The Federal Aviation Administration (FAA) announced last week that it will be working with industry leaders and public stakeholders to develop a traffic management system for unmanned aircraft systems (UAS or drones). UAS traffic management (UTM) requires a framework for systems to safely operate multiple UAS at once. The FAA wants to first establish operating rules before industry service providers and operators would coordinate the execution of flights.

For example, operators want to use smart-phone applications to map routes for drone flights and to check flight restrictions. The FAA has been working on UTM for drones since about 2015, when it first partnered with the National Aeronautics and Space Administration (NASA).

In November 2020, the FAA conducted flight tests through its UTM pilot program in Virginia and is working on an implementation plan based on that research. However, industry stakeholders have asked for more information on the next steps, and it is uncertain whether the FAA’s plan will include performance goals and measures (which is not statutorily required).

The FAA says it will use results from the pilot program to assist it in creating its implementation plan. However, the industry has voiced concern about the limited release of information related to UTM technology.

The U.S. Government Accountability Office (GAO) is recommending that the FAA: (1) provide stakeholders with additional information on the timing and substance of UTM testing and implementation efforts via the FAA’s UTM website or other appropriate means, and (2) develop performance goals and measures for its UTM implementation plan. The Department of Transportation agreed with those recommendations.

With more available data from the FAA’s research in its pilot program, members of the UAS industry and public stakeholders will be able to better align their own activities with those of the FAA and make better decisions for UTM testing and implementation.

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Last week, the Executive Order on Protecting the United States from Certain Unmanned Aircraft Systems (UAS) expanded the U.S.-China drone controversy to North Korea, Iran, and Russia.

The Order also provides the Secretary of Commerce with the authority to designate “any other foreign nation, foreign area, or foreign non-government entity engaging in long-term patterns or serious instances of conduct significantly adverse to the national or economic security of the United States,” in addition to China, North Korea, Iran, and Russia.

The purpose of the Order is to, “prevent the use of taxpayer dollars to procure UAS that present unacceptable risks and are manufactured by, or contain software or critical electronic components from, foreign adversaries, and to encourage the use of domestically produced UAS.” However, this Order is not necessarily a “cease-and-desist” order; instead, it requires federal agencies to review their “authority to cease” procuring, funding or contracting the “covered UAS” of such foreign adversaries within the next 60 days. A “covered UAS” includes a drone that:

  • is manufactured, in whole or in part, by an entity domiciled in an adversary country;
  • uses critical electronic components installed in flight controllers, ground control system processors, radios, digital transmission devices, cameras, or gimbals manufactured, in whole or in part, in an adversary country;
  • uses operating software (including cell phone or tablet applications, but not cell phone or tablet operating systems) developed, in whole or in part, by an entity domiciled in an adversary country;
  • uses network connectivity or data storage located outside the United States, or administered by any entity domiciled in an adversary country; or
  • contains hardware and/or software components used for transmitting photographs, videos, location information, flight paths, or any other data collected by the UAS manufactured by an entity domiciled in an adversary country.

The Order also requires federal agencies to inventory covered UAS that already are owned or operated by the agency, and to then report their existing security protocols. However, and particularly with respect to China, several federal agencies have already conducted this inventory and assessment. No later than 120 days after the inventory reports are completed, the Director of National Intelligence, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Science and Technology Policy, and the heads of other agencies will review the reports and submit a security assessment to the President, including recommended mitigation steps for decreasing the risks associated with these UAS and whether any UAS’ use should be discontinued completely by federal agencies.

The Federal Aviation Administration (FAA) must also lay out restrictions on the use of UAS on or over critical infrastructure within 270 days of the Order; the FAA already has the power to issue a Temporary Flight Restriction (TFR). At present, TFRs can be requested only by national defense, national security, and federal intelligence departments and agencies. However, other government or private sector entities can, in the interest of national security, request those agencies to sponsor a TFR over critical infrastructure, (e.g., oil refineries and chemical facilities). The goal of the Order is perhaps to provide a direct line from private industry to the FAA.

We’ll see if the Order has staying power and the funding to support it. Stay tuned.

The Federal Aviation Administration (FAA) issued final rules for unmanned aircrafts (or drones) for remote identification and the operation of drones at night and above people.

The Remote Identification Rule (Remote ID Rule)  will allow operators of small drones to fly over people and at night under certain conditions. The FAA hopes that these rules will support technological and operational innovation and advancement.

