2020-04-07_Calandrillo

182

Deadly Drones? Why FAA Regulations

Miss the Mark on Drone Safety

Steve Calandrillo,

Jason Oh,

†

and Ari Webb

‡

23 STAN. TECH. L. REV. 182 (2020)

ABSTRACT

A rapidly growing commercial drone industry has prompted the introduction of nu-

merous regulations governing American airspace. Congress has tasked the Federal Avia-

tion Administration (FAA) with “developing plans for the use of the navigable airspace to

ensure the safety of aircraft and the efficient use” of American skies. While well-intended,

the FAA has departed from Congressional will by imposing an excessive regulatory re-

gime that threatens to stifle drone technology and innovation. In fact, many FAA regula-

tions fail to address the very problem they seek to fix, namely the safety of our airspace.

The unfortunate result is that myriad scientific and pragmatic applications of cutting-

edge drone technology have been stalled or thwarted entirely inside the United States,

forcing innovation efforts to move abroad.

FAA regulations must be dramatically scaled back and reformed to reflect the count-

less benefits and comparatively minimal risks associated with drone technology. The cur-

rent rules cover innocuous use cases, are too restrictive even when addressing cases where

regulation makes sense, and fail to permit efficient technical approaches to reaching reg-

ulatory objectives. The nonsensical rule requiring any person over the age of thirteen to

Jeffrey & Susan Brotman Professor of Law, University of Washington School of Law,

[email protected]. J.D., Harvard Law School, B.A. in Economics, U.C. Berkeley.

†

J.D. candidate, University of Washington School of Law, [email protected].

‡

Professional Drone Pilot, The Stratford Company, LLC.

The authors wish to thank Nolan Anderson, Ryan Calo, Chryssa Deliganis, Anna Deliganis,

Sean McCurdy, Jonathan Moskow, Irwin Yoon and participants in the Harold Shefelman

Faculty Colloquia Series at the University of Washington for their inspiration and helpful

comments on prior drafts. Our gratitude as well to the Jeffrey & Susan Brotman Professorship

for its generous financial support.

Winter 2020 DEADLY DRONES? 183

concerns, especially as far more prominent threats to public safety, even guns, have no

similar registration requirements. More pragmatically, the line-of-sight regulations that

prevent pilots from using vision-enhancing devices such as first-person view technology

needlessly restrict the commercial applications of drones, including long-distance package

delivery. Finally, while the FAA and other regulatory bodies currently control the spaces

in which drones can be legally flown, drone manufacturers are far better equipped to ac-

complish this goal themselves by incorporating geofencing technology (which directly pre-

vents drones from flying into restricted areas like airports). In sum, American laws and

regulations governing the flight of commercial drones are overly restrictive, unnecessarily

stifle valuable innovation, and must be revised to ensure that the true potential of drone

technology can be realized.

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 184

II. BACKGROUND ................................................................................................................. 188

A. Brief History of FAA Regulations ............................................................................. 188

B. Current Regulatory Landscape Governing Drones ................................................ 191

1. Commercial Drone Regulations ........................................................................ 191

2. Recreational Drone Regulations ........................................................................ 192

3. Registration .......................................................................................................... 193

4. Flight Requirements: Line of Sight, Low Altitude, No Airports, No People 194

III. CURRENT DRONE TECHNOLOGY APPLICATIONS AND BENEFITS ...................... 194

A. Commercial Drone Applications ............................................................................... 195

1. Journalism ............................................................................................................ 195

2. Precision Agriculture .......................................................................................... 198

3. Construction ......................................................................................................... 200

4. Insurance .............................................................................................................. 202

5. Photography and Videography in Marketing ................................................. 204

B. Entertainment .............................................................................................................. 205

C. Real Estate Marketing ................................................................................................. 206

D. Tourism ......................................................................................................................... 208

E. Rescue and Recovery After Accidents and Disasters ............................................... 209

F. Blood and Medical Supply Delivery ......................................................................... 211

G. Scientific Research ....................................................................................................... 213

H. Animal Conservation Efforts ..................................................................................... 214

I. Law Enforcement ......................................................................................................... 217

J. Recreational Drone Use .............................................................................................. 219

IV. RISKS OF DRONE USE .................................................................................................... 222

A. Public Safety ................................................................................................................. 222

B. Privacy Concerns ......................................................................................................... 225

C. Terrorism ...................................................................................................................... 226

184 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

D. Ecosystem Risks: Drones Disturb Wildlife and Detract from Nature ................. 228

E. Drug Smuggling ........................................................................................................... 229

V. RESPONSIBLE POLICY AND REGULATORY REFORMS ............................................. 230

A. Eliminate the Line-of-Sight Regulation—It Stifles Innovation Without Any

Accompanying Benefit ................................................................................................ 230

1. What Is the Point of the Line-of-Sight Regulation? ....................................... 231

2. The Benefits of Beyond the Visual Line of Sight (BVLOS) ........................... 234

3. Innovation, Jobs, and an Economic Boost Are Waiting for More

Accommodating Regulations .............................................................................. 235

4. The FAA’s Drone Integration Pilot Program (IPP): A Step in the Right

Direction ............................................................................................................... 238

5. Summary Observations ...................................................................................... 240

B. Registration Is Unnecessary and Ineffective, and It Violates Privacy ................. 240

1. Registration Marks May Not Be Legible After a Collision ........................... 241

2. Privacy Problems: Home Address, Email and Phone Number Are Freely

Accessible to the Public ....................................................................................... 242

3. Bad Actors Are Highly Unlikely To Register Their Drones .......................... 243

4. The FAA Lacks Any Enforcement Mechanism ............................................... 244

5. Registration Requirement Inadvertently Opens the Door to Fraud by Third

Parties .................................................................................................................... 245

6. In Sum, the FAA’s Drone Registration Requirement Creates More Problems

Than It Resolves, and Should Be Removed ...................................................... 245

C. The Invisible Fence: “Geofencing” as the Sensible Solution .................................. 246

VI. CONCLUSION .................................................................................................................. 250

I. INTRODUCTION

Imagine a world in which Amazon’s celebrated two-day delivery system was

rendered obsolete by thirty-minute drone delivery.

Or, what if individuals in ru-

ral communities could receive essential medical supplies and blood in emergen-

cies with just a touch of a button?

What if missing hikers in the wilderness or

individuals stranded by wildfire or floods could easily and quickly be rescued

without risking the lives of first responders?

Remarkably, none of these are hy-

potheticals. Drones have already accomplished each of these miraculous tasks—

. James Vincent & Chaim Gartenberg, Here’s Amazon’s New Transforming Prime Air De-

livery Drone, THE VERGE (Jun. 5, 2019), https://perma.cc/S9UW-4QV2.

. Chloe Taylor, Drones Set To Deliver Blood and Medical Supplies to Ghana’s Hospitals,

CNBC (Dec. 13, 2018), https://perma.cc/NB8R-ZQXT.

. Kashmir Hill, Drone Team That Finds Missing People and Dead Bodies Would Like To Keep

Doing That, FORBES (Apr. 7, 2014), https://perma.cc/F95H-55AS (hikers); Katie Collins, London

Police Deploy Drones To Search for Missing People, CNET (Sept. 13, 2017), https://perma.cc/R7F9-

XBV4 (other missing persons).

Winter 2020 DEADLY DRONES? 185

and more—in controlled testing environments or in real situations abroad.

How-

ever, these applications have failed to become ubiquitous in the United States be-

cause the Federal Aviation Administration (FAA) has promulgated a series of reg-

ulations that have dramatically limited the otherwise unbounded potential of

drone technology.

This is a cautionary tale of how well-intended laws and policies aimed at en-

hancing safety can silently cost lives rather than protect them. The FAA began

creating guidelines around usage of radio-controlled aircraft back in the 1980s,

as model planes grew in popularity.

Most of these guidelines were lenient, for at

the time the agency’s main purpose was to regulate manned passenger aircraft,

not recreational planes.

However, this relaxed approach changed dramatically in

the 2000s, as consumer drones began inundating the skies.

Many new manufac-

turers entered the industry, rapidly accelerating innovation and making small

drones available to everyone at relatively low cost.

In turn, this led to a media

obsession with the gadgets, making them a staple of modern popular culture.

From the Super Bowl to the Olympics, drones were seemingly everywhere.

. Amazon Says It May Take Drone Testing Outside U.S., BBC (Dec. 9, 2014),

https://perma.cc/KS45-839F; Jack Nicas, Amazon Says FAA Approval To Test Delivery Drones Al-

ready Obsolete, WALL ST. J. (Mar. 24, 2015), https://perma.cc/85LY-ZQRF; UAS Test Sites, FED.

AVIATION ADMIN. (Oct. 23, 2018), https://perma.cc/V24B-L45K.

. Marisa Garcia, Risk-Averse Culture at FAA Stifles Progress on Drones, Scientists Say,

FORBES (Jun. 12, 2018), https://perma.cc/2T8H-RJZC; Mehboob Jeelani, Is the FAA Limiting

Drone Innovation?, FORTUNE (Aug. 28, 2014), https://perma.cc/UW73-SNZJ.

. Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689

(Feb. 13, 2007) (to be codified at 14 C.F.R. pt. 91) (recounting history) [hereinafter FAA Policy

Statement]; see also A Brief History of the FAA, U.S. DEP’T TRANSP. (Jan. 4, 2017),

https://perma.cc/FAP3-SM9Q; Abby Speicher, Drone Laws: The History of Drone Regulations and

Laws, DART DRONES (Nov. 9, 2016), https://perma.cc/CWT9-447F.

. See generally Elizabeth L. Ray, Federal Aviation Administration, Advisory Circular:

Model Aircraft Operating Standards, AC No. 91-57A (Sept. 2, 2015), https://perma.cc/AR4H-

DRTU (noting that the earliest document the FAA published regarding model aircrafts was in

1981, which was optional) [hereinafter AC 91-57]; FAA Policy Statement, supra note 6 (clarifying

that the FAA’s regulations governed recreational drones in their 2007 policy statement—a rel-

atively recent policy).

. FAA Policy Statement, supra note 6 (finding that “[r]egulatory standards need to be de-

veloped to enable current technology for [drones] to comply with” regulations because drones

are “growing dramatically”); see generally Andrew Meola, Drone Market Shows Positive Outlook

with Strong Industry Growth and Trends, BUS. INSIDER (Jul. 13, 2017), https://perma.cc/TM8K-

6E3H; Sallary French, Drone Sales in the U.S. More Than Doubled in the Past Year, MARKETWATCH

(May 28, 2016), https://perma.cc/NL6P-DERW.

. April Glaser, DJI Is Running Away with the Drone Market, VOX (Apr. 14, 2017),

https://perma.cc/BS2J-BVQD; Divya Joshi, Here Are the World’s Largest Drone Companies and

Manufacturers To Watch and Invest In, BUS. INSIDER (Jul. 18, 2017), https://perma.cc/Z3NB-

HU33; Colin Snow, Seven Trends That Will Shape the Commercial Drone Industry in 2019, FORBES

(Jan. 7, 2019), https://perma.cc/MH48-63TC.

. See infra discussion in Part III.B; Brian Barrett, Inside the Opening Ceremony World-

Record Drone Show, WIRED (Feb. 9, 2018), https://perma.cc/9Y4S-WPQM.

186 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

However, the American honeymoon with drone technology was short-lived. Peo-

ple began to wonder about the public safety risks posed by one crashing into the

White House, or God forbid, into a passenger airliner in flight.

Our changing aerial landscape, as well as the terrifying events of 9/11, placed

immense pressure on various regulatory bodies to intervene in order to keep

American airspace safe.

The FAA began a new regulatory campaign that has

continued unabated to this day, resulting in an excessive regime that has nega-

tively impacted the many productive uses of drones. Most prominently, FAA rules

require that all drone operators register their personal information with the fed-

eral government,

and the FAA instituted a “line of sight” requirement that for-

bade any pilot from flying her drone outside of her natural field of vision.

In theory, these regulations were aimed at promoting public safety. Regula-

tors hoped the registration mandate would encourage operators to fly safely and

discourage malicious drone use since each pilot would be linked to their drones

in a federal database.

Additionally, by prohibiting the flying of drones beyond

the pilot’s line of sight, drone flight would be safer because operators would be

able to see and maneuver their drones to avoid hazards.

Though well intended, the FAA regulations are seriously misguided and

largely ineffective. Requiring thirteen-year-old children to reveal their home ad-

dress, phone number, and email when they receive a drone as a Christmas present

does not deter terrorist behavior in the least.

And the line-of-sight requirement

thwarts nearly all commercial and public safety applications of the technology,

pushing innovation abroad at America’s expense.

Although there are legitimate

concerns associated with reckless or nefarious drone usage, an individual who has

a specific intent to crash their drone into a larger aircraft or use it in a terrorist

. No Drone Zone, FED. AVIATION ADMIN. (Aug. 29, 2019), https://perma.cc/2X4E-F4GL;

Craig Whitlock, Near-Collisions Between Drones, Airliners Surge, New FAA Reports Show, WASH.

POST (Nov. 26, 2014), https://perma.cc/5V7X-8DJ9.

. 49 U.S.C. § 44807 (2018); 14 C.F.R. § 107.13 (2019).

. 14 C.F.R. § 107.31 (2019).

. Press Release, DJI, Registering Your DJI Drone in the U.S.: What You Need To Know

(Dec. 21, 2015), https://perma.cc/RLK4-2HBU; see also Registration and Marking Require-

ments for Small Unmanned Aircraft, 80 Fed. Reg. 78593, 78600 (Dec. 16, 2015) (“Aircraft reg-

istration and marking are essential elements in the regulatory structure that provides for safe

and orderly aircraft activity . . . [because t]he registration number provides a link to infor-

mation about the aircraft and the owner responsible for its operations.”).

. Jonathan Rupprecht, Section 107.31 Visual Line of Sight Aircraft Operation (2019),

RUPPRECHT LAW P.A. (2019), https://perma.cc/63KL-4F5Y; Operation of Small Unmanned Air-

craft Systems Over People, 84 Fed. Reg. 3856 (Feb. 13, 2019).

. Register Your Drone, FED. AVIATION ADMIN. (Jul. 11, 2019), https://perma.cc/Q22Y-

CNZ8; see also Jason Snead & John-Michael Seibler, How the FAA’s War on Drones Is Killing a

Popular Pastime, DAILY SIGNAL (Dec. 27, 2016), https://perma.cc/BQ5C-VH3L (“[T]he registry

does nothing to deter or prevent bad actors from using drones to commit crimes or acts of

terror.”).

. Amazon Says It May Take Drone Testing Outside U.S., supra note 4.

Winter 2020 DEADLY DRONES? 187

attack is unlikely to register their identity in advance with Uncle Sam or make

sure their drones remain within their line of sight.

Not only do the FAA rules fail to address practical realities surrounding

threats from drones, they also needlessly chill the potential benefits of the tech-

nology. The FAA’s line-of-sight rule, in particular, has destroyed the potential to

realize immense commercial and public safety benefits—how can a drone pilot

deliver packages or emergency supplies or rescue victims during natural disaster

if she must be able to see her device with her own two eyes?

This limitation

disincentives technology giants like Amazon and Google from investing domes-

tically

and has instead pushed innovation, testing, and investment in drones

abroad, taking with them millions of jobs and billions in revenue.

The FAA’s

regulatory scheme further limits all kinds of applications that have proven (on the

international stage) to be invaluable to businesses,

scientific research,

and dis-

aster recovery.

Without a regulatory makeover, the FAA will continue to thwart

drone-induced benefits and innovation that could improve, and even save, Amer-

ican lives.

This Article highlights the shortcomings of the FAA’s regulatory scheme, and

proposes to fight fire with fire by using technology to solve technology’s own

problems. Rather than pretending that terrorist pilots will register their drones

with the federal government and keep them within eyesight, we propose the dra-

matic expansion of geofencing technology to directly regulate where drones

can—and cannot—fly. This technology creates a virtual map of safe zones, di-

. Steve Calandrillo, Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Ap-

proach to Federal Health and Safety Regulation, 81 B.U. L. REV. 957 (2001) (noting that people re-

spond more to the fear of terrifying rare events than they do to common causes of death that

are much more routine and therefore less frightening.).

. Dave Marcontell & Steve Douglas, Why the Use of Drones Still Faces Big Regulatory Hur-

dles, FORBES (Sept. 10, 2018), https://perma.cc/NN2D-5339; Jonathan Rupprecht, Feds Make

Major Moves To Relax Restrictions on Use of Drones, FORBES (Jan. 14, 2019),

https://perma.cc/A9KV-J74R.

. Jake Kanter, Google Just Beat Amazon to Launching One of the First Drone Delivery Services,

BUS. INSIDER (Apr. 9, 2019), https://perma.cc/KHL6-6D6F; Jonathan Vanian, Sorry, Drone De-

liveries Aren’t Coming Any Time Soon, FORTUNE (Feb. 9, 2017), https://perma.cc/NLQ8-S2FX.

. See DARRYL JENKINS & BIJAN VASIGH, ASS’N FOR UNMANNED VEHICLE SYS. INT’L, THE

ECONOMIC IMPACT OF UNMANNED AIRCRAFT SYSTEMS INTEGRATION IN THE UNITED STATES

(2013); Trevir I. Nath, How Drones Are Changing the Business World, INVESTOPEDIA (Jun. 25, 2019),

https://perma.cc/5JN2-CWUW; Benjamin Powers, Drones Are Powering New Jobs, VERIZON

(Oct. 17, 2018), https://perma.cc/S5W4-SVCM.

. Nath, supra note 21.

. Renee Cho, How Drones Are Advancing Scientific Research, STATE OF THE PLANET

(June 16, 2017), https://perma.cc/6Q8F-SH7R.

. ALLISON FERGUSON, PRECISIONHAWK, OPENING THE SKIES TO BEYOND VISUAL LINE OF

SIGHT DRONE OPERATIONS (2018); Miriam McNabb, FAA Issues the First Ever COA for Beyond

Visual Line of Sight for a Public Safety Organization, DRONE LIFE (Mar. 19, 2019),

https://perma.cc/U4ME-VF42.

188 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

rectly incapacitating devices that attempt to pierce restricted airspace (e.g., air-

ports or sensitive government and military facilities).

Geofencing is a far more

effective solution to the problem of airspace safety than anything that the FAA

has attempted to date.

Part II of this Article briefs the reader on the history of laws governing air-

craft and discusses the current regulatory landscape. Part III outlines the myriad

drone-induced benefits that would be possible in various American industries,

including but not limited to agriculture, construction, insurance, science, and

even law enforcement. Part IV acknowledges the concerns of critics and the risks

presented by innovative technology. Part V analyzes the practical realities of the

FAA’s regulations and ultimately suggests new regulatory reform that would far

better address safety concerns without compromising individual privacy and

commercial innovation.

II. BACKGROUND

A. Brief History of FAA Regulations

In 1958, Congress created and authorized the Federal Aviation Administra-

tion (FAA) “to regulate aviation safety, the efficiency of the navigable airspace, and

air traffic control, among other things” for aircrafts.

For decades though, radio

control model airplanes were flown by hobbyists with very few restrictions.

fact, the earliest FAA guidelines for model aircraft were published in 1981, when

the FAA issued an optional operating standard for model aircraft (also known as

“unmanned aerial vehicles” or “UAVs”).

This voluntary framework functioned well for decades until the dramatic rise

in popularity of inexpensive, radio-control “drones” in the 2000s put pressure on

the FAA to take a more active stance. In 2007, the FAA published a policy state-

ment interpreting drones to fall within the statutory definition of “aircraft” and

. Kaveh Wadell, The Invisible Fence That Keeps Drones Away From the President, THE

ATLANTIC (Mar. 2, 2017), https://perma.cc/489A-JUCL; Press Release, DJI, DJI Refines

Geofencing To Enhance Airport Safety, Clarify Restrictions (Oct. 24, 2018),

https://perma.cc/C5GK-TWQD.

. 49 U.S.C. § 40103(b)(1) (“The Administrator of the Federal Aviation Administration

shall develop plans and policy for the use of the navigable airspace and assign by regulation or

order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of

airspace.” (emphasis added)); Press Release, Fed. Aviation Admin, Federal vs. Local Drone Au-

thority (July 20, 2018), https://perma.cc/D6WF-QK9E.

. R.J. Van Vuren, Federal Aviation Administration, Advisory Circular: Model Aircraft

Operating Standards, AC No. 91-57 (June 9, 1981), https://perma.cc/TTZ2-DBJE (noting that

the earliest FAA policy that applied to drones was optional—not mandatory) [hereinafter AC

91-57]; see also FAA Policy Statement, supra note 6 (finding that drones were indefinitely subject

to FAA regulations once the FAA released a policy statement clarifying its jurisdiction over

drones in 2007).

. AC 91-57A, supra note 7; see also AC 91-57, supra note 27.

Winter 2020 DEADLY DRONES? 189

thus within its regulatory purview.

In that notice, the FAA delineated the differ-

ence between commercial and recreational drones.

The agency promulgated

guidance that for the first time subjected commercial drone operations to man-

datory FAA regulations.

For example, the regulations required minimum pilot

qualifications (e.g., understanding of the relevant rules and regulations and pas-

sage of a knowledge test before earning a private pilot certificate), and operations

requirements (e.g., maintain low altitude and line of sight).

This policy statement

thus deviated from the “longstanding voluntary regulatory approach” for drones

by the FAA.

A few years later, Congress enacted the FAA Modernization and Reform Act

of 2012, which required the FAA to establish additional regulations to improve

aviation safety and provide a framework for integrating new technology (like

drones) into American airspace.

Notably, this Act included Section 336, which

prohibited the FAA from creating any new regulations governing model air-

craft.

This section, specifically, “codified the FAA’s longstanding hands-off ap-

proach to the regulation of model aircrafts.”

Accordingly, the Act defined

“model aircraft” as “an unmanned aircraft that is—(1) capable of sustained flight

in the atmosphere; (2) flown within visual line of sight of the person operating the

aircraft; and (3) flown for hobby or recreational purposes.”

Because the scope of

Section 336 was ambiguous, the FAA published an interpretation that explained

that “to qualify as a model aircraft, the aircraft would need to be operated purely

for recreational or hobby purposes.”

Thereafter, the FAA applied already exist-

ing manned-aircraft regulations to all model aircrafts, commercial or not.

In 2015, the FAA again expanded its purview by creating the “Part 48 Regu-

lations,” which applied to Section 336-protected model aircrafts. Part 48 “pro-

vides registration and identification requirements” for drones, essentially requir-

ing all drone operators to register their drones with the FAA.

This registration

rule requires drone owners to provide to the FAA their names, physical, mailing,

. FAA Policy Statement, supra note 6; FED. AVIATION ADMIN., UNMANNED AIRCRAFT

SYSTEMS OPERATIONS IN THE U.S. NATIONAL AIRSPACE SYSTEM—INTERIM OPERATIONAL

APPROVAL GUIDANCE, AFS-400 UAS POLICY 05-01 (2005).

. FAA Policy Statement, supra note 6.

. Id.

. Taylor v. Huerta, 856 F.3d 1089, 1091 (D.C. Cir. 2017) (emphasis added) (citing FAA

Policy Statement, supra note 6).

. Pub. L. No. 112-95 (codified in scattered sections of 49 U.S.C.).

. Id.

. Taylor, 856 F.3d at 1091.

. FAA Modernization and Reform Act § 336.

. U.S. DEP’T. OF TRANSP., FED. AVIATION ADMIN., INTERPRETATION OF THE SPECIAL RULE

FOR MODEL AIRCRAFT 5 (2014), https://perma.cc/J9QP-ZFRQ [hereinafter INTERPRETATION OF

THE SPECIAL RULE].

. Id.

. 14 C.F.R. § 48.

190 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

and email address, and “any other information the FAA chooses to require.”

Ad-

ditionally, this rule “creates an online platform for registration, establishes a $5

per-individual registration fee, sets compliance deadlines,” and requires all

drones to display an identification number provided by the FAA.

Failure to

comply with these registration rules may lead to civil or criminal monetary pen-

alties and up to three years in prison.

