Tag Archives: Mary Cirinicione

FAA considers support of commercial drone use, with exemptions

The Persistent Aerial Reconnaissance and Communications vehicle system. (Courtesy of CyPhy Works)

The Persistent Aerial Reconnaissance and Communications vehicle system. (Courtesy of CyPhy Works)

 

WASHINGTON—Drones aren’t on their way – they’re already here. But they’re not technically legal, at least not where commercial and hobbyist use are concerned. So what exactly are people hoping to do with them, and how is the government planning to regulate it?

This past February, the Federal Aviation Administration released a set of proposed rules to govern the commercial use of small unmanned aircraft systems under 55 pounds, and then opened a 60-day commentary period. That has expired, but the FAA never set a date for a final version, and experts say the waiting game could last two years, possibly longer.

Meanwhile, unmanned aircraft system technology is advancing at a rapid pace, a fact not lost on Robert Pappas, whose team coordinates Unmanned Vehicle policy for the FAA. He said his office is trying to work with various government agencies and the private sector to ensure drones are used safely, both now and once a final set of rules are released.

The agency’s current priorities, Pappas said, are improving safety requirements and streamlining certifications and exemptions. Not at the top of the list: preventing the tiny unmanned vehicles from being used for illicit surveillance purposes – or even as part of a terrorist attack.

And that’s surprising, considering recent incidents. In the early hours of January 26, an employee of the National Geospatial-Intelligence Agency crashed an illegal drone onto the White House lawn, completely undetected by radar. What that drone could have done – or carried with it – is something best left to the imagination.

“We’ve seen a rise in UAS operations in the national air space over the last few years,” Pappas said, referencing an existing exemption process which helps the private sector “pursue some potential relief” from the current ban. Pappas grants exemptions to the existing “no commercial use rule” on a case-by-case basis, governed by Section 333 of the FAA Modernization and Reform Act of 2012.

Speaking at a discussion on civil drone policy sponsored by the Center for Strategic & International Studies in late April, Pappas said that Section 333 demand remains consistently and “remarkably high.”

Pappas said his division has issued close to 250 exemptions in the last seven months alone, and is “now issuing dozens on a weekly basis,” many of them to commercial entities so that they can use UASs for aerial photography, survey and film production.

According to Pappas, the UAS Integration Office is working internationally to develop standards, approaches and frameworks for commercial guidance in light of recent technological advances. “We continue to see new and novel applications” for drone use, Pappas said, including survey and photo capabilities in the real estate and property management sectors. He said he has received exemption requests for aircraft with unusual power sources and rotors, as well as for nighttime operations, which the proposed framework excludes for safety reasons. Permission to operate outside line-of-sight constraints, which currently require that operators maintain visual contact with their drones at all times, is also a frequent request, he said.

In theory, the potential capabilities of drones are infinite, a point made by Brian Wynne, CEO of the Association for Unmanned Vehicle Systems International, at the CSIS panel. “There are going to be as many devices as you can imagine missions going forward,” he said.

And the FAA’s response to date has been all about flexibility. In a press release timed with the release of the proposed rules, FAA administrator Michael Huerta said, “We have tried to be flexible in writing these rules. We want to maintain today’s outstanding level of aviation safety without placing an undue regulatory burden on an emerging industry.”

Drone advocate Patrick Egan, who helps manage an international organization dedicated to capturing news related to UASs, said that “flexible” doesn’t begin to describe the FAA’s proposed framework and approach. He offered a better word for it: “liberal,” as in accommodating.

Egan, a former consultant with the Space and Missile Defense Command Battle Lab where he worked on future warfare research projects said he was initially surprised by how generous the proposed rules were – even if they aren’t yet final. And from what he’s heard, the drone community feels the same way.

“As a community, we got a gift,” Egan said. “[These rules are] way, way more progressive than we could have really hoped for.” Egan said that in his opinion, the FAA may have even been more generous than they should have, in terms of not instituting formal licensing requirements and granting a weight limit as large as 55 pounds.

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Aviation lawyer: Gyrocopter stunt pilot probably ‘doing time’

WASHINGTON — It’s a balloon! It’s a kite! It’s a … gyrocopter?

The Secret Service completely mistook a blip on their radar systems for an innocent toy last month until it landed on the lawn of the U.S. Capitol. Then they saw it for what it really was: a disgruntled U.S. postal worker from Florida in a one-man flying machine. He had 535 letters with him demanding campaign finance reform – one for each member of Congress.

By then Douglas Hughes, 61, had breached three major no-fly zones, crossing through some of the most protected airspace in the country. And though he had broken federal law, he was admittedly unapologetic, alternately seen as a hero, a crank or an activist.

Last week, things suddenly got far more serious; a federal grand jury indicted Hughes on six criminal counts. Two of them are felonies – flying without a pilot’s license and failure to register an aircraft – and the other four are misdemeanors related to violating national airspace and operating a vehicle falsely labeled as a postal carrier.

