SE Portland drone debate: Everything you need to know about spying on your neighbors (Q&A)

This story has been updated to clarify that House Bill 2710 does not apply to model aircraft.

A Southeast Portland resident recently purchased a drone for spying on Union Pacific and local developers.

The news raised legal questions for readers, so we did a little extra research. First, some background on the situation:

Robert McCullough is president of the Eastmoreland Neighborhood Association. He purchased a 2.6-pound flying camera (and christened it "Flying Monkey 1") several weeks ago, with the intent of capturing video of activity at the Brooklyn rail yard and neighborhood development projects.

He has no intention to spy on residents, he said.

McCullough intended to donate the drone to the neighborhood association, but said Wednesday he's leaning against it because he's heard from a couple of concerned neighbors.

His only plans to only fly the drone above public right-of-ways to avoid legal trouble.
But it turns out drone regulation is pretty tricky.

Does McCullough need approval from the Federal Aviation Administration to fly the drone?

Yes, which was news to McCullough. The administration's online FAQ says commercial or business use requires certification and recreational use does not, implying those are the only options. But FAA officials confirmed this week that commercial use is just one example of a non-recreational purpose and that all drone use that isn't just for fun requires federal permission.

Gathering information about Union Pacific or a developer's activities for use in negotiations or litigation isn't purely recreational, according to FAA officials, so McCullough must attain a Certificate of Operating Agreement before using the drone for any surveillance.

So far he's only flown Flying Monkey 1 for practice.

(Note: The first FAA stamp of approval for flying a commercial drone over U.S. soil went to BP earlier this month.)

So, I can fly a drone just for fun without FAA approval?

Yep. But if you want to use that drone for any purpose other than recreation (even something seemingly innocent, such as academic study) you might want to talk to the FAA first. McCullough -- who testified before Congress as an expert witness against Enron Corp. in 2002 -- thought his plans qualified as recreational.

Didn't the Oregon legislature pass a law regarding drone use last year?

Yes. House Bill 2710 limits when a law enforcement agency can and cannot use a drone or disclose information acquired with a drone. The bill also sets parameters for the use of drones by public bodies and lays out a few ground rules for general use. Those rules are:

• It's a class A felony to intentionally fire a projectile or shine a laser at an airborne aircraft (or crash into it) with your drone.
• Interfering with a drone licensed by the FAA or operated by the military is a class C felony.
• You can sue anyone who flies a drone less than 400 feet above your property if they've done it before and you told them not to do it again (unless the drone is taking off or landing in the lawful path for an airport).

HB 2710 doesn't apply to model aircraft, as defined by the FAA. The administration defines model aircraft as a device that's capable of sustained flight used solely for hobby or recreation purposes and stays within the the operator's sight.

Is a neighborhood association a public body?

That answer is a little muddy.

If McCullough does not donate the drone to the neighborhood association and operates it himself, he's likely only accountable to the rules that apply to the general public (such as not shooting airplanes). However, if the neighborhood association uses the drone for surveillance, the part of the Oregon law pertaining to public bodies could conceivably apply.

Neighborhood associations probably aren't public bodies, but it would be up to a court to decide. State law says entities created by local government are a part of local government. Portland created the Office of Neighborhood Involvement to facilitate the neighborhood system and recognize neighborhood associations, but neighbors technically create the associations.

Here's what the state law says about public bodies:

• Public bodies must register drones with the Oregon Department of Aviation before flying the aircraft and provide an annual report on the frequency and purpose of the aircraft's use.

• Public bodies cannot operate a weaponized drone.
• Any image or information gathered by a public body with a drone that isn't approved by the FAA can't be used in a judicial, administrative, arbitration or other adjudicatory proceeding. It also can't be used to establish probable cause or reasonable suspicion that an offense has been committed.

Is my privacy protected from drones?

Sort of. HB 2710 allows you to sue anyone who flies a drone over your private property at a height of less than 400 feet -- if they've done it before and you've notified them of your distaste.

But the bill doesn't apply to model aircraft, so if the operator can see the drone and it's only being used for hobby or recreational purposes, you're out of luck.

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