secretary of transportation, in consultation with representatives from the aviation industry, federal agencies, and the "unmanned aircraft systems industry," to "develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace systems."
The deadline for "safe integration of civil unmanned aircraft systems into the national airspace" is "as soon as practicable," but no later than Sept. 30, 2015.
Currently, there are no Federal Aviation Regulations (FARs) that govern or permit the commercial use of drones. In 2007, the FAA issued a policy notice that sought to clarify the "FAA's current policy concerning operations of unmanned aircraft in the National Airspace System."
In that notice, the FAA stated that, "no person may operate a [drone] in the National Airspace System without specific authority." Under this policy, a civil operator of a drone must obtain a special airworthiness certificate for an "experimental aircraft."
But the pertinent regulations for issuing an experimental aircraft certificate do not contemplate the commercial use of drones. In fact, in March 2013, the Minneapolis branch of the FAA shut down a Minnesota-based business that was operating drones for commercial purposes.
The city of St. Bonifacius recently banned the use of drones, citing privacy issues as the reason. Operating a drone in that city can result in a misdemeanor citation.
Under the FMRA, however, there eventually will be regulations allowing for and governing the commercial use of drones. The "comprehensive plan" called for by the act will include recommendations for FAA rule-making that "define[s] the acceptable standards for operation and certification of civil unmanned aircraft systems."
The FAA has yet to submit its comprehensive plan to Congress, and the rule-making process contemplated by the FMRA has yet to begin.
Besides the lack of guidance offered by federal law, the civilian use of drones is subject to existing Minnesota law, particularly with respect to potential liability and insurance requirements. In Minnesota, aircraft owners are "absolutely liable" for an injury or damage to persons or property caused by the flight of an aircraft or by any object falling from the aircraft "whether such owner was negligent or not."
This law defines "aircraft" very broadly. It "means any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air, but excluding parachutes." Considering the breadth of this definition, it is quite likely that a drone would qualify as an aircraft under this statute.
Given this potential liability, civilian owners of drones — especially those utilizing drones for commercial purposes — need to obtain liability insurance. In Minnesota, it is a misdemeanor for an aircraft owner "to operate or permit to be operated an aircraft registered or based within the state of Minnesota without liability insurance protecting passengers and third persons for both personal injury and property damage resulting from the operation of the aircraft."
The same broad definition of "aircraft" applies in this context. It remains to be seen how the insurance industry will price coverage for drones, what training requirements will be imposed on drone operators and what exclusions there will be from coverage. However, at least one major aviation insurer already has an endorsement for drone operation coverage.
The commercial use of drones, while growing increasingly more popular, is a field filled with unknowns.
In the next few years, we can expect the federal government and the Minnesota Legislature to provide owners and operators with some guidance. In the meantime, current owners and operators should tread carefully.
About the authors
Donald Chance Mark Jr. is an attorney and founding member of Eden Prairie-based Fafinski Mark & Johnson. Alyson M. Palmer is an attorney at Fafinski Mark & Johnson.