Clearly, the FAA implemented rules with its registration requirement, which

directly violated Section 336. Consequently, these regulations were challenged in

the courts by the Taylor v. FAA series of cases.

John Taylor, the suit’s plaintiff,

requested that the court issue an order declaring that the FAA’s registration rule

was prohibited by Section 336 of the FAA Modernization and Reform Act of

2012.

Specifically, Taylor argued that the Act prohibited the FAA from creating

new regulations for recreational drones.

The United States Court of Appeals for

the District of Columbia Circuit agreed with Taylor and held that the FAA lacked

statutory authority to create its registration rule.

The court reasoned that Sec-

tion 336 clearly prevents the FAA from implementing any recreational drone reg-

ulations, and Part 48 (i.e., drone registration) is obviously a rule.

The court thus

held that Part 48 is void, noting that “[s]tatutory interpretation does not get much

simpler” than this.

While this litigation succeeded in vacating the FAA’s regis-

tration rule, Congressional Republicans and the Trump Administration effec-

tively overturned Taylor with the passage of the National Defense Authorization

Act in 2018.

This Act, specifically, states:

Restoration of Rules for Registration and Marking of Unmanned Air-

craft—The rules adopted by the Administrator of the Federal Aviation

Administration in the matter of registration and marking requirements

for small unmanned aircraft (FAA-2015-7396; published on December

16, 2015) that were vacated by the United States Court of Appeals for the

District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided

on May 19, 2017) shall be restored to effect on the date of enactment of

this Act.

. Taylor, 856 F.3d at 1091-92.

. Id.

. Id. at 1090.

. Id.

. Taylor, 856 F.3d at 1092.

. Id. at 1090.

. Id. at 1092.

. Id.

. INTERPRETATION OF THE SPECIAL RULE, supra note 38.

. National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-404

§ 1092(d) (2017).

Winter 2020 DEADLY DRONES? 191

As explained below, the FAA has relied upon this legislation to continue to

impose onerous restrictions for both commercial and recreational drone use to-

day.

B. Current Regulatory Landscape Governing Drones

Current FAA regulation distinguishes between commercial and recreational

drones, resulting in separate bodies of rules that govern American airspace.

1. Commercial Drone Regulations

The FAA has imposed stringent requirements for commercial drones weigh-

ing less than fifty-five pounds through Part 107 of its regulations.

At its heart,

Part 107 provides for “line of sight” operating requirements and mandatory pilot

certifications, both of which eliminate nearly all practical applications of the

emerging technology.

In simple English, that means that drones cannot fly past their pilot’s visual

line of view, which is usually not more than a few hundred yards.

Alternatively,

an observer must visually observe the drone at all times with unaided sight (e.g.,

no binoculars) if the pilot uses “First-Person View” (FPV) or similar technology.

(FPV technology would otherwise allow the pilot to operate a drone miles beyond

her visual line of sight by utilizing a camera in the drone’s cockpit to transmit a

video image back to the operator’s position.) The FAA also prohibits commercial

drones from flying at night,

above 400 feet,

faster than 100 miles per hour,

or over crowds of people.

The FAA does, however, allow commercial drones to

carry an external load or transport property—but only if the load is securely at-

tached, does not adversely affect the flight characteristics,

and together with the

drone weighs less than fifty-five pounds.

Additionally, the FAA requires that all commercial drone operators obtain a

remote pilot certificate with a small UAS rating, or be under the direct supervi-

sion of a person with this certificate.

To obtain this certificate, operators must

be at least sixteen years old and either (1) pass an initial aeronautical knowledge

test at an FAA-approved knowledge testing center or (2) complete a flight review

. Small Unmanned Aircraft Systems, 14 C.F.R. §§ 107.1, 107.3 (2019).

. Id. at § 107.31.

. Id.

. Id. at § 107.33.

. Id. at § 107.29.

. Id. at § 107.51.

. Id.

. Id. at § 107.25.

. Id. at § 107.49.

. Id. at § 107.3.

. Id. at § 107.63.

192 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

and take a small UAS online training course if that individual already has a Part

61 pilot certificate.

Finally, the FAA may waive the above requirements if it determines that a

drone operator can safely conduct operations without adhering to the require-

ments.

Notably, the FAA can waive certain, but not all, restrictions such as op-

erating within the visual line of sight, over crowds of people, during daylight, and

in certain airspace.

While these waivers are sometimes granted, the time and red

tape involved in obtaining one makes them impractical for most immediate drone

technology applications.

2. Recreational Drone Regulations

Recreational drone operators must also comply with stringent FAA regula-

tions.

The landscape of recreational drone regulation has undergone significant

change, as recently as May of 2019.

There are two notable new requirements:

(1) pilot education and (2) flight restrictions into controlled airspace.

First, recreational drone operators must pass an “online aeronautical

knowledge and safety test and carry proof of test passage,” akin to a driver’s li-

cense for automobiles.

However, the FAA has yet to develop the training module

or the online test.

Prior to this requirement, recreational drone operators could

fly their drones freely without any special education or flight training.

Second, recreational drone pilots are prohibited from flying into any “con-

trolled airspace,”

unless the operator obtains clearance through the FAA’s Low

Altitude Authorization and Notification Capability (“LANNC”).

However,

. Id. at § 107.61.

. Id. at § 107.200.

. Id. at § 107.205.

. 49 U.S.C. § 44809 (2019).

. FAA Highlights Changes for Recreational Drones, FED. AVIATION ADMIN. (May 16, 2019),

https://perma.cc/2NT3-QG2X.

. Recreational Flyers & Modeler Community-Based Organizations, FED. AVIATION ADMIN.

(Aug. 13, 2019), https://perma.cc/53NR-SQ56.

. Alan Boyle, Temporarily Grounded? Recreational Drone Operators Face New FAA Require-

ments, GEEKWIRE (May 17, 2019), https://perma.cc/78W2-9NQR.

. FAA Highlights Changes for Recreational Drones, supra note 67 (noting that the FAA

Reauthorization Act of 2018 adds a new provision that requires recreational flyers to pass an

aeronautical knowledge and safety test, which is a new requirement).

. Id. Controlled airspace consists of airspace where manned aircraft fly, regions sur-

rounding airports, among other things. Airspace, FED. AVIATION ADMIN. (Aug. 24, 2016),

https://perma.cc/FY9M-7DDT.

. FAA Highlights Changes for Recreational Drones, supra note 67.

Winter 2020 DEADLY DRONES? 193

LAANC’s online system is not yet set up.

As a result, recreational drone opera-

tors are limited to fixed flight sites, which are specified in a Microsoft Excel sheet

on the FAA’s website.

Prior to this prohibition, drone operators could notify

airport or air traffic control authorities if they intended to fly their drone within

five miles of an airport or other controlled airspace.

(As a practical note, many

of America’s densely populated coastal cities and suburbs lie within close prox-

imity to an airport or other controlled airspace.

)

Aside from these recent changes, recreational drone operators must still

comply with all other prior FAA restrictions, including drone registration and the

visual line-of-sight rule, among other operational restrictions.

3. Registration

The FAA requires all recreational drone operators who are at least thirteen

years old to register their drones with the federal government.

To register, an

applicant must provide their name, physical address, e-mail address, and the

drone’s make and model.

After submission, the FAA issues a “Certificate of Air-

craft Registration,” which includes an FAA-issued registration number.

Effec-

tive February 25, 2019, the FAA requires drone operators to prominently “display

the FAA-issued registration number on an outside surface of the aircraft.”

The

FAA’s micromanagement goes so far as to specify the means of display, insisting

that the operator must mark their drone with “an engraving, permanent label, or

. Id. LAANC will automate recreational airspace authorization to fly in controlled air-

space. LAANC will provide access to controlled airspace near airports through near real-time

processing of airspace authorizations below approved altitudes in controlled airspace. Id.

. FAA Highlights Changes for Recreational Drones, supra note 67.

. Register Your Drone, supra note 16; FAA Highlights Changes for Recreational Drones, supra

note 67.

. Mark Pearson, How Far Are People on Average from Their Nearest Decent-Sized Airport?,

MARK PEARSON BLOG (2012), https://perma.cc/NRP8-KEBL.

. FAA Highlights Changes for Recreational Drones, supra note 67 (“In addition to being able

to fly without FAA authorization below 400 feet in uncontrolled airspace, recreational users

must still register their drones, fly within visual line-of-sight, avoid other aircraft at all times,

and be responsible for complying with all FAA airspace restrictions and prohibitions.”).

. 14 C.F.R. § 48.25(b) (2019).

. Register Your Drone, supra note 16; FAA Highlights Changes for Recreational Drones, supra

note 67.

. 14 C.F.R. §§ 48.25(a), 48.100(d) (2019). The certificate expires three years from the

date it had been issued unless renewed by the registrant. The rule also requires that the holder

of a Certification of Aircraft Registration ensure that the information provided in the applica-

tion remains accurate by updating the information within fourteen calendar days following a

change in the information provided. Id.

. FAA Makes Major Drone ID Marking Change, FED. AVIATION ADMIN. (Feb. 13, 2019),

https://perma.cc/BKP3-MA34 [hereinafter ID Marking Change].

194 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

a permanent marker.”

This change, the FAA believes, “will enhance safety and

security by allowing a person to view the unique identifier directly without han-

dling the drone” because “law enforcement officials and the FAA’s interagency

security partners have expressed concerns about the risk that a concealed explo-

sive device might pose to first responders upon opening a compartment to find a

drone’s registration number.”

Unfortunately, the FAA ignores that a terrorist

actor will not register themselves with the agency in the first place.

4. Flight Requirements: Line of Sight, Low Altitude, No Airports, No People

As mentioned above, drone operators must be able to see their drones di-

rectly when operating.

Drones must be flown within the visual line of sight of

the pilot or within the visual line of sight of an observer who is co-located and in

direct communication with the pilot.

Furthermore, the FAA imposes additional

operational restrictions, requires drones to be flown below 400 feet,

and pro-

hibits drone flights over crowds of people, public events, or stadiums,

or near

emergency responses to accidents, fires, or hurricanes.

III. CURRENT DRONE TECHNOLOGY APPLICATIONS AND BENEFITS

Drone technology has the potential to reshape the lives of Americans if the

regulatory environment permits it to do so. Because of their unparalleled versa-

tility, drones offer “a market opportunity that is too large to ignore” for manufac-

turers and investors.

In fact, the benefits from this market opportunity could be

staggering, as Goldman Sachs forecasts drones will make up a $100-billion mar-

ket by 2020.

Drone usage, similar to the internet and GPS before it, has extended

. New Requirements for Registering and Marking Small Unmanned Aircraft, FED. AVIATION

ADMIN. (Dec. 22, 2015), https://perma.cc/SQH3-JEBY; How To Label Your Drone, FED. AVIATION

ADMIN., https://perma.cc/UJ4U-JMW8 (archived Oct. 11, 2019).

. ID Marking Change, supra note 81.

. 14 C.F.R. § 107.31 (2019).

. Id. at § 107.33.

. Id. at § 107.51.

. Id. at § 107.39.

. Id. at § 107.45; see generally, Recreational Flyers & Modeler Community-Based Organiza-

tions, FED. AVIATION ADMIN. (Aug. 13, 2019), https://perma.cc/Q9GE-MD9S; Airspace Re-

strictions, FED. AVIATION ADMIN. (Aug. 7, 2019), https://perma.cc/N8CJ-5UHF.

. Drones: Reporting for Work, GOLDMAN SACHS (2019), https://perma.cc/LFT8-JH6V; see

generally Joshi, supra note 9.

. Drones: Reporting for Work, supra note 89. Of this $100 billion, $13 billion will come

from commercial businesses, such as State Farm Insurance Company and CNN. Even the FAA

estimates that approximately 450,000 drones will be commercially deployed by 2022. Id.; Andy

Pasztor, FAA Projects Fourfold Increase in Commercial Drones by 2022, WALL ST. J. (Mar. 18, 2015),

https://perma.cc/S4UT-U74M.

Winter 2020 DEADLY DRONES? 195

beyond its original military purposes into (1) commercial, (2) public safety, (3) sci-

entific, (4) conservation, (5) law enforcement, and (6) recreational applications.

A. Commercial Drone Applications

Even though drones are a relatively new technology, commercial drone

adoption has skyrocketed in recent years. American society has undergone a

transformation from virtually zero commercial drones in use a decade ago to ap-

proximately 2,000,000 in operation today.

This upward trend in drone use is

projected to create 100,000 new jobs by 2025.

Additionally, drone-integrated

industries will optimize industrial resource allocation (e.g., drones can identify

construction defects early, track progress, and integrate with other technologies

such as artificial intelligence to generate necessary data) and lower expenses (e.g.,

drones can complete inspection-related tasks within minutes without intensive

labor or equipment), which then fuels commerce and innovation.

Recognizing

these immense benefits, more and more industries—such as (1) journalism, (2) ag-

riculture, (3) construction, (4) insurance, and (5) photography—are attempting to

integrate drones into their regular operations, but are forced to do so against the

backdrop of increasing FAA regulation.

1. Journalism

Drone technology has the potential to revolutionize journalism as we know

it by democratizing aerial investigation and imagery, as the technology becomes

significantly less expensive and more ubiquitous.

Drones are democratizing aerial imagery for three reasons. First, drones can

reach otherwise inaccessible areas quickly, which provides opportunities for un-

rivaled imagery from different angles and a safer option for photo-journalists to

. Drones: Reporting for Work, supra note 89.

. 33 Eye-Opening Drone Stats—Key Trends for 2019, PHILLY BY AIR (Mar. 12, 2019),

https://perma.cc/A73S-CAMR.

. Drones To Create Jobs and Billions in Economic Impact, NAT’L ELECTRICAL CONTRACTORS

ASS’N (Nov. 8, 2017), https://perma.cc/DCQ6-H8H6; Drones: Reporting for Work, supra note 89.

. Andrew Meola, Drones Could Save Us All More Than $125 Billion, BUS. INSIDER (May 11,

2016), https://perma.cc/49BV-VMT7; Brian Wynne & Gary Shapiro, The Biggest Threat to Drone

Innovation Is a Group You’ve Never Heard Of, TECHCRUNCH (Oct. 25, 2018), https://perma.cc/

9S85-UV3Q; Divya Joshi, Exploring the Latest Drone Technology for Commercial, Industrial and Mil-

itary Drone Uses, BUS. INSIDER (Jul. 13, 2017), https://perma.cc/DHP4-P3AR; JENKINS & VASIGH,

supra note 21; Drone Services Reduce Costs, Increase Efficiency on Construction Sites, DJI OFFICIAL,

https://perma.cc/SFY9-8D92 (archived Oct. 11, 2019); Michael Cohen, How Drones Improve

Safety and Efficiency Across Industries, INDUS. SKYWORKS (Mar. 5, 2018), https://perma.cc/WF33-

FZD3.

. Here’s How Drones Are Transforming News Media, BUS. INSIDER (Jan. 3, 2017),

https://perma.cc/R49K-WEDZ.

196 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

document dangerous areas.

Second, drone journalism is substantially cheaper

than alternatives such as helicopter journalism.

Finally, technological advances

such as 4K camera resolution and automated navigation technology have dramat-

ically increased drone efficiency and production value.

For these reasons, drone

journalism is becoming mainstream, and is now taught at major universities and

by large media companies such as Syracuse University, University of Oregon, The

New York Times, CNN, and the National Press Photographers Association.

Most importantly, drone journalism has vastly improved documentary sto-

rytelling by allowing unparalleled use of third-person imagery and videos.

100

As a

result, many media companies have integrated drones directly into their regular

operations. In 2018, The New York Times covered the deadliest and most de-

structive wildfire season on record in California, where 9000 fires burned more

than a million acres, destroying almost 11,000 structures and killing at least 46

people.

101

Josh Haner, a staff photographer and senior editor for photo technology

at The New York Times, captured imagery and reported for days on the devas-

tating fires using a drone.

102

Haner navigated the drone “over the jagged land-

scape, close enough to make out details—partially burned palm trees, and even a

lone fire truck.”

103

Haner’s drone-produced images and videos were “high enough

for viewers to get a sense of the massive scale of the disaster,” which dramatically

improved his ability to story tell and document California’s worst-ever forest

fire.

104

Conversely, using a helicopter as an alternative to capture the same images

and videos would have been a logistical and financial nightmare—they are far

more expensive, dangerous, and difficult to navigate in tight areas than versatile

drones.

105

Additionally, drones gave The New York Times an enterprise tool “to give

readers a sky-view perspective on some of the year’s most visual stories.”

106

For

. Sarah Whittaker, Drones in Journalism, DRONE BELOW (Jan. 4, 2018), https://perma.cc/

6A5B-YKCL.

. Id.

. See id.

. Vicki Krueger, Announcing Poynter’s 2017 Drone Journalism School, POYNTER (Jan. 30,

2017), https://perma.cc/ZB26-S3AX.

100

. Tom Burton, Storytelling with Drones; Tips from Journalists, NPPA (Aug. 16, 2016),

https://perma.cc/29D6-CNBH.

101

. Chuck DeVore, California’s Devastating Fires Are Man-Caused—But Not in the Way They

Tell Us, FORBES (Jun. 30, 2018), https://perma.cc/83GC-6A25; Travis Fox, Drone Journalism’s

Battle for Airspace, COLUM. JOURNALISM REV. (Oct. 9, 2018), https://perma.cc/5GGZ-KW8H;

Lauren Tierney, 2017 Was California’s Largest and Most Destructive Fire Season in a Decade, WASH.

POST (Jan. 4, 2018), https://perma.cc/8796-WACU.

102

. Fox, supra note 101.

103

. Id.

104

. Id.

105

. Id.

106

. Josh Haner & Larry Buchanan, 5 Times Drones Told the Story, N.Y. TIMES (Dec. 14,

2016), https://perma.cc/KQ3V-5EBF.

Winter 2020 DEADLY DRONES? 197

example, The Times used drones to visually illustrate how climate change and

human activities have forced people out of the cities and suburbs, and into deserts

in China.

107

Drones were used to highlight the enormous scale and rate in which

people are creating cities and farms in the desert, which can only be captured

properly through an aerial view.

108

In addition The Times used drones to show its

readers the new Panama Canal without putting any of its investigators and jour-

nalists in harm’s way.

109

It even utilized drones to show readers the vast impact of

the Syrian Civil War on Aleppo, which was featured prominently on the front

page of the newspaper.

110

The Times’ repeated use of drones to report on these

global stories of incredible consequence are just a few examples of the increasing

trend towards drone journalism, and the tremendous impact it can have on our

society’s understanding of crucial, complex issues.

Likewise, CNN has integrated drones into its operations, launching CNN

Aerial Imagery and Reporting (“CNN AIR”) in 2016.

111

CNN AIR uses drones to

“fully integrate aerial imagery and reporting across all CNN networks and plat-

forms.”

112

By integrating drone technology, CNN provides its viewers with im-

proved storytelling through enhanced production and dynamic video angles.

113

For example, CNN AIR used drones to demonstrate the scale of Louisiana’s dev-

astating floods in 2016 and the 2015 water crisis in Flint, Michigan; the 2018 civil

rights march in Selma, Alabama; the

tenth anniversary of Hurricane Katrina; the

Republican and Democratic presidential nominating conventions; and the CNN

presidential primary.

114

While drones have the potential to provide immediate benefits to the jour-

nalism industry, regulatory hurdles hinder widespread adoption. For example,

before The New York Times’ Josh Haner could report on California’s devastating

wildfires, he had to first verify that the FAA did not close the airspace or impose

other flight restrictions, coordinate with local law enforcement to find a safe take-

off and landing location, use a second drone pilot to watch for sudden changes in

the sky, and fly his drone within his line of sight, among other tight restrictions.

115

Moreover, the FAA selected CNN as one of three partners for its Pathfinder pro-

gram, allowing CNN to use drones for newsgathering in exchange for receiving

107

. Josh Haner et al., Living in China’s Expanding Deserts, N.Y. TIMES (Oct. 24, 2016),

https://perma.cc/E642-5B7C.

108

. Id.

109

. Haner & Buchanan, supra note 106.

110

. Id.; Michael Kimmelman, Berlin, 1945; Grozny, 2000; Aleppo, 2016, N.Y. TIMES (Oct. 14,

2016), https://perma.cc/M2TH-7C8U.

111

. Press Release, CNN, CNN Launches CNN Air (Aug. 18, 2016), https://perma.cc/

68NF-76EG.

112

. Id.

113

. Id.

114

. Id.

115

. Fox, supra note 101.

198 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

CNN’s data and research in return.

116

CNN and the Georgia Tech Research In-

stitute entered into a direct research partnership with the FAA to help the agency

formulate more flexible and comprehensive regulations to safely integrate drones

into the national air space.

117

Without partnerships like this, obtaining a permit

to fly drones for newsgathering takes two or three months, which effectively

eliminates drone usage for breaking news coverage.

118

While the FAA is taking

small strides in the right direction by granting limited waivers, the underlying

drone regulations need significant reform to unleash the immense benefits and

needs for this technology in the field of journalism.

2. Precision Agriculture

In addition to enhancing journalism, drone technology has enormous poten-

tial to improve agricultural production and contribute to the fight against food

insecurity. At any given moment, more than 815 million people across the globe

are chronically hungry.

119

Food insecurity will only become a larger problem as

the world population increases by approximately 20% by 2050, according to the

Food and Agriculture Organization of the United Nations.

120

With declining re-

sources (e.g., land and water) and increasing extreme weather events, growing

food has become far more challenging.

121

Fortunately, drones and advancing

technologies can help by maximizing crop efficiency and yields through tech-

niques often referred to as “precision agriculture” or “smart farming.”

122

In fact,

PwC estimates that drone-powered agricultural solutions will become a large fac-

tor in our fight against food insecurity, potentially comprising a $32 billion mar-

ket.

123

116

. CNN Launches CNN Air, supra note 111. The FAA’s Pathfinder program was created

to partner up with companies that want to use drones. Specifically, CNN explored how drones

might be used safely for newsgathering in populated areas (i.e., over people). CNN’s infor-

mation and data were shared with the FAA as part of the Pathfinder program to find ways to

create flexible drone regulations. Completed Programs and Partnerships, FED. AVIATION ADMIN.

(OCT. 27, 2018), https://perma.cc/XYC6-ZBPY.

117

. CNN Launches CNN Air, supra note 111.

118

. Laura Testino, CNN and Georgia Tech Are Exploring Ways To Use Drones in Journalism,

ATLANTA MAG. (Jun. 24, 2014), https://perma.cc/K76Q-DZCP.

119

. GERARD SYLVESTER ET AL., E-AGRICULTURE IN ACTION: DRONES FOR AGRICULTURE

(2018), https://perma.cc/P89G-RXL8; Michal Mazur, Six Ways Drones Are Revolutionizing Agri-

culture, MIT TECH. REV. (Jul. 20, 2016), https://perma.cc/V4C6-EUHP.

120

. HIGH LEVEL EXPERT FORUM—HOW TO FEED THE WORLD IN 2050, FOOD AND AGRIC.

ORG. OF THE UNITED NATIONS, GLOBAL AGRICULTURE TOWARDS 2050, (2009),

https://perma.cc/53AM-DRFT; see generally SYLVESTER ET AL., supra note 119.

121

. Mazur, supra note 119.

122

. SYLVESTER ET AL., supra note 119.

123

. MICHAL MAZUR & ADAM WISNIEWSKI, PWC, CLARITY FROM ABOVE: PWC GLOBAL

REPORT ON THE COMMERCIAL APPLICATIONS OF DRONE TECHNOLOGY (2017),

https://perma.cc/G6TS-4RUQ.

Winter 2020 DEADLY DRONES? 199

To maximize production, crops must be fertilized, watered, and harvested at

precisely the right time and place.

124

For example, harvesting crops prematurely,

neglecting defects early on, overwatering, or using too much pesticide negatively

impact yields.

125

Fortunately, drones can address these concerns by allowing

“planning and strategy based on real-time data gathering and processing,” provid-

ing farmers with critical information to assist them in maximizing crop produc-

tion.

