Author Archive | Liz Woolery

Not Waiting for the FAA, North Carolina and 9 Other States Enacted Drone Laws in 2014

By on December 18, 2014 in Center for Media Law and Policy, First Amendment, Journalism, Privacy

As discussed in last month’s post, the FAA’s most recent notable effort to regulate Unmanned Aircraft Systems and/or Vehicles (UAS/UAV) is the opening of six test sites, where the FAA will oversee UAS exploratory research and safety developments through February 2017. While regulation of UAS at the federal level has received significant attention, state and local efforts to regulate UAS are not only worthy of examination, but these efforts are arguably more interesting than what is happening at the federal level. This is because the new state drone laws put in sharp relief the concerns of legislators and their constituents. More than half the states have enacted legislation regulating UAS, providing a wealth of information – case studies, really – ripe for exploration in an effort to understand the realities of UAS and UAS regulation.

State legislation of drones has become increasingly popular, especially in the past two years. In light of news that the FAA’s efforts to regulate drones have fallen behind schedule (by as much as two years, according to The Washington Post), states appear reluctant to wait for the FAA. According to the National Conference of State Legislatures, in 2014, 10 states – Alaska, Illinois, Indiana, Iowa, Louisiana, North Carolina, Ohio, Tennessee, Utah, and Wisconsin – enacted UAS laws, while a total of 35 states considered UAS legislation. 2013 saw slightly more legislative activity in the drones space, as 43 states introduced 130 pieces of legislation, 13 states enacted 16 laws, and 11 states adopted resolutions governing UAS.

Criticism and Concerns with State Regulation

Despite the rush to regulate UAS at the state level and the apparent eagerness of state legislators to “fill the void” left by the FAA’s slow pace to regulate UAS, state drone legislation has been criticized. Attorneys and drone scholars Nabiha Syed and Michael Berry, writing in the Volokh Conspiracy blog on The Washington Post‘s website, argued that state legislation thus far has been “misguided” and suffers from overbreadth and vagueness. They pointed to Idaho’s UAS law, enacted in 2013, which contains a provision prohibiting the use of a UAS to “photograph or otherwise record an individual, without such individual’s written consent, for the purpose of publishing or otherwise publicly disseminating such photograph or recording.” The Idaho law makes no distinction between photography and recording in a public place versus a private place. Thus, the law either forgets or ignores – or perhaps both – that there are long-standing legal doctrines that suggest an individual has no expectation of privacy in a public place. For example, in Katz v. United States (1967), the U.S. Supreme Court explained that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” The Katz dicta may speak specifically to Fourth Amendment protection, but there is no indication that one has a greater expectation of privacy when a non-government actor (e.g. a civilian UAS operator) is involved. As Syed and Berry noted, the Idaho law (and others like it) ignore the legal and societal precedents regarding expectations of privacy in public places.

surveillance_dictionary_3

State laws also can be criticized for their failure to define key terms. The North Carolina drone law (which we’ll get to shortly) contains a provision prohibiting UAS operators from “conduct[ing] surveillance” of private property. However, nowhere in the law is “surveillance” defined. Syed and Berry noted that Texas’ and Tennessee’s drone laws also fail to define surveillance. The vagueness of these laws, they argue, “casts a long shadow that threatens to chill newsgathering and other legitimate conduct.” But Stephen Hartzell, an attorney and partner with the Raleigh-based Brooks Pierce law firm, said the absence of a definition of “conduct surveillance” will not be problematic because courts are “capable of working that out on a case-by-base basis.” Hartzell is likely correct that courts will be able to decide what does and does not qualify as surveillance. But that is a question that could have been resolved by the law’s text, creating clearer guidance for drone operators and less need for litigation.

It also has been argued that state laws that attempt to address some of the potential harms posed by UAS are duplicative of already-existing laws. Referred to as laws of “general applicability” (or “pre-existing generic laws”), these laws, which are not specific to UAS, address legal claims that might be brought against a drone operator. For example, a state law that provides a cause of action for drone-based invasion of privacy is probably unnecessary if that state already recognizes the intrusion upon seclusion privacy tort. Similarly, a state law specific to UAS trespass or nuisance is likely duplicative of that state’s already-existing trespass and nuisance laws. When North Carolina debated its drone legislation earlier this year, a member of the state’s Research Division presented the Committee on Unmanned Aircraft Systems with an overview of “Potentially Relevant Current NC Laws.” The review highlighted North Carolina’s prohibitions against secret peeping and interception of oral transmissions, the state’s recognition of the intrusion upon seclusion privacy tort, and regulation of law enforcement surveillance. Nonetheless, the state’s drone law waded into some of these issues.

North Carolina’s Drone Law: An Overview

NC Heading - Bill Excerpt - Regulation of Unmanned Aircraft

In August, North Carolina Governor Pat McCrory signed into law the state’s 2014 budget, which included legislation regulating UAS in the state. Some of the UAS provisions enacted as part of the budget went into effect on Oct. 1, while the remainder went into effect on Dec. 1.

The budget includes two provisions regulating UAS in the state. The first provision, on “Vehicle Management,” mandates approval from the state’s Chief Information Officer before a government agent or agency can purchase or use UAS. But far more significant and interesting is the second component, “Regulation of Unmanned Aircraft Systems,” which addresses civilian UAS use.

