Wednesday, April 4, 2018

Drone Cases and Rulings To Watch

Law360 (April 3, 2018, 1:32 PM EDT) -- The Federal Aviation Administration is still fine-tuning rules to more widely integrate unmanned aircraft systems, or drones, into the national airspace, creating an opening for lawsuits questioning how the emerging technology should be regulated.

After finalizing a 2016 rule governing the commercial use of small drones — with a number of limitations, including on nighttime flying — the FAA is now working on new rules addressing how to remotely track and identify drones, manage drone traffic or ease some of its existing restrictions.

But as drone technology continues developing faster than regulators can keep up with it, the drone litigation landscape will only grow as more questions emerge about safety standards, liability concerns, cybersecurity, privacy and national security safeguards, industry observers say.

“So far the FAA has withstood major challenges to its authority, but I would expect to see enforcement pick up and major battles about who owns the airspace above your property, and state, local assertions of control for zoning in no-fly zones, and over privacy and security concerns,” said Kenneth Quinn, global chair of Baker McKenzie's aviation practice and co-chair of the firm’s unmanned aircraft systems practice.

Here, Law360 examines a few key drone cases and rulings to watch.

EPIC v. FAA

The nonprofit Electronic Privacy Information Center has asked the D.C. Circuit to weigh in on the FAA’s failure to address privacy risks in its June 2016 final rule paving the way for the commercial use of small drones weighing up to 55 pounds, insisting the exclusion contradicts congressional intent and the agency’s own acknowledgment of the importance of privacy concerns.

EPIC has argued that small drone operations create a host of "new and unique threats to privacy," including the potential for unlawful surveillance and for hacking through the exploitation of the devices' remote control features. The FAA was supposed to draft a comprehensive rule, yet missed the mark and failed to fulfill its mandate when it refused to implement fundamental privacy safeguards, EPIC has alleged.

Meanwhile, the FAA has long insisted that it’s a safety regulator for the national airspace and that privacy issues exceed the scope of its authority to craft the drone rule, known as Part 107.

A D.C. Circuit panel heard oral arguments in January, questioning EPIC’s standing to contest regulations that cover all Americans.

EPIC’s difficulty is twofold: It had to show that the FAA was obligated to tackle privacy in its small commercial drone rule based only on a congressional mandate to regulate for drone “hazards,” and it had to establish standing to contest the rule as a group specifically affected by the FAA's action. The appellate panel seemed skeptical on both counts.

The FAA first began working on the small drone rule in 2012, when Congress, through the passage of the FAA Modernization and Reform Act, directed the agency to establish a "comprehensive plan" to fully integrate commercial and recreational drones into the U.S. airspace.

Some attorneys say the FAA needs to remain focused on its core mandate: safety.

“The FAA isn’t prepared to be a privacy regulator, nor has Congress given the FAA that role,” Quinn said. “While privacy is an issue that must be considered in the context of drones, privacy concerns should be handled primarily by state laws that already cover privacy.”

The instant D.C. Circuit appeal also includes a challenge from recreational model aircraft hobbyist John A. Taylor, who is fighting the FAA's final drone rule on different grounds — that it unfairly extends to model aircraft that the FAA doesn't have the authority to regulate. The appeals court consolidated Taylor’s petition with EPIC's challenge.

The case is Electronic Privacy Information Center v. The Federal Aviation Administration et al., case number 16-1297, in the U.S. Court of Appeals for the District of Columbia Circuit.

Taylor v. FAA

The FAA is facing a separate D.C. federal court challenge from another recreational model aircraft hobbyist, Robert C. Taylor, who launched suit in January alleging the FAA unlawfully collected his personal information and imposed registration fees on drone hobbyists from December 2015 to December 2017.

Robert C. Taylor is trying to fend off the FAA's motion to dismiss his suit, arguing the agency knowingly passed an "illegal" rule that required recreational model aircraft hobbyists such as himself to disclose their personal information and pay a $5 fee to register their drones under a 2015 drone registration rule that the D.C. Circuit invalidated last May as part of a separate, earlier challenge. The D.C. Circuit said the registration rule conflicted with the FAA Modernization and Reform Act in 2012, which said the FAA could not issue rules or regulations for model aircraft. Commercial drone users are already required to register their drones.

In response, Congress enacted a legislative fix by reinstating the recreational drone registration requirement in the National Defense Authorization Act in December, establishing express authority for the FAA to collect hobbyists' fees and information.