Remote ID provides identification of drones in flight as well as the location of their local control stations, which will provide important information for national security agencies and law enforcement. The Remote ID Rule will apply to all operators of drones that require FAA registration. There are three ways that an operator can comply with the Remote ID Rule:

  1. Operate a standard Remote ID drone that broadcasts identification and location information of the drone and control station;
  2. Operate a drone with a Remote ID broadcast module (may be a separate device attached to the drone), which broadcasts identification, location, and take-off information; or
  3. Operate a drone without Remote ID but at specific FAA-recognized identification areas.

The Operations Over People and at Night Rule will apply to Part 107 drone operators. Under Part 107, flights over people and at night are prohibited unless the operator seeks a waiver from the FAA. With this new Rule, the ability to fly over people and moving vehicles will be based on the level of risk that the operation poses on people below. There are four categories of risk, which can be found in the FAA’s execute summary here.

Both Rules will become effective within 60 days of their publication in the Federal Register. The Remote ID Rule has two important deadlines: drone manufacturers will have 18 months to begin producing drones with Remote ID and operators will have an additional year to start using drones with Remote ID.

Elaine L. Chao, U.S. Secretary of Transportation, said that these final rules “carefully address safety, security and privacy concerns while advancing opportunities for innovation and utilization of drone technology.”

With over 1.7 million drone registrations and 203,000 FAA-certified remote pilots, this industry’s growth is only on the way up.

The Federal Aviation Administration (FAA) issued an $182,000 fine to a drone pilot for multiple (continued) violations of Part 107 -at least 26 violations to be more precise. Between December 2019 and August 2020, the drone pilot flew his drone around Philadelphia in violation of FAA regulations, sometimes violating more than one part of the regulations during a single flight. Before issuing the fine, the FAA sent a warning letter in October 2019. In November 2019, the FAA provided the drone pilot with counseling and education regarding requirements for safe drone operations.

The drone pilot put a number of videos on YouTube showing screenshots of the ground control station that has all sorts of things like altitude, the drone’s distance from the pilot, the drone’s location on a map, direction of flight, and other information. The FAA was able to use these videos to prosecute this individual.

Part 107 requires operators to obtain an authorization for Class B, C, D, or E2 controlled airspace. All authorizations are done through the FAA’s Drone Zone portal or through LAANC. If there are no authorizations through those means in Philadelphia at the time of the video footage, then the FAA knows that the drone pilot did not fly in accordance with Part 107. Additionally, accordingly to the FAA the drone pilot also committed the following violations:

  • Drone flights at night, “in heavy fog” and “while it was raining,” “while it was snowing,” and “during strong winds.” (Part 107 prohibits night flying and flying with visibility less than 3 statute miles).
  • Multiple drone flights that were very close to multiple buildings and structures. (Part 107 does not allow you to cause undue hazard to people’s property if a loss of control were to happen for any reason during the drone operation).
  • Some of the flights were over the Philadelphia downtown area over moving vehicles and people. (Part 107 prohibits flying over people and, as noted above, prohibits causing undue hazard to people on the ground).
  • The drone pilot did not have a remote pilot certification.

Overall, the FAA alleges that the pilot violated 12 Part 17 regulations over 26 different flights, with each subsection of Part 107 a separate violation. The lesson here -follow Part 107, know the rules and operate safely. Happy flying.

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As our previous post stated, the commercial use of drones, or small unmanned aerial systems (sUAS), for urban real estate and construction has gained some traction with the passage of the New York City Council’s bill requiring the Department of Buildings (DOB) to study the feasibility of using sUAS to inspect building facades. With this new bill, as well as other metropolitan cities that will surely follow suit, one of the biggest issues on the forefront for the public at large is privacy.

Think about it: how would you feel if a drone flew over your house while you were in your private backyard, enclosed by a fence, sunbathing? Watering your garden? Playing soccer with your kids? Or sitting at your desk and a drone hovered by your window? Your answer probably rests on who was flying the drone and the reason for flying the drone. However, if you are like many others across the U.S., you would probably have some privacy concerns. As bills like the New York City Council’s pass, the public wants to know how the proliferation of such drones will affect their privacy and what the legal limits are for these drones.