Restrictions

The N.C. legislation sets out parameters for drone use in the state, beginning with a prohibition on surveillance of a private home or other private property without consent. Specifically, the law says UAS should not be used to engage in surveillance of “a person or dwelling occupied by a person,” “that dwelling’s curtilage,” or “private real property” without consent. The restrictions on what UAS may be used to record or photograph continue, prohibiting UAS operators from taking a “[p]hotograph [of] an individual, without the individual’s consent, for the purpose of publishing or otherwise publicly disseminating the photograph.”

This ban on photography without consent is one of the most striking parts of the law. The prohibition does make an exception for “newsgathering, newsworthy events, [and] events [and] places to which the general public is invited,” but those exceptions open the door to larger questions, such as what activities are considered “newsgathering” and what events are considered “newsworthy.” It is unclear how the state might distinguish between newsgathering activities and non-newsgathering activities, and, similarly, newsworthy events and non-newsworthy events, since the law does not define those terms. In this “new age of citizen journalism,” our understanding of what is newsworthy is no longer dictated by the agenda-setting of major media outlets; similarly, the individuals engaged in newsgathering are no longer limited to those affiliated with “traditional” news outlets such as the The News & Observer or WRAL-TV. Citizen journalists – or journalists not affiliated with traditional news or mainstream media organizations – are breaking news almost as regularly as the professionals. The use of “newsgathering” and “newsworthy” in the state’s UAS law is vague: both terms are widely open to interpretation, especially in light of this new landscape of journalism. The law’s opaque language of news may make the prohibition unenforceable; at the very least, the provision weakens the law by raising more questions than it answers.

"private property" by Deviant Art user miracledrug http://goo.gl/yRgcz2 [CC licensed]

“private property” by Deviant Art user miracledrug [CC licensed]

Another problem, as Syed and Berry noted, is that the state’s UAS law effectively prohibits documenting private property by drone, although that same documentation takes place on a regular basis and is available to the entire world, thanks to Google Maps cars, which drive on public roadways, capturing images of private dwellings and curtilage.  Imagine that a Google Maps car drives down a residential street and records a scantily clad sunbather in her front lawn. The lawn is private property, but the Google Maps car is on public property (the street), therefore Google has not run afoul of the state’s intrusion upon seclusion tort. The tort states that one who “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”  However, what is visible from a public street, no matter how private, is not likely to considered an “invasion” at all, nor is it likely to be considered “highly offensive.”

Under North Carolina’s drone regulations, if a drone were to fly down the street and capture a photo of the sunbather in her front lawn, that act would appear to run afoul of the the state’s prohibition against use of UAS to “conduct surveillance of” “a person or dwelling occupied by a person and that dwelling’s curtilage” and “private real property” without consent. The new drone law is – or at at least appears to be – a significant change to North Carolina’s privacy law. The drone regulations, by prohibiting surveillance of private property (which is often in public view) restrict the gathering of information in new ways – ways not restricted by the state’s intrusion upon seclusion tort.

Drone Crimes

The law also outlines crimes that might be committed by unmanned aircraft. These crimes include interference with manned aircraft, unlawful possession of UAS, weaponization of UAS, and “unlawful harassment of persons taking wildlife resources.” That provision makes it illegal to intentionally interfere “with the lawful taking of wildlife resources or to drive, harass, or intentionally disturb any wildlife resources for the purpose of disrupting the lawful taking of wildlife resources.” The provision is presumably targeted at activists who might use drones to harass or interfere with hunters. The law goes on to prohibit fishing or hunting by UAS. At first blush, the emphasis on wildlife seems odd because so much of the debate about drones has focused on the privacy. However, as demonstrated by the research focuses at the FAA’s test sites, there has been significant attention given to UAS use in wildlife, agriculture, and conservation efforts nationally, but also in North Carolina. To find evidence of the state’s interest in the intersection of UAS and the great outdoors, look no further than the state’s Legislative Committee on Unmanned Aircraft Systems. This past spring, the committee heard from a representative of Bosh Precision Agriculture, who spoke on use of drones to aid in agricultural work. The representative highlighted how farmers and scientists in the state might use UAS to evaluate crop health, sample soil, and monitor irrigation.

Licensing and Certification

"US pilots certificate front" by Wikipedia user Cleared as filed http://goo.gl/E8whm6 [CC licensed]

“US pilots certificate front” by Wikipedia user Cleared as filed [CC licensed]

Finally, the law sets out the certification and licensing requirements for operating unmanned aircraft in the state. Commercial UAS operators must be at least 18 years old, have a valid driver’s license, and have a state-issued UAS license. The state has tasked the Department of Transportation’s Division of Aviation with creating a “knowledge and skills test” that operators must pass to receive their licenses. The test must be developed and implemented by May 31, 2015, but it’s not difficult to imagine a scenario in which the state Division of Aviation is held up waiting for the FAA to finalize its rulemaking because there could be overlap between state and federal UAS licensing schemes. The state’s licensing plan mandates that the Aviation Division establish categories of UAS “based on characteristics determined to be appropriate by the division.” These categories might be used to determine license fees or even the content of the knowledge and skills test. The Aviation Division must also identify a “geographic area” within which a licensee is permitted to operate UAS, provide guidelines pertaining to data collection by licensees, and identify requirements for marking and identification of individual UAS.

