Legal Implications of Using Drones

By Michael Bosse, Shareholder at Bernstein Shur

Drones are used on an increasing basis in many industries, including real estate, farming, law enforcement and certainly in the construction industry.

The evolution of the law surrounding drones is increasing on a nearly daily basis, and contractors need to understand what uses are permissible and where the legal minefields are likely to be.

A drone is an unmanned aerial vehicle (UAV), which is an aircraft that does not have a human pilot aboard. The flight of a UAV is controlled either autonomously by onboard computers or by a remote-control pilot on the ground. Although drones were first used in military applications, they are now increasingly being used both commercially and non-commercially. The concept of a UAV is not new, as it can be traced back to the mid-1800s when Austria sent unmanned bomb-filled balloons to attack Venice, and militarily, unmanned aircraft were used in both World Wars.

Nowadays, commercial and non-commercial applications are taking over the landscape, and legal issues are popping up near and far. Drones are now being used for aerial surveying of crops, film-making, search and rescue, inspections and surveys, delivering products and supplies, in manufacturing and in law enforcement. Construction and real estate industries are increasingly using drones as part of their regular day-to-day operations. They are used recreationally or as a hobby. All of this generally and until recently had been against a non-existent regulatory backdrop.

The Federal Aviation Administration (FAA) oversees all aspects of civilian aircraft operation in the national airspace system. The FAA Modernization and Reform Act of 2012 has set forth certain parameters for the operation of recreational, non-commercial drones. For commercial use of drones, which is interpreted in a broad fashion, the FAA’s current position is that if a drone is being used for commercial purposes, the operator of the drone must have a pilot’s license and get an exemption. The so-called “333 Exemption” that is now being granted regularly by the FAA allows for various commercial uses with conditions attached to the operation of the drones, including not flying at night, having a visual line of sight, and not being within 5 miles of an airport without permission. Conditions also will be placed on the operator to ensure that the drone is well maintained, and that the operation of the drone is completed in a safe manner.

With a Section 333 exemption, drone users are expected to be required to do the following:

  • have a Certificate of Waiver or Authorization from the Air Traffic Organization;
  • have an aircraft registered with the FAA; and
  • have a pilot with an FAA airman certificate, described below.

Under an exemption, the pilot must hold either an airline transport, commercial, private, recreational or sport pilot certificate. The pilot also must hold a current FAA airman medical certificate or a valid U.S. driver’s license issued by a state, the District of Columbia, Puerto Rico, a territory or the federal government. New draft regulations have yet to be approved by the FAA, and when and if they are approved, the process will be streamlined and made easier to utilize a drone in a commercial fashion.

The proliferation of the use of drones is causing unanswered legal questions to come to the surface on a daily basis. If a drone is on someone’s property without permission, can the person shoot the drone down? One Kentucky judge recently said yes, but the answer is far from certain. Will traditional insurance policies apply to one’s drone use or to liability caused by drone operation? Probably not, and new insurance policies are already coming on the market in the form of a specific drone policy, or as an endorsement to existing insurance policies. To what extent with the federal regulatory framework trump the increasing number of state and local regulations are being passed now? This question will surely be litigated in the coming months.

What is clear is that drones have presented society with a fascinating intersection between the law and a technology that has increased in a rapid fashion. Anyone operating a drone must understand the legal framework that is being built, both legislatively and by the courts, and ensure that any legal risks regarding the operation of the drone is understood and accounted for in an appropriate fashion.

Michael Bosse is a shareholder at Bernstein Shur in Portland, Maine. He is the chair of the firm’s Construction Law Practice Group and recently authored a book entitled “Building the Construction Case: A Blueprint for Litigators.”

Originally published in the January 19, 2016 edition of Construction Executive

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