126

First, drones have the ability to provide farmers with information on pre-

cisely when to irrigate or apply fertilizers to crops.

127

To obtain this information,

farmers can easily deploy their drones to take pictures and videos of their crops

in various stages of growth.

128

Then, farmers can use these images to assess spe-

cific regions of the field to detect visual defects or deficiencies early on, such as

diseases or dehydration.

129

Once an issue has been identified, farmers can re-de-

ploy drones to apply water or fertilizers to specific crops, which importantly only

treats affected areas.

130

Prior to the availability of drone technology, farmers had

to order advanced satellite imagery or fly small planes over their fields to obtain

similar data and imagery—an extremely time-consuming and costly method by

comparison.

131

124

. Id.; SYLVESTER ET AL., supra note 119; see PAUL C. HAY, UNIV. OF NEBRASKA-LINCOLN

EXTENSION, TOP SEVEN FACTORS IN CROP PRODUCTION, https://perma.cc/FWK4-HV44 (ar-

chived Jan. 5, 2020); Gary Zoubek & Chuck Burr, Managing Soybean Harvest Timing, Moisture To

Improve Yield, U. NEB.-LINCOLN CROPWATCH, https://perma.cc/HV3S-SD2V (archived Feb. 28,

2020).

125

. See generally Hay, supra note 124; Mazur, supra note 119.

126

. Mazur, supra note 119; MAZUR & WISNIEWSKI, supra note 123.

127

. Mazur, supra note 119; MAZUR & WISNIEWSKI, supra note 123; SYLVESTER ET AL., supra

note 119.

128

. SYLVESTER ET AL., supra note 119. In layman’s terms, drones create 3D maps and ad-

vanced images of fields, which give farmers the necessary information and tools to plan and

manage their crops—leading to improved crop productivity. Drones are deployed for cyclical

flights over crops to collect data, indicate the precise timing for harvest, and provide accurate

weather forecasts. Furthermore, drone-collected data is used to assess soil conditions “as well

as moisture and water flow precisely.” Id. Additionally, the collected data and images are com-

bined with other data sources to create “Normalized Difference Vegetation Index (NDVI) maps,

which can differentiate soil from grass or forest, detect plants under stress, and differentiate

between crops and crop stages.” Id. Interestingly, drone technology has improved and refined

“NDCI mapping capabilities to a completely new level of accuracy, making it possible to mon-

itor the condition of not only plants, but also specific parts of plants.” Id. This is extremely im-

portant because NDVI data and crop yields are strongly correlated—NDVI data provides ap-

propriate information to track crop growth at key stages, which allows farmers to specifically

identify defects (e.g., pests, diseases, deficiencies) and cure them in specific areas in order to

maximize crop yields. Drones can cure diseases, for example, by flying towards the infected

crop, identifying the infected area, and applying pesticides or other chemicals precisely in the

infected area. Id.

129

. SYLVESTER ET AL., supra note 119.

130

. Id.

131

. Id.

200 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

Drone-powered solutions can also help farmers detect diseases in their crops

before they spread, thus mitigating damage and minimizing unnecessary ex-

penses. For example, Agribotix, an agricultural intelligence company providing

drone-enabled technologies, provided data to a farmer that allowed her to suc-

cessfully eradicate bur cucumber infestation from her soybean crops.

132

She was

able to detect the infestation near the perimeter of her field and treat the issue

quickly before it spread.

133

With this drone-powered solution, the farmer pre-

vented further crop losses and in turn dramatically increased yields and reve-

nues.

134

Maximizing drones’ impact in our fight against global food insecurity re-

quires widespread adoption though in the United States, and the FAA’s regula-

tions to date have limited such usage. Fortunately, the FAA is now beginning to

recognize the problem and allow growing investment in the technology by farm-

ers focused on precision agriculture to increase yields.

135

3. Construction

Drones also offer the promise that they will make an enormous impact in the

construction industry. Drones can provide aerial images of construction projects

to workers in real time, which is especially useful when it comes to inspecting

project sites in development.

136

While simple, drones used in this capacity have

resulted in immediate benefits such as reduced operational costs and increased

worker safety.

137

Drones lower operational costs by providing operators with a bird’s-eye view

of construction sites, allowing them to monitor site progress, detect early struc-

tural defects, and identify potential hazards and quality concerns.

138

Drones also

provide images from diverse angles (e.g., through obstacles or difficult-to-reach

places within a construction site) in a cost-effective and efficient manner.

139

For

instance, Uplift Data Partners, a drone service provider, saved a construction

132

. Agriculture Drones, AGRITECHTOMORROW (Jun. 4, 2019), https://perma.cc/J96T-9T68;

see generally Luke Geiver, Survey Shows Drone Adoption Rate by Farmers, UAS MAG. (Jul. 31, 2018),

https://perma.cc/Z2XF-88AP.

133

. Geiver, supra note 132; Agriculture Drones, supra note 132.

134

. Geiver, supra note 132; Agriculture Drones, supra note 132. The early detection and op-

timization of inputs prevented 13% crop losses on her 110 total acres and saved a total of $7222

(i.e., crop loss avoidance of $5297 and savings from precise herbicide application of $1925).

CASSIDY RANKINE, SKYCLAIM (2017) (citing Agribotix statistic on slide 24).

135

. SYLVESTER ET AL., supra note 119.

136

. The Rise of Drones in Construction, DRONEDEPLOY (Jun. 6, 2018),

https://perma.cc/46GA-8G6V.

137

. Ibrahim Mosly, Applications and Issues of Unmanned Aerial Systems in the Construction

Industry, 6 INT’L J. CONSTRUCTION ENGINEERING & MGMT. 235 (2017).

138

. Id.; The Rise of Drones in Construction, supra note 136; 2018 Commercial Drone Industry

Trends, DRONEDEPLOY (May 29, 2018), https://perma.cc/3QD9-YLPV.

139

. 2018 Commercial Drone Industry Trends, supra note 138.

Winter 2020 DEADLY DRONES? 201

company $300,000 “by finding a misalignment in the piping and pouring of a

building’s foundation” through the drone’s aerial photos for only $350.

140

Alter-

natively, this discovery would only have been made possible by using a helicopter,

which would cost at least $20,000.

141

Because drones democratize the availability

of images and immediately provide critical information to their operator, they

have proven to be an invaluable tool for the construction industry.

In addition to economic efficiencies, drones also improve human safety

within construction sites. Significantly, according to PwC, drones have the po-

tential to decrease life-threatening accidents by 91% in construction-related pro-

jects.

142

As detailed above, operators can use these small flying devices to remotely

inspect construction sites for hazardous conditions or unstable structures with-

out placing workers directly at risk.

143

By removing human inspections of con-

struction or accident sites, drones have already significantly reduced worker ex-

posure to structural collapses and accompanying injuries.

144

For example,

Ibrahim Mosly documented how drones allowed “inspectors to safely view still

images and video of the damaged areas [of buildings] and perform an accurate

assessment” in cases of structural fires on rooftops.

145

In lieu of people, drones can

now inspect “awkward or difficult-to-reach locations such as tall structures, un-

der bridges, and along busy highways,” saving countless human lives.

146

Additionally, state and federal infrastructure regulations require structural

inspections to ensure that buildings comply with applicable safety standards.

147

Instead of requiring workers to climb up 200 feet to inspect a wind turbines’

blades, for example, construction companies can deploy a drone to inspect that

structure.

148

Using drones instead of manual inspections provides construction

companies with a cost-effective method to accomplish the same task but more

importantly increases human safety on construction sites—an industry well-

known for causing thousands of physical disabilities and human casualties per

year.

149

140

. Jackie Bender, This Startup’s Drones Are Saving Construction Companies Truckloads of

Money, CRAIN’S CHICAGO BUS. (Jan. 3, 2019), https://perma.cc/SX6K-S4FU.

141

. Id.

142

. Shea O’Donnell, The Role of Drones in Infrastructure, CONSORTIQ (May 2, 2017),

https://perma.cc/7B66-PFCL.

143

. Noel Borck, Using Drones To Monitor Construction Safety, LABORERS’ HEALTH & SAFETY

FUND OF NORTH AM. (Sept. 2018), https://perma.cc/DY4Z-A64X.

144

. Mosly, supra note 137.

145

. Id.

146

. April Dorsey, Using Drones To Monitor Construction Safety, LABORERS’ HEALTH & SAFETY

FUND OF NORTH AM. (Aug. 2018), https://perma.cc/B4DJ-P4YB.

147

. See generally, National Bridge Inspections Standards Regulations, 69 Fed. Reg. 74,419,

74,428 (Dec. 14, 2004) (“The FHWA believes that the inspection frequency should not exceed

24 months.”).

148

. Id.

149

. Id.; Death on the Job: The Toll of Neglect, 2017, AFL-CIO (Apr. 26, 2017),

https://perma.cc/E4J8-954W.

202 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

Critically though, construction companies must still obtain a waiver from the

FAA to fly drones beyond the pilot’s line of sight to accomplish the above-de-

scribed tasks, despite the obvious and immense benefits.

150

This red tape unnec-

essarily hinders broad adoption of drone technology for construction, and needs

to be eliminated promptly so that the industry can maximize its potential to save

lives and resources.

151

4. Insurance

Insurance companies have already reaped enormous benefits by investing

early in commercial drone technology but have yet to unlock the full potential of

drones—particularly due to strict FAA drone regulations, like the visual line-of-

sight rule.

152

Prior to incorporating drones into their business models, insurance

companies such as AIG, State Farm, and USAA must navigate the tedious and

lengthy process of securing FAA permits.

153

Drones, nonetheless, have begun to

collect aerial data, respond to catastrophes, and resolve insurance claims, which

carries the promise of improving risk management and efficiently streamlining

the entire insurance process.

154

It is not difficult to see that drones have great capacity to allow insurers to

assess risk and process claims faster.

155

After an accident, drones can quickly, eco-

nomically and safely inspect and obtain high-quality visuals of the damaged area

or specific property.

156

The data and imagery collected can then be utilized by

insurance companies to provide accurate and efficient claim adjustments.

157

For

example, Country Financial reports that it can assess three times as many acres of

farmland via drone as a human adjuster on foot while efficiently accounting for

all of a customer’s crop damage.

158

Similarly, by using drones Allstate has signifi-

cantly reduced the time it takes to issue a home repair estimate from 11 to 4.5

150

. Part 107 Waivers, FED. AVIATION ADMIN. (Aug. 1, 2019), https://perma.cc/4DM3-

VV97.

151

. Hallie Busta, Drone Law: How New Rules and Evolving Tech Are Changing the Path of UAVs

in Construction, CONSTRUCTION DIVE (Mar. 27, 2017), https://perma.cc/4GY8-KDLN.

152

. Akash Tayal & Nikhilesh Ramani, Insurance Industry Drone Use Is Flying Higher and Far-

ther, DELOITTE (2019), https://perma.cc/J3DP-W5ME.

153

. See Leslie Scism & Jack Nicas, Insurers Get Approval To Use Drones, WALL ST. J. (April 8,

2015), https://perma.cc/23JP-9QUV.

154

. Tayal & Ramani, supra note 152; Drones in Insurance, DJI OFFICIAL,

https://perma.cc/YAZ2-Y983 (archived Nov. 7, 2019).

155

. Tayal & Ramani, supra note 152; Marianne Bonner, How Drones Will Change the Insur-

ance Industry, BALANCE SMALL BUS. (June 12, 2018), https://perma.cc/2YBM-5EK2.

156

. Tayal & Ramani, supra note 152.

157

. Id.; Gabriella Messina, How Are UAVs Changing the Insurance Industry?, POMS &

ASSOCIATES, https://perma.cc/Q93A-E75Y (archived Nov. 7, 2019).

158

. Taking Crop Adjusting to New Heights, COUNTRY FIN. (Aug. 21, 2017),

https://perma.cc/B75R-ZQ63.

Winter 2020 DEADLY DRONES? 203

days.

159

Of course, drones also minimize adjusters’ exposure to accidents and haz-

ardous conditions, which not only increases their safety, but also inspection effi-

ciency by up to 85%.

160

These operational efficiencies directly translate into economic benefits.

Drones mitigate costs by eliminating expensive equipment (e.g., helicopters), and

reducing the need to have trained specialists on site, who often have to make mul-

tiple site visits.

161

Drones can capture real-time and high-quality footage of an

accident site, allowing specialists to view live videos remotely or re-analyze vid-

eos and pictures without putting them in harm’s way.

162

These human and economic benefits are especially important in response to

natural disasters.

163

After Hurricane Florence hit North Carolina in 2018, drones

were employed to collect data, which sped up the rebuilding process.

164

Preci-

sionHawk, a drone and data company, utilized drones to collect imagery of the

damaged homes and property, which provided insurance customers with infor-

mation necessary to settle insurance claims without deploying human inspec-

tors.

165

Michael Chasen, CEO of PrecisionHawk, stated quite simply, drones have

the potential to “transform the claims cycle, making it faster and safer for adjust-

ers to observe, analyze, and assess the damage associated with incidents ranging

from accidents to natural disasters.”

166

Further, after a natural disaster hits, drones

can help automate the entire process so that affected families do not have to en-

dure additional stress over insurance claims, allowing people to resume their nor-

mal lives more quickly.

Hoping to capitalize on drones’ truly disruptive potential in the field, major

insurers including Allstate and Liberty Mutual have invested in the technology

and incorporated them into their regular operations.

167

Drone usage has also

evolved, as these major players are using drones to maximize efficiencies in both

phases of their operations—not just post-loss as described above, but also pre-loss

(i.e., before damages occur).

159

. Kristin Lausten, Use of Drones for Insurance Claims Adjusting, LAUSTEN & CO. (Sept. 30,

2017), https://perma.cc/DV93-75G7; see also Barbara Marquand, Meet Your New Insurance

Claims Inspector: A Drone, USA TODAY (Jun. 8, 2017), https://perma.cc/V6FX-8WRK; Jonathan

Vanian, Allstate Just Used Drones To Inspect Homes in Texas, FORTUNE (Sept. 2, 2016),

https://perma.cc/8LPG-J2J3.

160

. Tayal & Ramani, supra note 152; Nicholas Newman, How Drones Are Aiding the Energy

Sector, ENIDAY, https://perma.cc/T5G7-Q7XE (archived Nov. 7, 2019).

161

. Tayal & Ramani, supra note 152; Newman, supra note 160.

162

. Tayal & Ramani, supra note 152; Newman, supra note 160.

163

. Jennifer Kite-Powell, These Drones and Humans Will Work Together In Hurricane Florence

Recovery Efforts, FORBES (Sept. 16, 2018), https://perma.cc/F2RE-2EX9.

164

. Id.

165

. Id.

166

. Id.

167

. Insurance Companies that Use Drones, GRIND DRONE (May 6, 2018),

https://perma.cc/3TEA-7RUH; see also Marianne Bonner, How Drones Will Change the Insurance

Industry, BALANCE SMALL BUS. (Jun. 12, 2018), https://perma.cc/2YBM-5EK2.

204 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

During pre-loss, an adjuster or risk engineer can deploy a drone to quickly

and safely assess the initial condition of a property (e.g., structures, crops or even

large automobiles) in order to produce risk-assessment reports for underwriters

and clients, which can then be used to determine appropriate pricing.

168

Before

drone implementation, insurance companies used field personnel to “climb lad-

ders and scaffoldings to inspect property” or walk across fields to inspect crops.

169

Now, drones can rapidly be deployed up front, significantly reducing the turna-

round time for completing initial risk-assessment reports.

170

As the technology advances, more insurance companies will seek to deploy

drones as essential business tools for claim adjudication, risk engineering and ca-

tastrophe claims management.

171

Insurers that fail to introduce drones into their

business models will quickly become dinosaurs in the field.

172

Of course, for the

insurance industry to take this next step, the FAA must assist in these efforts by

allowing insurers a more streamlined approach to receiving waivers.

5. Photography and Videography in Marketing

As technology in drone cameras and navigation improve, many industries are

lining up to employ the devices to create stunning visual content for use in mar-

keting. The new gold standard in drone cameras utilizes one-inch sensors and 4K

resolution, which provide superior quality imagery compared to anything previ-

ously in use at a remarkably affordable cost.

173

Additionally, drones are relatively

easy to fly—even for a novice pilot—and can hover completely motionless to cap-

ture perfect videos and images that prior technology did not easily permit.

174

With

these capabilities, marketing firms and photographers can enhance their story-

telling abilities, capture previously unseen content, and establish an edge over

their competition.

175

Not surprisingly then, drones are becoming widely used in

media and marketing campaigns within the entertainment, advertising, real es-

tate, and tourism industries.

168

. Tayal & Ramani, supra note 152; AGIL FRANCIS ET AL., COGNIZANT, DRONES: THE

INSURANCE INDUSTRY’S NEXT GAME-CHANGER? (2014), https://perma.cc/M78M-NYLR.

169

. Tayal & Ramani, supra note 152; FRANCIS ET AL., supra note 168.

170

. Tayal & Ramani, supra note 152; FRANCIS ET AL., supra note 168.

171

. Tayal & Ramani, supra note 152; FRANCIS ET AL., supra note 168.

172

. Tayal & Ramani, supra note 152; FRANCIS ET AL., supra note 168.

173

. Charles Chen, 8 Crucial Things To Know Before Buying a Drone for Photography, DJI

GUIDES (Aug. 1, 2017), https://perma.cc/W94Z-5JMD; Nick Pino & Henry St. Leger, What Is

4K Resolution? Our Guide to Ultra HD Displays, TECHRADAR (Oct. 7, 2019),

https://perma.cc/HS6K-8YPW. Sensors directly affect image quality and enables users to shoot

high-quality footage in low light. 4K resolution has over 8 million pixels, which creates unpar-

alleled picture and video quality. Id.

174

. Chen, supra note 173.

175

. Christina Brown, Drones in Marketing: A New Era in Visual Marketing, SAVY AGENCY

(Jul. 6, 2016), https://perma.cc/6RD6-6NE5.

Winter 2020 DEADLY DRONES? 205

B. Entertainment

Because drones provide jaw-dropping photos and cinema-quality visuals,

media companies have begun to integrate drone videography and photography

into their operations. For example, the wildly popular environmental documen-

tary series, Planet Earth, now regularly employs drones for its filming needs.

176

The producers send drones with high-quality cameras into the jungle to give their

viewers a surreal nature experience.

177

Because 90% of jungle animals live up in

the tree top canopy, drones fly hundreds of feet high to capture never-before-seen

footage of animals that only a bird or aircraft could witness previously.

178

Drones are also becoming more frequently used to create captivating enter-

tainment that doubles as advertising. For instance, Red Bull used drones to film

“The Ridge,” a video short which featured professional cyclist Danny

MacAskill.

179

In the YouTube video, MacAskill takes a “death-defying ride along

the notorious Cuillin Ridgeline” in Scotland on his mountain bike.

180

The amaz-

ing aerial video cemented Red Bull’s “Red Bull gives you wings” slogan and cap-

tured the eyes of a staggering 61 million viewers.

181

Additionally, Coca-Cola part-

nered with the Singapore Kindness Movement and filmed “Happiness from the

Skies,” a campaign that helped provide Singaporeans the opportunity to show ap-

preciation towards the foreign workers in their communities.

182

That video

showed drones delivering Coca-Cola cans and more than 2700 personalized

thank you cards to migrant workers building structures in Singapore.

183

Coca-

Cola used drone technology as an innovative way to “bring together two segments

of the community who rarely interact.”

184

Any efforts by Coca-Cola (or Red Bull)

to recreate this scene in the United States would have been marred with FAA-

imposed red tape.

Finally, drones were used to great fanfare during Lady Gaga’s Super Bowl LI

halftime show in 2017.

185

In unison, 300 drones danced behind the multiple

Grammy winning music icon to form the American flag and Pepsi logo.

186

These

drones provided a powerful performance on America’s biggest stage because of

176

. Planet Earth II—Drones in the Jungle, BBC, https://perma.cc/X82F-EKT8 (archived

Nov. 7, 2019).

177

. Id.

178

. Id.

179

. How Drones Are Taking the Marketing Game Up and High, 42WORKS (Jul. 26, 2017),

https://perma.cc/DP3A-Z2R2.

180

. Danny Macaskill, The Ridge, YOUTUBE (Oct. 2, 2014), https://perma.cc/AYC8-C2T4.

181

. Id.

182

. How Drones Are Taking the Marketing Game Up and High, supra note 179.

183

. Press Release, CocaCola Co., Happiness From the Skies: Watch Coke Drones Refresh

Guest Workers in Singapore (May 12, 2014), https://perma.cc/7SBR-DM7E.

184

. Id.

185

. Alex Fitzpatrick, Here’s How Lady Gaga’s Super Bowl Drones Worked, TIME (Feb. 6, 2017),

https://perma.cc/8GAM-388R.

186

. Id.

206 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

Intel’s Shooting Star program, which preprogramed the drones to fly, hover, and

emit lights in a specific pattern.

187

This type of entertainment was “something that

had never been done before” and was a combination of “Intel drone innovation

with [Lady Gaga’s] artistry.”

188

Of course, it required a lengthy FAA preapproval

process by satisfied first, a requirement that precludes more routine use.

C. Real Estate Marketing

For real estate agents, drone photography is increasingly providing potential

buyers with information and details beyond simply aerial images of the entire

property.

189

For example, drones can give potential buyers information about the

surrounding neighborhood and area, driving routes to school or work from the

property, and confirm the condition of the roof and other property features that

are otherwise difficult and expensive to access.

190

Drones effectively streamline

real estate transactions, provide plentiful visual information for a reasonable cost,

and reduce unnecessary back-and-forth inquiries between parties about the

property and surrounding area.

191

Before drones were available, real estate agents obtained aerial photos of

properties through satellite images or aerial photography sessions with hired air-

planes or helicopters—both of which are prohibitively expensive and time-con-

suming.

192

Luckily, drones provide a budget-friendly alternative.

193

Because of

these efficiencies, real estate giants like Zillow and Trulia have integrated drone

photography into their real estate operations.

194

Recently, Trulia launched Trulia Neighborhoods, “an aggregated dashboard

of drone footage, photo galleries, reviews, photography, and information about

187

. Matt Burns, Intel Powered the Drones During Lady Gaga’s Super Bowl Halftime Show,

TECHCRUNCH (Feb. 5, 2017), https://perma.cc/HM4W-5SJQ.

188

. Intel Drones Light Up Lady Gaga Performance During Pepsi Zero Sugar Super Bowl LI

Halftime, INTEL NEWSROOM (Feb. 5, 2017), https://perma.cc/BRB3-RFLY.

189

. Tyler Nicely, Real Estate Drone Photography and Video, ZILLOW (May 21, 2019),

https://perma.cc/TYB2-QN64.

190

. Id. For example, many home inspectors now prefer to use drones to visualize roof-

tops, and pass on the savings to customers (not to mention improved safety to themselves).

191

. See Ilyce Glink, 9 Ways Drones Are Changing Real Estate, CBS (Mar. 6, 2017),

https://perma.cc/SVU7-JCQ8.

192

. Id.

193

. Id. (“VHT Studios, based in Rosemont, Illinois, offers drone photography sessions

starting at $379 for up to 10 still photos and $479 for photos and a one-minute video. Open

Homes Photography, based in California’s Bay Area, offers almost identical aerial drone photo

packages for $275 and $575, respectively. In Brick Township, New Jersey, photography and

video company Osprey Perspectives offers a ‘basic’ aerial drone photo package for $250 and a

‘basic’ aerial video package for $425.”).

194

. Kyle Wiggers, Trulia Neighborhoods Gives Homebuyers a Drone‘s Eye View on Their New

Neighborhood, VENTUREBEAT (Aug. 14, 2018), https://perma.cc/S5NY-SDFS.

Winter 2020 DEADLY DRONES? 207

neighborhood communities.”

195

Based on research, Trulia found that “consumers

were determined to find this type of information and even developed a series of

hacks to source these valuable insights.”

196

In fact, the study found that 85% of

homebuyers prioritize information about their prospective neighborhood when

searching for new properties.

