Ask a Drone Lawyer

The drones of the near future are a disruptive technology, straddling the earth-air divide with the power to do almost any data-collection task more quickly and cheaply than ever before. Looking for a missing person? Deploy a drone. Measuring your construction project? Deploy a drone. Weeding your cornfield? Deploy a drone.

As disruptive as this is for business, it’s not business alone that will be disrupted. The legal foundations of questions about privacy, airspace, and jurisdictional preeminence will be, too.

To understand how drones are shaping modern aviation — and land — law, HBR spoke with Loretta Alkalay, a former FAA regional counsel and a drone pilot with an Instagram feed of drone photography that she gets downright giddy about. Alkalay is a professor of drone law at Vaughn College of Aeronautics and Technology, in New York City. She shared her advice on incorporating legal requirements into your drone strategy, along with a look ahead at what the future might hold.

HBR: Drones are a disruptive technology for businesses because they are changing how people work and expanding the horizon of data collection in ways that can benefit nearly any industry. But how are drones shaping the law?

Alkalay: There’s a lot happening in terms of determining whose rules govern drone use. It’s difficult to keep up, because the laws are evolving and they vary by jurisdiction. Many cities and states have enacted local ordinances, and many are considering them. A large number of those laws, to the extent that they purport to regulate airspace, are probably preempted by federal law, but that “probably” is key. We just don’t know for sure. And we won’t know until some of those laws are challenged and their validity is decided in federal court. However, for the industry to develop to its full potential, the feds are going to have to step in, either through litigation — all the way to the Supreme Court — or by passing legislation. You can’t grow an industry the way things are now.

For example, in the future, when drones are routinely used for long-distance work, such as rail, power, and pipeline inspections, data gathering after disasters, agricultural applications, and even cargo delivery, the legal issues regarding flying across jurisdictions and across the country will have to be settled. Aside from the issue of who controls the navigable airspace, the question of whether property owners have any rights to the airspace above their property — especially at very low altitudes, such as below the treetops — will have to be addressed.

What does the law say? What am I allowed to do? Or maybe I should ask what I should do.

Generally, if you plan to use small drones — those weighing less than 55 pounds — solely on and over your own property, or property you have the right to use, the legal landscape is mostly settled, and a consultation with legal counsel should be adequate to inform you of the parameters for that particular property and operation, including whether airspace approvals are required, whether night or other regulatory waivers are needed, and so on. It’s also important to review insurance requirements to make sure you have adequate coverage.

There are no federal requirements for business entities that want to use drones. However, pilots who fly for business purposes need to hold a remote pilot certificate from the FAA, which is fairly easy to obtain. Requirements for operation near people and structures, as well as the maximum altitude when flying near structures, were significantly relaxed by FAA regulations that went into effect last August.

Still, it’s very time-consuming to get approvals for anything outside the letter of the regulations. For example, getting approvals to fly in controlled airspace is a lengthy process, at least for now. Approvals to fly directly over people not involved in the operation of the drone or beyond visual line of sight require a lengthy regulatory waiver process and have a very limited chance of success. Approvals to fly drones 55 pounds or heavier have also been extremely cumbersome and time-consuming to obtain.

If you plan to use drones outside your own property, the legal landscape is more subject to change, especially by state and local laws. In those situations, having experienced legal advice on an ongoing basis would be important to evaluate and advise on various strategies or assist in obtaining any required regulatory approvals.

What if my strategy involved operating a drone outside the U.S.?

Internationally, the legal landscape is very complex, with each country having its own laws and requirements. The International Civil Aviation Organization, a UN agency made up of 191 member countries that are signatories to an international aviation treaty known as the Chicago Convention, is working on integrating unmanned aircraft into the global civil aviation system, but that is most likely decades in the future.

ICAO countries are bound by treaty to comply with standards affecting virtually all areas of aircraft operations. These are largely technical standards, developed cooperatively and adopted by consensus. With so many different countries, the process of developing the standards and obtaining consensus is slow and laborious.

What are some of the legal issues on the horizon?

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One significant concern is the proliferation of local rules restricting drone takeoff and landing sites. The future of drone use will depend on having adequate land for takeoff and landing, especially areas with both landside and airspace authorizations, such as current airports and heliports. Such land-use rules are generally within local authority, and we’re seeing many state and local governments seek to control drone operations by limiting the areas where they can take off and land.

Privacy is another issue that will have to be addressed. Although I believe that privacy issues are the same whether drones or any other technology are used, some people fear that drones will be used to gather data via sensor technology or cameras, and they seek legislation that will control the data that is retained and how long it’s retained. As with many new technologies, there is a fear of the unknown and a desire to control potential abuses.

Currently there are no certification standards for manufacturing drones or for drones themselves. I think standards will be developed and made mandatory, ensuring a degree of safety and security that will result in the FAA allowing routine operations over people and beyond visual line of sight — for example, redundant systems to avoid a crash if one system fails. Or a system to sense and avoid other aircraft and objects.

What parts of the law do drone strategists need to pay the most attention to?

If you decide that drones will be a helpful addition to your business, it’s of course important to operate safely and legally. But it’s also important to be sensitive to the public perception of drones and how your use of them can affect that perception. As much as possible, be a good neighbor when it comes to flying, especially in public areas or over someone else’s property.

Have more questions about drone law? Check out Loretta Alkalay’s chat with HBR readers on Facebook here**.**The Big Idea