Hughes holds another label: alleged criminal.

According to Hughes, his self-proclaimed “Freedom Flight” from Gettysburg to Washington, D.C. on April 15 was part of a longtime protest against existing campaign finance laws. A man on a mission, Hughes said he wanted to raise awareness about corruption on Capitol Hill.

“He’s going to face jail time and he’s going to do it,” said Joe Lamonaca, a Delaware-based attorney specializing in domestic and international aviation law. Lamonaca is not part of Hughes’ legal team, although he has been following the case and believes conviction is likely if it goes to trial.

The fact that Hughes intentionally flew into P-56 airspace, the designation for prohibited airspace surrounding the Capitol and White House, is without question, Lamonaca said. And that airspace belongs to the Secret Service – not the Federal Aviation Administration: “That’s the holy grail of all prohibited airspace in the country.”

“And it’s actually not restricted,” he added. “It’s prohibited – which means no flight under any circumstances.”

A gyrocopter resembles a helicopter, except that its rotating blade is propelled by air flow, rather than an engine. It’s also much lighter, smaller and incapable of hovering the way a helicopter does.

Hughes’ stunt was planned years in advance and widely discussed, and was the subject of interviews with the Tampa Bay Times and at least two Secret Service Agents months before he ever took flight.

So Hughes can’t claim that he lost control of his gyrocopter, took a left instead of a right and wound up at the Capitol, Lamonaca said. Hughes even livestreamed his journey mid-air. What he did was premeditated and that will limit his defense strategy, Lamonaca added.

“He was trying to make a statement for himself,” Lamonaca said. “But I think the government is going to make one the other way.”

With 30 years of experience as a pilot, Lamonaca said he knows why the Secret Service may have mistaken Hughes’ gyrocopter for a toy. It doesn’t have a transponder, which means that Hughes wasn’t sending out a secondary radar signal the way planes do.

“I know what it would have looked like on that radar screen, low flightpath, slow speed,” he said. “He was so low, the signature was almost nonexistent.”

But that’s no excuse, Lamonaca said. The Secret Service should be checking out every signal, using visual spotting to make up the difference: “There are so many different ways [to fly a weapon] and that’s going to require manpower.” Hughes had letters onboard, as opposed to bombs or explosives, but the potential for danger was still there. And the Secret Service either missed it entirely or let it slide – when they let it land.

“Whether it’s drones [or] gyrocopters … they’ve got to start taking them seriously,” he added, in reference to the need for federal security officials to account for new technology. Because a future incident, he said, may up the stakes significantly.

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The drone debate: Does the coming swarm of flying gadgets require new privacy laws?

CyPhy drone (Image courtesy of CyPhy Works)

CyPhy drone (Image courtesy of CyPhy Works)

Noticeably missing from the recommendations unveiled earlier this year were any privacy oversights. For the Electronic Privacy Information Center (EPIC), the plaintiffs in the suit against the FAA, that was inexcusable.

The advocacy group’s website site is full of unnerving facts about camera-wielding drones. They can be equipped with facial recognition, license plate scanners, the capacity to track multiple targets, and the ability to operate at distances and heights making them impossible to detect. Drones are “designed to undertake constant, persistent surveillance to a degree that former methods of video surveillance were unable to achieve,” according to EPIC.

The courts are not the only avenue to affect policy change at the FAA. Public comment on the framework will be accepted until this Friday.

But many experts argue that the FAA isn’t the governing body that should be charged with ensuring drones don’t violate privacy. What’s more, others – chiefly drone-makers and their advocates – question whether unmanned aerial vehicles, or UAVs, even require a new set of privacy standards, saying that existing laws are already enough.

In a privacy impact assessment issued alongside the proposed framework, the FAA stated that while it “acknowledges that privacy concerns have been raised about unmanned aircraft operations … these issues are beyond the scope of this rulemaking.”

While some privacy advocates are worried that the omission may allow for invasive surveillance from commercial or government drones operating inside the US, the drone community said those concerns are more of a red herring than anything else.

“The FAA has wisely backed off all privacy issues [because]there’s no need for a new federal privacy bureaucracy [when]states already have protections in place,” says Charles Tobin, a privacy rights lawyer at the law firm Holland & Knight, who represents a coalition of media outlets advocating for drone usage for the purposes of journalism.

“The laws that are on the books are all technology agnostic. They apply to computers, they apply to still cameras, they apply to wireless microphones, they apply to video cameras … and there’s no reason that they can’t be applied – as already written – to UAV,” he says.

Relying on existing legal protections should be the obvious choice, says Brendan Schulman, head of the Unmanned Aircraft Systems practice at the law firm Kramer Levin in New York.

