Product Liability Update

On February 15, 2015, the federal government unveiled two key documents concerning the future of Unmanned Aircraft Systems (UAS)—sometimes referred to as “drones”—in the United States.  The FAA released a highly anticipated Notice of Proposed Rulemaking regarding commercial UAS operations, while the White House issued a Memorandum outlining privacy protections for government UAS use in the National Airspace System (NAS). The Proposed Rules and Memorandum underscore the growing importance of  rapidly evolving UAS technology and applications, as well as the federal government’s efforts to craft flexible regulations that will foster safe use, protect privacy and allow further innovation.

The FAA’s Notice of Proposed Rulemaking

The Proposed FAA regulations allow for expanded but limited commercial use of UAS in the NAS.  Subject to what will likely be a very spirited 60 day public comment period after the proposed rules are officially published in the Federal Register, and prior to finalization, the Proposed Rules for commercial UAS operations contain the following key points:

• Individual unmanned aircraft must weigh less than 55 lbs.
• Among other things, UAS pilots must be at least 17 years old, pass a knowledge test to obtain an unmanned aircraft “operator” rating certificate, followed by a recurrent test and recertification every 24 months.  The operator would also be vetted by the Transportation Security Administration.
• Max airspeed is 100 mph.
• Max altitude is 500 feet above ground level (AGL).
• Operators or visual observers must have visual line of sight with the UAS unaided by any device other than corrective lenses.
• Prohibition on careless or reckless operations. Operations in certain airspace classes require air traffic control permission, and operators would have to observe various FAA airspace restrictions.
• No operations at night or in poor weather.
• No operations over bystanders who are not directly involved in the flight, and cannot drop items.

Businesses that hope to use UAS for delivery services (e.g., fast food, items purchased on-line) are expected to contest certain proposed regulations which seem to foreclose using UAS for that purpose.

On the other hand, some stakeholders are pleased that the FAA apparently will not require commercial UAS to meet the same (and very costly) airworthiness standards nor have the UAS certified by the FAA as manned aircraft are, although pre-flight safety checks are required.

The FAA also noted that it is seeking feedback on a proposed framework for so-called “microdrones” – unmanned aerial vehicles weighing in at 4.4 lbs. or less.

Whatever form the proposed FAA rules ultimately take, they will be the foundation for a regulatory scheme that will need to be sufficiently flexible to adapt to the ever-changing social, legal, commercial, and technological environment within which UAS will operate.

The Presidential Memorandum:  Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems

While the proposed FAA rules focus on safety concerns, President Obama’s  Memorandum directs federal agencies using UAS to adhere to privacy and civil rights protections (including the Privacy Act of 1974), during  the gathering, storage and use of personally identifiable information (PII) collected by government UAS.  Among other things, it contains the following directives:

• UAS must only collect information relevant to an authorized purpose.
• Unless necessary to an agency’s mission, UAS-collected PII must not be kept for more than 180 days.
• Except as required by law, the information collected by UAS cannot be shared outside of the agency that gathered it.
• To improve transparency, agencies using UAS should notify the public about where the UAS are operated.

To implement these safeguards, the Memorandum calls for the Department of Commerce, through the National Telecommunications and Information Administration, to engage in a “multi-stakeholder engagement process to develop a framework regarding privacy, accountability, and transparency for commercial and private UAS use.”  In other words,  UAS privacy regulations are coming and commercial and private stakeholders, as well as federal agencies, should be prepared to engage in the discussion.

Both the proposed FAA rules and Memorandum seem to reflect the federal government’s incremental and adaptive approach to incorporating evolving UAS technology in the National Airspace System (NAS).  New safety and privacy considerations will bring new regulations, necessitating stakeholders’ constant awareness, education, and involvement in the process.