197

Fortunately, drone imagery and data give poten-

tial buyers enough information to digitally place them at the property site and its

surrounding neighborhoods without physically having to even be there in person.

As of 2017, 26% of all small commercial drones were used for real estate pur-

poses.

198

As a major application, drone usage in real estate is expected to increase

but is limited due to FAA regulations.

199

Current restrictions require drone oper-

ators to obtain permits for commercial purposes.

200

Unfortunately, the FAA issues

permit on a case-by-case process, which make the acquisitions a burdensome and

time-consuming process.

Because of strict regulatory hurdles, it is “common

practice for photographers and real estate agents to sidestep the federal regula-

tions by charging only for video editing services, not the drone flights,” according

to Zillow.

201

195

. Id.

196

. Id.

197

. Id.

198

. FED. AVIATION ADMIN., FAA AEROSPACE FORECAST: FISCAL YEARS 2017-2037 (2017),

https://perma.cc/PP6L-ZK8R.

199

. Joel Aschbrenner, FAA Says Real Estate Agents’ Drone Use Illegal, USA TODAY (Jul. 7,

2014), https://perma.cc/BH5V-DR54.

200

. 14 C.F.R. §§ 107.200 (2019); see also Part 107 Waivers, supra note 150.

201

. Jennifer Chan, Drones Take Off in Real Estate Marketing, ZILLOW (June 27, 2014),

https://perma.cc/K726-Y3RX.

208 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

D. Tourism

As the world becomes more digital, tourist information and advertising is in-

creasingly shifting towards online social media platforms like YouTube, Face-

book, and Instagram.

202

According to Google, two out of three American consum-

ers are drawn towards these types of websites to watch travel videos.

203

Understandably, travelers want to see a video of facilities, features, and location

in advance of making their choices.

204

As proof of this trend, travel vlogs “receive

[four times] more social engagement (likes, comments, shares, favorites, subscrip-

tions) than any other type of travel content on YouTube.”

205

Because of these

numbers, major players in the tourism industry have integrated drones into their

online operations to capture breathtaking imagery and videos.

Effective social media boils down to the ability to create dramatic content

that grabs viewers’ attention, which not surprisingly is aided by the inclusion of

stunning visual imagery and videos that drones can provide. With scale and wide

view photography and videos, prospective travelers can enjoy a realistic and per-

suasive view of their desired destination in advance of their decision to commit

thousands of hard-earned dollars. Tourism advertisers and social media users

have shared unbelievable videos of the Prince William Sound in the Gulf of Alaska

where humpback whales and seals feed on fish,

206

Big Sur in California where the

202

. Vloggers (i.e., video bloggers) and advertisers are channeling resources into these

platforms: Instagram is projected to have over 111 million users in the United States in 2019,

J. Clement, Number of Monthly Active Instagram Users 2013-2018, STATISTA (2019),

https://perma.cc/K8J6-6RC5, YouTube has over 1.8 billion users every month; and Facebook

has over 2 billion users, Ben Gilbert, YouTube Now Has Over 1.8 Billion Users Every Month, Within

Spitting Distance of Facebook’s 2 Billion, BUS. INSIDER (May 4, 2018), https://perma.cc/26HN-

RBE4. In fact, the pictures and videos streaming on social media are changing the tourism in-

dustry, especially among millennials. More than 40% of travelers under 33 prioritize “Insta-

grammability” when choosing their next travel destination, which means how picture-worthy

a destination is. Andrew Arnold, Here’s How Much Instagram Likes Influence Millennials’ Choice of

Travel Destinations (Jan. 24, 2018), https://perma.cc/78LV-HF69. Additionally, Instagram users

follow photographers on Instagram because their photo or video gives a “more genuine expres-

sion than looking for inspiration in a tourism brochure.” Carrie Miller, How Instagram Is Chang-

ing Travel, NAT’L GEOGRAPHIC (Jan. 26, 2017), https://perma.cc/8B22-B2GU. Whether travelers

are looking for a picture-worthy or thrilling and intimate destination, social media provides a

premium market for drone imagery and videos—travelers want to emotionally engage with

photographers and experience their stories vicariously through their photos or videos accord-

ing to Google. Hailey Crowel et al., Travel Content Takes Off on YouTube, THINK WITH GOOGLE

(Aug. 2014), https://perma.cc/A2VP-62Y2.

203

. Tourism Marketing with Videos: Make that Emotional Connection, TOMAHAWK (May 15,

2017), https://perma.cc/SAC5-Z6BY; Crowel et al., supra note 202; How Video Can Benefit Tour-

ism Marketing, ONE PRODUCTIONS (July 31, 2013), https://perma.cc/PMY9-Y6K3.

204

. TOMAHAWK, supra note 203; ONE PRODUCTIONS, supra note 203.

205

. Crowel et al., supra note 202.

206

. Gavin Hobbs, 7 Places To Capture With Your Drone, CREATIVE TRAVEL GUIDE (Jun. 7,

2018), https://perma.cc/7XTN-26GN.

Winter 2020 DEADLY DRONES? 209

Pacific Ocean’s waves crash into seaside cliffs,

207

and Black Hills in South Dakota

where wild bison, bighorns, and other wildlife roam the forest, mountains, and

peaks.

208

Additionally, major travel brands utilize professional drone videos to

showcase exciting tourist destinations: 67% of travel-related YouTube views are

from major companies such as Expedia and Disney Parks & Resorts.

209

For the

foreseeable future, the tourism industry will continue to embrace drone videos

and photography on the internet and social media in order to aid and persuade

travelers in picking their next travel destination.

E. Rescue and Recovery After Accidents and Disasters

When disaster strikes, drones can save lives by aiding first responders in

search, recovery and humanitarian efforts. Traditionally, human rescue teams

have searched for disaster victims or wreckage in deserts, oceans, mountains, and

forests, consuming precious time and energy and risking even greater loss of

life.

210

Even when rescuers locate survivors, the teams are tasked to recover vic-

tims in dangerous areas that may contain chemical, biological, radiological, nu-

clear, or explosive materials or in vast and rough terrain.

211

These efforts also

carry significant financial expense, as helicopters, other large machinery (e.g.,

cameras), and a team of rescuers are often deployed for these missions today.

212

Fortunately, drones are a better fit to handle these dire situations for three

reasons. First, drone operators are not forced to weigh lives like a helicopter pilot

might, enhancing the effectiveness of search and rescue operations and reducing

the likelihood of human error and injury in terrifying situations.

213

Second, hu-

man fatigue can be removed as a factor in recovery efforts, and society can avoid

putting first responders in harm’s way.

214

Finally, drones are far less expensive

and more effective than helicopters.

215

In these dire situations, a drone’s lifesaving potential is not mere specula-

tion—drones have saved at least 133 lives worldwide as of June 2018.

216

DJI, a

global leader in drone and aerial imaging technology, now estimates that drones

207

. Id.

208

. Id.

209

. Crowel et al., supra note 202.

210

. MEASURE, DRONES FOR DISASTER RESPONSE AND RELIEF OPERATIONS 27 (2015),

https://perma.cc/529M-VW5P.

211

. Id.

212

. See id.; Charles W. Bryant, The Cost of Search and Rescue, HOWSTUFFWORKS,

https://perma.cc/3YKC-HPPL (archived Feb. 28. 2020); Aarian Marshall, Above Devasted Hou-

ston, Armies of Drones Prove Their Worth, WIRED (Sept. 4, 2017), https://perma.cc/R4AB-RECU.

213

. See Marshall, supra note 212.

214

. MEASURE, supra note 210 at 27.

215

. See Marshall, supra note 212.

216

. Press Release, DJI, Public Safety Drones Save Four Lives in One Day (Jun. 6, 2018),

https://perma.cc/C494-FE27.

210 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

save “one person’s life a week on average.”

217

One recent example in Canada in-

volved police officers utilizing drone technology equipped with infrared imaging

to locate an injured driver who was stranded in a snowy bank after a helicopter

search had failed to turn up anything.

218

In another dramatic example, a drone

located the victim of a heart attack and his granddaughter who were stranded on

the Des Moines River.

219

In that rescue mission, the drone located the two victims

well before a 20-person rescue team did.

220

Time is critical in rescue missions like

this, as the sun was setting and darkness made it difficult for human rescuers to

see the victims amid the thickly wooded riverbank.

221

Yet another success story

came in 2017 when rescuers found missing and stranded kayakers near Hunting-

ton Beach using a heat-sensing drone.

222

Furthermore, police and fire departments also utilize drones for disaster re-

lief to locate helpless individuals and deliver life-saving supplies. For example,

public safety agents in Texas dropped a life vest to a mother and her fifteen-year-

old daughter who were stranded in a rising river and did not know how to

swim.

223

Additionally, U.K. police officers used a drone with a thermal imaging

camera to find an unconscious man at the edge of a steep cliff face.

224

These are

but a couple of the increasing number of success stories touting the efficacy and

safety of drones in search and rescue missions due to their ability to cover signif-

icantly more area than humans, and their ability to use thermal imaging cameras

to locate stranded, missing, or unconscious individuals hidden by smoke, vegeta-

tion, or darkness.

225

Moreover, in response to natural disasters, drones have also proven to be

powerful tools. With the FAA’s authorization, over 100 drones were deployed in

Houston, Texas after Category 4 Hurricane Harvey hit.

226

These drones inspected

roadways and evaluated the condition of water plants, oil refineries and power

217

. Don Reisinger, Here’s How Many Lives Drones Have Saved Since 2013, FORTUNE (Mar. 14,

2017), https://perma.cc/TV5R-FVK5.

218

. Id.; Carl Franzen, Canadian Mounties Claim First Person’s Life Saved by a Police Drone,

THE VERGE (May 10, 2013), https://perma.cc/E8ME-C5GL; Keith Nelson Jr., Drones Can Help

When Disaster Strikes, but Only When They’re Allowed To, DIGITAL TRENDS (Sept. 28, 2017),

https://perma.cc/C9RH-XU7V.

219

. Matt McFarland, Drone Helps Find Man Suffering from Heart Attack, CNN MONEY

(Jul. 15, 2016), https://perma.cc/MGE2-ZYSC.

220

. Id.

221

. Id.

222

. Midway Fire Rescue Uses Thermal Imaging To Rescue Kayakers, WPDE NEWS (Jan. 17,

2017), https://perma.cc/89CJ-926E.

223

. Rissa Shaw, Drone Used To Help Rescue 4 Stranded in Brazos; Dam Gates Closed, KWTX

(May 31, 2018), https://perma.cc/Z5BZ-S69R.

224

. @PoliceDrones, TWITTER (Jun. 25, 2018), https://perma.cc/7SW8-GYE7.

225

. Public Safety Drones Save Four Lives in One Day, supra note 216.

226

. Andy Pasztor, Drones Play Increasing Role in Harvey Recovery Efforts, WALL ST. J. (Sept. 4,

2017), https://perma.cc/P5GR-7GCU; Hurricane Harvey Aftermath, CNN,

https://perma.cc/3GTG-KQJY (archived Oct. 5, 2019).

Winter 2020 DEADLY DRONES? 211

lines.

227

In addition, drones were used to locate stranded individuals and offer

quick assessments of flood damage so that resources could be triaged to their

most needed location.

228

Yet, these applications cannot be fully utilized in the United States without

the FAA’s advance permission. For example, the FAA limited drone applications

after the aforementioned Hurricane Harvey.

229

Of course, the FAA’s restriction

was implemented because the agency wanted human first responders to have as

much airspace to operate as possible.

230

However, this catastrophe and the accom-

panying flight restrictions placed on drones demonstrated the unfortunate reality

that drones are still not the first choice when it comes to search and rescue despite

their substantial comparative advantages on their human counterparts.

In response to criticism after Hurricane Harvey, the FAA now issues some

single, blanket authorizations to fly different types of drones for various human-

itarian missions to reduce delays and bureaucratic processes.

231

However, many

critics, including the Small UAV Coalition, still call for greater regulatory flexi-

bility to achieve the immense potential of drones to help first responders and the

public when crisis hits.

F. Blood and Medical Supply Delivery

Compared to the United States, other countries have implemented far greater

use of drones to deliver emergency equipment and supplies to the world’s hard-

to-reach areas. For example, Zipline, a U.S. startup (with none other than U2 leg-

end Bono on its Board), has partnered with the Rwandan government to utilize

drones to deliver blood supplies.

232

Before this partnership, some patients were

forced to wait at least three hours to obtain blood transfusions.

233

Unfortunately,

“[t]hree hours can make the difference between saving or losing a life.”

234

Luckily

227

. Pasztor, supra note 226.

228

. Matthew Hutson, Hurricanes Show Why Drones Are the Future of Disaster Relief, NBC

NEWS (Sept 9, 2017), https://perma.cc/3CXG-TYFM.

229

. Nelson, supra note 218.

230

. Nelson, supra note 218.

231

. Pasztor, supra note 226.

232

. Aryn Baker, The American Drones Saving Lives in Rwanda, TIME,

https://perma.cc/5YUU-R282 (archived Oct. 5, 2019); Zipline, CRUNCHBASE,

https://perma.cc/AVE9-KT6T (archived Feb. 28, 2020).

233

. Baker, supra note 232; Robert Lee Hotz, In Rwanda, Drone Deliver Medical Supplies to

Remote Areas, WALL ST. J. (Dec. 1, 2017), https://perma.cc/U8MR-C3T3.

234

. Baker, supra note 232. In medicine, physicians refer to the first hour after traumatic

injury as the “golden hour,” reflecting the fact that immediate medical attention is often needed

to dramatically improve the chances of saving lives and reducing the severity of injury. Charlie

Eisele, The Golden Hour, J. EMERGENCY MED. SERVS. (Aug. 31, 2008), https://perma.cc/PW3C-

EPXJ (discussing R. Adams Cowley’s pioneering discussion of the crucial first 60 minutes after

traumatic injury).

212 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

with drone delivery, hospitals in Rwanda (e.g., Nyanza Hospital and Kabgayi Hos-

pital) can get access to blood within fifteen minutes.

235

This quick response time recently saved a two-year-old girl when her critical

blood delivery arrived via a drone from a blood bank flown directly to the hospital

where she was being treated.

236

Like a scene out of a Hollywood movie, the drone

flew over the hospital and dropped a red cardboard box attached to a parachute

nearby, and delivered two packets of blood wrapped in insulating paper.

237

Zi-

pline has delivered more than 4,000 units of blood products (e.g., red blood cells,

platelets, and plasma) to twelve different hospitals across Rwanda since December

2016.

238

The success of Zipline in Rwanda has led to its expansion into other

countries such as Tanzania and even Ghana, where Zipline will earn more than

$12 million on a four-year deal with Ghana’s government.

239

Beyond blood deliveries, drones can deliver other medical necessities.

240

Re-

cently, Swiss Post launched a medical transport network in Lugano, Switzerland,

which has made 350 medical supply deliveries.

241

Swiss Post’s drone delivery pro-

ject has delivered laboratory samples between University Hospital Zurich and the

Irchel Campus of the University of Zurich.

242

These deliveries employ drones that

are flown autonomously from one location to the next, significantly cutting wait-

ing times for patients and doctors when every second counts.

243

Unfortunately, due to FAA restrictions, these same lifesaving applications

cannot be implemented in the United States.

244

Simply put, the FAA’s line-of-sight

regulation costs lives. No patient should die because their lifesaving treatment is

stuck in traffic. It is evident that the FAA’s focus concentrates far more on the

risks of integrating drones into the national airspace rather than on the benefits

that drones provide (or, more importantly, the opportunity costs of not utilizing

modern technology). As industry expert Susan Roberts recently said, “It doesn’t

do anybody any good for a delivery company to be able to fly from two specific

points [autonomously] if they can’t then scale that over and over again.”

245

With

235

. Baker, supra note 232; Hotz, supra note 233.

236

. Baker, supra note 232.

237

. Id.

238

. Id.

239

. Taylor, supra note 2; BBC, Ghana Drones: Row over Blood-Delivery Devices (Dec. 12,

2018), https://perma.cc/7R5C-NAFY; Jack Stewart, Zipline Launches Medical Supply Drone De-

liveries in Tanzania, WIRED (Apr. 24, 2017), https://perma.cc/ZCP9-NAHZ.

240

. Esther Landhuis, Medical Cargo Could Be the Gateway for Routine Drone Deliveries, NPR

(Mar. 10, 2018), https://perma.cc/GE53-QXBH.

241

. Id.

242

. Swiss Post To Use Drones for Lab Sample Deliveries in Zurich, THE LOCAL (Dec. 5, 2018),

https://perma.cc/539X-M7XV.

243

. Id.; Postdrone Transportiert Laborproben Zwischen dem UniversitätsSpital und der Universi-

tät Zürich, DIE POST (Apr. 12, 2018), https://perma.cc/4VKJ-PRNA.

244

. Landhuis, supra note 240.

245

. Id.

Winter 2020 DEADLY DRONES? 213

its strict regulatory hurdles, the FAA is not only hindering life-saving drone ap-

plications, but also deterring American companies from investing more into

drone technologies.

Conversely, if the FAA were to adopt more flexible regulatory policies,

drones could easily deliver medical supplies and lab tests, assisting doctors in di-

agnosing infections and prescribing medications, with life-or-death implica-

tions.

246

Dr. Geoff Baird, clinical pathologist at the University of Washington

(UW), recently addressed the lost opportunities due the inability to use drones to

quickly transmit blood, urine, and swab samples.

247

Without drones, transferring

specimens to the UW testing facility is done by car, which creates far longer turn-

around times, especially if facilities test for out-of-state hospitals and clinics.

248

For instance, UW runs tests for hospitals and clinics in rural communities on the

San Juan Islands off the northwest coast of Washington.

249

To get samples from

the island to UW can take more than 24 hours, even though it is only 100 miles as

the crow flies.

250

However, that same delivery could be executed within 90

minutes by drone—if FAA regulations permitted it.

251

G. Scientific Research

Researchers are also utilizing drones to advance and modernize the methods

for scientific research. As discussed, drones can maneuver around difficult-to-

reach places and cover vast landscapes to capture detailed imagery with their

high-tech cameras. Scientists and conservationists can use the resulting images to

identify plants and animals; thermal cameras to detect living animals or stressed

plants; and hyperspectral imaging to identify measurements through reflected

light unseen by human eyes.

252

These drone applications have the potential to de-

mocratize scientific information and further advance research.

For example, scientists from the Earth Institute’s Lamont-Doherty Earth Ob-

servatory, a research unit of Columbia University, are beginning to use drones to

revolutionize their research.

253

Alessio Rovere, an adjunct research scientist at La-

mont-Doherty, uses drones to study coastal erosion, which includes corals distri-

bution and death.

254

Rovere deploys his drone to take multiple pictures of coastal

areas and then merges those pictures with software and algorithms.

255

This pro-

cess is repeated to depict a “seamless image of the area and a 3-D digital elevation

246

. Id.

247

. Id.

248

. Id.

249

. Id.

250

. Landhuis, supra note 240.

251

. Id.

252

. Cho, supra note 23.

253

. Id.

254

. Id.

255

. Id.

214 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

model,” which shows changes in coastal conditions – which is otherwise difficult

to capture with prior technology because coastal areas rapidly change.

256

Addi-

tionally, Einat Lev, an assistant research professor at Lamont-Doherty, uses

drones to study volcanoes to improve eruption hazard assessment.

257

Lev’s drone

captures images of volcanoes and molten lava to create a 3D digital topographic

map, which is a dangerous and difficult task to undertake without drones.

258

Drones also open more research opportunities as technology advances.

Christopher Zappa, an associate research professor at Lamont-Doherty, “studies

how the atmosphere generates waves through wind, how waves break, and how

that energy injected into the ocean affects the transfer of gases, heat and energy

between the ocean and the atmosphere,” among other projects like developing a

sea ice radar, which will measure sea ice thickness using drone technology.

259

Zappa is able to further his studies in these areas using drones (instead of “ships

or manned aircraft[s]”).

260

For example, he utilizes infrared imaging (which

measures the temperature of any surface), visible hyperspectral cameras (which

show when ice breaks up and sunlight penetrates surfaces), micro-drifters (which

analyze atmospheric temperature, water vapor, and pressure), and broadband

long wave/short wave radiation (which measures solar energy from the sun).

261

Crucially, Zappa can efficiently collect the necessary data in an “undisturbed

ocean” and “get away from [using ships and helicopters] that may or may not af-

fect the environment.”

262

Moreover, drones have allowed scientists to efficiently and economically col-

lect data and perform tasks such as prescribing fires to eradicate invasive species

or assisting in measuring air pollution emitted by industrial smokestacks.

263

Drones can serve a crucial role in advancing all methods of scientific data collec-

tion—a paramount foundation for scientific research—but regulations such as the

FAA’s visual line-of-sight rule drastically limit the size of the area that can be

studied, and hence substantially reduce the practical utility of drones.

H. Animal Conservation Efforts

Labelled as a “game-changer,” drones are revolutionizing how scientists and

ecologists collect data to aid in animal conservation and protection efforts.

264

Ac-

256

. Id.

257

. Id.

258

. Cho, supra note 23.

259

. Id.

260

. Id.

261

. Id.

262

. Id.

263

. Id.

264

. Jared Hodgson et al., When It Comes to Counting Wildlife, Drones Are More Accurate than

People, THE SMITHSONIAN (Feb. 27, 2018), https://perma.cc/R7YH-3LYF.

Winter 2020 DEADLY DRONES? 215

cess to accurate and reliable data helps scientists and ecologists understand ani-

mals, much like how data helps technology companies better understand their

business, customers, and opportunities.

265

With drones, scientists and ecologists

can remotely monitor animals and collect accurate data.

266

Accordingly, scientists

can “estimate the health of fragile polar mosses, [] measure and predict the mass

of leopard seals, and even [] collect whale snot.”

267

Endangered animals across the

globe can benefit from drone technology because the devices provide far more

accurate data than what was previously available to assess animal populations and

health

268

without harming sensitive ecosystems. Specifically, scientists and ecol-

ogists can now use drones to collect highly accurate data without disturbing ani-

mals in order to combat against poaching and reduce extinction rates.

269

Drone-derived data is also more accurate than human-procured data.

270

For

example, the Smithsonian Institution’s #EpicDuckChallenge tested how accu-

rately drones and humans could count a population of ducks by creating a contest

that involved placing thousands of fake ducks on the ground.

271

After multiple

trials, researchers found that the drone-derived counting data was up to 96%

more accurate than human-derived data,

272

and produced more consistent popu-

lation counts as well.

273

Because determining the exact number of animals in a

wild population is difficult, maybe even impossible in some situations, gathering

reliable sampling data is extremely important.

274

Not surprisingly, the drones

provided more accurate and consistent data because the devices have an optimal

vantage point and can capture high-resolution photos, which allow scientists to

“digitally review their counts as many times as they needed” to reduce the likeli-

hood of error.

275

Additionally, drones can inconspicuously collect reliable information from

animals to monitor their health without unduly disturbing them. For example,

scientists can monitor and assess ocean animals to aid in population restoration

265

. See, e.g., Technology for Good, PAUL ALLEN (Jul. 14, 2016), https://perma.cc/N76N-

X3AK.

266

. Kike Calvo, So You Want To Fly Drones for Conservation?, NAT’L GEOGRAPHIC (May 17,

2017), https://perma.cc/T58J-2GA7; Hodgson et al., supra note 264.

267

. Hodgson et al., supra note 264; see Calvo, supra note 266.

268

. Hodgson et al., supra note 264.

269

. Rachel Nuwer, High Above, Drones Keep Watchful Eyes on Wildlife in Africa, N.Y. TIMES

(Mar. 13, 2017), https://perma.cc/2EGE-G69W; Justin Worland, Drones Are Helping Catch

Poachers Operating Under Cover of Darkness, TIME (May 31, 2018), https://perma.cc/WU22-

9HNB.

270

. Hodgson et al., supra note 264.

271

. Id.

272

. Id.

273

. Id.

274

. Kaya Yurieff, Drones Are Helping Scientists Fight Wildlife Extinction, CNN MONEY

(Feb. 13, 2018), https://perma.cc/D2M6-EEFH; Hodgson et al., supra note 264.

