The Unknown Group That Might Kill Unmanned Aircraft
March 16, 2018
A group you’ve probably never heard of is drafting a model state law that could have disastrous implications for the unmanned aircraft industry. The Uniform Law Commission (ULC)—a national organization that develops model state laws—has established a committee to draft a statute on tort law related to unmanned aircraft. The committee is comprised of academics, state legislators, judges, and senior practitioners. Although the committee members have significant expertise in their fields, few have ever seen (let alone operated) an unmanned aircraft. Once finished, the group will present a model statute for states to enact. The group considered the first draft of that statute at its March meeting in Chicago. If adopted in its current form, that draft could have devastating consequences for the development of commercial unmanned aviation.
First, the current draft creates a new tort for trespass using an unmanned aircraft. This proposed cause of action would be substantially more restrictive than existing aerial trespass torts, which typically require a showing of substantial interference with quiet enjoyment of property. In contrast, the committee’s proposed unmanned aircraft trespass tort would allow a property owner to sue any time an unmanned aircraft enters the “immediate reaches” of the property, regardless of duration.
“Immediate reaches” is not a term that has traditionally been defined in the case law, and there is some dispute about whether this concept has any meaning in light of the federal sovereignty over the navigable airspace. It is far from clear, under existing laws, that property owners have any right to exclude aircraft, regardless of the altitude at which they are flying—and there has never been any case law setting an arbitrary altitude at which property owners can keep aircraft out. Nevertheless, the committee decided to set a bright line of 200 feet, meaning that any flights below that altitude would be actionable if the property owner did not first grant permission.
The problems with this approach are manifest. Establishing a hard limit below which aircraft may not fly without permission treads directly into federal control of the airspace; the FAA has never indicated that such a limit is consistent with federal law, and indeed in litigation has taken the opposite position, stating that its authority over the airspace extends all the way to the ground. It will also create a maze that operators will have to navigate to avoid committing a trespass as they fly their unmanned aircraft, hindering effective operations. Further, because the FAA has restricted small UAS operations to below 400 feet, the 200-foot limit chosen by the committee effectively cuts available airspace in half. This poses significant problems for commercial operators. Many of their operations require using the airspace 200 feet above ground, so restricting access to this airspace will severely limit (or in fact end) those operations. Although some states that have enacted unmanned aircraft statutes with similar height restrictions, they typically include an exception for commercial operations. The committee did not include such an exception in this draft.
Moreover, the 200-foot limit adopted by the committee was not based on any particular study, evidence, or data. Instead, the committee cited a series of unrelated, tangential authorities, such as the Federal Aviation Administration’s tower marking rules, unofficial White House statements, and two proposed Congressional bills, to justify their decision.
The committee also proposed creating new torts that are less severe, but troubling nonetheless. They added a tort called “tortious acquisition of information using an unmanned aircraft,” which is essentially an invasion of privacy tort. This tort creates an action where a person: (i) operates an unmanned aircraft in order to intentionally acquire a person’s information (such as images or sounds of another person) where doing so violates a person’s reasonable expectation of privacy from aerial surveillance and is highly offensive to a reasonable person, or (ii) commits a trespass using an unmanned aircraft and attempts to acquire a person’s information that violates a person’s reasonable expectation of privacy from aerial surveillance, and is offensive to a reasonable person. The committee is concerned that existing privacy laws—with their requirements that intrusions be “highly offensive” to a reasonable person—will not encompass some nefarious uses of unmanned aircraft by bad actors. Given the amount of information collected during unmanned aircraft operations, such as images of the flight path and surrounding area, this new tort could potentially make a person liable for basic aspects of unmanned aircraft operations. At the request of industry, the committee added an exclusion requiring an intent related to collection of information, as well as an exception for information acquired solely for navigational purposes. They also added a defense for information inadvertently acquired, deleted, and undisclosed.
The committee is still early in the drafting process and these provisions will likely change as the draft is revised. The committee will meet again in April to discuss a new version of the draft. From there, it will present its work to the full ULC for feedback and continue to revise the document. A final vote on the draft is not expected until the Summer of 2019. Feedback from industry throughout this process is essential to ensure that the proposal that emerges does minimal harm to unmanned aircraft operations.