Unmanned Aerial Systems: Domestic Statutory Issues

Richard W. Tast, Unmanned Aerial Systems: Domestic Statutory Issues Unmanned Aerial Systems: Domestic Statutor y Issues Richard W. Tast 0 1 0 University of Nebraska College of Law , USA 1 This Article is brought to you for free and open access by the Law, College of at Recommended Citation - Article 7 Follow this and additional works at: https://digitalcommons.unl.edu/nlr \\jciprod01\productn\N\NEB\93-3\NEB306.txt unknown Seq: 1 © Copyright held by the NEBRASKA LAW REVIEW. * Richard W. Tast, Jr.; J.D. Candidate, expected May 2015, University of Nebraska College of Law; B.S.N. Magna Cum La ude, Creighton University, 2002 ; B.S. University of Nebraska-Lincoln, 1996. Thanks to my classmates and the faculty and staff of Nebraska Law. The valuable assistance of Katie Joseph, Sarah Kniep, and Jennifer Graham along with all the members of the NEBRASKA LAW REVIEW is gratefully acknowledged and appreciated in helping to shape this article. A very special thanks to my wife Heidi Tast and our kids Jack and Emily Tast who have unconditionally supported me. 773 R R R R R R R R R R R R R R R R R R R R R R 3 5 7 4 8 n e b _ 9 3 3 S h e e t N o . 1 1 8 S i d e A \\jciprod01\productn\N\NEB\93-3\NEB306.txt unknown Seq: 2 Unmanned Aerial Systems (UAS) include any mechanical device, heavier than air, capable of powered flight without a human operator on board. Also referred to as unmanned aerial vehicles (UAV) or drones, they range from devices small enough to fit in a human hand—weighing just a few ounces and capable of carrying a camera and relaying images back to its operator1—to flight systems as large as a Boeing 737 carrying advanced reconnaissance and weaponry.2 UAS, which have been contemplated since before the Civil War, were first used around the time of the Second World War, and have been increasingly employed in military programs and applications. As the utilization of UAS has increased, so has their popularity in all areas of society. Similar to other modern technologies, UAS trace their first practical applications to the military and now are being used by government agencies in the domestic United States.3 Because of expanded governmental development and use, the cost of the technology has rapidly declined, and many private companies are contemplating and testing UAS for private commercial use.4 As the costs of these systems continue to decrease, the practical private applications within the United States will increase, and even greater numbers of UAS will be utilized in our skies. It is simply a matter of when, and not if, UAS will be employed daily in domestic United States airspace by both government and private entities. In fact the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 requires the FAA to adopt regulations for the implementation of UAS in domestic airspace by September 2015.5 3 5 7 4 8 n e b _ 9 3 3 S h e e t N o . 1 1 8 S i d e B \\jciprod01\productn\N\NEB\93-3\NEB306.txt unknown Seq: 3 775 The utilization of UAS domestically by both public and private entities has immense potential benefits. These include, but are not limited to, public safety, industrial applications, and personal convenience. However, the use of this technology in our airways carries with it some negative ramifications as well, including issues related to use by government entities for searches and surveillance, issues resulting from the increase in the amount of air traffic, issues with tort liability, and issues regarding intrusion onto private property. A number of critics have already addressed the privacy issues associated primarily with the government’s use of UAS to conduct surveillance activities.6 This article will instead focus on airspace and other issues certain to result from the increased use of UAS domestically by both government and private entities, which should be addressed by laws and regulations. Part II will focus on a brief history of aviation, including UAS, and their potential future uses. Part III will focus on the current legal regulations regarding UAS operations in the domestic United States. Part IV will focus on foreseeable problems that could exist with the deployment of UAS in domestic airspace and positions for how the law should respond to these potential problems. One of the best ways to address the issues that arise with the domestic use of UAS is to reexamine how the airspace above the United States is regulated. Currently, all control of U.S. airspace is ceded to the FAA, which is working on plans to implement the technology’s use in domestic airspace. Such plans also should address, and ultimately relinquish, some control of low-altitude airspace to local jurisdictions. By giving a greater amount of airspace control to local jurisdictions, control over the operation of UAS can be managed at a local level and legislated closer to the people involved. By doing this, individuals will likely be more comfortable with, and more likely to accept, the use (...truncated)