If you’re of a certain age, you will recall the Jetsons, as in the space-age cartoon characters who’d do such things as leave their pod for work or play by means of an airborne vehicle they flew themselves. As George would leave in the morning, the skies were full of other commuters, each coasting through the skies. “How do they avoid colliding with one another?” I wondered. All these things flying every which way. Surely there would be accidents.
We regulate commercial air transportation in the United States through the activities of the Federal Aviation Administration. But what of vehicles that are not involved in transportation, vehicles such as remote-controlled model aircraft, or, as they are popularly known, drones? Who regulates their use?
I filed a lawsuit this week on behalf of a Hartford resident, Pedro Rivera, who flew a private device equipped with a video camera near an accident scene. Hartford police officers didn’t like it. They stopped Rivera, surrounded him, demanded his identification, and sent him on his way. One of the officers then complained to his employer, WFSB, about Rivera’s use of the device. The officers raised concerns that Rivera might have compromised the police investigation of the accident, or showed insensitivity to the accident victim.
What the officers did not do was arrest Rivera, because, in fact, he had broken no law. He was standing in a public place, operating a device he was free to use in space that is open to the public. His aircraft flew 100 feet of so above the accident scene, and interfered with no police activity.
Rivera works, or, I should say, worked, as a journalist for WFSB. The station suspended him briefly, and then issued a statement saying he never worked there at all. At the time he filmed the officers at the scene, he was not on duty, but was on his own time, filming images he might, or might not, later give to his employer.
None of this is against any law. It might have made the police uncomfortable, but that is not a crime. What is prohibited is actual interference with police duties.
Oddly, not long ago, a drone-user actually came to the assistance of Branford firefighters as they evaluated a fire scene at which there were suspected hazards. No cop came to arrest. Indeed, the fire chief seemed grateful for the help.
No law on the books in Connecticut criminalizes the use of drones. Nor does any federal law. The FAA takes the position that a regulation written in broad terms and historically applied to commercial transportation is now applicable to drones equipped with cameras. The agency seems intent of contending that it has the power to regulate what is essentially trafficking in images, a form of communication, or speech. No case decided by any court in the United States supports the FAA’s over-reaching.
A Connecticut drone-user recently sent a letter to the FAA, offering to sell it an image captured by his drone. If the FAA is consistent in the application of its regulations, it will issue him a cease-and-desist letter, in effect, an order telling him to stop what he is doing or be subject to regulatory wrath.
But what if the FAA is, in fact, toothless? What if the FAA’s attempt to regulate commercial use of drones is an over-reach? And what if, as in the Rivera case, the FAA has no power to regulate private use of the vehicles?
That’s not to say there shouldn’t be regulations. Drones are easily available on the open market. You can purchase the very model Rivera used in Hartford on Amazon.com for $1,299. Just two months ago, the same unit sold for about $1,600. These are premium models. Anyone can take to the skies for a couple of hundred dollars. Take it out of the box, read the instruction manual, and operate your very own eye in the sky.
I am reminded of the great explosion in personal injury law and cases once automobiles became common early in the twentieth century. As ordinary Americans acquired the means to engage in motorized traffic across the face of the land, old laws needed to be applied to new purposes. Negligence, a violation of the duty of ordinary care, took on a whole new face. The ease with which we can now all move in space by means of a drone poses similar challenges.
Consider the possibilities:
Are tickets sold out at a sporting event? Fly your drone over the field for a view. How many devices will be in the air before there is a collision? Who, then, is at fault? Who has a right-of-way in the sky? There will be no air-traffic controllers, no flight plants, for drones. There will simply be too many of them.
Or consider aggrieved lovers. Will we spy on one another through the use of airborne devices? Perhaps we all ought now to draw blinds, even those who live on the 10th floor of an apartment building, to keep our neighbor’s prying electronic-eye from sneaking a peak into our bedroom window?
And these are relatively benign sources of potential conflict: It would seem an easy enough thing for a terrorist to equip a drone with an explosive device and send it wheresoever it can travel.
This parade of horribles undoubtedly requires a regulatory response. But who governs the skies? Does an agency required to regulate transportation have the ability, or even the resources, to govern a broader array of activities?
Questions, but not answers, abound.
Remote-controlled model aircraft are a source of seemingly infinite litigation. As with any new and affordable piece of technology, the use to which these devices are put is limited only by human imagination and ingenuity, and, as we know, the crooked timber of humanity is capable of much, both for good and for ill.
Leaving to beat cops the discretion to decide what is and is not lawful is risky business. Better to have a coherent body of legislation. We’re a long way from having such regulations, even as George Jetson’s world dawns before our very eyes.