In response to booming popularity, many people have been seeking information about the legality of using unmanned remote-controlled aircraft. The FAA lumps this kind of aircraft under the general classification of UAV (Unmanned Aerial Vehicle), or UAS (Unmanned Aerial Systems). It's a broad category that includes everything from the Predator drone to the DJI Phantom quadcopter. Unfortunately, there's next to nothing I can tell you at the moment. Very few laws explicitly address UAVs, and those that do are dated, clearly meant for vehicles with the size, mass, and capability close to that of manned aircraft. Hobbyist and consumer RC aircraft and their photo- and video-oriented derivatives, like the Phantom, aren't explicitly addressed, apart from a few guidelines.
Disclaimer: This article should not be taken as legal advice. Rather, this article merely reflects the views of its author. Please consult with an attorney to determine what, if any, legal requirements or restrictions apply to the use of UAVs in your area.
As far as the FAA goes, here is what I can tell you:
- Don't fly a UAV within FAA controlled airspace without FAA approval—approval that you won't get
- Don't use a UAV for commercial purposes without FAA approval—again, approval you won't get (an assertion that's currently being challenged)
- Keep your aircraft within visual range at all times, regardless of the available BVR (Beyond Visual Range) systems
Otherwise, there is no direct legislation on the books that I can find. Even the maximum altitude at which one is allowed to operate is not clearly defined (see below). This is all about to change, though. The Obama Administration set a deadline of this fall for the drafting of new legislation that will specifically regulate the use of UAVs, especially multi-rotor helicopters. This legislation will go into effect in the beginning of 2015.
But where does that leave us for the remainder of 2014?
What Changed?
Before attempting to answer that, we should consider why this legislation is being pushed through now. RC enthusiasts have been operating small-scale unmanned aircraft for decades, and many of the new aerial-camera platforms like the Phantom are apparently just adaptations of existing RC systems that are being rebranded as flying camera support. In my opinion, there are two factors:
- The explosion in popularly of UAVs outside the previously niche RC community
- Inexpensive flight control systems that make consumer multi-rotor helicopters possible
Arguably, the two are interrelated. In the past, RC aircraft were more commonly fixed-wing, meaning they required a sizable area to take off and land. And the VTOL systems (Vertical-Take-Off-and-Landing, i.e., helicopters) that did exist where very difficult to fly. Inexpensive, computerized flight controllers have made it comparatively easy to fly multi-rotor systems. Because they are VTOL-capable, and relatively compact, they can be deployed essentially anywhere, and in the hands of a skilled pilot, they can be maneuvered nearly anywhere.
Because today's UAVs can be flown with varying degrees of autopilot assistance, from nearly full autopilot (for craft with GPS) to full "agility" modes that disable virtually all safeties, these new multi-rotors have attracted users with a much broader range of flying experience. More people are using them, and more people are using them without applying common sense. Greater maneuverability means more small UAVs in the air, with more being used in unexpected contexts. Because of this explosion, the government has recognized that this technology needs to be formally addressed, not to mention the growing desire on the part of businesses, such as Amazon, to put UAVs to commercial use without going through the current, monolithic FAA-approval hoopla.
What is FAA Airspace?
For Illustration only: FAA-designated airspace classes and their respective ranges
If you're reading this article in the United States, you are within the FAA's airspace. Seriously. There's a widely held belief that below a certain altitude, one is outside FAA jurisdiction—some say below 400 feet, others say below 700 feet. Either way, this is a canard. FAA jurisdiction starts at the ground and extends to the edge of space. Most likely, FAA jurisdiction is being confused with FAA-"controlled" airspace.
"FAA jurisdiction starts at the ground and extends to the edge of space."
What is FAA-controlled airspace? Essentially, it is airspace in which regular, full-scale manned aircraft operate. Because 400 feet is considered below the safety floor for most types of manned aircraft (helicopters in urban environments notwithstanding) it's generally permissible to fly model aircraft and other non-commercial UAVs up to this altitude as long as visual contact is maintained. There are exceptions, notably near airports. The controlled airspace around airports is divided into classes by the FAA, and how these are divided will vary depending on geographical and other factors. However, a good rule of thumb is to assume that all airspace within three miles of an airport, starting at sea level, is controlled, and that operating UAVs without explicit FAA approval is prohibited. This means that it's effectively illegal to operate a UAV almost anywhere in what one might consider metro New York City, because there are three major airports, including Newark.
Newark International Airport
Commercial Use
Technically, the FAA doesn't forbid the commercial use of UAVs, they just require FAA approval. Only two UAS aircraft models have been approved for commercial use: the Boeing Insitu ScanEagle and the Aerovironment Puma, and only for deployment in the Arctic. These are the kind of operations the FAA hand in mind when they drafted the law—large aircraft that come close to manned vehicles in terms of size capabilities, as well as the damage they could do following a collision. A twelve-ounce quadcopter was clearly not what they were thinking of when the law was passed.