Private vs. Commercial Operators

Notably, the state’s drone legislation appears to distinguish between private and commercial drone operators with respect to licensing. For example, § 63-96 is titled “License required for commercial operation of unmanned aircraft systems” (emphasis added). The law does not define “commercial” or “private” operators, but the state may rely on the Code of Federal Register‘s definition of a “commercial operator.” The CFR defines a commercial operator as a “person, who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property.” The FAA further explained, “Any operation not conducted strictly for hobby or recreation purposes could not be operated under the special rule for model aircraft. Clearly, . . . flights that are in furtherance of a business, or incidental to a person’s business, would not be a hobby or recreation flight.” It may be safe to assume that in North Carolina, a commercial operator is one who is operating a drone “for compensation or hire,” not one who is doing it as a hobby or for recreation.

The North Carolina drone law suggests that while commercial UAS operators are required to be licensed, private operators are not. However, the line between the two categories of operators may be difficult to draw in some circumstances. For example, what if the operator is not employed by a news organization but is gathering images on a volunteer basis?  Is the drone operator a private or commercial operator? What if a private operator captures a photograph that initially appears to be insignificant, but later proves to be newsworthy and the operator wants to sell the image? In an effort to safeguard against potential harms caused by UAS, the state has enacted a drone law that offers some promise, but raises nearly as many questions as it provides answers. How state courts will handle questions about commercial vs. private operators and identify newsgathering activities and newsworthy events will not only be interesting to watch, it also will have a significant impact on the state’s news organizations, citizen journalists, and other information gatherers.

What’s Next?

"1950 ... hoppicopter!" by Flickr user James Vaughan [CC licensed]

“1950 … hoppicopter!” by Flickr user James Vaughan [CC licensed]

What’s next for drones in North Carolina and the rest of the nation is largely dependent on the FAA. The FAA had committed to integrating UAS into the nation’s airspace by Sept. 2015. However, the FAA has repeatedly missed deadlines in recent months. On Dec. 10 the agency admitted that it will not have final rules in place until at least 2017.

That same day, the FAA approved five exemptions for four commercial drone operators, permitting the operators to use UAS for the purposes of “aerial surveying, construction site monitoring and oil rig flare stack inspections,” according to Forbes. The exemptions allow the operators to use UAS without first obtaining an airworthiness certificate, typically a requirement for commercial operators. According to the FAA, the exemptions were granted because U.S. Secretary of Transportation Anthony Foxx “found that the UAS in the proposed operations … do not pose a threat to national airspace users or national security.” The four operators join seven video production companies granted exemptions in September.

It is difficult to reconcile the FAA’s apparent desire to allow more commercial UAS operations with the agency’s failure to lay the groundwork for much wider use of UAS in a timely manner. As Michael Toscano, president and CEO of the Association for Unmanned Vehicle Systems International (AUVSI, a global community of UAS users and stakeholders) commented, “[G]ranting exemptions on a case by case basis is not an effective way to regulate the use of UAS in the long term.” Toscano praised the FAA’s decision to grant the exemptions, but also reiterated the urgency with which the FAA needs to act to implement UAS regulation. Similar calls for action and criticism of the FAA’s slow pace have come from major companies interested in UAS, including Amazon.com and Google. Amazon has threatened to move its drone research abroad if the FAA won’t allow the company to test in the United States. Google already has begun UAS testing in Australia, as far as possible from the FAA’s reach.

Considering how slowly the FAA is moving forward with its UAS research and regulation, it’s perhaps no surprise that states like North Carolina are taking the opportunity to regulate UAS in the interim. The potential for commercial UAS success in the United States “depends on regulation,” and currently, the agency charged with crafting that regulation is in no rush to embrace that potential. Thus, state and local legislators are the ones driving efforts to explore both private and commercial UAS.

As of Dec. 1, all of the provisions regulating drones in North Carolina are in effect. The next benchmark in the state’s regulation of UAS is May 31, 2015, the date by which the Division of Aviation must develop and implement its knowledge and skills test. Of course, while the state has crafted its own regulations, any commercial UAS operators in North Carolina are subject to current and forthcoming FAA regulations, a fact reiterated in the state’s law. One of the final provisions of North Carolina’s UAS law notes that “[n]o operation of unmanned aircraft systems for commercial purposes shall be authorized in this State until the FAA has authorized commercial operations.” So we’re back where we started: North Carolina is ready for commercial drones, but will have to wait until the FAA catches up.

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State of the Drone: FAA Test Sites Take Off

By on November 3, 2014 in Center for Media Law and Policy, First Amendment, Journalism, Privacy

In August 2014, a small but noteworthy milestone in the Federal Aviation Administration’s regulation of drones – or “unmanned aerial systems” (UAS), in the agency’s parlance – occurred. On August 13, the FAA announced that the final of six test sites for UAS research had opened. With operations at the FAA’s six test sites underway and some inaugural test flights completed, now is a good a time to survey the landscape of UAS in the nation.

