Drones – flying into the legal headwind

Ross McKean

Olswang supporting new technology and innovation:

I presented on drone law to the Security and Defence Interest Group of Cambridge Wireless yesterday, hosted jointly by Olswang and the Knowledge Transfer Network. Despite being half term week we had a full house thanks to the great programme put together by Nicholas Hill of Cambridge Wireless’s Security & Defence SIG. Speakers included Nicholas Hill of Plextek Consulting; Professor Jim Scanlan of the University of Southampton’s Aerospace Division; Alan Brooke, Unmanned Aircraft Systems lead for the Centre for Applied Science & Technology of the Home Office, and myself.

Is 2015 the year of the commercial drone?

Drones – also known as small unmanned aircraft; remotely piloted aircraft systems, and a growing number of similar acronyms, continue to make news. They have come a long way from their military origins and took centre stage at the annual Consumer Electronics Show in Las Vegas in January. Some commentators are predicting that whereas 2014 was the year of wearables, 2015 will be the year of mass adoption of drones.

What is a drone?

In the UK, for CAA regulatory purposes a “drone” is generally used to refer to a small unmanned aircraft below 7Kg in weight though the category extends to any unmanned aircraft. In the USA, the recently published FAA consultation on the liberalisation of commercial drone use defines drones as small unmanned aircraft up to 55lbs / 25Kg. It is this low weight category which has seen the greatest innovation and development recently.

Drones – good or evil?

The word “drone” comes laden with negative connotations of military drones, kill lists and human “collateral damage”. Yet despite attempts by manufacturers to rebrand drones as SUA or RPSA for consumer use, the term “drones” has stuck with consumers and commercial users.

As a technology enthusiast, I share the view that technology is rarely the problem per se; it is the use of technology that can be harmful. Drone enthusiasts argue that drones can improve safety and reduce risk of harm by taking over dangerous jobs that would otherwise be done by people – like surveying tall inaccessible structures; search and rescue exercises or delivery to remote locations in poor weather. They point to the early mass adoption use cases of drones such as precision spraying of pesticides on small Japanese farms which has reduced wastage, improved efficiency and avoided spraying pesticides over homes. As it is in largely rural areas, privacy is less of a concern.

On the other hand, as drones become cheaper, capable of carrying relatively heavy payloads and more readily available, it is easier for the criminal, the malicious and the negligent to do harmful, dangerous or just plain dumb things. A football match between Serbia and Albania in October 2014 had to be halted after a drone flying the Albanian flag over Serbian supporters caused a major brawl; France is on high alert after a spate of unexplained “visits” by drones to French nuclear power stations; another drone, believed to be a small helicopter, distracted a pilot landing at Heathrow when it came within 20 feet of an Airbus A320.

Drones – where to draw the regulatory perimeter?

So where should regulators draw the line? In the UK, the CAA regime is viewed as one of the most permissive regimes in the world which has resulted in many drone operators and manufacturers setting up shop in the UK. As a general rule, no CAA permission is required where drones are not used for commercial purposes (broadly – where no “valuable consideration” is earned) and, in the case of drones fitted with cameras, these are not flown within congested areas or within the minimum distances of people or properties (vehicles, vessels or structures) that are not under control of the pilot.

For commercial use of drones or use of surveillance drones within congested areas or within the minimum distances prescribed, a CAA exemption or licence will be required. Though again the CAA is viewed as a progressive aviation regulator supportive of innovation of SUAs. A number of the speakers commented that in their experience provided an appropriate safety case can be submitted, the CAA will generally grant permissions or licences quickly.

The reality is that the CAA does not have the resources to enforce against all users who breach these rules – though they have taken actions which they publicise to act as a deterrent to others. For example, the first reported drone prosecution was in April 2014 when an individual was convicted of flying a surveillance drone within 50 metres of a bridge with traffic. They were fined £800 plus £3500 costs. A photographer was recently cautioned for selling footage from a surveillance drone to the media, without having a CAA commercial use permission. The CAA has also published helpful guidance for hobbyists to promote responsible flying and compliance with safety rules.

Drones – big brother with wings?

I also touched on data protection and privacy concerns in my presentation commenting that drones are viewed as a potentially far more invasive technology than CCTV by data regulators. The influential European Data Protection Supervisor succinctly put it that drones “give the most sophisticated cameras wings” so careful planning needs to be taken to ensure compliance with data and privacy laws. Planning flight paths; not using high res cameras when low res will suffice; using appropriate signage, high vis clothing and warnings; pixilating images of people inadvertently captured; transmitting and storing data securely and keeping it for no longer than necessary – can all help to minimise the risk of infringing data protection and privacy rights. The ICO has also published helpful guidance for the drone hobbyist emphasising the need to fly responsibly and pointing out that surveillance drones used for commercial work will be subject to the Data Protection Act. Hobbyists can’t rely on the “domestic purposes” exemption if they sell footage captured with a drone.  For business, the recently updated ICO guidance on CCTV includes guidance on unmanned aerial system surveillance.

 US drones – when will the FAA liberalise the rules?

The long awaited US Federal Aviation Administration proposals to liberalise the commercial use of drones (up to 55lbs / 25Kg) in US national airspace were published on February 15th this year. Although widely reported as a step in the right direction by the US press, others argue it does not go far enough as it still requires visual line of site operation and does not permit night flying (likely a response to a drone landing on the White House lawn at 3am in the morning). It is also at least a year if not two years away from coming into law at a time when the UK and several other jurisdictions already enjoy considerably more permissive regimes for commercial use of drones, raising concerns that there will be a talent and investment drain from the nascent US drone economy. One US not for profit group has estimated that each year the FAA delays liberalising drone rules costs the US economy 10 billion dollars in lost opportunity.

Are drones a security threat? Can drones be weaponised?

Clearly this is a concern given the wide availability of drones and increasingly heavy payloads they can carry. As a result the European Commission has encouraged investment in security for command and control systems to protect against the risk of drones being commandeered in flight and footage being hacked.

Drones and liability – who is legally responsible if drones cause damage or injury?

The debate around liability for autonomous machines has largely focused on driverless cars to date. Supporters of the safety benefits driverless cars could potentially deliver by removing the main cause of accidents (human fallibility), argue that manufacturers should be incentivized to invest in the technology by granting them special protection from certain liability – which in the UK is most likely to arise under the tort of negligence or strict liability for defective products. Drones are different. Where they are flown remotely by a pilot, the pilot is ultimately responsible for unsafe flying, albeit that the manufacturer may also be at fault if the drone is defective and third parties may be contributory negligent. Where they have a safe pre-programmed flight path and malfunction, the argument that drones are inherently safer than manned systems does not generally hold true – at least not with current technology. Lightweight drones do not enjoy the multiple redundancies required for large manned aircraft; on the contrary they often have several single points of failure in order to keep flying weight to a minimum. The debate will continue but there is less of an obvious policy reason to grant special liability carve-out incentives to drone manufacturers. The “old” law of negligence and product liability will continue to apply in the meantime.

What are the likely mass adoption use cases for drones?

Not surprisingly, the conclusion in the room was that agriculture which has already been proven as a highly successful use case in Japan and has lower safety challenges is likely to be an early mass adoption use case. Transatlantic drone deliveries were also mooted.

Coolest drone news from the event? Easy – Southampton University was the first to design, build and fly a 3D printed drone and is now at the forefront of printable drone innovation. They are a great UK technology success story.

 

Ross McKean is a technology partner in the London office of Olswang LLP and heads the firm’s global data protection practice.

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