The instant Taylor suit, which insists that the recently enacted NDAA is not retroactive, seeks to collect damages on behalf of the 836,7960 owners of model aircraft who had to register their drones and pay a $5 fee between Dec. 21, 2015, and Dec. 11, 2017.

The dispute underscores brewing tensions between recreational drone users and a regulator they feel is overreaching with the creation of a registry that will help with enforcement actions against any rogue drone users.

But now that the law's been clarified on the creation of the drone registry, some attorneys say the dispute won’t have much traction.

“That line of litigation is not necessarily gonna go anywhere,” said Tim McCulloch, an aviation attorney with Dickinson Wright PLLC.

The case is Taylor v. Federal Aviation Administration et al., case number 1:18-cv-00035, in the U.S. District Court for the District of Columbia.

Singer v. City of Newton

In what’s widely been described as the first drone preemption case, a Massachusetts federal judge last September struck down most of the city of Newton’s 2016 ordinance attempting to regulate drone operations in the city. The ordinance prohibited the operation of pilotless aircraft — unmanned aircraft systems or drones — out of the operator’s line of sight or in certain areas without a permit or express permission.

U.S. District Judge William G. Young largely deferred to FAA regulations and the agency’s 2015 “fact sheet” in finding that most of Newton’s ordinance was preempted because it “essentially constitutes a wholesale ban on drone use” and was an “intervention in the FAA’s careful regulation of aircraft safety.”

That case was launched by Newton resident Michael Singer, an FAA-certified small unmanned aircraft pilot and owner of several drones, who claimed the ordinance “takes off from a reasonable premise — protecting people on the ground — but climbs to unlawful heights.”

According to the National Conference of State Legislatures, at least 41 states have enacted laws addressing drones, ranging from drone definitions to how they can be used by law enforcement or other state agencies.

The FAA’s 2015 “fact sheet” includes examples of regulations that the FAA believes are within the authority of the states — from requiring police to obtain a warrant before using drones for surveillance to specifying that drones may not be used for voyeurism — and also suggests the FAA be consulted on other regulations that might conflict with the FAA’s jurisdiction, such as restrictions on flight altitude, flight paths or outright operational bans.

As drones eventually become more widespread, preemption will come up again.

“Where there’s overlap between the use of smaller commercial type drones and federal law, everybody is waiting for the preemption decision to come down and it’s just a matter of what the context is,” said Cooley LLP attorney Andrew Barr.

He explained that there also could be more operators challenging local drone rules “to see if there’s actually any teeth to them” but that’s much more likely to happen when there’s a more widespread commercial application such as Amazon or UPS using drones for deliveries.

Dickinson Wright's McCulloch agreed that more disputes are on the horizon with state and local drone laws.

"The fights are going to be if a privacy law impermissibly infringes on a safety area," he said. "[But] states are going to be free to set the law on the responsibility of the operators if they hurt someone. So financial responsibility laws are going to become a little more prevalent."

The case is Singer v. City of Newton, case number 1:17-cv-10071, in the U.S. District Court for the District of Massachusetts.

Boggs v. Meredith

One of the more headline-grabbing cases related to the operation of a drone was decided more than a year ago in Kentucky. In the so-called “drone slayer” case, U.S. District Judge Thomas B. Russell in March 2017 tossed a drone operator’s suit seeking damages from a nearby homeowner who shot down the operator’s drone with a shotgun.

Drone owner John David Boggs couldn’t claim federal jurisdiction in his dispute with neighbor William H. Merideth, who called himself the “drone slayer" in the midst of the litigation, on the grounds that his remote-controlled drone was in FAA-controlled airspace when Merideth shot it out of the sky for flying too close to his property, according to the ruling.

The judge determined that Boggs brought a “garden-variety state tort claim” that was better suited for state court, especially given that a federal agency was not even involved in the case, nor was a federal agency’s compliance with a federal statute in dispute.

Because states are working on revising their laws to incorporate drones, there’s going to likely be a lot more action regarding liability, Baker McKenzie’s Quinn explained.

“For example, trespass law has been around for hundreds of years, but what is trespass with a drone? These are areas where states need to adjust laws to account for the new capabilities of drone technologies,” Quinn said. “Many of the state laws that will be impacted involve privacy, and I think state courts will be the venue for interesting questions of drone privacy — not the federal courts.”

The drone slayer case is John David Boggs v. William H. Merideth, case number 3:16-cv-00006, in the U.S. District Court for the Western District of Kentucky.

Original article can be found here ➤ https://www.law360.com

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