Drone privacy questions defy easy answers, attorney says

A drone is demonstrated at the Oregon State University agricultural research station near Pendleton, Ore. The federal government has clarified flight safety rules for commercial drone operations but privacy policy remains murky.

SALEM — Federal authorities are making headway in regulating commercial drone operations but some questions defy easy answers, according to an attorney specializing in the technology.

While rules developed by the Federal Aviation Administration for unmanned aircraft vehicles are becoming clearer and more streamlined, many issues remain legally murky, said Craig Russillo, an attorney with the Schwabe, Williamson and Wyatt law firm.

One particular area of uncertainty is the tension between the federal government and landowners over who controls airspace, Russillo said during an April 25 agricultural seminar organized by his firm.

“It’s shifting sands. It’s moving around a lot,” he said.

Historically, this matter of jurisdiction was often less contentious because airplanes and helicopters generally didn’t fly at low altitudes over people’s homes and property, Russillo said.

Now, however, there’s a possibility of camera-equipped drones flying 10 feet above someone’s backyard, raising privacy concerns, he said.

Federal regulators have largely concentrated on flight safety and have “punted” on privacy policy, Russillo said. “You have states and municipalities filling the void here.”

The concern is that without a national approach, the U.S. will develop a patchwork of different rules across different jurisdictions that complicate commercial drones operations, he said.

In agriculture, drones offer the possibility of aerially monitoring crop health, irrigation efficacy and field operations without hiring professional pilots.

“The drone is really just a platform for gathering data,” Russillo said.

On the other hand, unmanned aerial vehicles could be used for unwanted surveillance of livestock operations by outside groups, for example.

In Oregon, lawmakers have passed a statute under which landowners can sue for injunctive relief, damages and attorney fees if a drone operator persists in flying less than 400 feet over their property after a warning.

Landowners can also report the problem to the FAA, though it’s unclear how involved the agency would become in such disputes, Russillo said.

Over time, it’s likely that case law will establish the rights of landowners to “disable” drones flying over their property, but those lines have yet to be drawn, he said.

“You don’t have a right to shoot it down,” Russillo said.

Farmers who use drones could be held liable for trespass, injury or property damage as well, but such incidents aren’t covered by their general liability insurance, he said.

Existing insurers may offer separate coverage for drones, but growers can also turn to specialized companies, such as Verifly, which offer on-demand liability insurance of up to $25,000 for a per-hour price of $10, Russillo said.

When flying unmanned aerial vehicles to enhance their farm operations, growers must familiarize themselves with the federal rules for drone usage, he said.

For example, commercial operators must obtain a remote pilot certificate, operate drones weighing less than 55 pounds and always keep the devices within their visual line of sight, among other regulations.

“If something goes wrong, whether you are or aren’t in compliance with federal law could be very important,” Russillo said.

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