BARRISTER'S BRIEFING: Legal Update on the Use of Drones

Leon Cameron, Esq. | May 2017

The Federal Aviation Administration’s Small Unmanned Aircraft Rule (“FAA Rule”) was effective as of August 29, 2016 and permits the commercial use of drones without having to apply for a waiver or exemption from the Federal Aviation Administration.

The former rule in place did require the granting of a waiver or exemption directly from the FAA. However, commercial use of drones does require a remote pilot certificate with SUAS (“Small Unmanned Aircraft System”) rating. The National Telecommunications and Information Administration has issued a very helpful resource entitled, “Voluntary Best Practices for UAS Privacy, Transparency, and Accountability” (see http://bit.ly/1XS2HSX). The FAA Rule only applies to unmanned drones and aircrafts that weigh less than 55 pounds.

If the drones weigh more, they would need to apply for a FAA waiver or exemption.

In addition, SUAS operators must keep in mind that pursuant to federal law:

1) These drones can only be operated during daylight hours.

2) There is a “Visual Line of Sight” requirement.

3) There is a maximum speed requirement of 100 mph.

4) There is a maximum altitude requirement of 400 feet above ground level.

5) The drone cannot be operated over persons.

Rockland County adopted a law in 2015 making the unauthorized operation of a drone over another person’s private property an act of trespassing. The statute specifically says that drone use in Rockland County, whether personal or commercial, is limited to an:

“[I]ndividual’s private property, another individual’s private property with that private property owner’s consent, public property with the consent of the municipality that owns it, and public parks, unless such use is prohibited by the governmental entity having jurisdiction over such park, including but not limited to the Division of Environmental Resources of the County of Rockland.”

The practical implications of this (Rockland County) statute for licensees in that market is that aerial photographs must almost always be taken while the drone operator is on the homeowner’s premises, and with their consent of course.

Several statutes governing drone operation were introduced before the New York State Legislature in the 2016 session. One bill would have prevented the use of drones without search warrants, except for such emergencies as missing children (A1247/S411); another would have forbid the use of a drone to photograph another person without his or her consent when the subjects have a reasonable expectation of privacy (A10544/S6597). Another proposed bill would have made it a felony to put a weapon on a drone (A10102/S6335). None of the bills were approved by both houses of the legislature last year, but their reintroduction is expected in 2017.

Realtors and all licensees are cautioned in using drones, whether for commercial or personal use, and are advised to consult with all applicable local, state and federal rules that may apply. Prospective commercial drone operators may apply for a remote pilot certificate at http://iacra.faa.gov.

Editor’s Note: The foregoing is for information purposes only and does not confer an attorney/client relationship. For a legal opinion or advice specific to your situation, please consult with a private attorney at law.

Leon Cameron, Esq.
Leon Cameron, Esq., is Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.