Oklahoma, Shooting Down the Drone Business
Senate Bill 660: Good Intentions, Bad Idea
Maybe you didn't hear yet, but a proposed Oklahoma bill (Senate Bill 660) will allow people to be relieved of all civil liability when shooting down a drone above their property. You can read the specifics here, of State Sen. Ralph Shortey's (R-Okla.) proposed bill. Now this doesn't say anything as to how a drone should be taken down, nor does it override any current laws in place about discharging firearms within city limits. What is does seem to do it provide a security blanket across the board for people damaging aircraft. I was on the verge of simply making a Facebook post, but I found the points I wanted to make weren't really being brought up. So I want to offer you some opinions that maybe you haven't heard yet. This article is from the viewpoint of a certified-remote-pilot that has been cleared by the FAA for commercial flight.
What I agree with
1. A reasonable expectation of privacy is, well, reasonable.
I am definitely an advocate of privacy and I think that intentionally recording people in their homes without their permission is not only illegal, but a huge violation of privacy. Where we draw the line on reasonable expectation of privacy is where things start to get blurred. This entire issue deals with The Fourth Amendment as well as Oklahoma's property, privacy, and voyeurism laws. Consumer drones are becoming so popular so fast that there isn't a law the properly addresses the issues. Oklahoma's voyeurism law is the only one that somewhat applies.
(a) A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy.
Now, this law only applies after the fact, as well as dealing with intent (not something someone sitting at home with their rifle would know). So what's the solution? New legislature should be implemented that balances privacy & security with the growing business & hobby that is UAV (unmanned aerial vehicle) or drone operations.
2. Current Oklahoma State Laws and Federal Laws
Though I believe there should be federal laws in place for hobbyist drone operators, I do agree with their recommendations for hobbyists as well as their Part 107 regulations. In order to operate commercially you must have your Part 107 certification by passing a federal exam that requires a thorough understanding of airspace, weather, and safety. All drones greater than .55lbs and less than 55lbs, and flown outside, must be registered with the FAA. Even though the FAA is the government body tasked with controlling all U.S. airspace, states are beginning to implement laws that may conflict current federal laws and many question the legality of such laws. However I understand the reasoning behind many of these laws. What I would like to see is politicians and legislature writers meeting with lead representatives from the commercial aviation industry as well as hobbyist, business owners, and the public and find a reasonable balance to the laws being implemented. Oklahoma currently has one state law restricting airspace around critical infrastructure. House Bill 2599 which is now in Section 322 of Title 3 Oklahoma Statutes puts in place restrictions to not allow flight near critical city infrastructure, with specific exemptions allowing commercial use among others.
What I disagree with
1. creating a safety hazard
Not only does this law create a safety hazard, but it creates a stigma around drones that they are being used maliciously everywhere. When more often than not, that is simply not the case.
When more often than not, that is simply not the case.
Drones come in all shapes and sizes and thus so do the hazards they can cause. Quadcopters are drones having have four spinning propellers, while some have even more and can weigh up to almost 55 lbs. Imagine this drone and whatever related debris coming down after you take it down. This can damage property on the ground as well as fly in any direction and cause serious bodily damage, even death. This is why the FAA does not allow flight over people as well as many strict rules and recommendations. Not only damage from the drone, but depending on the method of shooting down the drown, sever damage could be caused from stray bullets or other methods. Though the proposed law does not determine how aircraft will be brought down, its existence alone encourages take-down methods with serious safety concerns. Not only does this law create a safety hazard, but it creates a stigma around drones that they are being used maliciously everywhere. When more often than not, that is simply not the case.
2. a blanket rule
This law would affect criminals and that's understood and from what i can tell, the reason behind this bill. It would affects hobbyists - Imagine your 13 year old son flying his Christmas gift around over his yard and he then moves over his property line and sure enough there is possibly a gunshot and not only would the child be scared and his gift obliterated, imagine the horror parents would facing knowing that a gunshot just went off right next door with their child outside. This is some of the circumstances the bill encourages. It would affect commercial RPIC's (remote pilot's in control or certified drone operators). One of the primary instances I can see that would severely limit ability and creativity would be real-estate videography and photography. In order to achieve some of the aerial views needed for most residential real-estate needs one would need to get previous permission from 10-30 different property owners (depending on the direction of flight). Anyone who knows how complicated it is to get permission from one group let alone 30, realizes this is near impossible and will not work with project timelines. This law affects pilots who have passed an extensive background check by the federal government and have a certification to operate in airspace. I believe new legislature is needed to bring clarity and safety, but this blanket rule is not the answer.
