Wednesday, January 15, 2014

With the Promise of Drones Comes Legal Questions

Imagine a future where a rancher can use an autonomous drone to fly out to a pasture miles from the homestead to check on his herd. The drone reports back that the herd is accounted for except for one steer that is lying down alone, more than 1,000 feet from the herd, and appears to be sick. The drone sends GPS coordinates to the rancher, who then dispatches a ranch hand to the exact location of the sick animal. The drone’s surveillance ultimately saves the animal’s life.

Now imagine that a similar drone is used by the Environmental Protection Agency (EPA) to fly over feedlots. The EPA drone spends its flying hours, not looking for sick or stray cattle, but instead looking for Clean Water Act violations. The drone flies over pens, counts cattle to make sure numbers do not exceed permitted amounts and checks for visual evidence of runoff from pens into nearby creeks or streams. If a problem is found, the drone takes pictures for evidence and alerts state or federal officials to come to the feedlot for an inspection.

As is often the case with new technology, beneficial uses are often accompanied by nefarious uses. The promise for drones raises a lot of legal questions about how drones will ultimately be used.

The term is used frequently, but what are “drones?” The Federal Aviation Administration (FAA) uses the term “unmanned aircraft system,” or “UAS” to describe what we think of as “drones.” A UAS, by definition, flies without an onboard pilot, relies on GPS for guidance and contains a data link to a control station on the ground.  A UAS is different than a remote-controlled aircraft that is flown within sight of an on-ground controller.

Congress has given the FAA jurisdiction over U.S. airspace. In uncongested rural areas, U.S. airspace begins at 500 feet. Currently, the FAA has not approved commercial UAS usage. That is expected to change in the next two years as the FAA is working on regulations to integrate drones into U.S. airspace.

Thus, in the future, farmers, ranchers and other persons will be allowed to use drones for agricultural purposes. No doubt government agencies will also see the benefits of using autonomous aircraft to inspect farms and livestock facilities. However, government usage comes with added requirement that flyovers occur within legal boundaries.

Although drone usage by government agencies is relatively new, courts long ago examined the legality of similar aerial surveillance activities when performed by the government. Such analysis involves two questions: “Is there a statute that permits aerial surveillance?” and “Is the exercise of that statutory authority constitutional?”

The leading case is Dow Chemical Co. v. U.S., 476 U.S. 227 (1986), a case that made it all the way to the U.S. Supreme Court. In that case, Dow Chemical Co. challenged the EPA’s authority to conduct aerial surveillance of one of its factories under the Clean Air Act after it learned that the EPA had flown over at 1,200 feet to photograph interior portions of the plant that were open to the sky.  The Supreme Court held that the use of aerial photography was within EPA’s statutory authority because Congress, by passing the Clean Air Act, had provided the EPA with a “right of entry to, upon or through any premises.” The court also noted that the EPA’s aerial surveillance used the same observation methods commonly available to the public.

There are also constitutional concerns. All Americans are afforded a right to privacy that is implicit in the Fourth Amendment, which prohibits “unreasonable searches and seizures.”

The test of whether aerial surveillance violates one’s right to privacy is twofold: First, a person must have exhibited an actual (subjective) expectation of privacy in the property searched; and second, the expectation must be one that society recognizes as “reasonable.” Katz v. U.S., 389 U.S. 347, 361 (1967). If both elements are present, the government can still search the premises, but it must first obtain a warrant issued by a court.

In deciding the Dow case, the Supreme Court distinguished searches between the “curtilage” of one’s home and the “open fields” nearby. “Curtilage” is the “area immediately surrounding a private house.”

People have a reasonable expectation of privacy in their home and its curtilage. On the contrary, the Fourth Amendment does not protect the privacy of individuals in areas “out of doors in fields, except in the area immediately surrounding the home.” The court ultimately found that the Dow factory was an industrial complex, more like an open field than the curtilage of one’s private residence. The EPA’s aerial surveillance was constitutionally allowed.

Thus, there is precedent to allow government agencies to use drones to fly over U.S. businesses, within constitutional limits. Such flyovers are permitted over fields but likely become suspect when occurring over the “curtilage” of someone’s home.

It is safe to assume drone usage in the future will push the legal envelope even further than prior cases involving piloted aircraft, since drones can fly closer and more secretively than a helicopter or airplane ever could.

Finally, I offer a word of caution to anyone who thinks they have the right to shoot down a drone over their property. The FAA recently issued a statement that “shooting at an unmanned aircraft could result in criminal or civil liability, just as would firing at a manned airplane.”

The FAA continued by saying that a drone “hit by gunfire could crash, causing damage to persons or property on the ground, or it could collide with other objects in the air.” The FAA’s statement has support from the U.S. Code, which makes it a crime for any person who “sets fire to, damages, destroys, disables or wrecks any aircraft in the special aircraft jurisdiction of the United States ...” 18 U.S.C. 31(a).

Individuals have been prosecuted under this statute for shooting at manned aircraft. Because the code does not distinguish between manned and unmanned aircraft, it seems probable that a person shooting at or downing an unmanned drone could be prosecuted.

A drone flying over your property may be trespassing (unless permitted by the FAA), which is a crime as well. Drones’ promise for agriculture in the next few years is huge. When the wave comes, we’re likely to see waves of litigation as well, as courts sort out the limits of aerial surveillance once again.

By Todd Janzen

This article previously appeared in the Progressive Cattleman.  You may read the article in its original format by clicking here:  Progressive Cattleman.  Thank you to the Progressive Cattleman for originally publishing.

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