{"id":897542,"date":"2020-06-03T11:04:40","date_gmt":"2020-06-03T17:04:40","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=897542"},"modified":"2020-06-03T11:04:42","modified_gmt":"2020-06-03T17:04:42","slug":"using-drones-in-construction","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/using-drones-in-construction\/","title":{"rendered":"Balancing New Technology and Privacy When Using Drones in Land Use and Construction"},"content":{"rendered":"\n

Virginia Trunkes | Construction Law Zone<\/a><\/p>\n\n\n\n

The mixture of sheltering-in-place, warm weather, and increasing drone<\/a> usage creates a combustible situation \u2013 literally.\u00a0Drone shootings\u00a0are\u00a0on the rise\u00a0as property owners seek to combat perceived trespass, nuisance and invasions of privacy.<\/p>\n\n\n\n

These were some of the legal issues discussed during a webinar presented by the American Bar Association\u2019s Section on Real Property Trusts and Estates (ABA RPTE) at its\u00a032nd Annual Conference\u00a0(held virtually for the first time) on May 15, 2020. The webinar focused on the legal landscape and issues to consider in counseling real estate and construction businesses on the commercial use of small unmanned aerial systems<\/a> (sUAS). The panel included attorneys as well as an\u00a0engineer, who presented drone video footage and computer graphics used to collect data more efficiently during land use evaluation, mid-construction and post-construction.<\/p>\n\n\n\n

While legal issues abound in this\u00a0flourishing industry, it was the topic of privacy that dominated the discussion in the RPTE program \u2014 just as it has throughout our Digital Age. Although the Federal Aviation Administration (FAA) regulates sUAS, including restricting their flights over people and beyond the remote pilot\u2019s line of vision, it stops short of getting involved with privacy matters. The FAA has\u00a0consistently maintained\u00a0that addressing privacy concerns is beyond the scope of its mission,\u00a0stating; \u201cCongress exclusively authorized the FAA to regulate aviation safety, the efficiency of navigable airspace, and air traffic control, among other things. \u2026 Laws traditionally related to state and local police power\u2014 including land use, zoning, privacy, and law enforcement operations\u2014generally are not subject to federal regulation.\u201d<\/p>\n\n\n\n

The FAA has contended that the \u201cunique characteristics and capabilities\u201d of drones that present \u201cuncertainties with regard to individual privacy\u201d have no bearing on the safe operation of the aircraft. Instead, those attributes \u201care generally related to technology and equipment,\u201d such as cameras and other sensors, which features may likewise be installed on manned aircraft like helicopters. Indeed, helicopters have long been used for aerial surveys, film\/television production, law enforcement, and other varied purposes.<\/p>\n\n\n\n

The FAA would prefer to wait for \u201cinsight\u201d from the UAS Integration Pilot Program (IPP). Created in 2017, the IPP assembled state, local, and tribal governments together with private sector entities, such as UAS operators or manufacturers, to test and evaluate the integration of civil and public drone operations into the country\u2019s national airspace system. The FAA is hopeful that the IPP will advise \u201con how best to involve local jurisdictions in the integration of UAS into the airspace while considering local interests in conjunction with aviation safety.\u201d<\/p>\n\n\n\n

Yet, much time has passed since the IPP began, while the rate of drone use has accelerated without the collective guidance. As of March 2020, the FAA listed over 1,563,000 UAS registered UAS, comprised of 443,000 for commercial use and approximately 1,120,000 for recreational use.<\/p>\n\n\n\n

Perhaps yielding somewhat to\u00a0privacy advocates, in late 2019, the FAA proposed amending \u00a0its regulations to require each UAS to continuously\u00a0transmit their location and identification details to an online FAA tracking system.\u00a0The purpose of that rule, if adopted, would be to provide \u201cadditional situational awareness to manned and unmanned aircraft,\u201d and to allow regulators, law enforcement, and national security agencies to better and more fully monitor compliance with the existing rules and regulations governing UAS. The comments period closed on March 2, 2020, following the submission of more than 34,000 comments. (Ironically, in April, 2020, the Inspector General for the Department of Transportation issued a\u00a0report\u00a0finding that the FAA does not adequately secure the personally identifiable information submitted through its online UAS registration system.)<\/p>\n\n\n\n

Meanwhile, several legal organizations have attempted to advocate for a formal regulatory arrangement that adequately balances the legal rights of drone users and those in their flying zone. In 2019, the American Law Institute\u2019s (ALI) drafters of the Fourth Restatement of Property applied principles of trespass law in proposing \u00a7 1.2A \u2013 \u201cTrespass by Overflight.\u201d In the Comments to \u00a7 1.2A, the ALI focuses on the different levels of \u201cpossession\u201d of airspace, acknowledging that \u201cthe protection of the right to possession attenuates the further one travels from the surface.\u201d The Comments also note that \u201c[t]respass and nuisance are not the only bodies of law that would address the harms caused by drone overflights \u2026 [as] statutes and case law directly addressing privacy may apply in the context of drone overflights as well.\u201d The draft was on the agenda of the ALI\u2019s 2020 Annual Meeting until it was cancelled, and is not subject to approval until the 2021 Annual Meeting.<\/p>\n\n\n\n

The Uniform Law Commission (\u201cULC\u201d) has also tried its hand in tackling drones and privacy. In 2019, it drafted a\u00a0Uniform Tort Law Related to Drones Act. The proposed law focuses less on the altitude of airspace into which a drone enters, and more on whether the UAS is operated \u201cin the airspace over the land possessor\u2019s real property and causes substantial interference with the use and enjoyment of the property.\u201d The drafted Act prescribes thirteen delineated factors to inform whether the operation of UAS caused the requisite \u201csubstantial interference,\u201d and contains a rebuttable presumption that UAS do not substantially interfere with the use and enjoyment of property in certain instances. Following the receipt of numerous comments from industry stakeholders, legal scholars, and others, the ULC has postponed any action until the FAA provides further rule guidance related to UAS.<\/p>\n\n\n\n

And on February 17, 2020, through the work of the ABA RPTE Section, the ABA\u2019s House of Delegates adopted\u00a0Resolution 111, by which it urged \u201cfederal, state, local, territorial, and tribal governments\u201d to protect real property interests \u201cwith respect to any statute, ordinance, regulation, administrative rule, order, or guidance pertaining to the development and usage of unmanned aircraft systems over private property.\u201d<\/p>\n\n\n\n

Whether or not the FAA or other government entity moves forward in regulating drone privacy, commercial UAS operators can follow best practices to mitigate against a privacy invasion. The National Telecommunications and Information Administration\u00a0recommends, for instance:<\/p>\n\n\n\n