Drone regulations in state of flux as technology changes at a rapid pace

by | Oct 9, 2017

The Australian June 16, 2017

The integration of drones into everyday life has received significant attention from communities and governments around the world. Unmanned aviation has been a phenomenon for thousands of years. The Archytas Pigeon in the fourth century BC is understood to be the first autonomous flying machine (a steam-powered “pigeon”).

However, it is the rapid new developments in drone technology that are changing aviation. To keep pace with these developments, aviation regulatory authorities across the globe have devised different methods to regulate drones in their airspace.

Most significant common law jurisdictions, including the US, Canada, Australia and New Zealand, manage drone operations through national regulations. The purpose of these is to ensure safety and security in national airspace and on the ground.

Different rules apply to different operations. The type of rules that will apply to an operation depends on the weight of the drone. Operating rules also often differentiate between drones flown for commercial gain and for recreational purposes.

Australia, New Zealand and the US categorise their drones by weight, while Canada is developing a new system that takes a risk-based approach.

Most jurisdictions with drone regulations in place require some form of pilot or operator qualification or certification. Generally, the heavier the drone, the more qualifications an operator will require.

In Australia, the regulations are relaxed for drones that weigh less than 2kg, such that drones can be used by anyone without training, insurance or certification. This is provided CASA’s straightforward safety rules (known as its standard operating conditions) are followed. In New Zealand, licensing requirements only apply to drones weighing more than 15kg.

In Canada, if a drone is flown for recreational reasons, certification is not required unless the drone falls within a weight class above 35kg. Drones flown for commercial purposes require certification unless an exemption applies.

The US makes a clear distinction between drones flown for commercial and recreational purposes; drones used for recreational purposes do not require any operator qualifications. In fact, the US laws specifically prohibit the Federal Aviation Authority from promulgating any rules or regulations regarding drones flown for hobby or recreational purposes.

There are, of course, inherent safety risks in allowing untrained drone pilots to operate these drones — including the potential for collision with a passenger plane. In most countries, there is no mandatory registration system for drones flown for fun or recreation. Recently in the US, the FAA’s Registration Rule, which required all owners of small drones to register with the FAA or risk civil and/or criminal penalties, was deemed unlawful as it applied to drones operated for hobby or recreational purposes.

Absent any registration system, no real accountability or deterrent for reckless behaviour exists. Privacy issues arising from drone operations are becoming an increasing concern. The pace at which drone technology is evolving has resulted in a gap between privacy laws and drone use. Most jurisdictions have tended to retrofit existing privacy laws.

In Australia, New Zealand, Canada and the US, the approach has been to apply existing legislation to drones. However, as existing legislation does not contemplate drones, the scope of these privacy laws, and powers to enforce them, is generally less than satisfactory.

A common element among jurisdictions is that their national aviation authorities have generally rejected the proposition that they are responsible for addressing privacy issues. Unsurprisingly, the key focus is safety.

And reports of drones violating the privacy of individuals are commonplace.

In the US, a woman reportedly threw what appeared to be stones before aiming a gun at a drone flying above her while she was in her garden. In Australia, a woman reported a drone spying on her as she was swimming in her backyard pool.

Current privacy laws are ineffective against invasive use of drones. Privacy and its regulation will be one of the critical legal issues to be resolved.

Germany and Portugal are among the few countries that have directly implemented privacy considerations into their drone regulations. Drones aren’t permitted unless regulatory authorities are satisfied illegal surveillance activities will not
be conducted.

An interesting method that China has taken to enforce its rules is to require all drones to be equipped with an “electric fence”, which prevents them from entering specific airspace.
It also requires drones to be connected to a “cloud”, which features an alarm function that activates when drones cross the “electric fence”. And in an Australian first, the Victorian Government is looking to amend state-based laws to establish no-fly zones near or above prisons to try to stop contraband (including drugs and mobile phones) being delivered via drone.

With diverse — and often deficient — rules managing the use of drones in different countries, there have been calls for regulation of drones at a global level in a way that balances safety and commerce. Part two of this series will examine what this global framework might look like.

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