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## DARC talks about the elephants in the room – freight planes and fighters

October 23, 2013

It was fitting that Missy Cummings had the last word at the DARC drones and aerial robotics conference in NY. As an ex-TopGun navy pilot who saw drones taking over her job, she was the one to talk about the jumbo in the room. The drones we’re most likely to see in the future are convoys of unmanned Airbus freight planes. And the potential impact of unmanned aerial robots in logistics and agriculture is probably greater overall than the impact in military applications.

Of course the military applications of drone technology were being protested against outside the conference. The other highlight of DARC, which was a very stimulating multidisciplinary conference, was the inclusion of the protestors into the program. Conference organizers had as broad a range of viewpoints in the program as possible and when the protestors outside saw what was actually on the schedule, there were many who felt that being on the inside was far better. Kudos to the conference organizers for building strong bridges.

To continue the discussion around drones, DARC organizers have put together a guidebook on selected law and policy issues related to UAVs and outstanding public interest questions, which were explored at more depth in the conference. If you couldn’t go, then read the guidebook. Or read some excerpts here.

DARC law and policy intro

Drones are no longer the exclusive domain of the military. Or even of the state. At all levels—hobby aircraft, remotely piloted aircraft, and fully autonomous drones—unmanned aerial systems are growing in sophistication and accessibility, and are almost universally expected to transform aerospace.

The Association for Unmanned Vehicle Systems International (AUSVI), an industry trade association, claims that ﬂying robots will create 100,000 jobs and contribute $82 billion toward U.S. GDP by 2025 and the Federal Aviation Administration (FAA) estimates as many as 30,000 unmanned aerial vehicles (UAVs) in American skies by 2020. We need to do more than safely introduce drones into our airspace. We need to safely introduce them into society. In 2012, Congress passed the FAA Modernization and Reform Act, tasking the FAA with the development of a plan for safely integrating unmanned aerial vehicles into domestic airspace by 2015. Safely introducing drones into the domestic airspace is, in itself, a daunting task—800 million people ﬂy U.S. skies annually, and an errant$900 drone could easily take down a commercial airliner and everyone on board. But we need to do more than safely introduce drones into our airspace. We need to safely introduce them into society.

Drones herald an explosion of technological innovation. They’re enabled by — and drive — innovation in peripheral technologies like cameras and sensors. They also open the door for exciting new applications of existing technology. Worldwide, people are experimenting with using drones for wildlife observation, geological survey and environmental science, precision agriculture, firefighting, building and bridge inspection, mapping, and filming for both news and entertainment.

## No comprehensive framework for civilian use of UAVs

It is important to remember that any comprehensive framework will also be shaped by the expertise and work of an unprecedented number of otherwise seemingly disparate government agencies, from NASA and the National Transportation Safety Board, to the National Oceanic and Atmospheric Administration, US Customs and Border Protection, and the US Patent and Trademark Office.

Some would argue that drones simply fit within our existing legal and regulatory framework. Even if it is the case that there is nothing new to be said about “drones,” formally mapping existing legal frameworks and precedents onto the wide spectrum of drones would still be a worthwhile endeavor.

This perhaps the ﬁrst time that we have had the occasion or ability to bring the expertise and knowledge of so many to bear on the direction of a technology with such landscape-altering potential.

Either way, the coming formal integration of drones into domestic airspace presents a unique opportunity — and call to action — for guiding the development of relevant law and policy, ahead of their wide-scale, mainstream adoption. It is perhaps the ﬁrst time that we have had the occasion or ability to bring the expertise and knowledge of so many to bear on the direction of a technology with such landscape-altering potential.

## Privacy

Arguably drones don’t do anything that other new technologies aren’t doing. In fact, probably much less; but they are a lightning rod for the debate around privacy and increasingly ubiquitous communications technology.

As Justice Alito points out in his US v Jones concurrence, “[i]n the pre-computer age, the greatest protections were neither constitutional nor statutory, but practical.” The further erosion of those practical limitations by the proliferation and democratization of drones is certainly cause for concern.

## Public Space

As drones proliferate, how will the concept of public space change? Public spaces have traditionally been common areas enjoyed by the community at large. Naturally, most conceive public space along a horizontal plane; identifying a house as “private” and a park as “public” is relatively straightforward. With the promise of drone technology, we may have to recalibrate our thinking along a vertical plane as well.

The precise boundaries of public and private space have always been contested; a private company may own a shopping mall, but in the US such spaces are treated in many ways as “public.” The lack of a clear legal definition of “public space” will become increasingly problematic as new technologies allow communities to harness national airspace. As technology raises our reach upwards, we may find ourselves carving new public and private airways.

