WHO'S PROTECTING WHOM? AN ANALYSIS OF THE NEWEST FEDERAL AVIATION ADMINISTRATION'S UNMANNED AERIAL VEHICLE REGULATIONS AND RESTRICTIONS AND THEIR HINDRANCE TO TECHNOLOGICAL ADVANCEMENT.

• Author: Conn, Alexandra

1. Introduction

   The first Unmanned Aerial Vehicles ("UAVs") that existed were bulky and loud with little known uses outside of militant ones. (1) While the military mostly used UAVS as aerial missiles, they soon grew in popularity amongst the few hobbyists who could afford them. (2) Initial uses of UAVS ranging from surveillance purposes to reconnaissance missions prevented widespread public acceptance and absorption in this automotive technology. (3) Until recent years, the technology for automated flights was only used in large aircrafts and difficult to mass-produce. (4)

   The more notorious name for a UAV is a drone, which are now as common as snow in Alaska. (5) The term "drone" originated from a comparison of the aircrafts to worker bees in 1935, but today is generally interchangeable with the term UAV. (6) Most people are surprised by the historical timeline of UAVs, which dates as far back as the early 1800s when drones were first used by military leaders seeking to spy on or attack enemies from a distance. (7) Drone technology made a significant advancement in 1982 when Israeliforces used them in battle with the Syrian Air Force and incited an international interest in drones. (8)

   As awareness in drones grows and technology advances, use amongst consumers continues to develop beyond militant weaponry. (9) Drones are now used by many entities for a multitude of reasons, including bolstering recreational use amongst hobbyists and commercial use by companies and government agencies, such as the National Aeronautics and Space Administration ("NASA") and the National Oceanic and Atmospheric Administration ("NOAA"). (10) There are seemingly endless possibilities and opportunities that arise from drone technology. (11) Companies, such as Amazon, are advertising a service called "Prime Air" in which drones can carry deliveries to customers in thirty minutes or less. (12) To further finding new commercial drone uses, a formal organization was established in 2011 called the Professional Society of Drone Journalists. (13) The focus of the society is "developing small drones and exploring best practices for their use in investigative, weather, sports, and other types of reporting." (14)

   Akin to most technological advancements, the mass production of drone technology brought about negative and positive uses of different varieties. (15) An instance of misappropriation of the drone technology is its use in smuggling drugs over international borders and aid in the overall transportation of such illegal drugs. (16) Nevertheless, one of the more promising uses for drones is the potential for their increased role in emergency situations. (17) As of May 13th, 2018, at least sixty-five people had been saved by drones and another nineteen people were found or helped by drones in situations that posed great risk to their health and safety. (18) Search and rescue missions, disaster relief efforts, medical aid, and countless other emergency situations are areas that drone technology can and should continue to be used for public aid. (19)

   The developments in commercial drone technology and application spark trepidation by some who believe there will be greater harm than good. (20) irresponsible drone users are to blame for this apprehension because they have exploited drone technology in harmful ways leading to mistrust in allowing drone usage to continually expand. (21) By allowing commercial drones the opportunity to "fly freely," people's privacy, security and potentially lives are put at risk. (22) Accordingly, the biggest challenge in setting limitations on drone operations is deciding who should be in charge of setting forth standard regulations and restrictions involving drone usage to ensure protection of people's interests. (23) The question is whether regulations should be decided by state legislation, federal legislation, or if it is under the Federal Aviation Administration's ("FAA") jurisdiction. (24)

   This Note analyzes the limitations on commercial drone use and specifically how regulations deter drone technology from being a valuable contribution to society. Part II provides a brief history of UAV, specifically the legal issues surrounding the regulation of drone operations by the FAA. Part III examines the regulation of commercial drones and how they relate to drone technological and operational advancements. Part IV analyzes the inherent uses of drone technology in all facets of the commercial industry, identifying specific inadequacies in the current regulations and how they pose a hindrance to developing commercial drone application. This Note aims to show regulating commercial drones is a necessity for privacy and safety purposes, but the practices in place are not an ideal model for promoting future drone technology and innovation. Improvements to the current regulations, to protect both society and technological advancement of drones are discussed in Part V.