This hasn't stopped the FAA from doing its best to block the commercial use of consumer-grade UAVs. Perhaps the most famous case applies to a Minnesota brewery that was using a DJI F550 to deliver beer to ice fishers. Many are under the impression that the FAA acted outside of its jurisdiction here; however, as noted above, all airspace is enforced by the FAA, and the prohibition against unauthorized commercial use does not include qualifications about a minimum operational altitude.
The FAA oversees and regulates airspace for thousands of aircraft simultaneously.
In another case, the FAA ruling has been challenged. On March 6, 2014, NTSB Administrative Law Judge Patrick Geraghty ruled that the FAA law does not ban the commercial use of drones. This follows a lawsuit against Swiss UAV operator Raphael Pirker, after he allegedly flew his craft recklessly over the University of Virginia's campus while recording a video he had been hired to make. The ruling would seemingly open the skies to commercial UAV flights. However, as this article goes to press, the FAA is appealing the ruling. So, we will just have to wait and see what happens.
Until we know the outcome of this case, it's safe to assume that commercial flying is still illegal—unless spending time in court attempting to establish a legal precedent is something you want to do.
Non-UAV Laws that may Apply
At least, until 2015, you are more likely to be prosecuted under other laws rather than FAA or UAV-specific legislation, such as:
- Reckless endangerment
- Invasion of privacy
- Obstruction of police/emergency services duties
- Noise ordinance violation
- Littering
Of those, invasion of privacy and reckless endangerment, for obvious reasons, will likely serve as the most common basis for lawsuits and prosecution against UAV operators. However, one could envision an imaginative prosecutor coming up with less obvious grounds to build a case, such as fining an operator for littering, in a case where the UAV crashed in a public area and was abandoned by the pilot. Therefore, one shouldn't assume that just because UAVs represent something of a new legal frontier that one will be immune from any form of legal action.
Privacy
Because more and more UAVs have cameras built in or support the attachment of cameras, privacy and UAV use is becoming a hot topic. Apart from reckless endangerment, privacy could well become a major basis for prosecution or lawsuits against UAV operators. For now, normal privacy laws would seem to apply to image and audio capture from UAVs in general. That is to say, for the most part, one is allowed to record or photograph in contexts where there is no "reasonable" expectation of privacy.
In a park, or on a city street, for example, there is no "reasonable" expectation of privacy, nor is there generally a legal basis to make an invasion of privacy claim, since one is in what is understood to be a public place. The same may even apply to parts of private property "normally" visible from public space, such as a front yard visible from the street. On the other hand, recording the interior of a home or private building is illegal, even if the camera is placed outside. Additionally, exterior spaces on private property, possibly a backyard not normally visible from the street, are quite often, like the interior of a home, considered spaces where one has a reasonable expectation of privacy under the law. What this means for UVA operators is that flying over, say, someone's backyard and recording video or photos stands a good chance of qualifying as an invasion of privacy and should be avoided. This is true even where there is no direct over-flight; in other words, where there is no question of trespassing, but the camera is still able to capture images from parts of the property where reasonable expectation of privacy holds.
Will laws change in this regard? My guess is, as legislation evolves, privacy laws will become stricter as they relate to UAVs than they are in general. For now, most users seem to be innocent, shooting video for the sheer enjoyment. However, it's only a matter of time before we start seeing the technology used by private investigators and others as surveillance tools. Although currently restricted, it's also likely we will see their increased use by law enforcement as well as private security, and again it will be interesting to learn how the privacy debate pans out.
Air Rights over Private Property
The question of air rights as it relates to UAVs is relatively novel since manned aircraft operate thousands of feet above populated areas, far too high to be considered trespassing. Air rights in the sense of, say, hoisting a boom over a neighbor's property are well-defined, and such an action, it's safe to assume, would indeed constitute trespassing. Some may be tempted to assume that since UAVs operate in a sort of middle ground, below the elevations at which manned aircraft normally operate, yet potentially above the reach of ground-based apparatuses such as a cherry pickers, they are somehow exempt. While this may, to some extent, be arguable for larger, commercial-grade UAVs that come closer to manned aircraft in capability (if they ever get legalized), it hardly seems like a good thing to risk in the case of a quadcopter or other consumer UAV. Consumer UAVs don't have the range and are too unreliable—many, if they lose signal, will automatically land wherever they are, or will fly at a fixed, low elevation back to a home point. But even if consumer craft were more capable, the requirement that they have to be kept within visual range (see below) effectively limits how high they can be flown.
