Drones, also known as unmanned aircraft systems (UAS) or unmanned aerial vehicles (UAV), have received extensive media coverage over the past few years. Whether the discussions about drones are related to the unmanned aircraft used in military operations or the small quadcopters used by individual enthusiasts, it is evident that drone use is on the rise. As with all new products, drones bring with them a host of legal issues manufacturers and operators need to take into account. Though the relevant fields of law are slow to catch up to the technological advancements, manufacturers and operators may still be hit with product liability, aviation and privacy law claims. Covered here is what we all need to know about the legal issues, with a focus on small UAS (sUAS), drones that weigh less than 55 pounds.

The Versatility of Drones in Commercial Sectors

An increasing number of commercial sectors are beginning to understand and take advantage of the versatility a drone can provide. Law enforcement agencies have shown strong interest in using drones for surveillance and public safety while other government agencies have found a use for drones in fighting fires, search-and-rescue missions, or catastrophic events.

Construction companies have already begun using drones for mapping sites and monitoring progress, and mining companies have used drones to map the insides of mining tunnels. An American electronic commerce company has an ambitious plan to use drones for shipping, while a logistics company in Germany has already begun trial runs with its delivery drone nicknamed “parcelcopter.” Media companies have also begun testing drones for filming reports and news coverage. The potential commercial applications seem endless as more and more companies find ways to incorporate drones into their businesses due to, among other benefits, the significant savings they can provide to operations.

Laws and Regulations Governing Drones

Due to the existing limited and restrictive legislation, companies have been finding loopholes that enable them to use drones in their businesses or simply ignoring the laws due to the current lack of significant repercussions. The Federal Aviation Administration (FAA) is working toward integrating UAS into its legislative framework and has recently released a Notice of Proposed Rulemaking, as required under the 2012 FAA Modernization and Reform Act, for small UAS conducting non-recreational operations. The proposed rules are currently in the process of a 60-day “notice and comment” period open to all members of the public, after which they will be considered by the FAA before becoming binding law.

While FAA airworthiness certification is not required, the proposed rules for sUAS operations include provisions such as:

  • Unmanned aircraft must weigh less than 55 lbs. (25 kg).
  • Unmanned aircraft must remain within visual line of sight (VLOS) of the operator or visual observer.
  • Maximum altitude is 500 feet above ground level.
  • Preflight inspection by the operator is required.
  • Operators are required to obtain an unmanned aircraft operator certificate with a sUAS rating from the FAA.

Certain corporations such as Skyward exist to provide support to drone manufacturers and help ensure compliance and insured commercial drone operations. Another option for drone manufacturers is to submit a request to the FAA for an exemption from section 333 of the FAA Modernization and Reform Act and a civil Certificate of Waiver or Authorization, which allows for commercial drone operations in low-risk, controlled environments.

Potential Products Liability Exposures

On the other hand, drone manufacturers and operators also need to be cognizant of potential product liability issues that may rise from the operation of drones. A quick search on YouTube will yield plenty of videos showcasing various drone accidents, many of which could lead to personal injury or property damage claims. When presented with such damages, plaintiffs may be eager to file strict product liability suits by citing “failure to warn” claims or claiming manufacturing or design defects. Manufacturers should take into account the evolving legal framework surrounding the use of drones and meet, at the very least, certain minimum safety requirements in this regard and, ideally, be in a position to show that their product goes above and beyond the minimum.

With regard to failure to warn issues, manufacturers need to make sure the drone comes equipped with adequate and appropriate warnings both on the drone and in the accompanying operator manual, specifically warning, for example, against use in close proximity to persons or in rough weather conditions. To mitigate risk in terms of manufacturing and/or design defects, manufacturers should keep up to date on the latest safety designs and manufacturing standards, which, if not incorporated in their product, may be used against them in a potential products liability lawsuit.

By way of example, certain drone manufacturers have begun incorporating autonomous anti-collision systems in their drones that activate in “lost-link” situations, i.e., where the connection between the operator and the drone is severed. Such anti-collision systems could avoid scenarios in which the drone spirals out of control and potentially injures a person or property. Other manufacturers have incorporated no-fly zones into their drones that would force the drone to land when flying close to or over certain restricted areas, such as airports or government buildings.

Other issues to take into account involve the user interface needed to operate the drone; these need to be effective and easy to use to reduce the possibility of claiming defective design of the control systems. Plaintiffs may also claim breaches of the implied warranty of merchantability or fitness for purpose in their lawsuits.

Privacy Implications and the Need to Protect against Cyber Attacks

Finally, various other legal issues must be considered when operating drones. For example, most drones are equipped with audio and video functionality, a key to their usefulness in everyday commercial and private use. If these drones are equipped with wireless functionality, the manufacturer would need to ensure a secure transmission and privacy of this data, which must be reflected in an appropriate manner, such as a terms of service or terms of use form. Additionally, data retention policies and protection against cyber attacks would need to be considered.

Takeaway

As the popularity and availability of drones for commercial and personal use continues to increase and the law struggles to adequately and promptly regulate their use, drone manufacturers and operators need to be cognizant of the constantly evolving legal framework and strive toward mitigating risk and liability in the face of potential lawsuits.