Whether drones present legitimately new issues for “public space” jurisprudence or just issues of scale, considering how the law conceptualizes public space in relation to drones is critical. The spectrum of drone technologies that implicate questions of boundaries and sovereignty is much wider than any previous technology. From tiny, insect-sized drones all the way up to military grade UAVs, drone technology is set to interact with public and private space in unpredictable ways. Development of law in this space will need to balance the public’s interest in maintaining a “public highway” privacy rights.

How can the law reconcile a largely public airspace with diverse privacy expectations on the ground? Should there be restrictions on the use of thermal, infrared, millimeter, or other advanced sensor technologies in the airspaces around public and private spaces? And, to what extent can local and state authorities develop or effect tailored regulations surrounding personal and commercial use of airspace?

## Journalism

If you thought the debate over whether “bloggers are journalists” was interesting, wait for the wave of citizen drone journalists covering protests, disasters, and other community happenings.

In addition to the fundamental aviation regulations (i.e., fundamental regulations on aircraft worthiness, pilot competency and ﬂight operations), there are things unique to the practice of reporting and journalism. Journalism drones will raise concerns over privacy and data protection, and the role of the fourth estate. The gradient between reporting, paparazzi stalking, and surveillance could become gray. Drone-pilots-as-journalists may raise additional questions about best practices: does the desire to “get the story” create an ethical conﬂict for an operator of a heavy, dangerous machine? If you thought the debate over whether “bloggers are journalists” was interesting, wait for the wave of citizen drone journalists covering protests, disasters, and other community happenings.

## Value Sensitive Design

Values in Design (VID) is a way of considering human life that explores how the values we think of as societal may be expressed in technological designs, and how these designs in turn shape our social values. In other words, technology is never neutral: certain design decisions enable or restrict the ways in which material objects may be used, and those decisions feed back into the myths and symbols we think are meaningful. Physical objects we use on a daily basis shape the way we act: driving cars means we walk less; access to the Internet means we use our digital devices more.

Because architecture and design features may be systematically related to political, social, and ethical values (such as security, privacy, and freedom of expression), it’s important to focus attention on these values from the ground up, rather than retroactively. But it’s also not enough to demonstrate that values are expressed through design decisions; they should be included among the set of aspirations that guide and constrain the designs of all technology. Ethical and political values should be placed on the same plane of importance alongside technical and functional specifications and constraints, and “engineered” into system components.

## Safety

Protecting public safety with regard to drones is in no small part about safe design and sound engineering. Technical standards must be developed to ensure the airworthiness of unmanned systems, as well as standards for guaranteeing the quality and performance of the individual parts that keep those systems airborne.

But safeguarding against disaster also relies on the ability of humans to develop with the technology. That UAVs are becoming increasingly more available to consumers is not proof positive of the general public’s readiness to responsibly operate them. The safe operation of unmanned systems necessitates thinking about education and training, user interfaces, flight planning, safety check processes, and a host of other variables necessary for attaining an acceptable level of even recreational safety.

## Registration and Monitoring

In 2006, a US Customs and Border Protection Predator B drone (often referred to as a Reaper) crashed into a hillside nearby homes just outside Nogales, AZ. A series of failures culminated in the complete loss of communication with the drone, during which time operators were unable to determine the location of the drone—including whether other aircraft were in danger of colliding with it—or where it would ultimately crash. The harrowing incident highlights just one of the reasons it can be terrifying to not know where a drone is and what it’s doing.

The lack of an onboard pilot allows UAVs to operate under dramatically different circumstances, such as ﬂying at extreme altitudes and staying airborne for extended periods of time. For example, the Reaper involved in the Nogales incident had the capability to stay airborne for over 30 hours at altitudes up to 50,000 ft. This functionality opens the door to exciting new possibilities for scientiﬁc research and disaster reconnaissance, but also presents a new problem for people on the ground.

## Encouraging Innovation

The proliferation of UAVs represents a new wave of technological innovation — not just in aerial robotics, but also peripheral technologies like cameras and sensors. And the mainstream availability of UAVs also opens the door for exciting new applications of existing technology. Yet, conspicuously absent from the Congressional Research Service’s recent report on legal issues relevant to the integration of drones into domestic airspace was any discussion about law and policy related to innovation, such as intellectual property and information law.

Intellectual property law will almost certainly play a significant role in the development of drones.