275

. Hodgson et al., supra note 264.

216 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

and preservation.

276

In particular, drones can monitor when whales surface and

then collect their nasal discharge, which is a safe and non-invasive way to study

the animal’s health.

277

A whale’s nasal discharge reveals crucial details about the

mammal, such as DNA, stress and pregnancy hormones, viruses, bacteria, and

toxins.

278

During a recent “snot-collecting” mission, which was featured in Na-

tional Geographic, researchers deployed drones from a nearby ship and collected

whale samples with its “SnotBot.”

279

These scientists analyzed the discharge using

artificial intelligence to produce real-time data for their research and conserva-

tion initiative.

280

Without drones, these tasks would be prohibitively difficult, ex-

pensive, invasive, and dangerous to undertake.

Similarly, drones can also benignly monitor and collect data from animals

facing extinction.

281

For example, WildTrack, a nonprofit organization dedicated

to non-invasive animal tracking, utilizes drones to count footprints for this pur-

pose.

282

WildTrack uses a proprietary footprint monitoring technique to identify

an animal’s species, sex, and age without disturbing the animal.

283

This technique

requires precise digital images of animal footprints, and drones provide the most

efficient way to collect them.

284

Additionally, drones reduce the turnaround time

to accurately locate these footprints across difficult-to-reach habitats.

285

Finally, drone technology can provide an immediate impact in curbing illegal

poaching—a primary reason for the decline of animal populations.

286

African el-

ephants and rhinos are on the verge of extinction because the demand for their

276

. Press Release, Intel, From Polar Bears to Whales, Intel Pushes the Boundaries of Wild-

life Research with Drone and Artificial Intelligence (Oct. 4, 2017), https://perma.cc/SC4S-

XUJH [hereinafter Intel]; Alyson Griffin, ‘SnotBots,’ Whales, and the Health of Humanity, IT PEER

NETWORK (Jun. 8, 2017), https://perma.cc/2JW2-XWT6.

277

. Intel, supra note 276; Griffin, supra note 276.

278

. Griffin, supra note 276.

279

. Intel, supra note 276; National Geographic, Scientists Fly a Drone To Collect Whale Snot,

YOUTUBE (July 13, 2017), https://perma.cc/X6SM-HTFS; Matthew Mulrennan, 8 Breakthrough

Innovations Saving Our Oceans, NATIONAL GEOGRAPHIC (June 8, 2016), https://perma.cc/Q2VR-

JP2F.

280

. Intel, supra note 276.

281

. See Jarrod C. Hodgson et al., Precision Wildlife Monitoring Using Unmanned Aerial Vehi-

cles, 6 SCI. REP. 1 (2016); Yurieff, supra note 274; Anthea Lipsett, Drones and Big Data: The Next

Frontier in the Fight Against Wildlife Extinction, THE GUARDIAN (Feb. 18, 2019),

https://perma.cc/K2J3-6V4N.

282

. Alejandro De La Garza, These Researchers Are Using AI Drones to More Safely Track Wild-

life, TIME (Nov. 1, 2019), https://perma.cc/EJL7-HK7V.

283

. Id.

284

. De La Garza, supra note 282; see also Press Release, Duke Univ., New Project Uses

Phones and Drones To Monitor Endangered Species (May 22, 2017), https://perma.cc/8G4L-

N39N.

285

. De La Garza, supra note 282; see also Jani Actman, Poaching Animals, Explained, NAT’L

GEOGRAPHIC (Feb. 12, 2019), https://perma.cc/LF87-XUGY; DUKE UNIV., supra note 284.

286

. De La Garza, supra note 282; Actman, supra note 285.

Winter 2020 DEADLY DRONES? 217

tusks and horns is high among traders in the Chinese black market.

287

This de-

mand fuels organized crime and terrorist groups, as poachers have created an ex-

tremely lucrative market that generates approximately $10 billion per year.

288

Fortunately, drones can serve as an effective counter-measure by quickly detect-

ing nocturnal poaching activities with their infrared cameras and then immedi-

ately notifying park rangers to intercept the perpetrators.

289

They also have the

potential to deter future poaching efforts by reducing the likelihood that poachers

think they will escape.

290

Hence, by employing drones for use in animal conservation and preservation

efforts, researchers can have a positive impact on their subjects in a much less

invasive manner than prior human contact studies entailed.

291

Non-invasive data

collection is critical because changing the behavior or ecology of the animals be-

ing studied produces unreliable data and could be counterproductive to research-

ers’ goals.

292

While there are some concerns on the other side about drone-pro-

duced stress to animals,

293

this impact can largely be avoided by taking sensible

precautions, such as flying at safe altitudes, optimizing flight patterns, and being

conscious of the target species, among others.

294

Additionally, a new study shows

that drone use in conservation efforts (e.g., anti-poaching missions) “can provide

benefits without long-term high-stress consequences.”

295

For example, the study

showed that while bears showed initial signs of stress in response to drones, these

bears “habituated to drones over a 3 to 4-week period.”

296

I. Law Enforcement

While the use of drones in law enforcement has sparked privacy concerns

and fears of unwarranted surveillance among some,

297

drones are proving to be

287

. Actman, supra note 285; Lauren Neme, Despite Ban, Rhino Horn Flooding Black Markets

Across China, NAT’L GEOGRAPHIC NEWS (Jul. 18, 2017), https://perma.cc/W7YL-UYKM.

288

. Worland, supra note 269.

289

. Nuwer, supra note 269.

290

. Id.

291

. Jesus Jimenez Lopez & Margarita Mulero-Pazmany, Drones for Conservation in Pro-

tected Areas: Present and Future, 3 DRONES 10 (2019).

292

. Id.

293

. See infra Part IV.D; Bears Get “Stressed” by Drones, BBC (Aug. 17, 2015),

https://perma.cc/D7SB-MP85.

294

. Margarita Mulero-Pazmany et al., Unmanned Aircraft Systems as a New Source of Dis-

turbance for Wildlife: A Systematic Review, 12 PLOS ONE e0178448 (2017).

295

. Mark A. Ditmer et al., Bears Habituate to the Repeated Exposure of a Novel Stimulus, un-

manned Aircraft Systems, 7 CONSERVATION PHYSIOLOGY coy067 (2019); Animals May Get Used to

Drones, SCIENCEDAILY (Jan. 15, 2019), https://perma.cc/73K2-7JHY (reporting on Ditmer’s

study).

296

. Animals May Get Used to Drones, supra note 295.

297

. JAY STANLEY & CATHERINE CRUMP, ACLU, PROTECTING PRIVACY FROM AERIAL

218 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

more useful than harmful in this arena. For example, drones can significantly re-

duce and expedite the workload of law enforcement officers by quickly surveying

locations from above to document crime scenes, identify suspects or victims, and

assess motor vehicles accidents and traffic.

298

Because of these beneficial drone

applications, over 900 state and local police, sheriff, fire, and emergency services

agencies have integrated drones into their operations in the United States, ac-

cording to a study conducted by Bard College.

299

A staggering 63% of these drones

are used by police departments.

300

Simply put, drones are efficient and effective

tools for crime prevention and public safety protection.

Recently, the New York Police Department (“NYPD”)—the nation’s largest

police force—announced that it is adding drones to its arsenal of crime-fighting

tools.

301

Primarily, the NYPD plans to use drones to create 3D digital models of

crime scenes and traffic accidents.

302

It also plans to use drones for search and

rescue missions, hazardous inspections, and hostage situations.

303

Because of ris-

ing privacy concerns, however, NYPD’s Chief Terence Monahan emphasized that

drones will not be used for warrantless surveillance.

304

Other senior police offi-

cials have also stated that drones will not be used for routine surveillance, traffic

enforcement, and immobilizing vehicles and suspects.

305

Additionally, drones will

not be armed with weapons or use facial recognition technology.

306

Despite some

public pushback, Commissioner James O’Neill insists that drones will enable

NYPD’s “highly-trained cops to be even more responsive to the people [they]

serve, and to carry out [their] critical work in ways that are more effective, effi-

cient, and safe for everyone.”

307

For example, law enforcement departments can deploy drones to efficiently

mitigate the impact of traffic accidents.

308

To clear a highway accident and free

miles of backed up traffic, law enforcement officers must first measure, evaluate,

SURVEILLANCE: RECOMMENDATIONS FOR GOVERNMENT USE OF DRONE AIRCRAFT (2011),

https://perma.cc/N59Q-F3BG.

298

. Zacc Dukowitz, 6 Ways Police Departments Use Drones in Their Work, UAV COACH

(May 10, 2018), https://perma.cc/4S39-EWAS.

299

. DAN GETTINGER, CTR. STUDY DRONE AT BARD C., PUBLIC SAFETY DRONES: AN UPDATE

1 (2018), https://perma.cc/VF2R-HUPA.

300

. Id. at 2 (finding that “[o]f the 910 public safety agencies in [the] dataset, 302 are sheriff

or country police (33 percent) [and] 278 are municipal police (30 percent).").

301

. Chris Francescani & Aaron Katersky, The NYPD, the Nation’s Largest Police Department,

Puts Its Eyes in the Skies With New Drone Program, ABC NEWS (Dec. 4, 2018), https://perma.cc/

62QB-QMRG; Ashley Southall & Ali Winston, New York Police Say They Will Deploy 14 Drones,

N.Y. TIMES (Dec. 4, 2018), https://perma.cc/WJA3-ZC45.

302

. Francescani & Katersky, supra note 301.

303

. Id.

304

. Id.; Southall & Winston, supra note 301.

305

. Id.

306

. Francescani & Katersky, supra note 301; Southall & Winston, supra note 301.

307

. Francescani & Katersky, supra note 301.

308

. Id.

Winter 2020 DEADLY DRONES? 219

and document the magnitude of the accident.

309

This process may require emer-

gency responders and crash investigators to shut down lanes or close entire roads,

which place officials in danger of being struck by traffic

310

and may take hours.

311

Fortunately, drones can accomplish the same tasks within minutes.

312

In lieu of sending officers to the crash site, law enforcement officials can re-

motely (and rapidly) deploy drones to the precise location to capture high-reso-

lution photos.

313

These photos can be combined with other technologies to create

3D recreations of the crash site that quickly piece everything together for inves-

tigators.

314

For instance, within minutes a drone was able to survey a Illinois crash

site involving a semi-tractor-trailer and a motor vehicle. Normally, this process

would have taken three hours.

315

Similarly, North Carolina’s transportation de-

partment and highway patrol collected traffic and accident data within twenty-

five minutes during a simulation study.

316

Without drones, the simulation found

that the department would need fifty-one minutes to collect and survey the same

crash site.

317

Moreover, drones can reduce overspending on unnecessary police hours.

318

Because drones dramatically reduce the time it takes to analyze a car accident,

costly overtime hours can be reduced.

319

For example, after thirty drone deploy-

ments in 2017, the Maine State Police Department estimated that it saved $80,000

in reduced overtime hours.

320

Thus, drones are already an invaluable tool in law

enforcement efforts given their ability to quickly survey scenes, increase officer

safety, and reduce exhausting overtime hours.

J. Recreational Drone Use

Drones are also becoming wildly popular among recreational hobbyists.

321

fact, Goldman Sachs now estimates that the expanding consumer drone market

309

. Id.

310

. Jenni Bergal, Look What’s New on the Accident Investigation Team: Drones, WASH. POST

(Aug. 18, 2018), https://perma.cc/29XK-YQ7S.

311

. Id.

312

. Francescani & Katersky, supra note 301.

313

. Bergal, supra note 310.

314

. Id.

315

. Id.

316

. Id.

317

. Id.

318

. Id.

319

. Id.

320

. The Maine State Police department initially invested $40,000 in drones and software

and saved twice their initial investment in reduced overtime hours. Id.; Marco Margaritoff,

Drones as Crash Scene Analysis Tools are Rapidly Taking Off, THE DRIVE (Aug. 7, 2018),

https://perma.cc/3HV8-SPAC.

321

. Jesse Maida, Global Consumer Drones Market 2017-2021: Aerial Photography Segment

Dominates the Global Market, TECHNAVIO (Sept. 26, 2018), https://perma.cc/WLS8-RQAN.

220 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

will reach a whopping $17 billion for 2016-2020.

322

In 2020 alone, Goldman

Sachs estimates 7.8 million consumer drone shipments, equating to roughly $3.3

billion in revenue.

323

Moreover, the consumer drone market is the largest non-

military market for drones, far surpassing that of the commercial and public

safety markets.

324

As this market grows, drone technology promises to offer

amazing opportunities for recreational photography and videography, and even

pure leisure.

325

Specifically, consumer drones attract increasing attention because of their

unparalleled ability to take breathtaking photos from various angles. See Figure 1

below. Amazingly, the stunning photo below, for example, did not “require a hel-

icopter and a Michael Bay budget.”

326

FIGURE 1. AERIAL SHOT OF THE TWIN LAGOON IN CORON ISLAND, PHILIPPINES.

Drones have made capturing high-quality, breathtaking photos easier for two

reasons. First, most drones are already equipped with 4K Ultra HD resolution and

322

. Drones: Reporting for Work, supra note 89.

323

. Id.

324

. See generally, id.

325

. See Global Consumer Drones Market 2017-2021, BUSINESSWIRE (Sept. 26, 2018),

https://perma.cc/FZ25-A9C9.

326

. Geoffrey A. Fowler, Let’s Go Fly a Drone: The Best Vacation Pics Come from Above, WALL

ST. J. (May 16, 2014), https://perma.cc/9GNB-SZ63.

Winter 2020 DEADLY DRONES? 221

stabilized cameras for smooth videos and sharp photos.

327

Second, drones are rel-

atively easy to fly, even for novices. As technology improves, more drones are

now equipped with “idiot-resistant” functions, such as: (1) Omnidirectional Ob-

stacle Sensing (which prevents drones from crashing into obstacles and objects),

(2) “Return to Home” functions (which automatically flies a drone back to its

owner) and (3) ActiveTrack (which allows a drone to follow a subject like a boat,

car, or person).

328

In addition to easy-to-use, impressive technology, drone photography does

not require years of cinema or photography experience. Manufacturers have cre-

ated their own free or inexpensive drone photography classes, such as the DJI

Aerial Photography Academy, and published books, such as Aerial Photography and

Videography Using Drones.

329

Within an hour of purchase, consumer drone opera-

tors can learn how to properly fly their drones and take a beautiful “dronie”—a

spin-off of a “selfie” that PhotoJojo’s co-founder has popularized.

330

Beyond photography and videography, drones are often flown acrobatically

simply for fun and joy. In fact, drone races now fill content on ESPN television,

331

as teens and young adults navigate obstacle courses and perform aerial stunts at

breathtaking speeds, often while using FPV technology instead of human eyes.

332

For these reasons, it is not difficult to see why recreational drone use is grow-

ing rapidly.

333

While safety is a rising concern, flying recreational drones “isn’t

more dangerous than riding a bike.”

334

In addition, technological advances further

address safety concerns. For example, geofencing technology can help keep

drones out of dangerous areas,

335

parachutes prevent drones from uncontrollably

327

. See, e.g., DJI Mavic Pro & Mavic Pro Platinum, DJI OFFICIAL, https://perma.cc/UW3C-

6YVC (archived Jan. 5, 2020); Drones 4K: Top Selected Products and Reviews, AMAZON,

https://perma.cc/68CF-592Z (archived Feb. 29, 2020).

328

. See, e.g., Mavic 2, DJI OFFICIAL, https://perma.cc/5CD9-3TGB (archived Jan. 5, 2019);

GPS Drone with Return Home: Top Selected Products and Reviews, AMAZON,

https://perma.cc/ARR3-5QNJ (archived Feb. 29, 2020); DJI, Film Like a Pro: DJI Drone “Active-

Track”—With Video Tutorials, DJI (Dec. 18, 2017), https://perma.cc/9DL8-V7E7.

329

. Home, DJI AERIAL PHOTOGRAPHY ACAD., https://perma.cc/EZ8V-ZP5T (archived

Jan. 5, 2020); ERIC CHENG, AERIAL PHOTOGRAPHY AND VIDEOGRAPHY USING DRONES (1st ed.

2015).

330

. Fowler, supra note 326.

331

. Highlights from Season 2 of the Drone Racing League, ESPN VIDEO (Nov. 16, 2017),

https://perma.cc/Z7VF-GLVH.

332

. Erin Carson, Drone Racing Gets Off the Ground, CNET (Mar. 31, 2017),

https://perma.cc/N8LM-STKE; The Drone Racing League, DRONE RACING LEAGUE,

https://perma.cc/SJ2A-BHSA (archived Dec. 21, 2019).

333

. See Meola, supra note 8.

334

. Fowler, supra note 326.

335

. See infra Part V.C.

222 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

falling from the sky,

336

and the “idiot-resistant” functions mentioned above

337

fur-

ther prevent human error and increase safety. In combination with common

sense and proper precautions, safety concerns regarding recreational drone usage

can be substantially mitigated.

IV.RISKS OF DRONE USE

Due to their significant commercial, scientific, public safety, and recreational

benefits, drones are here to stay. However, drone-induced concerns have cap-

tured the headlines as its technology has become more ubiquitous in the United

States.

338

These concerns include public safety risks,

339

invasion of privacy,

340

ter-

rorism,

341

ecosystem disturbance,

342

and even illegal drug smuggling.

343

A. Public Safety

As drones are becoming more ubiquitous in the United States, so are drone-

related safety concerns. Understandably, no one wants to see a drone collide with

an airplane, structure or person. The shared airspace between drones and other

aircraft (e.g., helicopters or airplanes) creates legitimate safety concerns.

344

How-

ever, these safety concerns are largely rooted in hyperbole and distorted statistics

rather than concrete evidence.

Although concerns about potential drone-induced collisions capture head-

lines, these worries are dramatically overblown—the total death count of all

drone-caused aerial accidents in the history of the United States was zero as of

2016.

345

For a drone to inflict serious damage on a commercial airliner, it would

336

. Malek Murison, 5 Technologies Improving Drone Safety, DRONELIFE (Jan. 23, 2019),

https://perma.cc/V5NF-UBDL.

337

. Mavic 2, supra note 328.

338

. See e.g., Brian Barrett, When Good Drones Go Bad, WIRED (Jan. 18, 2016),

https://perma.cc/Q33A-XSLY.

339

. See infra Part IV.A.

340

. See infra Part IV.B.

341

. See infra Part IV.C.

342

. See infra Part IV.D.

343

. See infra Part IV.E.

344

. Ashley May, Drones Can Do Serious Damage to Airplanes, Video Shows, USA TODAY

(Oct. 17, 2019), https://perma.cc/F9YC-XDSF.

345

. Id. But see Adam Lusher, London Woman Dies in Possibly the First Drone-Related Accidental

Death, THE INDEPENDENT (Aug. 9, 2016), https://perma.cc/6WLU-QYAL (finding that a Lon-

don woman’s death “may be the first fatality linked to [a] non-military” drone in history, but it

cannot be confirmed); Skye Gould & Danielle Muoio, The US Government Is Afraid of One of These

Things, and It’s the Wrong One, BUS. INSIDER (Dec. 18, 2015), https://perma.cc/GV47-JM89 (find-

ing no drone deaths in the United States as of 2015).

Winter 2020 DEADLY DRONES? 223

take a “very rare[,] worst case perfect hit.”

346

A University of Dayton Research In-

stitute (“UDRI”) engineer nonetheless simulated such a midair collision between

a DJI drone and a small airplane, proving that a drone could do more damage to

a plane than a bird midflight.

347

However, this test created an unrealistic “scenario inconceivable in real life,

at a higher speed than the combined maximum speed of the drone and airplane,

which is also faster than U.S. Federal Aviation Administration testing . . . guide-

lines.”

348

Since the study’s publication, DJI has demanded the removal of the mis-

leading drone collision video, alleging UDRI “recklessly created and promoted a

video that falsely claims to depict a dangerous condition” created by the drone,

according to DJI’s Vice President of Policy & Legal Affairs.

349

Still, admittedly the possibility exists that a drone could collide with an air-

craft, which is why the FAA currently prohibits drones from flying near airports

or manned aircraft without an FAA-issued waiver.

350

Even with this prohibition,

the FAA cites 1800 unauthorized reports of drones flying near other airplanes or

airports in 2016.

351

The first drone collision with a commercial plane happened

over Canada—not the United States—in 2017.

352

Fortunately, this collision only

caused minor damage to the aircraft, and no passenger injuries or deaths.

353

While

there have been a handful of small incidents since, no deaths or major injuries

have been recorded in the United States.

354

In fact, the United States’ first drone-

related aircraft crash only happened in 2018.

355

However, this drone never even

struck the aircraft.

356

Instead, the pilot maneuvered the aircraft to avoid the drone

346

. May, supra note 344.

347

. Pamela Gregg, Risk in the Sky?, U. DAYTON RES. INST. (Sept. 13, 2018),

https://perma.cc/2W3Z-QKTT.

348

. Press Release, DJI, DJI Demands Withdrawal of Misleading Drone Collision Video

(Oct. 19, 2018), https://perma.cc/P6WE-2THS.

349

. Id.

350

. Flying Drones Near Airports (Controlled Airspace)—Part 107, FED. AVIATION ADMIN.

(Dec. 13, 2018), https://perma.cc/7ECJ-EWPE; Recreational Flyers & Modelers Community-Based

Organization, FED. AVIATION ADMIN. (Feb. 18, 2020), https://perma.cc/E3PA-4G8P.

351

. Unmanned Aircraft Systems: Innovation, Integration, Successes, and Challenges: Hearing Be-

fore the S. Committee on Commerce, Sci., & Transp., 115th Cong. (2017) (statement of Earl Law-

rence, Director of Unmanned Aircraft Systems, Federal Aviation Administration),

https://perma.cc/RK64-A6SF; see generally, Alan Boyle, FAA tests Drone Defense System To Protect

Against a Flying Robot Uprising, GEEKWIRE (Jan. 6, 2017), https://perma.cc/WH7T-EXMJ (noting

that the FAA has begun testing technologies to detect “unauthorized drone operations near air-

ports and other critical infrastructure” due to an increase of drone sightings by pilots).

352

. May, supra note 344; Travis Andrews, A Commercial Airplane Collided with a Drone in

Canada, a First in North America, WASH. POST (Oct. 16, 2017), https://perma.cc/YRN8-F8AC.

353

. May, supra note 344; Andrews, supra note 352.

354

. May, supra note 344; Andrews, supra note 352.

355

. Alan Levin, What May Be U.S.’s First Drone-Linked Aircraft Crash Is Being Investigated,

BLOOMBERG (Feb. 15, 2018), https://perma.cc/9CR3-WG89..

356

. Id.

224 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

and consequently hit a tree with the tail of the helicopter.

357

Again, while the tail

of the helicopter was damaged, the pilot and passenger were not injured.

358

This

occurrence was a rarity, and guarding against such possible mishap isn’t worth it

given the immense benefits lost. We do not ban or highly restrict any other widely

used technology because there is some minimal risk. (We also do not ban birds

from existing simply because they sometimes collide with aircraft and have

caused high-profile accidents and injuries.)

359

This is not to imply that careless drone flights do not trigger general safety

concerns.

360

Surely, a careless drone operator could crash her drone into the

ground, trees, structures, or crowds and cause extensive harm.

361

Again, however,

it is vital to remember that there have been a grand total of zero deaths caused by

drone-related accidents in the United States.

362

The drone collisions that do com-

monly occur are generally harmless,

363

and only cause psychological fear, if any-

thing.

364

For example, a recreational drone crashed into a tree on the South Lawn

of the White House in 2015, which caused a temporary lockdown.

365

Additionally,

a drone crashed into Seattle’s Space Needle in 2016, but there were no injuries or

property damage.

366

Moreover, drone collisions that do result in injury are almost always minor—

not life-threatening. For example, a drone crashed into the stands during the

Great Bull Run at the Virginia Motorsports Park and injured a few individuals.

367

357

. Id.

358

. Id.