FAA Regulation and UAS Test Sites

Before taking a look at test site operations, here is some background on how the FAA arrived at its current UAS efforts: Beginning in 2012, following the passage of the FAA Modernization and Reform Act, the agency undertook a major effort to prepare the national airspace for the arrival of unmanned aircraft. The FAA first authorized use of UAS in 1990, but its first major regulatory efforts have taken place in the past few years, as interest in UAS has grown. The agency’s most recent step, the opening of six test site/pilot projects, is one of many steps in the plan to integrate UAS into the nation’s airspace. All of the steps were laid out in the FAA Modernization and Reform Act. The act mandated the FAA’s creation of the test site/pilot project program, as well as the publication of a five-year roadmap and a comprehensive plan.

The FAA has moved forward – albeit slowly – with its charge to explore the myriad issues surrounding civilian UAS use, such as operator certification and air traffic congestion, in collaboration with private and public groups. In December 2013, after a “rigorous 10-month selection process,” the agency announced its selection of six test site operators: The University of Alaska, the State of Nevada, Griffiss International Airport (in Rome, NY), the North Dakota Department of Commerce, Texas A&M University, and Virginia Polytechnic Institute and State University (Virginia Tech). All test sites are now open and operational.

Image courtesy of the FAA faa.gov/uas/legislative_programs/test_sites/ Drones FAA

Image courtesy of the FAA faa.gov/uas/legislative_programs/test_sites/

Test Site Operations

While the test sites are located in six states, test flights will actually occur in more states – at least 11 – according to FAA press releases and site operators’ websites. For example, the University of Alaska site will operate flights in Hawaii and Oregon as well as Alaska; the Griffiss International Airport site will operate flights in New York and Massachusetts; and the Virginia Tech site will operate flights in New Jersey and Maryland in addition to Virginia. Other flights will take place in Nevada, North Dakota, and Texas.

FAA Test Sites & Flight Locations Drones FAA

The FAA has issued several press releases with details of test site operations and research. The work at each of the test sites centers on what the FAA has identified as the most pressing needs to consider before UAS are fully integrated into the nation’s airspace. The agency’s primary research goals fall into six categories:

  • System Safety & Data Gathering
  • Aircraft Certification
  • Command & Control Link Issues
  • Control Station Layout & Certification
  • Ground & Airborne Sense & Avoid
  • Environmental Impacts

To that end, each test site has been tasked with specific research projects. Across many test sites there is a focus on the potential for drone use in agriculture, ecology, and conservation efforts. The University of Alaska site has a research plan addressing development of safety standards, state monitoring of UAS, and navigation. Because of the site’s close proximity to Fairbanks International Airport – the two are just five miles apart – it offers a prime opportunity for evaluating coordination with air traffic controllers. This site also will conduct aerial surveys of wildlife, with an eye to exploring how UAS might be used to locate and count animals, including “caribou, reindeer, musk ox and bear.” The Nevada site will research air traffic control needs and certification for UAS operators. The Griffiss International Airport site, located in the congested northeast airspace corridor, will consider the implications of UAS on air traffic. This site also will focus on drones equipped with visual and thermal sensors that can monitor and evaluate agriculture. The North Dakota site (the first to open) will research and develop data on UAS airworthiness. This site also will have an agricultural focus, studying UAS used to evaluate soil and crop quality. The Texas A&M site will research safety protocols and explore UAS use for ocean preservation and restoration. Finally, the Virginia Tech site (the last to open) will focus on “failure mode testing,” risk evaluation, and aeronautical surveys of agriculture. All sites will continue testing through February 2017.

Regulatory Approaches

The areas of FAA research at the test sites mirror several “philosophical approaches to regulation” identified by attorneys Nabiha Syed and Michael Berry in their June 2013 Communications Lawyer article, “Journo-drones: a Flight over the Legal Landscape.” Syed and Berry identified six categories of – or approaches to – regulation and suggested that the categories offer an initial framework for understanding the still-emerging regulation of UAS. The six approaches to regulation are: operators, flight, property, devices, behavior, and consent. These regulatory approaches cover a range of drone issues ripe for debate.

For example, an operator-based approach might ask who can fly UAS, or what certification or licenses are required. The FAA already has certification requirements for some UAS operators, but is expected to build on those certifications as it finalizes a plan to integrate UAS into the national airspace. A flight-approach to regulation could consider “when, where, and how drones can be flown,” and whether operators should be required to keep the UAS within their line of sight at all times. One example of the flight-based regulatory approach can be found in a recently-announced FAA exemption permitting six film production companies to fly UAS, but not at night. A property-based approach might consider areas over which drones may fly, how populated those areas are, and whether the property is private or public. Just last week, the FAA announced that operators of UAS or model aircraft could face jail time or a financial penalty for flying within three miles of major sports stadiums, including those used for Major League Baseball and the National Football League. The announcement, which is an reiteration of a previous policy, is an example of a property-based approach to regulation of UAS. Device-based regulation might focus on restricting the capabilities of UAS, including audio and video recording or night-vision capabilities, or maintenance and equipment requirements. Regulating behavior could address what behavior or individuals could be filmed, such as whether it would be permissible to film private or personal activities, celebrities, or other high-profile individuals whose lives often are disrupted by publicity. Finally, a consent-based approach to UAS regulation might consider whether and how UAS operators might be required to get consent or provide notice in advance of filming.