In other words, even though there may be a slight gray area as concerns UAVs, one would still be extremely foolish to operate over someone else's private property without permission. In a small town in Colorado, famously, there is even an attempt to make it legal to shoot down UAVs flying over private property. This may not pass—my guess is it won't—but even so, safer means of disabling intrusive aircraft may still be found, and the operator may still be charged with trespassing.
Beyond Visual Range (BVR)
"You are required to maintain visual contact with your aircraft at all times."
BVR flying is currently forbidden by the FAA, and also goes against AMA (Academy of Model Aeronautics) and other guidelines. In other words, you are required to maintain visual contact with your aircraft at all times. This is true even if the vehicle is equipped with an FPV (First Person View) camera system, or is capable of flying along a pre-configured autopilot course. This rule applies regardless of the range of the transmitter, which, in some cases, can be several miles, under the right conditions.
Since the size of the aircraft and local visibility can vary, there currently isn't a set distance as to how far away a UVA can be from the pilot. Simply put, the pilot needs to be able to see the UAV, and steer it clear of other aircraft and buildings.
Since BVR systems no longer require the Pentagon's budget to purchase, I would expect to see a lot of pressure to change this law, or otherwise nullify the FAA's assertion. My guess is BVR will get approval for commercial applications, perhaps including Amazon's proposed drone-delivery scheme. This will be contingent on FAA certification of the aircraft model being used, as well as some sort of licensing requirement on the part of the operator. I am not as optimistic that we will see the FAA's blessing for consumer use of BVR, even though many UAV makers are already promoting BVR systems.
Who Enforces FAA Laws?
Normally, the FAA uses its own agents, and has its own enforcement mechanism. At least in theory, normal police can arrest you or otherwise enforce FAA legislation. With the widespread public use of UAVs, I would expect this to change. Along with new provisions for consumer UAVs will come provisions granting local law enforcement justification over non-FAA controlled airspace. Either that, or we can expect to see complementary state or local laws that grant local law enforcement authority over the relevant portion of the airspace on top of any FAA legislation. For FAA-controlled airspace, I would expect things to stay more or less as they are. Unless civilian BVR flying is legalized, I would expect UAVs to remain largely excluded from operating in these zones.
Local RC Clubs: An Invaluable Resource
The best piece of advice I can give right now for anyone who's concerned about legalities is to consult a local RC club in your area. In the US, the best place to look is the Academy of Model Aeronautics, or AMA. Not only can they point you toward RC clubs in your area, they provide a wealth of resources for RC pilots and also offer liability insurance that will cover you for up to two million dollars in damages, provided you operate within the safety guidelines they set.
It's not just for legal issues. RC clubs provide beginners with an invaluable community of support. Members have the experience to tell you where it's safe to fly, what pitfalls you may encounter, and they can even provide training, as well as troubleshooting assistance.
Summary
With the caveat that there are always expectations, and that you should consult with clubs and fliers in your local area, the basic guidelines for flying legally (and safely) can summarized thus:
- Don't fly above 400'.
- Don't fly at any elevation within 3 miles of an airport.
- Don't fly around areas where VTOLs (helicopters) operate.
- Keep your aircraft within visual range.
- Don't fly over crowds.
- Don't record video or take photos in contexts where there is an "expectation of privacy."
- Treat the air over private property as private property.
- Follow the safely guidelines set forth by the AMA, even those that are not legally enforced.
- Don't use your UAV for what the FAA might deem as a commercial purpose.
Though specific legislation is coming, it's more than likely that all but the last of these guidelines will still be valid after 2015. For the most part, it just boils down to following common sense. The laws are really there to decide what to do in cases where people willfully or negligently choose not to follow common sense.
After 2015
As noted, the main change will be the formal ratification of laws that enforce common-sense guidelines already established within the RC community. We will also likely see the legalization of commercial UAV uses, probably requiring some form of FAA or other government agency licensing or registration.
One hopes that the new laws will take into account the wide range of types of UAVs, and not lump everything from a Hubsan X4, which weighs just ounces and nearly fits in your pocket, to a Boeing Phantom Eye, which has a 150-foot wingspan and can carry a 450-pound payload. Ideally, consumer UAVs probably shouldn't fall under FAA legislation at all, beyond a provision that they don't interfere with manned aircraft. Any other legislation regarding their uses, such as invasion of privacy or endangering the public, seems to me to fall outside the FAA's jurisdiction. Other forms of federal legislation may apply, and for things like risks to the public, it probably makes sense for laws to be crafted at the city level, or perhaps regional level. Clearly, the risks associated with UAV operation in New York City are very different from those in small towns in Colorado.
