Drones

This article will address some of the emerging issues in the private and commercial operation of Unmanned Air Vehicles (UAVs) or Unmanned Aircraft Systems (UAS’s) – often referred to as “drones” – for a variety of private and commercial uses.

“Drones” refers to a number of different UAVs and UASs that vary in size, shape, form, speed, and a whole host of other attributes. There are drones that are jet powered all the way to drones that are solar powered, which are very large but extremely light and can fly for months and years at a time at extremely high altitudes. There are drones that can literally fit into the trunk of a car or into a backpack or even the palm of a hand. Some of these drones can weigh 10 pounds, 5 pounds, less than 1 pound, or even a few ounces. There are also drones that are basically like balloons that sit up in the sky in one place and can observe enormous swaths of territory for long periods of time.

Current and future uses of drones in private and commercial operations:

a)        Law enforcement monitoring for criminal activity from traffic patterns, border protection, to thermal imaging of activity of homes

b)        Government departments monitoring activity – Environmental agencies flying over industrial areas, farms

c)         Street mapping

d)        Journalistic purposes

e)        Shooting movies and sporting events

f)         Paparazzi drones

g)        Real estate firms’ use to photograph properties

h)        Inspection of oil fields and pipelines

i)          Farming, including crop dusting

k)         Mineral exploration

l)          Search and Rescue

m)       Accident reconstructions

n)        Crime scene surveys

o)        Use by insurers to assess damage claims following natural disasters (such as hurricanes)

p)        Delivery systems – Amazon announced a pilot project to review the feasibility

The main issues arising from the use of drones in private and commercial operations:

a)        Privacy

b)        Safety

Drones have become increasingly powerful with the ability to provide sharper video images at greater distances and with infrared and thermal imaging and listening capability. The combination of drone technology and facial recognition programs means that drones could be used to continuously track individuals when “in public” and when “in private”.

There are unique challenges that drones present, which governments must address in drafting proposals:

1.        Sense and Avoid Capability: What requirements should be imposed to ensure that the system can sense and avoid other aircraft?

2.        Interruption in Connection: Minimum performance requirements must be set to ensure communication and control with the system.

3.        Visual Flight Rules: Should the system be restricted to VFR airspace?

4.        Certification: What certification should be required for the operator?

5.        Airworthiness: Should systems require airworthiness standards?

6.        Interaction with Air Traffic Control?

7.        Privacy concerns

8.        Insurance: Should operators be required to carry liability insurance? Companies and individuals use of drones may not be adequately insured for liabilities arising out of their use. Many policies contain “aircraft” exclusions and other language that can impair coverage.

1.2      Drone Regulation Canada

1.2.1  Safety

Transport Canada is responsible for regulating the use of all aircraft, manned and unmanned. The Canadian Aviation Regulations, authorized under the Aeronautics Act, (the “Regulations”) defines a UAV as a “power driven aircraft, other than a model aircraft, that is operated without a flight crew member on board.”

The Regulations state that no person shall operate an unmanned air vehicle in flight except in accordance with a Special Flight Operation Certificate (“SFOC”). If you are using a UAV recreationally however, and the UAV weighs less than 35 kilograms, no SFOC is needed. However, compliance with the federal and provincial legislation including the Criminal Code and other laws including municipal by-laws is required.

There are two SFOC application processes available for commercial use of a UAV: one is the full SFOC application and the other is a simplified version. The simplified application is available to those who wish to fly UAVs that are remote-controlled with a maximum takeoff weight that is under 35 Kg and operated within visual range below 400 ft. above ground.

Initially, the SFOC is required for each flight of a UAV. Once an applicant has demonstrated that the operations can be conducted in a safe manner, Transport Canada may grant long-term approvals. In addition, Transport Canada may expedite SFOC applications after the initial application has been successful, especially if the missions are essentially the same. For example, if the UAV system and the pilot or operator are the same, Transport Canada will assess only the suitability of the area used for the operation.

SFOC applicants must provide details regarding the type and purpose of the operation, description of the aircraft, dates and times of the proposed flight, security plans and emergency contingency plans, and a detailed plan describing how the operation will be carried out including the altitude and routes, the location of any obstacles, and the exact boundaries of the area for the operation.

The primary concern of Transport Canada is safety, so the applicant should strive to provide a comprehensive application appropriate to the scope of the operation and the complexity of the UAV system. Generally, Transport Canada requires that UAVs operating in Canada meet levels of safety that are equivalent to manned aircraft.

An application must be received by the appropriate Transport Canada regional office at least 20 working days prior to the date of the proposed operation or by a date mutually agreed upon by the applicant and Transport Canada.

Once a SFOC is issued, the certificate holder must, among other things, carry adequate liability insurance, report any incidents involving injuries or violations and continue to comply with the Canadian Aviation Regulations.

