Regulated In and Regulated Out: How Drones Could Be Grounded Before They Take Off

Patience may be wearing thin for the Federal Aviation Administration to adopt regulations to use unmanned aerial systems (UAS), unmanned aerial vehicles (UAV), or drones. The pace to implement the Federal Aviation Reauthorization Act of 2012, which authorized the use of UASs, should be the least of the concerns for those who see UASs as a revolutionary tool for data collection.
 
While the FAA works to introduce unmanned systems safely into the national airspace, focusing on technical issues and safety procedures, a larger threat looms in the halls of legislatures at the federal, state, and local levels.
 
The American Civil Liberties Union has identified 30 state legislatures with current bills addressing the regulation of domestic surveillance drones. The reaction from a geospatial practitioner may be, “They are going after spying, and that is not what I do.” This misconception is what should scare the surveying and mapping community the most.
 
In New Hampshire, a bill was pre-filed in December 2012 with the summary, “prohibiting images of a person’s residence to be taken from the air” by state representative Neal Kurk (R-NH). If taken on its own, the wording would have prohibited legitimate satellite and aerial photography commercial activities from operating.
 
MAPPS contacted Kurk to discuss concerns on the impact of private sector aerial surveys. Kurk’s issue was never with aerial data collection, but rather the use of drones by law enforcement for surveillance or to fire a weapon. Because of the MAPPS outreach and education, Kurk filed a substitute to his own bill that narrowed its applicability solely to drones and would no longer affect manned helicopter or fixed-wing aircraft platforms or satellite remote sensing.
 
This is just one example of a bill threatening commercial use of drones by our industry; there are many throughout the other 29 state legislatures, and this does not even begin to touch the issues being addressed in Congress. One needs to look at only the filibuster by U.S. senator Rand Paul (R-KY) on March 6 to understand that while the senator was focused on weaponized drones, during this 12-hour talk-a-thon he discussed the general collection of data from the air.
 
 
“For decades, U.S. courts have allowed law enforcement to conduct aerial surveillance without a warrant. This is part of that sort of open spaces [sic] doctrine. I am not saying it makes it right but that the government has been doing it for decades. Some of the courts apparently have ruled that what a person does in the open—even behind a backyard fence—can be seen by a passing airplane and is not protected by privacy laws.
 
I don't think I agree with that. If a person is swimming in their pool in their backyard or in the hot tub, just because we have the technology to be able to see them in their hot tub, does that mean they have a right to look at what people are doing in their backyard? I don't accept that. I think it has been abused and we should be fighting against this surveillance state.”
 
 
What Senator Paul suggests is revisiting a question in a 1986 Supreme Court ruling (Dow Chemical Company v. United Sates, 476 U.S. 227) in which the Environmental Protection Agency (EPA) employed a commercial aerial photography firm, using a standard precision aerial mapping camera, to take photographs of a facility from various altitudes to monitor suspected pollution, without the EPA first obtaining a court warrant to conduct the “search.” The court held “that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.”
 
The court determined that “EPA was not employing some unique sensory device that, for example, could penetrate the walls of buildings and record conversations in Dow's plants, offices, or laboratories, but rather a conventional, albeit precise, commercial camera commonly used in mapmaking.”
 
To date, only public entities such as police, governmental agencies, or universities have been issued a certificate of authorization to operate an unmanned aerial system. However, other issues may arise when FAA permits the commercial use of UAS in the United States.
 
What firms (that operate fixed-wing or helicopter-based sensors, and geospatial professionals who rely on aerial imagery) need to consider is that legislators are not likely to exempt or more narrowly focus their legislation if they do not understand the traditional and legitimate aerial survey business. They tend to take a broad brush and use sweeping reform to address a perceived problem.
 
At the MAPPS Federal Program Conference in Washington, DC on March 12-13, principals of private-sector firms met with their members of Congress. MAPPS members presented lawmakers a “Sense of the Congress” resolution to express an understanding or sense that “geospatial data is derived from images and data collected from a variety of airborne and spaceborne platforms, as well as other mobile and terrestrial-based acquisition systems” and is “essential to commercial and governmental activities, the collection, storage and use of which can and should continue to be permitted and encouraged for the benefit of the citizens of the United States.”
 
MAPPS continues to be engaged with the FAA to advocate for the private geospatial community’s lawful participation in commercial aerial acquisition activities using UAVs, while educating elected officials at all levels of government as well as the public on the economic benefits geospatial products and services provide for public health, safety, and welfare, as well as economic development.

Nick Palatiello is the MAPPS assistant executive director for external affairs.

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