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Tuesday, March 10, 2015

Fear of Unmanned Aerial Systems

Mark Colborn

Many in our industry fear unmanned aerial systems (UAS) will replace regular helicopter operations—a valid concern. Qualified pilots will always shuttle passengers from point to point, and fly to the middle of nowhere in the dead of night to pick up an accident victim. I do not believe the general public will ever accept pilotless aircraft for regular passenger flights, even though many new aircraft can fly themselves, and some practically do.

But in areas such as aerial observation, filming, resupply, survey and aerial application, UAS could augment or replace manned helicopters and perhaps do the job cheaper. Japan’s farmers use drones for observing crops and applying pesticides. Film industry drones take spectacular aerial footage hard to match with manned helicopters at the same altitudes.

Small law enforcement (LE) agencies unable to afford an aviation program could certainly benefit from UAS. Within the next decade, many police departments, independent of size, may have a dedicated UAS unit. Patrol officers could deploy a hexacopter from the trunk of their cruiser for many operations including roof checks and tactical surveillance. The University of North Dakota and Grand Forks Sheriff’s Department are testing drones equipped with daylight cameras and thermal imagers, and have already used them to locate several fleeing suspects. Look to see this enter the mainstream as the technology becomes more advanced and dependable.

The wildcard in this plan is public acceptance. Even though most police departments with aviation units currently employ gyro-stabilized camera units that can read a license plate from 2000 ft. or higher, mention the word “drone” and it elicits fears that the police will use them to look into bedroom windows. LE agencies like Arlington PD (Texas) and the Mesa County Sheriff’s Department (Colorado), which are pioneering this technology, have performed a great deal of community outreach to gain acceptance for their machines. That kind of outreach is vital to any future LE UAS program.

The press continues to speculate about how these devices will erode our privacy rights. These issues, at least on the LE side, have already been addressed several times by the U.S. Supreme Court. Courts use the premise of reasonableness when determining if a search and seizure violates the Constitution. In other words, a person has to have a “reasonable expectation” that their activities will remain private. If those activities occur in a residence, generally the courts deem those privacy expectations reasonable. If a person is engaged in criminal activity in a public place, they generally have no reasonable expectation of privacy.

In aerial search and seizure cases, 400 ft. AGL becomes an important distinction. 400 ft. AGL is where courts have deemed “navigable airspace” or the National Airspace System (NAS) begins. The Supreme Court has ruled time and again in trespass and 4th Amendment search and seizure cases that the airspace below 400 ft. AGL is not “navigable airspace.” Most trial courts consider manned observation flights at such low altitudes rare and unsafe except in the vicinity of an airport. Observations at these altitudes could be considered unreasonable, thus requiring a search warrant. Also, the Supreme Court in Florida v. Riley used 400 ft. AGL as a guide because it is reasonable and considered safe; that altitude represents the upper curve of most helicopter flight velocity engine-out diagrams.

Although courts formulated the 400 ft. AGL rule to define the limits of privacy in criminal manners, a gray area remains on just how much private citizens can spy on each other using these devices. Several municipalities and at least 15 states have already banned or limited the use of UAS. Protecting the privacy rights of citizens is outside the purview of the FAA. So, the unenviable job of drafting new national drone privacy laws, according to the on-line news service POLITICO, will be tasked to the National Telecommunications and Information Administration. This is the same agency, under the Department of Commerce, principally responsible for advising the President on telecommunications and information policy issues. It will be interesting to see what they come up with.

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