2. History of UAVs

   Drone usage was originally utilized by the military, and through the years has transgressed to usage by governmental agencies, corporations, and private individuals for recreational purposes. (25) Starting in 2006, the FAA began to grant commercial drone permits and essentially initiated the flourishment in non-militant drone usage. (26) The rapid increase in the number of commercial drone permits granted by the FAA was substantial and showed no sign of slowing down. (27) However, the influx of commercial drone permits brings with it a growing number of concerns for citizens, such as fears over aerial trespassing and the challenge of how to protect privacy rights. (28)

   1. Boggs v. Merideth

      The latest dignitary legal issue to arise from increased drone usage occurred on July 26, 2015 in the case of Boggs v. Merideth. (29) Defendant Merideth used a shotgun to shoot down the drone Plaintiff Boggs was flying over Merideth's backyard. (30) Boggs made a trespass to chattels claim under Kentucky state law and asserted that Merideth did not own the airspace above his property because unmanned aircrafts are governed by federal law, so Boggs was operating in "navigable airspace" and Merideth, therefore had no right to shoot his drone down. (31)

      Boggs makes several arguments as to why the alleged federal question is substantial, including that a resolution of the issue will have an impact on federal aviation law, the FAA'S ability to regulate air safety and navigation, and the developing body of law regarding the impact of unmanned aircrafts on privacy and property interests. (32) The Court dismissed the case for lack of subject matter jurisdiction and avowed that the FAA does have an interest in enforcing regulations to govern the federal airspace, but they have a very limited interest in applying them to Boggs's state law tort claim for trespass to chattels. (33)

      Prior to Boggs v. Merideth, the authoritative case discussing the regulation of UAV operations was decided in 1946 in United States v. Causby (34), indicating the deficiency of legislative precedent on this matter. (35) The respondents in Causby owned 2.8 acres of property near an airport in Greensboro, North Carolina used mainly to operate a chicken farm business. (36) The respondents argued that they were forced to shut down their chicken business because the various aircraft operators caused such a disruption to their farm that as many as six to ten chickens were killed in a day, and 150 chickens overall died from being so startled by the aircraft noise. (37) The dialogue on the outcome paled in comparison to the importance of what the case represented overall. (38) Causby was the first case to address the probable influx of legal issues that were likely to arise following the insurgence of commercial drone. (39)

   2. Small Unmanned Aircraft Regulations

      As a response to Boggs v. Merideth, many citizens postulated concerns over how privacy and property rights would be protected. (40) The FAA appeared to acknowledge these concerns in 2016 when a new set of rules for small-drones, Part 107-Small Unmanned Aircraft Systems ("Part 107") was passed. (41) As a response, regarded Part 107 as established guidelines meant to protect individuals' right to privacy and other interests. (42) instead of minimizing concerns however, the rules opened the floodgates for every individual seeking commercial drone permits. (43) People who regularly fly drones, like commercial users and hobbyists, gave a lot of praise to the FAA for these new rules as they allowed easier access to permits. (44)

      Prior to the passing of the new regulations, there were only three options given to those who sought to operate a commercial drone. (45) To pilot a commercial drone, an individual was required to:

      (1) apply for and obtain an exemption from the supervision and registration requirements of the Federal Aviation Act...;

      (2) obtain an airworthiness certificate and operate the aircraft by a pilot pursuant to an operating certificate; or

      (3) obtain a Certificate of Waiver or Authorization from the FAA and operate the UASs [Unmanned Aircraft System] pursuant to the terms of such Certificate of Waiver of Authorization. (46)

      The steps set forth above for operating commercial drones either stalled or precluded several users because they could not meet the standards. (47) After the new rules went into effect on August 29th, 2016, commercial entities were able to operate a drone without having to individually petition for an exemption. (48) So long as commercial drone users met the requirements set forth in the new rule, they were allowed to legally operate in the National Airspace System without a waiver. (49)

      Even though the new rule allowed for easier access to operating permits, they still did not include explicit restrictions and regulations regarding operating drones by commercial entities. (50) As a response, drone users stipulated the rules did not adequately set forth basic and necessary regulations or...