3. breaking the law
It is currently illegal to shoot down drones, as defined by the FAA. However there is a case from 1946 where the U.S. Supreme Court ruled that a farmer in North Carolina had property rights up to 83 feet in the air, even though we currently have no laws in place for aerial trespassing. The fact that one of the main rulings being brought up in this debate is 60 years old leaves no question that there needs to be a much longer discussion about drones vs privacy. To make things more confusing, in 2015 Les Dorr, an FAA spokesperson said, "The FAA is responsible for the safety and management of US airspace from the ground up." This doesn't leave any ambiguity. It is the federal governments job to manage aircraft, airspace, and airspace safety, even though states are stepping forward with legislation. I understanding getting laws passed that everyone agrees with is near impossible, but I believe it is possible to create privacy and safety state laws that don't hinder local businesses as well as not conflict with federal laws.
4. lack of clarity in the law
Amazon delivered it's first package by drone in 2016
I understand laws have to start somewhere, but why not work with community industry leaders, professionals, law enforcement, and law makers to write a bill we can agree on? Senate Bill 660 states that it applies to "Any person owning or controlling real estate or other premises", but what about when the drone is on the drown operators private property 20 feet above the ground and 20 feet away from the neighbors house possibly looking into the neighbors home? In this instance they would still be held liable if they damaged the drone. Take another scenario for instance, if you live within Class D airspace (meaning all airspace from the ground up is regulated airspace) and you have a registered drone flying above your property without your permission. Can you shoot it down? The language of SB660 seems to suggest no, though most people reading would say yes you can shoot it down. What about the current rulings allowing some drone deliveries by companies such as Amazon? How is state law going to interfere with federal law when people start shooting packages out of the sky? It's these type of issues that lead me to believe this bill is not well thought out, but rather is an attempt to do something good and going about it in the wrong way without proper advisement.
5. a lack of information leading to action
The Associated Press quotes State Sen. Ralph Shortey saying, "landowners have no way of knowing the intention of a drone's owner, and shouldn't be held liable for shooting one down." When you don't know the purpose of a drone flying above or near your property, is the best action really to take it down when you're not in imminent danger? It's possible that drones will be used by police departments, search and rescue operations, as well as commercial operators, and hobbyists. None of which are using the drone with malicious intent. I believe that when you have passed a background check and federal exam, or even further tests and procedures, you deserve the benefit of the doubt that you're not a peeping tom. Now the question is, how do you determine what the intent of the drone operator is? This is difficult to ascertain but I hope to help answer this below.
So What do we do?
This is a very complicated issue but I'll give a few suggestions.
First I think we need to get a balanced panel of experts in all areas to discuss the issues and concerns for individuals as well as companies. There are people that are much better at coming up with solutions than me and I don't think we should rush into a law where no law has ever existed before. I think the bill should possibly change to include exemptions for part 107 pilots as well as government operators. If the property owner is going to discharge a weapon to take down a drone I believe they should handle that right responsibly. Included in that would be making sure they are making the right call. If someone does end up taking down a drone that was not malicious or breaking any voyeurism laws, then I think the civil liability should still be in place. I think there should be research funded to see the statistics on drones being used for malicious purposes vs non-malicious purposes and let the laws reflect that. If we have a small percentage of drone operators violating voyeurism laws then lets make a law that targets that specific group acting illegally and not the industry as a whole. One thing I would like to see is possibly an app, database, or call-in hotline where commercial or emergency operators can show that they are flying in real time (or scheduled) and put the responsibility on those wanting to discharge a weapon to verify they are not taking down a certified operator that has taken the proper steps. Another possible solution is to notify all residents of the flight that will take place above their property, but not be required to receive approval.
My point is this ...
We need to have the conversation and address the many issues, not just the one privacy issue. We should update privacy and property laws to include protections against malicious drone use, but not hurt the entire industry in the process. We should take the time and money needed to handle this issue properly instead of going forward with a lack of understanding of the drone industry and all the positives it has been bringing about and will continue to bring, if we stop trying to hinder the industry over and over.