Legal experts: Privacy still a big issue in UAS industry

By Ann Bailey | September 22, 2015

Safety is a critical unmanned aerial systems industry issue, but privacy also is a major concern, especially for residents of small communities across the United States, a UAS legal expert told industry leaders Tuesday at the UAS Summit and Expo in Grand Forks, N.D.

When they see a UAS, what comes to many Americans’ minds, is a Predator or Reaper flying over their heads, Lisa Ellman, a partner in and co-chair of the Washington D.C.-based Hogan Lovells UAS Group. Television series such as “Modern Family” and “South Park” re-enforce that perception by showing episodes of drones spying on people swimming or engaging in other private activities, Ellman said.

The skepticism about UAS use comes at the same time Americans are concerned about privacy issues in general, Ellman said. But privacy issues have been a concern throughout history, she noted.

For instance, when cameras first were introduced, people were worried that photographs would be taken without their consent, then when the U.S. Postal Service started delivering mail, citizens were concerned that their letters might be read by someone else. More recently, when computers became commonplace, people wondered if they would gather their personal information.

“It’s really not surprising people worry about this,” Ellman said.  And privacy concerns are not limited to individuals, she said. Companies, for example, worry that drones will spy on their property to obtain trade secrets.

Because of the number of Americans concerned that UAS will invade their privacy, there has been legislation introduced in many states across the country, she said. One way the UAS industry can  address those concerns, is to obey the privacy laws, and thus gain the trust of the public.

Individuals and companies in the UAS industry also should talk to their state legislators, she said.  The reality is that UAS need somewhere to fly, but the industry needs help so legislation similar to what was introduced in California won’t be the death of it, Ellman said.

SB-142, a bill passed by the California state senate last month would prohibit UAS to fly within airspace up to 350 feet above private property unless the property owners gave their “express permission” for the drone to be there.

But because not just California, but many states have enacted UAS legislation, no matter in which state UAS operators are flying, they should be aware of state laws, said Ellman.

Not only states, but also some local communities have enacted UAS legislation. said Donald Chance Mark Jr., founder of Fafinski, Mark and Anderson.

To protect themselves from being the target of potential legal action, UAS companies should consider insurance, Chance said, noting that most major insurance carriers have UAS insurance policies available. Prospective policy holders should read and understand what is covered or not covered before they take out policies, Mark said.

The FAA does not have the resources to monitor a large amount UAS flights, he said. He believes, though, the agency is feeling pressure to highlight a high-profile case which will teach a lesson to UAS operators.

The FAA takes a risk-based approach, so going forward, UAS operators should think about what risks their UASs pose and then address them, said Courtney Bateman, an attorney with Reed Smith LLP.

If the FAA does make a phone call to a company or individual about an investigation concerning their UAS use, rather than responding to the FAA, and possibly unwittingly incriminating themselves, they should thank the agency and then hang up and call an attorney, Bateman said.