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.

FAA-selected-uas-test-site-operators-large

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.

Wright_Bros_Telegram

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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What’s the deal with fast-track authority?

By on February 7, 2014 in Copyright, Internet, Transparency

Text Definition of Fast Track Authority

Back in November, The New York Times editorial board endorsed the Trans-Pacific Partnership (TPP), a trade agreement involving 12 countries in the Americas and the Pacific Rim that is being negotiated by the Obama Administration. The agreement contains sections covering a broad number of policy topics, including a chapter on intellectual property. At that time, I put together a brief post about the agreement and potential bipartisan opposition to it in Congress. Since then, Senators Max Baucus (D-MT) and Orrin Hatch (R-UT), along with Rep. Dave Camp (D-MI), have proposed the Bipartisan Congressional Trade Priorities Act of 2014 to grant the Obama Administration “fast-track” trade authority. This legislation would allow the administration to negotiate the TPP and other agreements (although negotiations are already in progress) and place them before Congress for blanket approval or disapproval without amendments or filibusters. This has ignited a debate about the roles played by Congress and the White House in negotiating trade agreements. Senate Majority Leader Harry Reid (D-NV) publicly announced his opposition to fast-track, putting him at odds with President Obama, Secretary of State John Kerry, and Secretary of Defense Chuck Hagel. But what exactly is fast-track trade authority?

The Commerce Clause of the United States Constitution gives Congress the exclusive power to “regulate commerce with foreign nations.” Under fast-track trade authority, also known as trade promotion authority, Congress maintains its constitutional oversight of foreign trade, but cedes the nuts and bolts of crafting trade agreements to the executive branch. The Nixon administration was the first to pursue fast-track, though it was not enacted until Congress passed the Trade Act of 1974 under President Ford. Originally, fast-track was only approved through 1980, but it was repeatedly extended until the signing of the North American Free Trade Agreement in 1994. Congress denied President Clinton fast-track Authority in 1998, but granted it to President George W. Bush from 2002 to 2007. Despite the expiration of fast-track trade authority just prior to Obama’s first term, he was also able to utilize it in trade agreements with Colombia, South Korea, and Panama because those deals had been penned by the previous administration prior to the authority’s expiration.

Currently, fast-track is regularly mentioned alongside the TPP, as if the Bipartisan Congressional Trade Priorities Act of 2014 would apply only to that particular treaty. In fact, the Act authorizes fast-track for four years with a potential three-year extension for the next presidential administration. According to the official website for the United State Trade Representative, the TPP is not the only trade agreement in the works. U.S. representatives are working on a similar agreement with Europe, the Transatlantic Trade and Investment Partnership (TTIP). If granted, fast-track would be applicable to this and other forthcoming trade agreements.

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Bloggers Receive Same Constitutional Protection as Traditional Press in Defamation Claims, Rules 9th Circuit Court of Appeals

By on January 18, 2014 in Journalism

KeyboardThe 9th Circuit Court of Appeals ruled Friday that bloggers receive the same First Amendment protection as traditional members of the press when facing defamation charges. Writing the majority opinion, Judge Andrew Hurwitz held that, “[t]he protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities . . . [because] in defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.”

The plaintiffs, Obsidian Finance Group and its co-founder Kevin Padrick, sued blogger Crystal Cox for defamation after Cox wrote about the plaintiffs’ allegedly fraudulent conduct on her blog. Cox’s blog states that she is dedicated to, “Exposing Obsidian Finance Group and Kevin D. Padrick for Abuse of his Power as Trustee in the Summit Accomodators.” The defamation claim cites a number of Cox’s blog posts regarding the plaintiffs’ alleged bankruptcy code violations. Cox’s blog claims the plaintiffs were involved with corruption, deceit on the government, and money laundering, among other claims.

The court, citing Gertz v. Welch, held that the plaintiffs had the burden of proving negligence for their defamation claim despite the fact that Cox is not an institutional media defendant. Judge Hurwitz distinguished between matters of private and public concern, holding that Cox’s allegations are a matter of public concern as the post concerned alleged fraud upon Obsidian’s investors and the blog post was published to “the public at large.”

The case was on appeal from a December 2013 judgment ruling for the plaintiff in which Cox was ordered to pay $2.5 million for damages sustained by the plaintiff.

Samantha Scheller is a 2L at the UNC School of Law.

(Photo courtesy of Flickr user orangeacid, licensed under a CC BY-SA 2.0 license.)

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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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Appeals court (mostly) strikes down net neutrality rules

By on January 14, 2014 in FCC, Internet

The D.C. Circuit today held that the Federal Communications Commission’s network neutrality nondiscrimination rules were invalid because the FCC lacked the authority to regulate how Internet providers treat content. The “Open Internet” rules, passed in 2010, required ISPs to treat all Internet content equally. Under the rules, a provider such as Verizon could not block or slow down certain Internet content or allow companies to pay for their content to be delivered faster. The Court said that the FCC can only impose such regulations on common carriers, such as telephone companies, and that ISPs are not common carriers. Read the opinion here.

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