Drones, FAA

All images CC licensed. Credits: (1) U.S. Customs and Border Protection/Gerald Nino (2) Flickr user VilleHoo (3) U.S. Navy (4) Flickr user gott.maurer (5) Wikipedia user Frankhöffner

Other UAS Flights and Constitutional Questions

The FAA already has implemented some of these regulatory approaches, such as regulation of operators and devices, by mandating certification requirements for commercial and non-commercial UAS operations. Commercial UAS operations are “limited,” according to the FAA. (So limited, in fact, that in a FAQ the agency says that currently “there are no means to obtain an authorization for commercial UAS operations in the [national airspace],” though, as discussed in the next paragraph, that doesn’t actually seem to be the case.) For commercial flights, the FAA requires a certified aircraft in addition to FAA approval; civilian operators must obtain a Special Airworthiness Certificate, and government operators must obtain a Certificate of Waiver or Authorization. The issue of FAA approval and certification for non-commercial aircraft is in flux (more on that below), but according to the agency, flying model aircraft for recreational purposes does not require approval. However, the FAA has challenged a recent NTSB ruling on whether UAS are model aircraft and the extent to which the agency has the authority to regulate model aircraft – and therefore, possibly UAS – under its existing regulations.

Additionally (and as previously mentioned), in late September, the FAA granted an exemption to six aerial photo and video production companies allowing them to operate UAS. The exemption is notable because it is the first time the FAA has approved a UAS operator without requiring an FAA certificate of airworthiness. The agency said its review of the production companies’ requests found their flights will not “pose a threat to national airspace users or national security.” While the FAA has imposed limits on the production companies’ UAS flights – including when and where the UAS can fly and a requirement to keep the UAS in line of sight – the exemption prompted criticism. Technology law scholar Margot Kaminski said the exemption suggests that the the FAA might be “playing favorites.” Regulation of UAS capable of recording audio, video, and photography raises First Amendment concerns. By exempting a select group, Kaminski argued, the FAA could have (inadvertently or not) violated a core First Amendment principle: that certain groups (in this case, production companies and filmmakers) are not granted “special rights” not extended to the general public. Kaminski also pointed out that the exemption prompts questions about the consequence of FAA licensing on news- and information-gathering.

A recent amicus brief filed by a coalition of free-press and news organizations similarly criticized the FAA’s regulatory approach to UAS, which has all but grounded civilian drones. This approach, they argued, is “overly broad,” the result of an ad-hoc and patchwork effort to regulate UAS, and has had “an impermissible chilling effect on the First Amendment newsgathering rights of journalists.” The coalition expressed concern that the FAA has not given due consideration to the First Amendment issues raised by UAS. The coalition went on to explain that the FAA has justified its existing regulations and threats of fines for newsgatherers using UAS by classifying these operators as serving a “business purposes,” but the amici disagree with that classification. They argued that the FAA’s stance “rests on a fundamental misunderstanding about journalism. News gathering is not a ‘business purpose’: It is a First Amendment right.”

What’s Next for UAS

What’s next for drones in the national airspace? A recent decision from the National Transportation Security Board dealt a blow to the FAA’s efforts to regulate non-commercial model aircraft, a category which the FAA contends includes UAS. In March, an administrative law judge with the NTSB held that the FAA had no valid enforcement measures or rules applicable to model aircraft, which in this case was a drone. The drone belonged to filmmaker Raphael Pirker, who was fined $10,000 by the FAA after he used his UAS to shoot video. The FAA has said it will appeal the decision, leaving open to debate some major questions about the FAA’s current regulatory authority with respect to UAS.

While the FAA appeals the Pirker decision, it also is battling itself. A July 2014 audit from the Inspector General found that the FAA is “significantly behind schedule” for integration of UAS into the national airspace. The audit report – bleakly titled “FAA Faces Significant Barriers to Safely Integrate Unmanned Aircraft Systems into the National Airspace System” – lays out in detail the FAA’s failures to meet deadlines. The audit found that the FAA had completed 9 of 17 provisions set out in the Modernization and Reform Act of 2012, but had missed the statutory deadlines for “most” of the provisions. In addition to already-missed deadlines, it looks like there may be more in the future. The audit found the FAA was behind schedule for implementation of the remaining provisions, and that will almost certainly prevent the agency from meeting the Sept. 30, 2015, deadline for UAS integration set forth in the Modernization and Reform Act. The delays are due to “unresolved technological, regulatory, and privacy issues,” none of which are likely to be settled easily or quickly. Suffice it to say that the FAA seems to have encountered a bit of turbulence on its way to integrating UAS into the national airspace.

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Student to Publish in Hastings Comm/Ent Law Journal

By on August 25, 2014 in First Amendment

P. Brooks Fuller, a second-year Ph.D. student and Roy H. Park Fellow in the UNC School of Journalism and Mass Communication, has had an article accepted for publication in the Hastings Communications and Entertainment Law Journal (Comm/Ent). The article, “Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet Messages,” will appear in the Fall issue of Comm/Ent. The journal is published by the University of California’s Hastings College of Law and is among the best-known law reviews specializing in communications law and policy issues. The article is based on a research paper written for one of the J-School’s graduate media law courses. Brooks also presented his research earlier this month at the annual conference of the Association for Education in Journalism and Mass Communication in Montreal, Canada.