359

. See e.g., Gregory Korte, Bird Strikes by Airplanes Tied Record in 2018, FAA Data Shows,

USA TODAY (Feb. 6, 2019), https://perma.cc/5X4S-PG33; Plane Collisions with Birds Caused More

than $600,000 in Damage at Salt Lake Airport, USA TODAY (Mar. 2, 2019), https://perma.cc/ERJ8-

DCFW; Sarah Zielinski, The Perils of Bird-Plane Collisions, SMITHSONIAN (Jan. 6, 2009),

https://perma.cc/WE67-8TSJ; see also Thom Patterson, Preventing Another “Miracle on the Hud-

son” Emergency, CNN TRAVEL (Jan. 13, 2019), https://perma.cc/GMH9-VYXZ (noting that, in

2009, two 8-pound geese flew into each of a plane’s twin engines, which prompted an emer-

gency landing-the most famous emergency landing known as the “Miracle on the Hudson”).

360

. ARTHUR HOLLAND MICHEL & DAN GETTINGER, DRONE INCIDENTS: A SURVEY OF LEGAL

CASES 6.

361

. DOUGLAS J. WOOD ET AL., REED SMITH, CROWDED SKIES: OPPORTUNITIES AND

CHALLENGES IN AN ERA OF DRONES 47-50 (2015), https://perma.cc/5VMY-NBGF.

362

. Cf. Lusher, supra note 345.

363

. Miriam McNabb, Diving into the FAA Administrator’s Fact Book: Why “Drone Inci-

dents” are Concerning for Regulators, DRONELIFE (Aug. 19, 2019), https://perma.cc/V985-

PT89 (noting the low rate of accidents and no fatalities in the United States from 2006 to 2015).

364

. Jelani Cobb, What Our Paranoia About Drones Says About Us, N.Y. TIMES (Feb. 12, 2015),

https://perma.cc/5NLP-SXYQ.

365

. Michael S. Schmidt & Michael D. Shear, A Drone, Too Small for Radar To Detect, Rattles

the White House, N.Y. TIMES (Jan. 26, 2015), https://perma.cc/UG84-4HPC.

366

. Stephanie Mlot, VIDEO: Drone Crashes into Seattle’s Space Needle, PCMAG (Jan. 13,

2017), https://perma.cc/J53B-Q92B.

367

. Martin Weil, Drone Crashes into Virginia Bull Run Crowd, WASH. POST (Aug. 26, 2013),

https://perma.cc/BH5M-8823.

Winter 2020 DEADLY DRONES? 225

Luckily, those who were injured by the drone only experienced “very minor inju-

ries” and were not taken to a hospital.

368

Additionally, wedding guests sued the

groom and an event-planning company at a wedding for negligence when the

guests suffered head injuries allegedly caused by a drone flown by the groom.

369

However, personal injuries caused by drone crashes are incredibly rare.

370

commonly, drone crashes cause minor property damage and even in those cases,

operators can already be charged with misdemeanors or fines under existing

laws.

371

While safety concerns are understandable, drone companies are cogni-

zant of these risks, and thus, are continuing to develop enhanced safety features

that maximize their utility while minimizing any risks.

372

B. Privacy Concerns

The possibility of unwarranted drone surveillance has also sparked strong

fears of privacy violations among the American public, and in particular the

ACLU.

373

Unsurprisingly, the general consensus is that Americans do not wish to

be “watched” by drones.

374

However, drones are not the primary vehicle that

drives these concerns. Rather, the public is primarily concerned that a drone will

malfunction and cause damage rather than with intentional misuse by pilots (e.g.,

drones “might not be used in a way that respects my privacy”).

375

368

. Id.

369

. Kirk Enstrom, Women Sue Groom Over Drone Injuries at Wedding Reception, WMUR

(Dec. 8, 2016), https://perma.cc/664A-ANL8.

370

. ARTHUR HOLLAND MICHEL & DAN GETTINGER, CTR. STUDY DRONE AT BARNARD C.,

DRONE INCIDENTS: A SURVEY OF LEGAL CASES 3-4 (2017), https://perma.cc/4U2E-ADWR.

371

. Id.

In March 2016, a New York City man was charged with disorderly conduct after he

accidentally crashed a drone into the Empire State Building. The individual, who

pleaded guilty, was given community service and a $200 fine. In a similar case in Oc-

tober 2016, a drone crashed in Midtown Manhattan and the 22-year-old operator

was charged with reckless endangerment and unlawful operation of a drone. In Jan-

uary 2017, a 24-year-old man was arrested and charged with criminal mischief after

crashing a drone through a window on the 27th floor of a residential building on the

East River, also in Manhattan.

Id.

372

. See generally, supra Part III.J (noting that drones are equipped with many safety func-

tions); Murison, supra note 336.

373

. STANLEY & CRUMP, supra note 297; see also DRONES: Eyes in the Sky, ELECTRONIC

PRIVACY INFO. CTR. (Oct. 2014), https://perma.cc/QG7U-2CF8; see also M. Ryan Calo, The

Drone as Privacy Catalyst, 64 STAN. L. REV. ONLINE 29 (2011).

374

. Stephen Rice, Eyes in the Sky: The Public Has Privacy Concerns About Drones, FORBES

(Feb. 4, 2019), https://perma.cc/2WHQ-ZYUQ; Calo, supra note 373.

375

. OFF. INSPECTOR GEN., U.S. POSTAL SERV., PUBLIC PERCEPTION OF DRONE DELIVERY IN

THE UNITED STATES 8 (2016), https://perma.cc/MW6M-AG4S. While this study is reported

within the drone delivery context, the United States Postal Service found that only 14% of

Americans are worried about intentional misuse. Id. Whereas 46% of Americans are actually

worried about drone malfunction. Id.

226 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

Additionally, public sentiments surrounding drone use and privacy varied

among participants in a study conducted by Embry-Riddle Aeronautical Univer-

sity.

376

These studies surveyed participants on their perception and attitudes to-

wards drones, not on whether participants had actually been subjected to surveil-

lance (because almost certainly they have not).

377

Participants’ support for or

opposition to drones depended on where they lived and on their political affilia-

tion, gender, and ethnicity, among other factors.

378

Drone-related privacy concerns and fears of mass governmental surveillance

also spark conversations about their legal limits.

379

Currently, the FAA does not

have any regulations that specifically address drone flights over residential areas,

according to Ryan Wallace, assistant professor of Aeronautical Science at Embry-

Riddle Aeronautical University.

380

Theoretically, a drone flying over a residential

area does not violate federal laws if its operator complies with current FAA reg-

ulations, such as visual line of sight, registration, and altitude limitations.

381

Un-

regulated drones “could” hypothetically violate personal privacy by peering into

houses or apartments.

382

However, many states have already implemented their

own privacy laws prohibiting unwarranted drone surveillance.

383

C. Terrorism

The threat that drone technology could be used as a means for terrorism has

also raised alarm. As mentioned, the most prominent incident to surface these

concerns occurred in 2015, when a drone crashed on the White House lawn.

384

376

. Rice, supra note 374; see also Paul Hitlin, 8% of Americans Say They Own a Drone, While

More Than Half Have Seen One in Operation, PEW RES. CTR. (Dec. 19, 2017),

https://perma.cc/W8LM-4SE5.

377

. Rice, supra note 374; Hitlin, supra note 376.

378

. Rice, supra note 374; Hitlin, supra note 376 (“For instance, 25% of 18- to 29-year-olds

say they would feel indifferent if they saw a drone flying near their home, but that share falls to

just 6% among those 65 and older. By the same token, just 5% of young adults—but 17% of those

65 and older—say they would feel angry in this situation. Older Americans are also much more

likely to think that drone use by private citizens should be banned in certain areas—most no-

tably, near people’s homes (73% of older adults think this should not be allowed) or at events

such as concerts or rallies (67%).”).

379

. Id.; ELECTRONIC PRIV. INFO. CTR., supra note 373; Calo, supra note 373.

380

. Rice, supra note 374.

381

. Id.

382

. ELECTRONIC PRIV. INFO. CTR., supra note 373.

383

. Id.

384

. Schmidt & Shear, supra note 365.

Winter 2020 DEADLY DRONES? 227

government employee was allegedly flying it near the White House for recrea-

tional purposes, when he lost control of it.

385

Though this incident did not endan-

ger anyone,

386

it raised legitimate concerns about the potential for drones to be

used for terrorism.

Just a few days earlier, the U.S. military, Department of Homeland Security

and the FAA held a summit in Arlington, Virginia, regarding this very threat.

387

The summit featured shocking videos of “low-cost drones firing semi-automatic

weapons,” and warned that “Syrian rebels are importing consumer-grade drones

to launch attacks.”

388

The conference also featured models of popular consumer

drones rigged to carry explosives, including a DJI Phantom 2, a newer model that

crashed over the White House.

389

Security concerns arising from this aerial technology are understandable but

need to be considered in proper context. As with many other novel innovations,

drones offer a new way for people with malevolent intentions to carry out de-

structive actions, just like guns do. U.S. officials have been painfully aware of this

threat for some time.

390

Nevertheless, William Hewitt, the chief of the UAS Threat

Integration Cell at the U.S. Department of Homeland Security, believes that this

threat, which used to be primarily theoretical, is now very real.

391

The FAA’s re-

sponse to these concerns has been clear: dramatically ratchet up safety regulation

in the past decade.

392

The logic of increasing drone regulation in order to reduce the risk of terror-

ism, however, is deeply flawed. People who intentionally seek to commit horrific

acts will not be deterred in the least by FAA action—its regulations affect only

law-abiding individuals and firms, who are not likely to be the ones flying drones

with explosives into sensitive government buildings. By intentionally exaggerat-

ing and scaring the public regarding the malevolent potential of drones, we have

ironically created our own self-induced form of terrorism that the FAA regula-

tions are wholly ineffective at preventing.

385

. Michael D. Shear & Michael S. Schmidt, White House Drone Crash Described as a U.S.

Worker’s Drunken Lark, N.Y. TIMES (Jan. 27, 2015), https://perma.cc/D6H7-LFL9.

386

. See Zeke J. Miller, Drone That Crashed at White House Was Quadcopter, TIME (Jan. 26,

2015), https://perma.cc/XAH2-ZYSU.

387

. Kevin Poulsen, Why the US Government Is Terrified of Hobbyist Drones, WIRED (Feb. 5,

2015), https://perma.cc/6DHQ-K2UX.

388

. Id.

389

. Id.

390

. See Taylor, 856 F.3d at 1091 (“As unmanned aircraft technology has advanced, small

unmanned aircraft have become increasingly popular. In response, the FAA has taken a more

active regulatory role.”).

391

. See Levin, supra note 355.

392

. See, e.g., Tiffany Gruenberg, Safety Concerns Prompt New FAA Regulations for Drones,

LEXOLOGY (Apr. 18, 2019), https://perma.cc/X6E9-M2E8; see also Taylor, 856 F.3d 1089.

228 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

D. Ecosystem Risks: Drones Disturb Wildlife and Detract from Nature

Due to the immense benefits drones can offer researchers and conservation-

ists, the proliferation of drones will likely continue in these areas. However, the

proliferation of drone usage triggers other concerns over potential wildlife dis-

turbance and distractions (i.e., nuisance).

393

While drone-induced disturbances to wildlife present a plausible concern, re-

searchers are “still learning” about whether and how drones actually disrupt wild-

life.

394

More research is required because different species in different environ-

ments elicit different reactions to drones.

395

The variations may depend on the

animal, and on the drone’s size, speed, and approach angle.

396

For instance, semi-

captive wild birds only reacted towards a drone’s approach angle, according to a

study conducted by a team of French and South African biologists.

397

Interest-

ingly, a drone’s color, speed, and quantity of flights had “no measurable impact”

on the birds’ behaviors.

398

Similarly, Adélie penguins reacted only towards a

drone’s angle of approach and flying altitude in a study commissioned by the Ger-

man Federal Environment Agency.

399

By accounting for this, researchers can

quickly modify behavior to reduce negative externalities on animal populations.

While these studies show only one dimension of animal behavior (i.e., physi-

cal response), others suggest that drones may also impact an animal’s physiol-

ogy.

400

For example, drones flown near black bears increased bears’ stress levels

and heartrate, according to Mark Ditmer of the Department of Fisheries, Wildlife

& Conservation Biology at the University of Minnesota.

401

Ditmer argued that

these bears were negatively affected by drones even though they did not show any

behavioral responses.

402

With more research that quantifies animal disturbance,

case-by-case guidelines on different species of animals are being developed to

“mitigate or alleviate the potential [drone] disturbance to wildlife.”

403

393

. See Hodgson et al., supra note 264.

394

. See id.

395

. Id.; Jarrod Hodgson & Lian Pin Koh, A Guide to Using Drones To Study Wildlife: First, Do

No Harm, THE CONVERSATION (May 23, 2016), https://perma.cc/YH77-ETDH.

396

. Marie-Charlott Rümmler et al., Measuring the Influence of Unmanned Aerial Vehicles on

Adélie Penguins, 39 POLAR BIOLOGY 1329 (2016); Hodgson & Koh, supra note 395.

397

. Elisabeth Vas et al., Approaching Birds with Drones: First Experiments and Ethical Guide-

lines, 11 BIOLOGY LETTERS 20140754 (2015).

398

. Id.

399

. See generally Rümmler et al., supra note 399 at 39.

400

. See generally Mark A. Ditmer et al., Bears Show a Physiological but Limited Behavioral Re-

sponse to Unmanned Aerial Vehicles, 25 CURRENT BIOLOGY 2278 (2015).

401

. Id.

402

. Id.

403

. Hodgson & Koh, supra note 395.

Winter 2020 DEADLY DRONES? 229

Still other environmental concerns focus on how drones can become a dis-

traction to national park visitors and have raised concerns for the safety of na-

tional park rangers.

404

Recently, a drone operator lost control of her drone and

crashed it at the Grand Canyon National Park; national park volunteers wit-

nessed a drone disturbing a herd of bighorn sheep at Zion National Park; and a

drone flew around a crowded amphitheater and over the iconic sculptures at

Mount Rushmore National Memorial.

405

A drone also crashed into geysers at Yel-

lowstone National Park, which required park officials to fish the drone and its

equipment out of the hot spring.

406

In response to these claims, the U.S. National Park Service prohibited the use

of drones within units of the National Park System in 2014.

407

This prohibition is

aimed at preventing potential drone-related “impacts such as harming visitors,

interfering with rescue operations, causing excessive noise, impacting [views] and

disturbing wildlife.”

408

The Park Service did acknowledge in its Policy Memoran-

dum, however, that drone use “remains relatively infrequent across the National

Park System.”

409

Further, this drone prohibition was initially enacted as an in-

terim measure until a “determination has been made in the professional judgment

of the [park] superintendent that it will not result in unacceptable impacts on park

resources and values.”

410

As a result, drone operators must obtain a special use

permit to fly their drone of any size in national parks, including for recreational

and commercial purposes.

411

E. Drug Smuggling

Another concern that has been raised regarding the growing availability of

commercial drones is their potential use for illegal smuggling operations.

412

Be-

cause of their small size and ability to fly in a wide range of environments, drones

are highly versatile tools for transporting small goods short distances. Of course,

this is the concept that many high-tech companies like Amazon.com seek to take

404

. Unmanned Aircraft in the National Parks, U.S. NAT’L PARK SERV.,

https://perma.cc/JQ6C-CQLL (archived Jan. 5, 2020).

405

. Policy Memorandum from Jonathan B. Jarvis, Director, National Park Service, on

Unmanned Aircraft (Jun. 19, 2014), https://perma.cc/5WSX-UMPX.

406

. Unmanned Aircraft in the National Parks, supra note 404; Christine Bednarz, 6 Accidents

That Actually Happened in National Parks, NAT’L GEOGRAPHIC (Apr. 20, 2018),

https://perma.cc/4W7Z-XE5Q.

407

. Policy Memorandum from Jonathan B. Jarvis, supra note 405.

408

. Id.

409

. Id.

410

. Id.

411

. Unmanned Aircraft in the National Parks, supra note 404; Policy Memorandum from

Jonathan B. Jarvis, supra note 405.

412

. Frank Wolfe, U.S. DEA: Border Wall or No, Drone Drug Smuggling Likely To Increase,

ROTOR & WING INT’L (Jan. 10, 2019), https://perma.cc/CPR3-2G8T.

230 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

advantage of when proposing drone use for package delivery.

413

But, the same

feature has also led to a small number of cases of people abusing drones for illegal

smuggling purposes.

The most prominent examples are of drones being utilized to sneak contra-

band into American and English prisons.

414

In 2015, a drone dropped a package

containing tobacco, marijuana and heroin into an Ohio prison yard.

415

Seventy-

five inmates gathered around the package and a fight ensued, requiring prison

guards to deploy pepper spray. A similar incident occurred in London, when a

drone attempted to deliver contraband items, including drugs and cell phones,

directly to an inmate’s window.

416

That attempt was caught on camera and guards

were able to confiscate the package contents. Statistically, it is difficult to know

exactly how often incidents like this occur, but anecdotally they seem rare. Nev-

ertheless, as the technology has become so inexpensive and easy to use, it would

be hardly surprising if we witnessed an uptick in drones being employed with

illicit smuggling intent.

V. RESPONSIBLE POLICY AND REGULATORY REFORMS

To address the concerns detailed above,

417

the FAA implemented significant

drone regulations—notably the line-of-sight and registration requirements (see

supra Part II.B). In practice, however, these two regulations utterly fail to remedy

safety or privacy concerns. Instead, the FAA’s line-of-sight and drone registration

requirements work primarily to suffocate innovation in drone technology and

reduce the social utility of drone usage.

A. Eliminate the Line-of-Sight Regulation—It Stifles Innovation Without Any

Accompanying Benefit

Drones are on the cusp of revolutionizing the world with immediate com-

mercial, public safety, and research applications. However, their apparently lim-

itless potential is seriously hampered by the FAA’s line-of-sight regulation, which

mandates that drone operators keep their drones within their own eyesight.

418

The intent of the line-of-sight rule was to increase public safety and reduce colli-

sions by requiring operators to see their drones directly—thus putting them in a

413

. See, e.g., Jillian D’Onfro, Amazon’s New Delivery Drone Will Start Shipping Packages “in a

Matter of Months,” FORBES (June 5, 2019), https://perma.cc/WM7D-DW6F.

414

. Prisons Work To Keep Out Drug-Smuggling Drones, NPR (Nov. 15, 2017),

https://perma.cc/VS9C-UUY6; Drone Delivers Drugs & Mobiles to London Prisoners, BBC NEWS

(May 16, 2016), https://perma.cc/WS2M-A7DY.

415

. Lorenzo Ferrigno, Ohio Prison Yard Free-For-All After Drone Drops Drugs, CNN (Aug. 5,

2015), https://perma.cc/SX4G-NGQ9.

416

. Drone Delivers Drugs & Mobiles to London Prisoners, supra note 414.

417

. See supra Part IV.

418

. 14 C.F.R. § 107.31.

Winter 2020 DEADLY DRONES? 231

better position to avoid imminent hazards.

419

While this argument has superficial

appeal, further scrutiny renders it absurd. Today’s drone operators can just as

easily (and perhaps even more easily if one considers military drones) prevent

collisions by utilizing first-person camera technology.

420

More critically, this FAA

regulation disincentivizes American companies, like Amazon and Google, from

investing aggressively in burgeoning drone technology due to fear of regulatory

obstacles making their visions too burdensome to achieve.

421

1. What Is the Point of the Line-of-Sight Regulation?

To ensure that drone operators can safely see and avoid aircraft, people,

property, and other hazards, the FAA requires drones to fly within the visual line

of sight of its operator “unaided by any device other than corrective lenses.”

422

This “see-and-avoid requirement” is at the heart of the FAA’s regulatory structure,

ostensibly mitigating the risk of aircraft colliding in midair.

423

For example, a

manned aircraft’s pilot can look outside from inside the cockpit to see whether

other planes are on a collision course with her vessel.

424

Conversely, the FAA ar-

gues that “a person on the ground cannot see and avoid other aircraft in the same

manner as a pilot who is inside a manned aircraft.”

425

While superficially accurate,

the FAA seems almost oblivious to the fact that drone operators do not need to

visually see their drones to avoid collision. Drones have built-in cameras and col-

lision-avoidance technology, which is often far superior to human eyesight and

reflexes.

Manufacturers today are more than capable of installing high resolution

cameras into drone cockpits, which transmit a live, “first person view” feed to

their operator,

426

as Figure 2 below shows. A drone’s remote controller either has

a built-in screen or allows a smartphone to plug into the controller to act as a

screen.

427

While flying, drone operators can see exactly what their drone sees

through this screen and thus provide an accurate and effective method for oper-

ators to see and avoid obstacles even when they are miles away.

428

More critically,

419

. See infra Part V.A.1 (discussing the purpose behind the FAA’s line-of-sight regula-

tions).

420

. See generally Fintan Corrigan, How Do Drones Work and What Is Drone Technology,

DRONEZON (Oct. 30, 2019), https://perma.cc/G483-HJBZ [hereinafter Corrigan, How Do

Drones Work].

421

. See Amazon Says It May Take Drone Testing Outside U.S., supra note 4.

422

. Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg.

42,063 (June 28, 2016) (to be codified at scattered sections of 14 C.F.R.).

423

. Id. at 42,074.

424

. Id. at 42,092

425

. Id. at 42,093

426

. Corrigan, How Do Drones Work, supra note 420.

427

. Id.

428

. Id.

232 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

drones now have the technological ability to autonomously detect and avoid ob-

jects from all angles.

429

Thus, the FAA’s “line of sight” regulation does not serve its

avowed purpose—drone operators have other, more effective means of identify-

ing and avoiding hazards without requiring direct visual eye contact at all times.

FIGURE 2.

The top picture shows what a drone operator sees when operating their

drone. The bottom picture shows a deployed drone in the sky from a drone op-

erator’s visual eyesight.

430

Drone operation through a live camera feed provides

drone operators with a clearer visual of their drones to better see and avoid ob-

stacles in a drone’s path. As depicted by the bottom picture, drone operators may

have a more difficult time avoiding obstacles with just their eyesight.

429

. Fintan Corrigan, 12 Top Collision Avoidance Drones and Obstacle Detection Explained,

DRONEZON (Oct. 28, 2019), https://perma.cc/6VU7-R58S.

430

. Drew Bennett, Sky Viper Quadcopter Drone and Camera Drone Review, BENSPARK FAMILY

ADVENTURES (Nov. 25, 2014), https://perma.cc/8BT4-GBNV; Autel Evo Drone Controller Screen,

YOUTUBE (June 30, 2018), https://perma.cc/M7KY-QLRB.

Winter 2020 DEADLY DRONES? 233

Not surprisingly, the line of sight’s “see and avoid” philosophy has drawn

sharp criticism from media and industry commentators alike, including the News

Media Coalition, the National Association of Mutual Insurance Companies

(NAMIC), and Drone Labs.

431

These critics reasonably point out that the use of

FPV technology has advanced to the point where pilots can use it to meet or ex-

ceed the visual line of sight’s see and avoid requirement.

432

United Parcel Service

agrees with this position, noting that FPV technology has been safely and effec-

tively used in the drone hobbyist community for many years now.

433

In fact, many

pilots feel that the FPV view is superior and safer than their own limited eyesight

from the ground.

434

In addition to failing the FAA’s own see and avoid logic, the line-of-sight reg-

ulation also fails to address other public safety concerns (e.g., potential drone col-

lisions with a manned aircraft). As detailed above in Part IV.A, there have been

zero injuries or deaths in the history of the United States from collisions between

drones and other manned aircraft.

435

Attributing this statistic to the effectiveness

of the FAA’s line-of-sight rule is absurd, as at most one person in the history of

the world has died from accidental drone injury.

436

When compared to other pub-

lic safety threats, the risk presented by drones is dramatically overstated. Com-

paratively speaking, cars kill over 40,000 Americans annually,

437

firearms kill

30,000,

438

and drug overdoses claim 70,000 lives each year.

439

Rather than ap-

plauding the dubious effectiveness of the line-of-sight regulation, regulatory

agencies would be far better served focusing their attention on activities that ac-

tually kill Americans.