The Federal Aviation Administration’s (FAA) sUAS regulations (Part 107) do not address privacy issues. Essentially, as long as the drone operator is compliant with operational restrictions and has obtained appropriate waivers and permissions as needed, there are no other federal restrictions regarding flights when it comes to preserving public privacy -even over your backyard or in front of your office window in the skyscraper in which you work.

If you look at the public perception of drones and privacy, of 1,047 participants cited in a 2019study by the College of Aviation at Embry-Riddle Aeronautical University, most people said they were not concerned about hobbyists, construction or real estate companies, but were more concerned with drones operated by the government, military or law enforcement, with unmarked drones generating the most privacy concerns.

So where do we stand on privacy and drones in the United States? Well, it’s a gray area. As noted above, the FAA’s Part 107 rule does not specifically deal with privacy issues, and the FAA does not (and has not agreed to) regulate how sUAS gather data on people or property. The FAA says that it “strongly encourages all [s]UAS pilots to check local and state laws before gathering information through remote sensing technology or photography.” Where does that leave us? Where should companies look for guidance?

In 2016, privacy groups and industry stakeholders participating in the National Telecommunications & Information Administration (NTIA) Multi-Stakeholder process released a set of best practices for commercial and private drone use. Participants included Amazon, AUVSI, Center for Democracy and Technology, Consumer Technology Association, CTIA, FPF, Intel, X (formerly Google X), New America’s Open Technology Institute, PrecisionHawk, SIIA, Small UAV Coalition, and many media organizations. Those ”best practices” included:

  • Informing others of your use of drones (i.e., where reasonable, providing prior notice to individuals of the general timeframe and area where you may anticipate using a drone to collect identifiable data);
  • Showing care when operating drones or collecting and storing personally identifiable data (i.e., retaining only information that you must retain and de-identifying information when possible);
  • Limiting the use and sharing of identifiable data;
  • Securing identifiable data; and
  • Monitoring and complying with evolving federal, state and local drone laws and regulations.

This is a great place to start as it brings us back to the basics of privacy. Whether it’s the collection of information from consumers or employees or data gathered through the use of a drone, it all comes down to transparency. However, these are only best practices – not laws or regulations. So, is there any accountability? The industry, the FAA, and local and state lawmakers are working on it. Right now, we have to look to a smorgasbord of privacy and aviation laws and apply them to drone flights and data collection.

From a federal perspective, the FAA Part 107 rules do not allow for flights over people unless the pilot obtains a special waiver. In New York City for example, you’d be hard pressed to find a street that isn’t densely packed with people. Further, most of New York City is controlled Class B airspace because of its airports. Again, to fly in these areas, the pilot would need FAA authorization. This is not to say that the FAA won’t issue a waiver or provide the authorization.

But, the FAA has now proposed a rule for flights over people, Which would allow drone flights over people if the drone falls within one of three new categories, which are based on injury-risk factors. Drones in the highest-risk category would be prohibited from hovering over open-air assemblies of people unless they are in a closed or restricted-access area, such as a stadium, and have been notified authorities of the drone operation. Further, any drone that will fly over people must bear a label identifying its category, except those in the lowest-risk category (i.e., drones weighing .55 pounds or less). Manufacturers of drones weighing more than .55 pounds that want them to qualify for flights over people must certify that the drones meet specified impact-force thresholds and will not contain exposed propellers or rotating parts that will cut human skin. They also must provide pilot instructions, allow FAA inspections, have procedures to notify the FAA and the public of safety defects, and keep records related to the drones. NOTE: nowhere in this proposed rule is the issue of privacy addressed. Again, the industry and stakeholders must weigh in and create a standard if the law lags behind.

However, recently, the FAA also proposed a rule on remote identification of sUAS. The rule would facilitate the collection and storage of certain data such as identity, location, and altitude regarding an unmanned aircraft and its control station. The period for comment on the FAA’s published notice of proposed rulemaking on remote identification closed on March 2, 2020. The FAA is now targeting 2021 as the launch of its remote ID program, which would permit police officers, aviation authorities and other public officials to search for a drone by a broadcast unique identifier to find out who the operator is. Will this put the public more at ease? If a drone is hovering, with no markings, and you call your local police department, presumably they’d be able to identity the individual operator and take action. We’ll see what the future holds.

While the future of drones and privacy is unclear and still evolving, one thing is certain – to ensure that drone technology benefits society as a whole, any proposed frameworks should include an eye towards privacy.