Brooks’ article examines federal courts’ treatment of Internet threats in light of the U.S. Supreme Court’s 2003 ruling in Virginia v. Black. The full abstract is below.

Following the Supreme Court’s most recent ruling on the true threats doctrine, Virginia v. Black (2003), significant conflict emerged among the federal circuit courts. The primary issue is whether an objective or subjective standard should apply to statutes that criminalize threats. Speakers’ use of social networking websites and Internet forums for the purposes of posting violent and intimidating communications raises significant questions regarding the posture of the true threats doctrine and its application to modern modes of communication. This paper utilizes legal research methods to examine federal courts’ treatment of Internet threats and highlights aspects of Internet speech that are particularly problematic for the doctrine. Ultimately, this paper calls for the Supreme Court to revisit the true threats doctrine in light of significant inconsistency among the circuits regarding the impact of the Internet on recipients of threatening communications.

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Drones, Drones, Everywhere a Drone: Is North Carolina Ready for Unmanned Aircraft Systems?

By on February 10, 2014 in First Amendment, Journalism

Drones in North Carolina

It seems everyone has been talking about drones lately. Journalists, emergency management officials, police officers, privacy advocates, and even farmers have all shared their two cents about these “flying robots.” Now the North Carolina General Assembly has joined the discussion. Late last month, a legislative committee convened to discuss the future of unmanned aircraft systems/vehicles (UAS/UAV) in the state. “Unmanned aircraft systems” is the committee’s preferred term, rather than “drones.” The House committee, co-chaired by Representatives John Torbett (R) and Michael Setzer (R), was formed to study safety and privacy issues raised by unmanned aircraft systems. The committee also will study possible commercial and governmental uses of UAS and the potential economic benefits of UAS in the state.

At the Jan. 21 meeting, the committee heard from several speakers involved in the state’s study of UAS, including the state’s chief information officer, the director of NexGen Air Transportation at North Carolina State University, and representatives from the legislature’s Research Division. The committee did not reach any conclusions about the future of UAS in North Carolina and expects to meet up to three more times before presenting final recommendations during the 2014 legislative session. Those recommendations are due by April 25. What the committee is tasked with deciding before making those recommendations is relatively straightforward:

  • Is there a future for UAS in North Carolina?
  • Who will make use of UAS? Businesses? Government agencies? Civilians?
  • What regulations for UAS must be considered?
  • How can the state address privacy concerns raised by the use of UAS?

North Carolina is not alone in thinking about these questions. According to the National Conference of State Legislatures, 43 states introduced 130 bills and resolutions on UAS in 2013 alone. By the close of the year, 13 states had enacted laws, and 11 had adopted resolutions. In July, North Carolina joined those ranks when it enacted the Current Operations and Capital Improvements Appropriations Act of 2013.

State Regulation in North Carolina
Buried deep within the appropriations law is Section 7.16, the state’s first major effort to regulate Unmanned Aircraft Systems. Specifically, this section addresses how government agencies may go about procuring an unmanned aircraft. Section 7.16 effectively puts a moratorium on state or local government acquisition or operation of UAS until July 1, 2015, unless the state’s Chief Information Officer (CIO) approves such a request. The job of approving or denying requests for drones might seem out of the purview of a CIO. The CIO is housed within the state’s Office of Information and Technology Services, an office whose function is to deliver “the best in IT service and support.” In turn, the state CIO is granted “statewide authority over IT project approval and oversight, IT procurement, security, and information technology planning and budgeting.” At some point, someone felt that drone approval fit within that job description, and so approval for drones must now go through State CIO Chris Estes.

The state law further outlines the approval process a state agency must use to obtain and operate an unmanned aircraft vehicle. First, the agency must seek approval from Estes. Second, if Estes approves the request, the authorization will be reported to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division. At this point, planning for the drone can move forward, with Estes working alongside the director of the Aviation Division and the CIO for the Department of Transportation. Finally, State CIO Estes must provide “a proposal for implementation of the [UAS] program” to the legislative oversight committee by March 1, 2014.

Federal Aviation Administration Regulation
The N.C. House Committee on Unmanned Aircraft Systems has been tasked with finding out as much as it can about the potential for unmanned aircraft systems in North Carolina. But the state isn’t the only player here. As the committee heard at its January meeting, the Federal Aviation Administration will have a huge role in determining whether there is a future for UAS in the state and elsewhere, and what that future looks like. With the passage of the FAA Air Transportation Modernization and Safety Improvement Act in 2012, the FAA has a mandate to roadmap the future of UAS in the United States. Specifically, the FAA is charged with providing “for the safe integration of civil unmanned aircraft systems into the national airspace system” by September 2015. Further, the FAA needs to identify operational and certification requirements for operation of UAS by Dec. 31 of that year.

The FAA Modernization and Reform Act also mandated that the agency identify six “test ranges” at which its program for integration of UAS into the national airspace could begin. Twenty-five organizations across the country submitted proposals to be selected as one of the six. On Dec. 31, 2013, the FAA identified the operators of those six test sites as the University of Alaska, the State of Nevada, Griffiss International Airport (in Rome, N.Y.), the North Dakota Department of Commerce, Texas A&M University – Corpus Christi, and Virginia Polytechnic Institute and State University (Virginia Tech). Testing at those sites can continue until Feb. 13, 2017.

