Legal Issues surrounding the use of drones

Rising popularity in drone usage across various fields raises awareness of Privacy issues associated with being filmed unintentionally or without prior consent, and brings about regulatory issues of unenforced or obsolete laws, creating obscurely uncertain situations to the average drone enthusiast. Whilst extremely exciting and fast-growing, the developing multi-million Dollar ‘Drone Market’ has entrepreneurs, geeks, and lawyers raising their brows.

UAV’s (Unmanned Aerial Vehicles) and drones are increasingly popular within the Extreme Sport and Nature Gazing/photography fields, but have piqued the interest of several Start-Ups or Entrepreneurs as well. The apparent abundance in new flight-stabilizing features, lighter and higher-quality, rugged cameras for airborne purposes have all contributed to the growing popularity of drones worldwide. However, past issues remain unanswered as technology progresses and additional UAV manufacturers claim new customers and social Flight Clubs enlist fresh enthusiast amateur pilots. The air is still largely unregulated and unmarked, especially to the naked eye, unequipped with height measuring methods, without prior knowledge of any restrictions regarding the filming of surrounding people, and the seriousness of the threat a drone poses as it zooms past or above people.

Enhanced availability of better GPS-trackers, quieter copters, and smaller ‘footprint’ also raise new legal issues and require current and up-to-date regulation, but the vast majority of the world still remains behind on effective drone control.

The dominating problems occur all over the world – regulation (or lack thereof), Privacy issues, and avoiding collision between civilian/military aircrafts and ‘toys’, and of course, the apparent threat of interference from signal jamming and virtual radio-walls set up that may interrupt civilian air-traffic.

Chapter 1: Regulation

gal2Israel – Currently the Israel Civilian Air Traffic Authority holds no real leverage over UAV’s used for personal use as a hobby, seeing as they are classified as ‘toys’. As such, the ‘toys’ are not subject to limitation of use in their flight, nor their import. Of course one must consider the ramifications of, for example, flying a drone to film a wedding, concert, or other event, where unaware attendants are filmed, in terms of their privacy. However, the larger focus that seems to be unenforced is the mandatory license granted by the Israeli Civilian Air Traffic Authority namely dictating that no drone shall be used to fly and film over populated areas, lose Line-Of-Sight with the pilot, or fly above 100 meters in order to avoid collision, accidental fall and personal injury. Like many other fields, the pirated photographers with drones will charge their customers less, and sometimes get more work, while endangering the public. These photographers who, while largely enthused about flying, do not hold a costly (up to 40,000 NIS) legal permit to fly UAV’s. The current day outcome results in additional availability of UAV’s flying over Civilian Traffic Airspace, and additional dangers to people being filmed.

Israeli Regulation for UAV’s is “spread over” various Laws and Regulatory decisions. Article 1 of The Israeli Flight Law differentiates between planes and drones, paragliders, hand-gliders, etc.

Chapter 2: Privacy Issues

Israeli Property Law , Eavesdropping Law, Privacy Protection Act, and Basic Law: Human Dignity and Liberty are all relevant and ‘come into play’ when considering use of drones for any and all purposes, whether they be used for hobbies, photographing an event or view, or even drone racing.

Article 2(3) of the Israeli Privacy Protection Act specifically lists the “photographing a person when in a private domain” as a breach of Privacy in the eye of the law. Obviously, “Photographing” may also include video recordings, turning drones and their footage into potential ‘privacy breaching bots’ of numerous individuals when operated in populated areas, regardless of initial user/operator intent.

Article 11 of the Israeli Property Law dictates any property below surface of a property as belonging to that property (underground assets), however passage above the property is unrestricted. That is not to say that filming is allowed, but simple passing over aerial space is completely legal as far as Property Law goes.

The 1995 addition to Article 8(1) of the Israeli Eavesdropping Law dictates that any unconcealed recorded conversation held in the public domain, conducted in good faith and at random, and conducted as a result of a recording intended for public knowledge or research, does not require specific authority to be recorded. The issue with drones is that people would not, under probable circumstances, know they are being recorded.

Article 7 of the Israeli Basic Law: Human Dignity and Liberty entitles each individual to privacy, and thus provides a potentially important claim to be made regarding the use of drones and unaware individuals being filmed in their ‘private domain’. Additionally, the danger of drones harming people physically can be addressed through Tort Law or Basic Law: Human Dignity and Liberty feeling of safety.

By contrast, the ARC (Aviation Rulemaking Committee), a division of the American FAA (Federal Aviation Administration) chartered rules and recommendations for “UAS” – Micro Unmanned Aviation Systems. The ARC recommended an online test for operators rather than a certified, costly license, seeing as the burden of taking a test at a test center would seem like an impediment to safety rather than an improvement. The focus is on the knowledge. If the FAA wishes to increase certainty that UAV enthusiasts are equipped with knowledge, they need to make the knowledge less costly and burdensome.

In order to achieve performance-based recommendations of usage for drones’ hovering “over people” and over populated areas, the ARC recommended four different thresholds and limitations based on categories of size, weight, and potential impact to people. Each category of drones brings different regulatory standards and limitations for flying.

Chapter 3: Virtual Radio-walls to limit drone entrance to sensitive areas

gal3Lastly, sensitive areas such as electricity generation plants, military bases, official government buildings, and obviously Airports may choose to place radio signal jammers in order to avoid collision or intrusion of UAV’s into their airspace. While not going into the legality of their prerogative of placing such a ‘jammer’, the signal jamming action has numerous potential harmful effects: interference with other airplanes and GPS-based systems, increased radiation which can be problematic in populated areas, and damage to drones without prior notice or warning (following the lack of regulatory knowledge available to the average drone operator).

Whilst a thorough read-through of the user guidebook/manual, joining a meetup, registering to a webinar, or simply learning the basics of UAV flying online may help the average user to learn about what is required for owning and operating a drone, counting on a delivery business based entirely on drones may have to be bound to strict limitations, and come with a cost. The legal implications of defining UAV’s anew, in the eyes of the law (more specifically Import Tariff and Purchase Tax Regulation in Israel) as “dangerous goods”, rather than “toys” will also help increase control and regulation of the airfield, as drones would be bound to stricter limitations and hence be controlled.

The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.

About the Author:

Gal Barash
Third year Law & Government student at the IDC Herzliya. Dreams of becoming a lawyer in the entrepreneurial world and enjoys surfing, playing the guitar and travelling during his free time.