Recently, the Honourable Lisa Raitt, Minister of Transport, launched the Government of Canada’s safety awareness campaign for UAVs. The goal of the campaign is to help ensure that recreational and commercial users of UAVs understand their responsibilities and how to comply with Canada’s safety laws. On November 5, 2014 Transport Canada introduced two exemptions to simplify small UAV operations. The new exemptions permit the use of UAVs without a Special Flight Operation Certificate (“SFOC”) if the UAV is under 2 kilograms and certain operations involving UAVs under 25 kilograms. These exemptions apply to both commercial and recreational UAV use.

1.2.2  Privacy

Canadian Judicial Commentary on Privacy

In R. v. Dyment, [1988] 2 S.C.R. 417 at p. 427, Justice La Forest characterized the s. 8 protection of privacy as “[g]rounded in a man’s physical and moral autonomy.” Privacy, His Honour added, “is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order.”

In R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 113, Justice L’Heureux-Dubé identified privacy as “an essential component of what it means to be ‘free’.”

In 2012, in Jones v. Tsige, [2012] ONCA 32, the Ontario Court of Appeal drew on the Supreme Court’s Charter jurisprudence in reaching its conclusion that privacy “has been recognized as a right that is integral to our social and political order,” indeed as “worthy of constitutional protection and integral to an individual’s relationship with the rest of society and the state.”

The collection of personal information by a UAV operator in the course of commercial activity is likely to be regulated under the Personal Information Protection and Electronic Documents Act (PIPEDA). In this context, “the organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.” [s. 5(3) Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5)] The use of model aircraft for recreational purposes does not require a special flight operation certificate. In terms of privacy issues, violations of privacy between individuals are likely to be addressed in Ontario on an ad hoc basis by the courts, perhaps under the new tort of intrusion on seclusion. There is no statutory tort of invasion of privacy in Ontario, however, although a common law tort of intrusion upon seclusion has been recognized as a cause of action by the Ontario Court of Appeal. See Jones v. Tsige, 2012 ONCA 32.

1.3      Drone Regulation USA

The Federal Aviation Administration (FAA) regulates the use of UAVs as a result of the National Transportation Safety Board's (NTSB) decision in Huerta v. Pirker. In 2013, a $10,000 civil penalty was assessed on the unlicensed operator of a small drone used to take photographs of the University of Virginia. The drone was used for compensation for the operator. The FAA fined the pilot for operating "an aircraft in a careless or reckless manner so as to endanger the life or property of another" under 14 C.F.R. § 91.13. The NTSB noted that the FAA had specifically excluded some aircraft – such as balloons, kites, rockets, and moored balloons – but not UAVs from § 91.13. Therefore the drone was an “aircraft” for the purposes of the regulating legislation.

The Federal Aviation Administration Modernization and Reform Act of 2012 ("Reform Act") was the U.S.A.’s reaction to the anticipated proliferation of unmanned aircraft. The goal of the Reform Act was to develop a comprehensive regulatory scheme to integrate commercial unmanned aircraft systems into the National Airspace System. The FAA was tasked with designing a system for granting Special Airworthiness Certification. The approval process was contain provisions that would require applicants to use certain UAV designs and safety equipment, demonstrate training and qualifications for UAV pilots, and comply with standards for commercial operation of UAVs.

Even without the regulatory scheme in place, the FAA has initiated enforcement proceedings for unauthorized use of UAVs. It has issued cease and desist letters to unauthorized UAV operators. The FAA generally permits recreational use (with certain limitations) while forbidding commercial use. So a hobbyist might be permitted to fly a UAV over his property for the fun of; however, the use of the same UAV over the same property to make a commercial video would be prohibited.

Recently, the FAA has implemented an interim policy that allows commercial operators to apply for an exemption pursuant to Section 333 of the Reform Act. In making this determination, the FAA must assess whether the UAV will endanger the public or threaten national security. This requires the FAA to evaluate (1) the UAV's size, weight, speed, and operational capability; (2) whether the UAV will be operated in close proximity to airports and populated areas; and (3) whether the UAV will be operated within visual line of sight of the operator. See Section 333(a)(1). If it concludes that the UAV poses no hazard, the FAA can issue an exemption permitting specified commercial use without an airworthiness certificate.

The FAA granted the first exemptions in September 2014 to six aerial photo and video production companies associated with the Motion Picture Association of America. The companies promised that the UAV operators would hold private pilot certificates, keep the UAV within line of sight, and restrict flights to the "sterile area" on the film production set. The FAA additionally required the applicants to inspect the UAV before each flight and prohibited night operations.

The process under a section 333 application can take months. It requires a detailed petition where the petitioner must describe the nature of exemption sought, explain why granting the exemption would be in the public interest, and supply a summary that the FAA will publish in the Federal Register. The FAA then allows public comment on the petition.

Use of private UAV must also comply with all applicable state laws and regulations. For example, in 2013, Texas enacted a law setting parameters on the use of UAV for the purpose of taking pictures of persons or property. The statute makes use of UAV for purposes of capturing images permissible for a number of applications including taking pictures of public property and persons on such property and use by a number of specified industries including electric and gas utilities, licensed realtors, pipeline operators and port authorities.

The regime in Canada is much more liberal in the use of drones. Many companies are becoming aware of this and coming to Canada to test their systems.