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Until testing at these sites is completed, many UAS flights are effectively grounded due to FAA certification requirements. The FAA approval process requires UAS operators to obtain two certifications, an Airworthiness Certificate and a Certificate of Waiver or Authorization (COA). The Airworthiness Certificate is used “to ensure that an aircraft design complies with the appropriate safety standards in the applicable airworthiness regulations.” As of now, standard airworthiness certificates are not being issued for unmanned aircraft systems; instead, the FAA is only issuing “experimental” certificates for UAS. The second certification, the COA, is issued after the FAA completes a “comprehensive operational and technical review.” Additionally, a COA can impose provisions or limitations on the use of the aircraft. Unfortunately for UAS operators, the approval process for both certifications can be time-consuming, taking up to a year, according to the FAA. Finally, it appears that the FAA has put the brakes on commercial UAS certifications; right now the agency is only permitting a limited number of experimental certifications. According to a FAA spokesperson, the FAA is in the process of “evaluating many potential uses of UAS,” however, “commercial operation of such aircraft is not yet allowed.”

Government, Civilian, and Commercial UAS
The FAA has been marching forward with its plan for unmanned aircraft systems regulation and experimentation. But while the FAA crafts regulations, states are still wondering what the future of UAS looks like for them. At the Jan. 21 committee meeting, members of the General Assembly heard from Kyle Snyder, director of the NextGen Air Transportation Center, housed at the Institute of Transportation Research and Education at North Carolina State University. Snyder offered the committee an overview of UAS, including what they are, what they are used for, and what the economic impact of UAS could be. On that last topic, Snyder cited a report from the Association for Unmanned Vehicle Systems International (AUVSI) that suggested UAS-based industry could create roughly 7,500 jobs in North Carolina by 2017. Already, though, Snyder’s work has seen some of the potential for UAS in the state, mainly in agriculture, where UAS could help farmers capture images to learn about their crops’ health and potential yield.

In addition to famers, other industries and professionals have expressed interest in UAS. Among them is the emergency management field, where officials could use UAS to collect images that show the scope of devastation after an earthquake or hurricane, for example. Law enforcement agencies also are interested in drones for a variety of purposes, including monitoring U.S. borders, tracking criminals or missing persons, and generating heat maps, which can be used to identify marijuana grow houses. And of course, some businesses are planning for more creative uses of UAS:

Of particular interest to those of us in the media law and policy world is the potential for “drone journalism.” Several organizations and universities, including the University of Nebraska-Lincoln and the University of Missouri, have started drone journalism research labs to explore the possible uses for UAS in news reporting. Around the world, UAS have been used to report on events such as Nebraska’s 2012 drought, a building demolition in Florida (during which the drone and news crew were attacked by a swarm of bees; the swarm became increasingly agitated as the drone’s rotors “whacked” the bees), political upheaval and police brutality in Turkey (the citizen journalist’s drone was ultimately shot down by police in Gezi Park), and a fire in New South Wales, Australia. Also, the British Broadcasting Corporation recently acquired an unmanned aircraft, named the “hexacopter.” According to BBC correspondent Richard Westcott, the hexacopter records images better than other image-capturing tools, including a helicopter or a steadicam. Given the already widespread use of UAS in news reporting, it certainly appears drones are going to be part of the future of journalism. But journalism, as with other industries interested in UAS, must wait until the FAA has completed experimental flights at the six test ranges, identified certification and operation requirements, and finalized a roadmap for the integration of commercial and civilian UAS into the national airspace.

Privacy Concerns Pave the Way
That roadmap may prove to be bumpy. As the FAA and other organizations involved in UAS have learned, civilian and commercial drone use has prompted concern about expectations of privacy. Legislators must consider whether the measures that currently are in place to protect an individual’s right to privacy are sufficient. Lawmakers also will be faced with the question of how they can plan for the future of UAS and ensure that the surveillance capabilities of these high-tech “flying robots” won’t be abused.

As the N.C. House Committee heard last month, any discussion or planning for civilian, commercial, or governmental UAS use must address these privacy concerns. To some extent, existing state law already speaks to some of those concerns. Susan Sitze, with the General Assembly’s Research Division, provided an overview of several existing state laws relevant to UAS use, including regulations on law enforcement surveillance and laws on general electronic surveillance. Already, North Carolina has criminal penalties for “secret peeping” and the “interception of oral transmissions.”

Law enforcement use of drones would raise a separate set of legal issues, including concerns about Fourth Amendment violations. Currently, many local, state, and federal agencies already have the tools for distance observation and surveillance, such as helicopters, traffic cameras, CCTV cameras, and satellites. But UAS can be cheaper, more flexible, more efficient, produce higher quality images, and respond more quickly than those surveillance tools. Some existing state laws, such as Article 16 of the N.C. General Statutes, addresses broader issues related to law enforcement surveillance. For example, Section 15A-290 details the circumstances under which permission may be granted for electronic surveillance; the circumstances currently are limited to drug trafficking and other violations of drug laws.

