'Unmanned Aerial Vehicles: Emerging Policy and Regulatory Issues' by George Cho in (2013) 22(2)
Journal of Law, Information and Science argues
Unmanned aerial vehicles (UAVs) provide a new and exciting platform for remote sensing and other applications. However, the added technological capabilities have produced policy and regulatory challenges. There is a need to understand the technology and infrastructure in the context of national and international laws. This contribution is an attempt to develop an understanding of the use of UAVs and their policy and regulatory implications. The deployment of UAVs might be more restricted and restrictive than at first envisaged. Such considerations as the sharing of domestic airspace, air navigation rules, public safety and national security are pertinent. There is a pressing need to address legal obligations and responsibilities and related issues such as privacy rather than just be concerned with the technology. Particular restrictions such as the export of the technology, the transmission of geospatial data across borders and international agreements are as important.
Cho concludes
This paper is about the policy, legal and privacy implications of the use of UAVs and UASs generally in civilian environments. The survey provided a background for an understanding of the various names used to describe these aircraft from drones to attack drones and disaster drones. Pilotless aerial vehicles have been used since the turn of the century, for instance, in the two World Wars.
A summary table was used to help conceptualise the scale and breadth of different configurations of UAVs. The table underscores the myriad sizes, scales and functional capabilities of selected UAVs whether in the civilian or military use. While mass is a surrogate measure for a classification system, it seems that a better criterion is to use kinetic energy impact levels as a taxonomic tool. A feature of such comparisons is that vehicles with a mass of less than 150 kg — classed as small UAV — is becoming an attractive platform for many civilian applications. Whether this becomes a standard configuration will depend largely on policy and regulatory considerations.
Public awareness of UAVs and the political understandings of UAVs are thought to be paramount if there is to be support and acceptance of the technology and its future development. The introduction of UAVs to domestic airspace raises safety and integration issues. The lack of a ‘detect and avoid’ system is a key technology that is still missing in the use of UAVs. The current ban on commercial use of UAVs other than the provision of services, such as aerial photography, may have an influence on further research and development.
The regulation of UAVs is nascent and poses several legal and regulatory challenges. Different jurisdictions have approached such challenges in particular ways depending on national objectives and priorities. Examples from the US, UK and Australia show that air navigation safety is the top-ranked concern that has attracted close attention. Other regulatory challenges include minimising risk for all users of navigational airspace, compliance with air navigation rules and benchmarking between nations to share best practices in the unmanned aerial vehicle industry.
The use of UAVs for surveillance purposes has produced much opposition and debate everywhere as well as court litigation. Precedents from the common law suggest that after trespass and nuisance, constitutional guarantees of an expectation of privacy may become the dominant source of litigation. In particular, the focus on surveillance cases in the US involving aircraft and violations of the Fourth Amendment has highlighted the evolution of the law and the changes to court opinions that guarantee the expectations of privacy of American citizens. Preliminary conclusions from this section on privacy are that UAVs engender both disquiet and discomfort given the unconscious feeling that there are ‘eyes in the sky’ observing and recording activities of private citizens. While having become acclimated to their presence, unlike closed circuit televisions (CCTV), current versions of UAVs emit an audible buzz and a reminder of their presence in the air.
The final section discussed technical and operational issues on the use of UAVs. Vehicular autonomy and the safety of operations featured prominently in the discussion. Attention to these issues may provide the framework for the unmanned aerial vehicle industry and its development. However, this is not to detract from its civilian and military use and the restrictions on its manufacture and export in a global context.
The contribution of this paper on the use of UAVs and UASs generally in civil applications has drawn out the major implications on policy, law, privacy and its technology and operations. First, it has identified that definitional issues need immediate resolution.
Second, this paper has identified the regulatory challenge for all jurisdictions is the assurance of an equivalent level of safety for the operation of UAVs in the national airspace. There is a crying need for the development of harmonised international air navigation rules. This should not discriminate between mass, size and any other criterion. However, much research in terms of detailed, cross-county comparisons is needed to ensure that the best practice of any jurisdiction can become a feature of an international rule or regulation.
Third, this paper has identified that the many shades of privacy concerns across jurisdictions. In particular, the court cases provide guidance on the legal bases of the violation of privacy and the expectations of privacy.
Finally, many issues remain unresolved. Definitions of UAVs can be problematic as is the lack of a truly autonomous system for integration into national airspace because the technology is still evolving. A truly national aviation system, which integrates UAVs seamlessly, may be difficult to establish. The difficulties stem from the standards of airworthiness that are acceptable for civilian purposes, the development of capabilities of ‘sense and avoid’ systems and pilot or operator training and certification. Unmanned aerial vehicles are unique and call for unique solutions to the problems and challenges of this new industry.