So why do we have this line-of-sight regulation, given its doubtful efficacy?

It is based on systematic risk-misperception, exaggerating fear over reality. The

National Academies of Sciences, Engineering, and Medicine criticized the FAA in

its FAA-commissioned report by pointing out that the agency now has “a culture

with a near-zero tolerance for risk,” and fails to account for “the various ways in

431

. Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. at

42,093.

432

. Id.

433

. Id.

434

. See generally James Trew, First-Person-View Drone Flying Is the Closest Thing to Being a

Bird, ENGADGET (July 25, 2016), https://perma.cc/9ZFU-N4EZ; Alan Pearlman, Everything You

Need To Know About FPV Flying, UAV Coach (Aug. 20, 2016), https://perma.cc/A7SS-FVMD.

435

. McNabb, supra note 363; Lusher, supra note 345.

436

. Id.

437

. Nathan Bomey, U.S. Vehicle Deaths Topped 40,000 in 2017, National Safety Council Esti-

mates, USA TODAY (Feb. 15, 2018), https://perma.cc/4N44-RXFM.

438

. Sarah Mervosh, Nearly 40,000 People Died From Guns in U.S. Last Year, Highest in 50

Years, N.Y. TIMES (Dec. 18, 2018), https://perma.cc/H59P-SLHT.

439

. Overdose Death Rates, NAT’L INST. ON DRUG ABUSE (Jan. 2019),

https://perma.cc/WEM3-WZ96.

234 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

which technology may reduce risk and save lives.”

440

The Committee concluded

that “fear of making a mistake drives a risk culture” at the FAA, particularly with

respect to drones.

441

In many ways, the FAA fails to take a holistic approach for

drone risk assessment, and in response has implemented an imbalanced regula-

tion in its line-of-sight rule. By flying beyond one’s line of sight, drones would be

capable of preventing derailments, inspecting cell phone towers, delivering med-

ical devices to patients in cardiac distress, and assisting firefighters.

442

The FAA’s

line-of-sight rule prevents a multitude of public safety and commercial applica-

tions, while doing little to reduce accidents.

443

In sum, the FAA’s line-of-sight re-

striction represents a classic, overly conservative approach to risk regulation—it

focuses far too narrowly on the new, small risks that drones pose instead of on

their potential ability to save lives if they are allowed to fly far distances beyond

the line of sight of their operator.

444

2. The Benefits of Beyond the Visual Line of Sight (BVLOS)

As mentioned above, the current FAA regulatory scheme prevents drones

from operating beyond the operator’s visual line of sight (BVLOS), unless an op-

erator obtains a “special, hard-to-get waiver” from the FAA.

445

In fact, 99% of the

first 1200 BVLOS applicants have failed to receive approval.

446

Effectively, the

FAA is hampering “the next big opportunity” for commercial drone operators

since many applications are impossible to execute without BVLOS.

447

Thus, un-

locking the full potential of commercial drones require regulators to allow drones

to fly BVLOS.

448

By flying beyond the visual line of sight, drones allow businesses to replace

traditional, more expensive methods such as helicopters and satellites. As a result,

businesses reap three key benefits from drones: improved (1) safety, (2) accuracy,

and (3) efficiency.

449

Specific to efficiency, commercial businesses that utilize BVLOS drone oper-

ations can significantly reduce expenses and maximize their investment in drone

440

. NAT’L ACADS. SCI. COMMITTEE ON ASSESSING RISKS OF UNMANNED AIRCRAFT SYS.,

INTEGRATION ENGINEERING, & MED., ASSESSING THE RISKS OF INTEGRATING UNMANNED

AIRCRAFT SYSTEMS (UAS) INTO THE NATIONAL AIRSPACE SYSTEM 1-2 (2018).

441

. Id. at 2.

442

. Id. at 1.

443

. Marcontell & Douglas, supra note 19.

444

. Id.; NAT’L ACADS. SCI. COMMITTEE ON ASSESSING RISKS OF UNMANNED AIRCRAFT SYS.,

supra note 440.

445

. FERGUSON, supra note 24 at 1.

446

. Id.

447

. Id.

448

. Id.

449

. Id. at 3.

Winter 2020 DEADLY DRONES? 235

technologies.

450

For instance, a company that inspects “10,000 miles of power

lines a year would save $1.7 million in the first year of operation,” a savings that

could amount to $9 million over five years.

451

Based on a case study provided by

Precision Hawk, electric utility companies, for example, can either use a manned

helicopter or drones to inspect power lines.

452

With a manned helicopter, the costs

ranges from $40-$700 per mile; whereas, with a BVLOS drone, the cost ranges

from $10-$25 per mile of inspection.

453

Accordingly, that utility company can

save up to $1.7 million per year by using drones.

454

These potential savings could

be applied to many more businesses across various industries. Thus, BVLOS

drone operations allow companies to save money so they can reinvest, innovate,

and create more jobs.

3. Innovation, Jobs, and an Economic Boost Are Waiting for More

Accommodating Regulations

Without regulatory flexibility from the FAA, major American companies (e.g.,

Google and Amazon) are investing in drone technology outside the United States’

borders. Unfortunately, this lost opportunity means that foreign nations—instead

of America—are benefiting from technological advancements, new jobs, and an

economic upswing. The United States cannot reap these benefits until the FAA

removes its line-of-sight regulation.

For example, major U.S. companies are now testing drone package deliveries

in more regulatory-accommodating countries.

455

In Australia, Google X’s “Project

Wing” successfully delivered burritos and medication to customers with

drones.

456

Through extensive testing, Google overcame hurdles to perfect drone

delivery by extending drone battery life for long distance deliveries, learning how

to package perishable products, and perfecting delivery coordinates for precise

deliveries.

457

Similarly, in Canada, Amazon tested drone deliveries after the e-

commerce giant’s frustration with the FAA’s line-of-sight regulation inside the

United States.

458

With the “full blessing of the Canadian government,” Amazon

450

. Id.

451

. FERGUSON, supra note 24 at 3.

452

. Id.

453

. Id.

454

. Id.

455

. The Future of Drones Depends on Regulation, Not Just Technology, THE ECONOMIST (Jun. 8,

2017), https://perma.cc/W6NR-CGEN [hereinafter Future of Drones].

456

. Alex Hern, Alphabet Tests Project Wing Drones by Delivering Burritos and Medicine, THE

GUARDIAN (Oct. 17, 2017), https://perma.cc/CR3A-3C53.

457

. Id.

458

. Ed Pilkington, Amazon Tests Delivery Drones at Secret Canada Site After U.S. Frustration,

THE GUARDIAN (Mar. 30, 2015), https://perma.cc/MCC7-ARK5.

236 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

experimented with hybrid drones that took off and landed vertically and hori-

zontally, and successfully delivered packages over long distances.

459

To the FAA’s credit, however, the agency did eventually allow some drones

to operate in the United States beyond the visual line-of-sight through the

agency’s “Part 107” exception.

460

As it stands, the FAA requires most drone pilots

to obtain waivers to fly BVLOS.

461

However, obtaining this waiver is “cumber-

some [because of stringent requirements] and can take three to six months, which

is longer than most innovative companies can afford to wait.”

462

Further, operat-

ing drones BVLOS is not realistic using the waiver process alone because only

16% of the 11,325 applications that have been reviewed have been approved in

2018.”

463

While the FAA’s Part 107 attempts to allow some drones to fly BVLOS is a

small step in the right direction, the agency needs to move much more quickly.

Businesses like Amazon desperately want to invest greater resources into drone

technology but are deterred from doing so because of unaccommodating drone

regulations. Paul Misener, Amazon’s Vice President of Global Public Policy, crit-

icized the FAA and its lengthy waiver process at a Subcommittee on Aviation, Op-

erations, Safety, and Security meeting in Washington, D.C. last year. Misener

acknowledged that the “United States is catching up” but emphasized that the

United States “remains behind in planning for future commercial [drone] opera-

tions.”

464

Frustrated by the FAA’s lengthy waiver approval process, Amazon also

took matters into its own hands years ago to satisfy its innovative appetite. Ama-

zon applied to begin testing drone deliveries in the United States in 2014 but did

not receive a waiver from the FAA until almost a year later.

465

By that time, the

drone that Amazon had requested permission to fly had become obsolete and the

company “moved onto more advanced designs that were being tested abroad.”

466

The FAA seemingly ignored Amazon’s request, and in response, Amazon built a

new research and development center in the United Kingdom and began testing

drone operations there.

467

Amazon received approval from the U.K. Civil Aviation

Authority to conduct testing—allowing Amazon to operate drones beyond the line-

459

. Id.

460

. Ed Oswald, Here’s Everything You Need To Know About Amazon’s Drone Delivery Project,

Prime Air, DIGITAL TRENDS (May 3, 2017), https://perma.cc/PGT7-84MV.

461

. Part 107 Waivers, supra note 150.

462

. Jennifer van Grove, Report: FAA Stifling Commercial Drone Use, SAN DIEGO UNION TRIB.

(Jun. 11, 2018), https://perma.cc/3K9M-626Q.

463

. Nick Zazulia, Getting Beyond the FAA’s Part 107 BVLOS Waiver Application, AVIONICS

(Aug. 27, 2018), https://perma.cc/BYL7-7MHE.

464

. Ryan Mac, Amazon Hammers FAA For Lack Of “Impetus” Over Drone Policy, FORBES

(Mar. 24, 2015), https://perma.cc/4DMS-MECQ.

465

. Jack Nicas, Amazon Asks FAA for Permission To Fly Drones, WALL ST. J. (Jul. 11, 2014),

https://perma.cc/XH6T-3YHE.

466

. Jay Greene, Amazon Says FAA-Approved Drone Is Already Obsolete, SEATTLE TIMES

(Mar. 24, 2015), https://perma.cc/9KTG-36F5.

467

. Id.

Winter 2020 DEADLY DRONES? 237

of-sight—and delivered its first package by drone on December 7, 2016 in the

United Kingdom.

468

While the FAA intended to do good by instituting its Part 107

BVLOS waiver process, this is a prime example of how the agency’s tortoise-like

pace is stifling innovation and investment inside the United States.

Other countries have also taken advantage of American regulatory delays in

expanding BVLOS flying. A Fortune article headlined, Oh! Canada May Beat U.S. to

Commercial Drone Delivery, detailed how Drone Delivery Canada (“DDC”) effi-

ciently worked with Canadian regulators and community stakeholders to suc-

cessfully deliver mail, food, medical supplies, and general goods to the Moose

Cree community in Northern Canada.

469

DDC worked collaboratively with re-

searchers from the Universities of Toronto and Waterloo on fully autonomous

flights that went dozens of miles beyond the line of sight of drone operators.

470

Other countries, like Japan, are now acting quickly to remove their version of the

FAA’s visual line-of-sight rule in order to spur innovation and avoid a lengthy

waiver process like we have.

471

Instead, the Japanese government will require

drones to be equipped with cameras and sensors and fly below 150 meters, and

drone operators must have a history of safe flights.

472

Similarly, the United King-

dom actively working to remove its line-of-sight regulation.

473

In response to “the

increasing popularity of commercial drone operations,” the urgency to remove

this requirement is essential to “help make [drone deliveries] happen” safely, ac-

cording to David Harrison of the U.K. National Air Traffic Control Service.

474

Canada, Japan and the United Kingdom are understandably taking a more aggres-

sive approach to integrating drones into their airspace than the United States be-

cause these countries appreciate the tremendous economic and innovative impact

of drones. They see an opportunity to capture a market that the FAA is complicit

in crippling inside the United States.

In sum, the United States must join its foreign counterparts in allowing entre-

preneurial businesses to realize the benefits of drone technology. Sadly, the FAA

468

. Elizabeth Weise, Amazon Delivered Its First Customer Package by Drone, USA TODAY

(Dec. 14, 2016), https://perma.cc/7JZK-9GR7.

469

. Barb Darrow, Oh! Canada May Beat U.S. to Commercial Drone Delivery, FORTUNE (Oct. 9,

2017), https://perma.cc/V9NH-WHE5; Press Release, Drone Delivery Canada, Moose Cree

First Nation and Drone Delivery Canada Launch Remote Community Drone Delivery Com-

mercialization in Northern Canada (Oct. 4, 2017), https://perma.cc/DH8N-77H4.

470

. Darrow, supra note 469.

471

. Marco Margaritoff, Japan To End Beyond Visual Line-of-Sight Regulations by End of 2018,

THE DRIVE (Mar. 30, 2018), https://perma.cc/4ZVG-FCAF.

472

. Id.

473

. Setting the Path to Drone Deliveries and Remote Inspections: Making Beyond Visual Line of

Sight Drone Operations Commonplace, CIV. AVIATION AUTHORITY (Dec. 9, 2019),

https://perma.cc/FZE8-TMW6; Graeme Paton, Drone Deliveries on Course for Next Year, THE

TIMES (Mar. 6, 2018), https://perma.cc/MU7X-9GCG.

474

. Haye Kesteloo, Drone Deliveries May Become a Reality in the UK by 2019, DRONEDJ

(Mar. 6, 2018), https://perma.cc/PPE2-X6MB.

238 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

lacks the impetus to develop timely policies that incentivize innovation.

475

Alt-

hough the FAA has slowly moved towards loosening its line-of-sight regulation

in the United States, the agency’s actions belie a larger point: its culture of “near-

zero tolerance for risk” has stifled innovation and needs to be uprooted immedi-

ately.

476

4. The FAA’s Drone Integration Pilot Program (IPP): A Step in the Right

Direction

Despite the above critique, the United States is slowly moving in the right

direction. With the recent creation of the Drone Integration Pilot Program

(“IPP”), the Trump administration took a small step towards allowing flight be-

yond the line of sight in 2018. The program’s goal is to aid the U.S. Department

of Transportation (“DOT”) and the FAA in drafting new regulations that more

holistically balance safety, privacy, and commercial interests.

477

The DOT selected ten state, local, and tribal governments as participants out

of 149 applications.

478

Each applicant also included the partners that it would

work with.

479

Notable companies selected as part of the program include Apple,

Microsoft, Intel, General Electric, and Google’s sister company Project Wing, as

well as a host of others.

480

Oddly, Amazon and DJI, the largest consumer drone

companies in existence, were not chosen.

481

The IPP creates new partnerships be-

tween local governments, the FAA, and the private industry to freely allow select

drone operators to conduct “drone-based mapping, inspections, traffic and

weather monitoring, commercial and medical delivery, and law enforcement sur-

veillance systems.”

482

The IPP will “accelerate the safe integration of drones into

our airspace” and will allow select cities to experiment with “package delivery,

emergency drone inspections, and more, on terms that work for them,” according

to U.S. Secretary of Transportation Elaine Chao.

483

Of course, all of these uses

require that drones fly many miles beyond the sight line of their operator.

475

. Mac, supra note 464.

476

. David Koenig, Where Are the Drones? Amazon’s Customers Are Still Waiting, LONG VIEW

NEWS J. (Dec. 23, 2018), https://perma.cc/5TMM-CVEY.

477

. UAS Integration Pilot Program, FED. AVIATION ADMIN. (Nov. 7, 2018),

https://perma.cc/HS9G-8Q3G.

478

. U.S. Transportation Secretary Elaine L. Chao Announces Unmanned Aircraft Systems Inte-

gration Pilot Program Selectees, U.S. DEP’T TRANSP. (May 9, 2018), https://perma.cc/B5M6-RQFV.

479

. Id.

480

. Nick Zazulia, DOT Selects 10 Participants for Nationwide Drone Integration Pilot Program,

AVIONICS (May 11, 2018), https://perma.cc/BD23-6WSF.

481

. Samuel Gibbs, Apple, Microsoft and Uber Test Drones Approved but Amazon Left Out in

Cold, THE GUARDIAN (May 10, 2018), https://perma.cc/UY7A-WCXK.

482

. Faine Greenwood, A New Drone Testing Program from the Trump Administration Just

Gave Big Business a Big Boost, SLATE (Jun. 15, 2018), https://perma.cc/6ZYC-PWB6.

483

. Announcement of DOT Drone Integration Pilot Program, U.S. DEP’T TRANSP. (Nov. 2,

2018), https://perma.cc/U32Q-5N3A.

Winter 2020 DEADLY DRONES? 239

The IPP has also given the green light to Uber to use drones for food delivery

in San Diego; CNN and Green Valley Farms in Oklahoma; Lee County to use

drones to control the mosquito population in Florida; FedEx, Intel, and General

Electric to use drones to deliver packages, and conduct autonomous flights to

support airport operations in Tennessee; and Zipline, Flytrex, Matternet, Preci-

sionHawk, and the North Carolina Department of Transportation to use drones

to deliver blood and medical supplies in North Carolina.

484

Over the next few years, the ten select project sites will collect “drone data

involving night operations, flights over people and beyond the pilot’s line of sight,

package delivery, detect-and avoid technologies and the reliability and security of

data links between pilot and aircraft.”

485

The data collected from these operations

will help the DOT and FAA draft more pragmatic regulations for drones that ad-

dress safety and privacy concerns while permitting further commercial applica-

tions.

486

By allowing drones to finally operate beyond the line of sight, companies will

provide affordable convenience to the public and positively impact numerous in-

dustries. Some applications that expect to witness instant benefit from the pilot

program are photography, emergency management, public safety, precision agri-

culture, and infrastructure inspections.

487

Furthermore, commercial utilization of

drones will create jobs and have a substantial economic impact in the affected

communities. According to AUVSI—the world’s largest nonprofit organization

dedicated to unmanned systems and robotics—drone integration into the na-

tional airspace will create more than 70,000 domestic jobs with an economic im-

pact of more than $13.6 billion within the first three years.

488

By 2025, the organ-

ization predicts that more than 100,000 jobs will be created with a total economic

impact of $82 billion.

489

While the IPP and the Trump Administration have taken

positive steps, it is not nearly enough because there can be no substantial com-

mercial or public safety application of drone technology if businesses must re-

quest permission from the FAA each time they want to fly beyond an operator’s

line of sight.

484

. Alan Boyle, 10 Teams Win OK To Push the Limits With Drones, but Amazon’s Left Out,

GEEKWIRE (May 19, 2018), https://perma.cc/L6CQ-WRQT.

485

. U.S. DEP’T TRANSP., supra note 478.

486

. Id.

487

. Id.

488

. Id.; JENKINS & VASIGH, supra note 21 at 2.

489

. JENKINS & VASIGH, supra note 21 at 2.

240 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

5. Summary Observations

Thus, in order to fully realize the promise of drones,

490

the FAA should im-

mediately remove the line-of-sight requirement. First, the line of sight is a spine-

less regulation premised on a flawed “see and avoid” philosophy (see supra, Part

V.A.1). The original justification that operators had to be able to see their drones

to avoid contact with other aircraft has been rendered irrelevant due to techno-

logical advancements. FPV camera technology now allows operators to see and

avoid obstacles without needing to directly “see” the drone with their own eyes.

While the FAA understandably intended to address safety concerns, the rule now

represents an unnecessarily conservative approach that limits the benefits of

drones without doing anything to enhance their safety.

Second, the line-of-sight regulations dramatically restrict commercial, re-

search, and public safety drone applications. Operators hoping to use drones for

positive and productive applications that require their drones to fly miles away

must overcome lengthy regulatory hurdles, such as obtaining a Part 107 waiver

from the FAA—a time-consuming and burdensome approval process.

Finally, the line-of-sight rule inhibits innovation (e.g., direct drone delivery)

and forces American businesses to pour their resources abroad—where more

friendly drone regulations exist.

491

When U.S. businesses invest their resources

internationally, America loses out on the opportunity to be the leader in innovat-

ing drone technologies and creating accompanying jobs. Other countries, such as

the United Kingdom, Japan and Canada, are outpacing the United States in drone

technology under current FAA regulations.

In sum, the FAA must eliminate its line-of-sight regulation because it is prem-

ised on flawed reasoning, is time-consuming and burdensome to waive, and in

the end stifles innovation that would benefit our country.

B. Registration Is Unnecessary and Ineffective, and It Violates Privacy

Treating Like the line-of-sight regulation, the FAA’s drone registration re-

quirement is another example of a misguided attempt to improve public safety.

The registration requirement requires every recreational drone that exceeds 0.55

pounds (meaning that virtually every toy drone is included) to have the name,

home address and phone number of its owner registered with the FAA.

492

In the-

ory, the FAA believes that requiring drone operators to register their devices in

advance would mitigate risk by encouraging them to fly safely and legally.

493

490

. See Robert M. Howard et al., Congress Evaluates Regulatory Path Forward for Integrating

Drones, LATHAM & WATKINS (Aug. 15, 2019), https://perma.cc/SA62-HL7K.

491

. Future of Drones, supra note 455.

492

. Press Release, Fed. Aviation Admin., FAA Announces Small UAS Registration

Rule (Dec. 14, 2015), https://perma.cc/BBF3-265C.

493

. See Recreational Flyers & Modeler Community-Based Organizations, supra note 88.

Winter 2020 DEADLY DRONES? 241

In actuality, however, it is difficult to imagine that the FAA’s drone registra-

tion requirement will operate in this manner—because bad actors will of course

not abide by this regulation. No reasonable regulator could seriously believe that

a terrorist would voluntarily register his weaponized drone with the federal gov-

ernment. Instead, law-abiding Americans, including teenagers not yet old enough

to drive or vote are the parties who bear the brunt of this regulation. Moreover,

registration does little to nothing to increase operator safety and unwittingly cre-

ates invasion of privacy concerns. In fact, the FAA completely ignores practical

realities and the problems it creates by requiring registration—e.g., (1) illegible

markings after collisions; (2) privacy violations; (3) terrorists will not comply with

these rules; (4) lack of enforcement infrastructure; and (5) fraud by third parties.

1. Registration Marks May Not Be Legible After a Collision

The FAA’s drone registration rule could—theoretically—hold drone opera-

tors “accountable to the public for flying responsibly.”

494

However, this noble in-

tent is “limited by practical realities”

495

because registration markings on drones

are often not legible after a serious collision.

496

Thus, this requirement likely fails

to deter misconduct and is an example of yet another unnecessary regulatory hur-

dle for drone operators.

As detailed above in Part II.B.3, the FAA’s new recreational drone registration

rule requires drone operators to mark their drones with an FAA registration

number by engraving, permanent label, or a permanent marker.

497

The FAA ar-

gued that its registration requirement “will enhance safety and security by allow-

ing a person [like a first responder] to view the unique identifier directly without

handling the drone [which might contain explosives].”

498

While well-intended, this rule does nothing to increase safety and security

for two reasons. First, those potentially injured or violated by drones (e.g., unwar-

ranted surveillance, trespasses onto private property, or crashes into structures

or people) are unlikely to see and remember the drone’s identification number

when the drone is mid-flight.

499

The FAA’s requirement only states that the reg-

istration number must be visible on the exterior of the drone via engravings, per-

manent labeling, or permanent marker.

500

With such vague instructions, drone

operators are technically in compliance with the FAA’s registration and marking

requirements if they mark their drones with a silver Sharpie in small and sloppy

494

. FAA Announces Small UAS Registration Rule, supra note 492.

495

. Cecilia Kang, Drone Registration Rules Are Announced by F.A.A., N.Y. TIMES (Dec. 14,

2015), https://perma.cc/M3PB-4L7F.

496

. Id.

497

. ID Marking Change, supra note 81.

498

. Id.

499

. See Violet Blue, Confusion Over FAA Drone Registry Results in Privacy Problems,

ENGADGET (Feb. 3, 2016), https://perma.cc/BY58-QJPF.

500

. How To Label Your Drone, supra note 82.

242 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

handwriting under the fuselage. Accordingly, those potentially injured by drones

will have the impossible task of identifying (in mid-flight) where the drone’s reg-

istration number is located, attempting to decipher the handwriting, memorizing

or writing down the number, while simultaneously being threatened or harmed

by the drone. Simple, practical examples such as this illustrate the absurdity of the

FAA’s registration rule.

The reality is that a drone’s identification number could likely only be ob-

tained if the drone was captured or downed.

501

Even in that event, the drone may

be extensively damaged by the collision or destroyed by other manners.