Finally, there is the issue of civil liability. North Carolina does recognize several privacy torts, including invasion of privacy by intrusion into one’s seclusion or solitude. The “intrusion tort” was recognized for the first time in 1996 in Miller v. Brooks, 123 N.C. App. 20 (1996). The Miller court relied on the Restatement (second) of Torts’ § 652B definition of intrusion: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” This three-part definition, involving intrusion into solitude or seclusion that is highly offensive to a reasonable person, continues to be the core of the state’s intrusion tort.

How state laws on civil liability, law enforcement use of surveillance, and general electronic surveillance will fare in the age of UAS is unclear. Perhaps these protections will be sufficient. But maybe they won’t be, and if that’s the case, individual states may become the leaders in protecting privacy. Already the California Assembly has passed a bill restricting law enforcement use of UAS and data collected by UAS. The measure will now move to the California Senate for a vote. It is up to this N.C. House Committee (and more broadly, the state General Assembly) to decide how, if at all, North Carolina will wade into this great UAS experiment.

The Future for UAS in North Carolina
As the House Committee on Unmanned Aircraft Systems debates the future of unmanned aircraft systems in the state, there is one thing they will be sure to keep in mind: How greatly North Carolina cherishes its connection to the birth of the aviation industry. It was here on the beaches of Kitty Hawk in December 1903 that Wilbur and Orville Wright took their “flying machine” to the skies for 59 seconds and 852 feet, securing their legacies in aviation history. After completing the flight, the brothers walked four miles to the nearest weather station to telegraph their father, telling him to share the good news with the press. The two brothers had just made “the first free, controlled, and sustained flights in a power-driving, heavier-than-air machine” — and the world needed to know.

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As the first meeting of the House Committee on Unmanned Aircraft Systems concluded, committee co-chair Rep. John Torbett offered a few parting words, including this observation: “How appropriate that we look at the next gen of aviation in the state where aviation, manned flight was invented.” How appropriate indeed.

The House Committee on Unmanned Aircraft Systems will hold its second meeting on Monday, February 17 at 1 p.m. in Room 544 of the Legislative Office Building.

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A UNC Student’s Summer Experience at the Chilling Effects Clearinghouse, a Project of the Berkman Center for Internet and Society

By on January 14, 2014 in Copyright, First Amendment, Internet

Berkman Center LogoLet me start by saying that I really like information. Numbers, lists, facts, data, trivia. I like them all. I’m an information junkie. I also happen to love the First Amendment. Given this, it’s not surprising that I was so excited to spend this past summer interning with the Chilling Effects Clearinghouse at the Berkman Center for Internet & Society. Chilling Effects collects threats to free expression online, mostly in the form of DMCA take-down notices and similar intellectual property infringement claims, although Chilling Effects receives notices of other threats to free speech as well. All of that information is compiled into a searchable database. Being able to work with Chilling Effects, to explore this database, and to see “under the hood” was a great way to combine my interest in data with my passion for the First Amendment.

The summer was jumpstarted with a joint project involving myself and the two other Chilling Effects interns. Our task was to track down questionable trademark infringement claims in the database. We sorted through hundreds of these claims, looking to see if the people who filed them had concerns beyond trademark infringement — for example, someone whose real issue might be closer to a defamation claim than a trademark claim, but the latter might more quickly and effectively take down the content in question, since defamation claims can be costly to pursue and difficult to win. In other words, we scoured the database looking at potentially fraudulent trademark infringement claims that were being used to stifle free expression online. Once we wrapped up our search we worked with Jeff Hermes at the Digital Media Law Project to turn our findings into content for a presentation he was giving. One of the best parts of summer at the Berkman Center was a project like this one because I got to work with the other interns, all of whom were passionate, curious, and eager to spend the summer researching and working on a variety of Berkman projects.

On top of working with these great people, interns attended weekly presentations by leaders in the technology and policy fields. One week we got to hear from NYU privacy scholar Helen Nissenbaum, who spoke about transparency and privacy issues in accessing online court records. Earlier in the summer many of us attended a book launch for ReWire: Digital Cosmopolitans in the Age of Connection by Ethan Zuckerman of the MIT Center for Civic Media. But perhaps the most fun “intern hour” was an interactive demonstration of Google Glass. We might have looked ridiculous, but we loved being among the first to check out this new wearable computing technology.

The summer flew by. When news broke about the NSA’s PRISM program, I started reading everything I could about the issue and turned my research into a blog post featuring a timeline of Edward Snowden’s leaks and related news about the program. The best part about the blogging for Chilling Effects was that I got to use the Chilling Effects database to add color, facts, and figures to the stories that were already out there. For example, when Twitter released it’s annual Transparency Report in July, I combined their reported data with information stored in the Chilling Effects database. By layering the Chilling Effects’ data on top of Twitter’s, it was easy to start to see the bigger picture for how Twitter handles attempts by countries to censor tweets or account holders.

My summer internship at the Berkman Center gave me the opportunity to work with an area of the law that I am passionate about and introduced me to dozens of new friends and peers who are equally excited about the future of technology, law, and policy. It was by far the most exciting and memorable summer I’ve had and it was an honor to work with some of the world’s leading tech and policy thinkers. Summer 2014 Berkman Center internship applications just opened up and are being accepted until February 16.  If you’re interested applying you can find more information on the Center’s Internship page here.

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