Intellectual property law will almost certainly play a significant role in the development of drones. Intellectual property protection of the physical embodiment of drones falls largely within the realm of patents, which give certain exclusive rights to the grantees of the patents, such as the right to make, use, and sell their invention. Of course patenting hardware is nothing new, and as a general matter, leaving aside questions of whether drones constitute patentable subject matter or what might qualify as prior art, mapping the existing framework for granting and challenging patents onto the drone landscape is fairly straightforward. Of course drones are not a singular piece of hardware, and depending on the sophistication of the drone, it might be comprised of hundreds of other pieces of hardware, any number of which might be patented, and therein lies the potential for trouble. The more patented components that a technology is comprised of, the greater the potential for patent thickets, where so many of the individual components are patented by different people that it becomes difficult to build anything without running afoul of someone’s patent rights.

Like computers and smartphones, drones are also a platform technology, allowing for the development of APIs and applications developed by third parties, invariably paving the way for UAVs to be the next battlefield for software patents and open source development. The promise of drones is not realized simply because we can each have one and operate it independently of each other. Much like the way the Internet unlocked the vast potential of computers, and your smartphone is far more interesting when you have a signal, networks that support UAVs can dramatically increase their usefulness, allowing drones to share information and communicate with each other.

For example, a drone studying weather might be able to relay real-time, granular information about approaching air turbulence to a drone being used for photogrammetry, allowing it to move to a safer altitude or position. Or a network of GPS waypoints might allow drones to stay on course on their way to delivering tacos. As a practical matter, some level of networking is necessitated by limitations in sense-and-avoid technologies that would require powerful, yet-to-be-developed sensors, as well as a lack of UAV maneuverability that limits their ability to get out of the way of fast-approaching objects. At the very least UAVs need to be able to know where other nearby drones are in order to avoid mid-air collisions.

But as beneficial as it might be to network technologies together, networks create other significant challenges for innovation. With a spectrum of users that stretches from backyard hobbyists, to university researchers, to long-established aerospace giants, concepts related to innovation, like net neutrality, standards, and interoperability, will likely need to be considered in a new light.

## Negligence and Liability

The FAA estimates as many as 30,000 UAVs ﬂying overhead by 2020. No technology is immune to failure, and even the most fervent proponent will admit that drones are no exception. High proﬁle drone crashes—like the 2006 Reaper crash outside Nogales, AZ and this year’s QF-4 crash near Panama City, FL—are clear reminders of the possibility of drones falling from the sky. Indeed, just days before DARC, a quadcopter smashed into the sidewalk in Manhattan, narrowly missing a pedestrian. While the drone community is hard at work improving the reliability of UAVs, efforts to integrate drones into domestic airspace clearly envision an acceptable failure rate greater than zero.

Tort law is an area of civil law that addresses violations of duties and responsibilities owed to others. Via tort law, parties suffering injuries— and not just physical injuries—resulting from the actions of others can seek compensation, shifting the cost of those injuries to the party responsible for inﬂicting them.

The law has long dealt with attacks, accidents, dangerous actions, and defective products that cause damage to people and property, and allowing victims to seek redress helps to discourage careless and risky behavior. What remains to be seen is how well these laws work in a world ﬁlled with ﬂying robots.

## Secrecy

As an unprecedented dual-use technology, drones may well be the next frontier in the battle for information.

The fallout over the NSA’s Internet communications surveillance demonstrates the impact of procedural bottlenecks inside government when a culture of excessive secrecy meets vast computing power. As an unprecedented dual-use technology, drones may well be the next frontier in the battle for information.

Regulators tasked with developing regulatory frameworks for drones face a significant challenge. Having never encountered a technology with such a wide breadth of uses and implications, they are at a severe experiential deficit as they attempt to craft rules for governing the civilian use of a technology that is equally applicable to Domino’s Pizza and the US Air Force, and can be purchased by anyone on Amazon.com for a few hundred dollars.

Given these circumstances, there is a clear need for discussion about what regulators and the public at large need to know, would like to know, and shouldn’t know because of commercial concerns. As we inch towards the 2015 integration deadline, our ability to have an intelligent conversation about the contours of civilian UAV use could be hampered by undue and unnecessary secrecy.

## Comparative Law (Globalization)

UAV use is an international phenomenon, and the spatial issues it raises domestically around property and airspace don’t end at our borders. Every country that has tackled the issue of domestic UV integration has faced similar challenges. Around the world, legislatures and administrative agencies have crafted integration plans that anticipate how their sovereign national airspace may be affected by the proliferation of unmanned, commercially owned aerial systems.

Additionally, surveying national UAS integration policies around the world could reveal developing international norms. The complex challenge of anticipating how AV proliferation will affect life from country to country is dwarfed by the fact that the spatial issues drones raise for airspace and property transcend borders. Drones could render the line between French airspace and German airspace as permeable as the line between public and private domestic space.

Full DARC guidebook, references, acknowledgements and additional reports.

Andra Keay robot startup strategist.. read more

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