Nicknamed “the Drone Lawyer,” Mr. Schulman says that “if the concern is physical intrusion or inappropriate photographs, state law governing offenses such as trespass, stalking, peeping or unlawful surveillance … apply.” That means that what people are most fearful of – being stalked, harassed, or surveilled by a drone, or being victimized by a peeping tom behind a drone – are already acts bound by law.

Simply put: the states have things covered, he says.

REGULATORS LAG BEHIND TECHNOLOGY
A presidential memorandum issued the same day as the FAA’s proposed regulations relays the responsibility to “develop a framework regarding privacy, accountability, and transparency for commercial and private [unmanned aerial systems]use” to the Department of Commerce. The memo states that the department must initiate a “multistakeholder engagement process” within 90 days of the memo’s release – so it must begin work by mid-May.

But government trying to regulate a specific piece of technology is not the best approach, says Matt Waite, professor of journalism and founder of the Drone Journalism Lab at the University of Nebraska-Lincoln, which explores the ways in which drones can be used to further journalistic aims.

“As we are already seeing, the government lags way behind technology when it comes to laws that would deal with that technology. It’s taken the FAA a long time to come up with [proposed]rules for these drones and they’re flying around right now. They’re being used for commercial purposes even though the FAA says, ‘No, you can’t do that.’ ”

Mr. Waite says it’s important to determine exactly what people can’t do – what actions need to be stopped. “We need to start thinking about what we consider a reasonable expectation of privacy in our modern times. And if that’s not allowing [me to]photograph [someone]streaking in their backyard, then that’s great. We can say I can’t do that. But it shouldn’t matter how I do that, [just that]you don’t want me to do it.”

It’s about recognizing that once privacy has been violated, how it was violated is no longer important, says Helen Greiner, chief executive officer of Massachusetts robotics and drone company CyPhy Works. She says that although she understands the privacy concerns related to the commercial use of drones, those concerns are often misdirected: “It’s not a drone issue. It’s a camera issue. In that way, it’s kind of a red herring.”

“You need to go to the real issue, which is pointing cameras at things they shouldn’t be pointed at,” Ms. Greiner says. “And if we’re going to talk about privacy with cameras, it should be for all cameras … whether they’re on a drone or a balloon.”

She says she doesn’t worry that public fear might hurt her business because the drones sold by CyPhy Works are used to perform specific commercial functions. “They may be used to survey a property or a facility, for example,” but they’re not being used to capture footage surreptitiously, Greiner says.

“I believe privacy is an important issue and that it should be regulated, but rules already exist,” she explains. She says it’s unlikely that fears related to the perceived loss of privacy will bog down final passage of FAA regulations – something she’s anxiously awaiting: “It might be wishful thinking, but I don’t foresee a tightening in terms of the finalized regulations.”

THE CASE FOR PRIVACY POLICIES
A public commentary period on the proposed regulations expires Friday, but there’s no firm deadline for when the FAA must have finalized regulations in place. Experts think it could take two years, possibly longer – which means the waiting game has only begun. It also means that commercial drone use will remain technically illegal for the duration, outside of a handful of exemption-type permissions granted by the FAA.

Amie Stepanovich, senior policy counsel for privacy advocacy group Access Now, says that there’s room for improvement when it comes to ensuring personal privacy. That’s because drone technology is in a league of its own: “Drones have [the]capacity to bring a bunch of different surveillance technologies onto a singular platform and to reach into areas that other vehicles have not been able to get to.”

Ms. Stepanovich says that limitations should be put in place to restrict the ways in which government agencies can use drone technology for the purpose of surveillance. “We need things that will, for example, protect users’ location information from being collected and tracked,” she says. “It comes back to tracking people over time without a warrant and being able to pinpoint their exact location. … and we need to make sure that that information is adequately protected.”

But she’s also a fan of technology agnosticism. She says that whatever restrictions are put in place, they should not be drawn up as drone-specific. “There are several other different kinds of technologies that are coming out,” she says, referring to Stingray trackers that are now being used by law enforcement agencies to gather data from cellphones.

The presidential memo issued in conjunction with the FAA’s proposal states that agencies must “comply with the Privacy Act of 1974, which, among other things, restricts the collection and dissemination of individuals’ information that is maintained in systems of records, including personally identifiable information.”

Although the White House’s assurance that government agencies will be held accountable to legacy privacy standards is a start, Stepanovich recommends further attribution and transparency.

“The FAA has a publicly accessible database of who is able to fly airplanes in any specific geographic area in the United States. But they haven’t made a similar commitment to do that for drone operators,” Stepanovich says. She calls that a double standard.

People won’t know which agency, company, or person is behind the remote control of the drone flying over their homes, Stepanovich says. “So the FAA definitely has a role to play in protecting privacy,” she says.

Stepanovich suggests the FAA incorporate a registry: “We’re talking about transparency, requiring that drone users register what technology they are deploying on their drones, and what capacity these drones will have. This just gets at making sure people are aware of what’s going on in their own area.”

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