502

For

example, a drone would be completely destroyed if it collided with an airplane, as

simulated by the UDRI engineer.

503

The likelihood that an engraved, labeled, or

marked identification number on the drone would be legible even after a much

smaller crash is relatively low. In sum, the FAA’s registration requirement fails to

realistically address how individuals harmed by drones can identify the drone

owner and hold that owner accountable.

2. Privacy Problems: Home Address, Email and Phone Number Are Freely

Accessible to the Public

The FAA’s federally mandated drone registration rule will also needlessly vi-

olates the individual registrant’s privacy.

504

Under current FAA regulations,

drones must be registered with the agency prior to flight, which requires a recre-

ational drone operator to provide their name, physical and mailing address, email

address, and phone number in exchange for an FAA-issued identification num-

ber.

505

The FAA confirmed that the information provided through drone regis-

tration will be public, which means names and home addresses of drone pilots—

501

. Blue, supra note 499.

502

. Kang, supra note 495.

503

. Gregg, supra note 347.

504

. Blue, supra note 499; see also Andrew Tarantola, FAA Confirms That Drone Registry Info

Will Be Public Record, ENGADGET (Dec. 18, 2015), https://perma.cc/BW4U-4JD4.

505

. Blue, supra note 499; see also Tarantola, supra note 504. John Goglia, FAA Finally Admits

Names and Home Addresses in Drone Registry Will Be Publicly Available, FORBES (Dec. 18, 2015),

https://perma.cc/TXZ5-6ULT; Interpretation of the Special Rule for Model Aircraft; With-

drawal, 84 Fed. Reg. 14,607 (Apr. 11, 2019); John Patrick Pullen, Getting a Drone for the Holidays?

You’ll Have To Register It With the FAA, TIME (Dec. 12, 2017), https://perma.cc/6JHM-D9T3. In

2017, the FAA’s drone registration rule was vacated by the United States D.C. Court of Appeals,

which held that it “violates Section 336 of the FAA Modernization and Reform Act.” Taylor, 856

F.3d at 1094. Additionally, this ruling held that the FAA “may not promulgate any rule or reg-

ulation regarding a model aircraft.” Id. at 1090. Nevertheless, the registration requirement was

recently reinstated by President Trump in the National Defense Authorization Act for Fiscal

Year 2018. Michael Senkowski, FAA Drone Registration Authority Restored, DLA PIPER (Dec. 12,

2017), https://perma.cc/G4UW-W8ES.

Winter 2020 DEADLY DRONES? 243

as young as thirteen years old—are public information.

506

As Violet Blue, an in-

vestigative reporter on hacking and cybercrime, correctly points out, “[i]f a vio-

lent person knew the first and last name of someone he or she wanted to harm,

someone who also owned a drone, that attacker would have little trouble tracking

them down.”

507

Alternatively, drone operators can register their drones through LLCs or

other entities to avoid compromising personal information.

508

However, this is an

expensive way to keep personal information private.

509

Beyond violating drone

operators’ reasonable privacy expectations, the FAA’s registration requirement

misses its own purpose of fostering accountability. Instead, the FAA gives drone

operators an absurd ultimatum when registering their drones: (1) expose your

personal information online or (2) spend hundreds of dollars forming an entity in

order to avoid disclosing your personal information.

3. Bad Actors Are Highly Unlikely To Register Their Drones

Furthermore, only law-abiding citizens will register their drones with the

FAA, which means that drone operators with malevolent intentions, including

terrorists, will not register their drones and thus their drones will not be identifi-

able.

510

Of course, the proliferation of drone usage has raised significant concerns

about unwarranted surveillance or terrorist activities.

511

But the FAA’s registra-

tion solution utterly fails because “drone users who plan to use the machines for

nefarious purposes” are more than likely not to register at all.

512

For example,

“someone who tries to fly a drone into the approach path of an incoming passen-

ger plane, realizing he puts all passengers (and people on the ground) at risk, is

not someone who will care to first register his drone.”

513

Additionally, the FAA’s

506

. Goglia, supra note 505;

There has been some confusion over the matter as the FAA's registry FAQ states that

the agency, the contractor that it hired to operate the registry and law enforcement

which had led some to believe that only those three entities would have access to the

information. However, the FAA did state in its Department of Transportation filing

that ‘all records maintained by the FAA in connection with aircraft registered are

included in the Aircraft Registry and made available to the public, except email ad-

dress and credit card information submitted under part 48 [of the registry].’

Tarantola, supra note 504.

507

. Blue, supra note 499.

508

. Id.; FAA Registry—Aircraft, FED. AVIATION ADMIN. (Aug. 10, 2010),

https://perma.cc/UB7A-8DAZ.

509

. Lisa Magloff, How Much Money Does Starting an LLC Cost?, LEGALZOOM,

https://perma.cc/TMG7-BPQX (archived Dec. 23, 2019).

510

. Yoram Solomon, If the FAA Regulates Drones, Why Doesn’t It Regulate Laser Pointers?, INC.

(Mar. 15, 2016), https://perma.cc/5XNC-VZC3.

511

. Supra Part IV.

512

. Kang, supra note 495.

513

. Solomon, supra note 510.

244 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

registration process will not deter drone operators who intend to recklessly cause

damage or act with complete disregard to other people or property.

514

Unfortu-

nately, the law-abiding hobbyist community, including the authors of this Article,

now face intrusion into their own privacy due to the FAA’s registration require-

ment, but with zero accompanying benefit when it comes to fostering overall

public safety.

515

4. The FAA Lacks Any Enforcement Mechanism

Moreover, while the FAA asserts that the registration process is intended to

“help[] promote safe and responsible drone operation,”

516

this vision cannot be

realized without an actual enforcement infrastructure system. The FAA notes that

failure to register a drone could result in a substantial civil fine up to $27,500 or

criminal penalties up to $250,000 or three years in prison.

517

However, in reality

the threat (and deterrence impact) from these sanctions is far less draconian than

it appears.

518

First, the agency is extremely unlikely to fine an unregistered, rec-

reational drone operator the maximum $27,500. Rather than setting a minimum

penalty or mandatory system, the fines will be analyzed on a case-by-case basis,

which presents an inconsistent and potentially exhausting enforcement prob-

lem.

519

For example, the FAA settled with Xizmo Media, a professional drone cin-

ematography company who was not registered and flew recklessly, for a mere

$5000.

520

First-time offenders and recreational users will likely receive minimal

fines or just a warning.

521

Second, the FAA has not specified how the agency will enforce its registration

rule.

522

While the FAA has established how much the potential fines could be, the

agency requires other law enforcement officials to actually chase down unregis-

tered drones—a highly unlikely effort given other priorities that the police

have.

523

Without its own enforcement apparatus, it is unlikely that the FAA’s reg-

istration requirements will have the teeth that the agency claims. In the end then,

514

. See id.

515

. See id.

516

. Brian Heater, Trump Signs Bill Reinstating the FAA’s Drone Registration Requirement,

TECHCRUNCH (Dec. 12, 2017), https://perma.cc/DLD2-B6MZ.

517

. Keith Wagstaff, Fail To Register Your Drone? You Could Be Hit With $27K Fine, NBC

NEWS (Dec. 15, 2015), https://perma.cc/P9GL-7X4B.

518

. Id.

519

. See generally Jason Koebler, The FAA Gave Us a List of Every Drone Pilot Who Has Ever

Been Fined, VICE (Jun. 1, 2016), https://perma.cc/6CUE-4WP3 (finding that drone-induced

fines “recklessly var[ied]” since drone operators have paid fines “as little as $400” or as high as

$5,500, or appealed or settled with the FAA).

520

. Id.

521

. Wagstaff, supra note 517.

522

. Id. (“The [FAA] did not give any specifics on how drones would be stopped and their

owners identified.”).

523

. Id.

Winter 2020 DEADLY DRONES? 245

it is another example of a well-meaning regulation that utterly fails at realizing its

goals.

5. Registration Requirement Inadvertently Opens the Door to Fraud by Third

Parties

The FAA’s registration requirement has also ironically opened the door to

fraudulent registration services provided by third-party companies.

524

These

companies mislead drone operators with the “standard search-engine bait-and-

switch” by charging premiums for the registration process.

525

The registration

process should only cost the drone operator $5.00; however, the FAA recently

received reports of vendors charging exorbitant fees up to $150.00 for this ser-

vice.

526

Some third party companies even “mimic the look of the FAA’s website

with similar graphic design and use of the FAA logo, suggesting that they are

somehow ‘approved’ by the agency.”

527

Through an innocent Google search,

drone operators as young as thirteen years old could easily be deceived by these

duplicitous third party companies.

528

This unfortunate reality recently caught the attention of the FAA, and in re-

sponse, the agency issued a press release warning drone operators to avoid regis-

tering their drones anywhere but at the FAA Drone Zone.

529

However, the FAA

states that the agency does not regulate these third-party registration entities nor

will it speculate on their legitimacy.

530

What they are really saying is, “Sorry, not

sorry. This is not our problem; it’s yours.” What they don’t acknowledge is that

they created the potential for this fraud and abuse in the first place.

6. In Sum, the FAA’s Drone Registration Requirement Creates More

Problems Than It Resolves, and Should Be Removed

Clearly, the FAA’s recreational drone registration rule is a toothless regula-

tion that fails to deter drone misconduct—the very purpose for its enactment.

First, the FAA cannot police its own rule and thus has no ability to hold violators

accountable. Second, the FAA’s theory of drone operator accountability is prem-

ised on everyone, including criminals and terrorists, registering and labeling their

drones. Moreover, the registration requirement assumes markings will remain

legible after a crash. In reality, however, criminals are highly unlikely to leave a

524

. Rick Broida, Avoid Fake Drone-Registration Sites, CNET (June 7, 2016),

https://perma.cc/Q2JA-XUGY.

525

. Id.

526

. FAA Says Avoid Drone Registration Schemes, FED. AVIATION ADMIN. (Jul. 11, 2018),

https://perma.cc/LFA7-D77X.

527

. Id.

528

. Broida, supra note 524.

529

. FAA Says Avoid Drone Registration Schemes, supra note 526.

530

. Id.

246 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

digital trail for law enforcement to trace and most drones will likely be damaged

beyond recognition in the event of a serious collision. Third, the drone registra-

tion rule exposes drone operators’ private information to the public, which in-

cludes home addresses, phone numbers, and emails of drone hobbyists, some as

young as thirteen years old. Finally, unscrupulous third-party companies have

and will continue to defraud and take advantage of recreational drone users by

offering unnecessary premiums to help everyday citizens comply with the FAA’s

federally mandated registration rules. The registration regulation, thus, penalizes

law-abiding drone users without any significant accompanying benefits when it

comes to public safety or accountability. It should be eliminated by the FAA im-

mediately.

C. The Invisible Fence: “Geofencing” as the Sensible Solution

This Article has exposed the reality that the FAA’s drone registration and

line-of-sight regulations do little to nothing to eliminate or effectively address the

legitimate threats posed by drones. The Authors acknowledge that drones do pre-

sent a public safety risk (notably collisions with people, structures, and planes, as

well as terrorism), they can invade privacy (e.g., individual or mass surveillance),

and they can further illegal conduct (e.g., drug smuggling). The common denom-

inator of these threats is intentional or reckless misconduct by the drone opera-

tor. While the FAA intends to remedy potential misconduct with more regulation,

the agency ignores reality and has inadvertently created more problems than it

has solved. To balance the public’s legitimate concerns without compromising

commercial, humanitarian, recreational, and law enforcement applications,

531

the

FAA should instead view technology as the solution, not the enemy.

Newly developed geofencing technology uses GPS and other navigational

satellite signals to prevent a drone from entering restricted areas (e.g., airspace

near airports, aircraft, private homes, and the White House).

532

In the dominant

implementation, “position technologies” onboard the drone, like GPS, locate the

drone in real-time,

533

drone manufactures program the drones to stay out of

marked locations, and the database of marked locations is updated by manufac-

turers and pushed to internet-connected drones—hence protecting locations us-

ing programmed fences around geographies, or “geofences.”

534

531

. Supra Part III.

532

. Wadell, supra note 25; Press Release, DJI, DJI Improves Geofencing to Enhance Pro-

tection of European Airports (Feb. 12, 2019), https://perma.cc/FB32-ZRGE.

533

. Phillip Smith, Drones and Geofencing: How It Works, Benefits & Requirements,

DRONEBELOW (Jun. 26, 2018), https://perma.cc/H95F-2E3K; Wadell, supra note 25.

534

. Press Release, PrecisionHawk, PrecisionHawk Announces DJI Partnership (Oct. 24,

2018), https://perma.cc/4LZY-NWQ8; Wadell, supra note 25. Other implementations could

depend less on manufacturers and less on upfront programming. As one approach, manufac-

turers might program the drones to respect marked geographies, while others—whether the

Winter 2020 DEADLY DRONES? 247

This geofencing technology is versatile. Temporary geofences can be set up

around huge public events (e.g., the Super Bowl, parades, or concerts), hazardous

locations (e.g., wildfires, pipeline explosions, nuclear plants), or people (e.g., the

president).

535

It is nuanced. For example, DJI’s GEO 2.0 geofencing, which all its

drones have,

536

shows operators “where it is safe to fly, where flight may raise

concerns, and where flight is restricted.”

537

These areas are defined as Restricted

Zones, Authorization Zones, Enhanced Warning Zones, or Warning Zones, based

on air traffic and sensitive areas like airports, prisons, and power plants.

538

these designated zones, only Restricted Zones prevent drones from entering.

539

Authorization Zones permit entrance after verification.

540

And Enhanced Warn-

ing Zones and Warning Zones simply prompt a warning message to drone oper-

ators.

541

(As for how the restrictions work in practice: Geofencing can trigger pro-

gramming that forces a drone to land if it flies near or into a restricted area, or

that even incapacitates a drone in midair.

542

Thus, drones programmed with

geofencing technology cannot fly into restricted areas, even if an operator seeks

to fly into those areas.) And this geofencing technology is increasingly precise. For

example, DJI, the world’s leader in civilian drones, partnered with PrecisionHawk

to enhance its geofencing technologies.

543

By relying on PrecisionHawk’s Low Al-

titude Traffic and Airspace Safety (LATAS) platform (i.e., geospatial information),

DJI can better refine and define airspaces to enhance its geofencing technolo-

gies.

544

Finally, this technology is increasingly widely available, as it is being pro-

grammed into certain publicly available consumer drones.

545

FAA, or even disaggregated parties such as sports stadium owners or presidential security per-

sonnel—would directly add new protected geographies at any time. Those other parties might

do so by updating the database of marked geographies or by physically installing an object that

emits a signal to the drone to mark the geography. As another approach, manufacturers might

not program the drones at all, while third parties could install systems to detect when a drone

crosses a perimeter and to trigger a response to impair the drone’s flight. Each approach may

have different advantages and detractions.

535

. See Wadell, supra note 25.

536

. DJI, ELEVATING SAFETY: PROTECTING THE SKIES IN THE DRONE ERA (2019).

537

. Fly Safe Geo Zone Map, DJI, https://perma.cc/8GMP-YA3C (archived Nov. 9, 2019).

538

. Id.

539

. Id.

540

. Id. (“In an Authorization Zone, all flight is restricted by default, but users can self-

unlock [this zone] with a DJI-verified account.”)

541

. Id.

542

. Eric Adams, NASA’s Safeguard Tech Stops Trespassing Drones Without Touching Them,

WIRED (July 12, 2017), https://perma.cc/7WJZ-GCK7.

543

. See DJI, supra note 536.

544

. Id.

545

. Id.

248 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

However, not all drone manufacturers provide such technology in their

drones, and those that do provide geofencing do not all follow the same stand-

ards.

546

And ultimately, the effectiveness of geofencing will depend on mass adop-

tion of consistent geofencing technology. Further, the database of protected loca-

tions might be hacked, or updates from the database to a particular drone might

be prevented.

Still, the needed coordination could be achieved, and the vulnerability to bad

actors here is no worse—indeed, it’s significantly less—than under the status quo

of the FAA’s legal but not technical measures. From a coordination standpoint,

DJI owns about 74% of the drone market as of 2017,

547

and has taken a leadership

in drone technology and safety; it could spearhead industry-wide standards.

From a bad actor standpoint, there is currently nothing preventing bad actors

from disrespecting the FAA’s legal pronouncements. Most of all, there is nothing

preventing merely negligent actors from flying their drones into FAA airspace.

Even with the challenge of standardization and the limitations of this technology

against motivated adversaries, geofencing remains a far more realistic solution to

the drone-induced fears than does the FAA’s current regulatory response.

548

Additionally, geofencing can and is quickly improving to fix technological de-

ficiencies and to accommodate the evolution of drone technology, unlike the

FAA. For example, DJI immediately

549

announced it would improve its geofenc-

ing technology in response to drone sightings near Gatwick Airport (i.e., a re-

stricted area), the United Kingdom’s second-largest airport.

550

Although this

event was unrelated to terrorism, this deliberate misconduct

551

briefly suspended

all flights and caused a host of negative externalities.

552

In response, DJI created a

“three-dimensional bow tie” geofence, which is more comprehensive than prior

546

. Ryan Wallace et al., Evaluating Small UAS Near Midair Collision Risk Using AeroScope and

ADS-B, 5 INT’L J. AVIATION, AERONAUTICS, & AEROSPACE, 2018, at 26.

547

. Sally French, DJI Market Share: Here’s Exactly How Rapidly It Has Grown in Just a Few

Years, THE DRONE GIRL (Sept. 18, 2018), https://perma.cc/US2M-UVVA.

548

. Andrew Meola, The FAA Just Put Up a Major Roadblock to Widespread Drone Usage, BUS.

INSIDER (May 5, 2016), https://perma.cc/73FN-WUSR (noting that “geo-fencing and collision

avoidance will make flying drones safer and make regulators feel more comfortable with larger

numbers of drones”).

549

. Within two months, DJI announced that it will improve its geofencing to enhance

protection of European airports and facilities. In December 2018, a drone was spotted near

Gatwick Airport, which caused the airport to temporarily shut down. In February 2019, DJI

announced, via press release, that the company would improve its geofencing technology to

prevent similar drone misconduct. Press Release, DJI, DJI Improves Geofencing To Enhance

Protection of European Airports and Facilities (Feb. 12, 2019), https://perma.cc/V9A5-

M6MQ.

550

. Jon Porter, DJI Will Toughen Up Airport Geofencing After Recent Drone Disruption, THE

VERGE (Feb. 13, 2019), https://perma.cc/GVY9-QWLW.

551

. Benjamin Mueller and Amie Tsang, Gatwick Airport Shut Down by ‘Deliberate’

Drone Incursions, THE NEW YORK TIMES (Dec. 20, 2018), https://perma.cc/J7ZW-BXJJ.

552

. Id.

Winter 2020 DEADLY DRONES? 249

geofencing methods, to prevent this type of drone misconduct.

553

Coined “Geo-

spatial Environment Online 2.0,” DJI’s new geofencing system uses “complex pol-

ygon shapes around other sensitive facilities, rather than just simple circles used

in earlier geofencing versions,”

554

as shown in Figure 3.

FIGURE 3.

DJI’s new GEO 2.0 uses three-dimensional polygon shaped geofencing tech-

nology instead of two-dimensional circles.

553

. DJI Improves Geofencing To Enhance Protection of European Airports and Facilities,

supra note 549.

554

. Id.

250 STANFORD TECHNOLOGY LAW REVIEW Vol. 23:1

While current FAA regulations allegedly already prevent drones from flying

into restricted areas, “there is nothing [physically] preventing an operator from

overstepping these [regulations] aside from her ‘good faith.’”

555

Unfortunately,

bad actors typically do not possess good faith and thus render certain FAA regu-

lations wholly ineffective. The FAA should recognize this reality and remove in-

effective regulations immediately. Next, it should replace them with far more ef-

fective technological solutions that actually enhance public safety and privacy.

Geofencing technology is a far better approach than existing FAA regulations be-

cause the technology moves faster than legislation to adapt to necessary changes

and is more effective than legislation. By utilizing technological solutions, drone

misconduct can be deterred more effectively than with toothless regulations like

mandated drone registration and line-of-sight rules.

VI. CONCLUSION

Whatever the future of the regulatory landscape for drones holds, one thing

is crystal clear: drones have the potential to transform how businesses operate

and innovate, how scientists gather data and protect species, and how law en-

forcement agents save lives.

556

While the safety concerns posed by drone technol-

ogy are legitimate,

557

government regulators must keep in mind that these risks

are exceedingly remote compared to the benefits of drone technology.

558

The

FAA’s regulatory oversight—especially its line-of-sight and registration require-

ments—stifle innovation and are less effective in enhancing public safety than the

technology they seek to restrict.

559

In the end, the FAA must take a more prag-

matic approach to airspace safety, aimed at balancing costs and benefits in order

to maximize overall social welfare.

Specifically, this Article proposes a two-part framework for reform that aims

to allow the benefits of drone technology to be realized while not compromising

privacy or public safety.

560

First, we propose that the FAA remove the line-of-

sight requirement from its drone regulatory framework.

561

The mandate forces

pilots to keep their drone within sight at all times, effectively precluding numer-

ous beneficial applications, including long distance scientific research, commer-

cial delivery, and first-person-view recreational use.

562

While the FAA thought

this requirement would improve safety by allowing operators to view and avoid

555

. Victoria Chang et al., Spiders in the Sky: User Perceptions of Drones, Privacy, and Security,

PROC. 2017 CHI CONF. ON HUM. FACTORS IN COMPUTING SYS. 6765 (2017).

556

. Supra Part III.

557

. Supra Part IV.

558

. Supra Part V.A.4 and Part V.B.6.

559

. Supra Part V.

560

. Supra Part V.C.

561

. Supra Part V.A.

562

. Id.

Winter 2020 DEADLY DRONES? 251

obstacles in their path, modern first-person-view technology (utilizing tiny cam-

eras inside drone cockpits to transmit live views to the pilot) are a far more effec-

tive way for pilots to detect threats and avoid collisions.

563

Keeping drones within

one’s eyesight at all times not only stifles future innovation, but is entirely unnec-

essary given other mechanisms that accomplish the same goal.

Second, the intrusive registration process that the FAA requires for all con-

sumer drones should be repealed immediately.

564

Requiring teenagers to register

their Christmas toys with the federal government—handing over their phone

number, home address and email in a publicly searchable database—does little to

address the safety of our skies. Conversely, it raises a very real privacy violation

(of minors no less), and creates an unnecessary regulatory hurdle for law-abiding

hobbyists who are unlikely to pose a terrorist threat.

565

True terrorists tend not

to register their devices with Uncle Sam in advance, regardless of what the law

requires them to do.

Finally, this Article recommends that the FAA outsource the process of cre-

ating restricted drone flying space to private companies who are far better-

equipped to do this directly through the use of “geofencing” technology.

566

Pres-

ently, individual pilots are expected to keep track of the constantly changing re-

strictions on flying zones imposed by the FAA, and keep their drones outside of

them.

567

However, drone manufacturers can accomplish this goal directly via soft-

ware and GPS signals that keep drones within their allowed flight zones and in-

capacitate those that stray.

568

Whether malicious or unintentional, drone-induced

collisions or risks can be prevented altogether by technology, rather than relying

on the skill or good faith of human pilots. This geofencing technology can also be

updated in real time to instantly modify temporarily restricted airspace, for in-

stance in the event of a Presidential visit to a specific location or a major event

like the Superbowl.

569

In sum, the FAA must reconsider the benefits and costs of its drone regula-

tions, lest we stifle the incredible advancements that the technology promises to

offer. The reforms proposed above are not that difficult to implement, and the

technology already exists. The only thing left is for Congress and the FAA to act.

563

. Supra Part V.A.1.

564

. Supra Part V.B.

565

. Id.

566

. Supra Part V.C.

567

. FAA Highlights Changes for Recreational Drones, supra note 67; U.S. Air Space Map, KNOW

BEFORE YOU FLY, https://perma.cc/DVC8-WRL8 (archived Nov. 7, 2019).

568

. Supra Part V.C.

569

. Id.