Sunday, 17 November 2019

We Better Get Ready: The Legal Landscape and Challenges of Unmanned Aerial Systems

Drone flying next to a drone no fly zone sign. Stock Illustration © iStock.com/Piotr_roae
This article was originally published in the 2017 edition of The Reporter, Volume 44, Number 3. Additional resources have been added to enhance the digital version.

A new threat to Air Force operations is quickly emerging—the rapid advancement and use of unmanned aerial systems (UAS)[1] by non-military users. Of course, the U.S. military has used unmanned aircraft since at least 1999 for surveillance and military operations in international and territorial airspaces.[2]

See how Civil Engineers are Using Unmanned Aerial Drones. DVIDS Video by John Goddin. (Close captioning version of video.)

But, in the last few years, UAS use by the business community and private individuals has rapidly expanded both in the United States and abroad. There are now more than 70 companies producing UAS,[3] and it is forecast that the 2016 worldwide civil UAS market will total $65 billion[4] and rise to $127 billion by 2020.[5]

It is estimated that 700,000 UAS were sold in 2015, up 63 percent from 2014. That number is expected to have exceeded 7.3 million in 2016 and hit 29 million by 2021.

Air Force legal practitioners have long understood that outside activities on or around air bases and training ranges can have profound effects on the ability of military units to effectively carry out air training and operations. Base and range encroachment matters are continuing issues currently managed through the Air Installation Compatible Use Zones Program (AICUZ),[6] which involves consistent and close cooperation between military and local community officials.[7] On the legal front, AICUZ influences local communities with regard to zoning laws and other ordinances to keep areas around Air Force bases safe for aircraft use and prevent degradation of air operations at bases.[8] Judge Advocates are key participants in AICUZ programs,[9] so Air Force lawyers must also understand and appreciate developments in the law of UAS to guide commanders on available legal options as this technology and its use mature.

The scope of the expanded use of UAS is breathtaking. Companies like SkyViewHD are among many that are capitalizing on simple, cheap, and plentiful technology to use UAS for a wide variety of applications.[10] Such companies are capitalizing on the ability to go where aerial systems have not gone before, including UAS use for such applications as inspections of cellular towers, dams, wind turbines, power grids, oil and gas towers, and agricultural surveillance.[11]

YouTube Video: Solar Park Inspection Using a Drone

Other uses include search and rescue operations, and goods delivery.[12] Hobbyist use of UAS is also exponentially expanding. It is estimated that 700,000 UAS were sold in 2015, up 63 percent from 2014.[13] That number is expected to have exceeded 7.3 million in 2016 and hit 29 million by 2021.[14] The largest manufacturer of UAS in the world is DJI, with a 70 percent market share for commercial and consumer drones.[15]

UAS Law in the United States

Many might assume that the laws and regulations governing UAS operations in U.S. airspace are in place and fully adequate. But the law governing UAS use has lagged behind the technology.[16] Anticipating the need, the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 (FAA Act)[17] directs the FAA to integrate UAS into the national airspace system by September 2015.[18] As part of that process, the FAA issued a Notice of Proposed Rulemaking on 23 February 2015 pertaining to a new Federal Aviation Regulation (FAR) Part 107, which would be applicable to UAS being used for work, business, or non-recreational reasons.[19] On 27 August 2016, the Federal Aviation Administration implemented the new FAR Part 107, which includes the use of UAS by business and for non-recreational use.[20]

There are numerous new requirements under FAR Part 107. Among them, to be operated the Unmanned Aerial Vehicle (UAV) must weigh less than 55 pounds, not be operated out of visual line of sight from the operator, only be operated in daylight, at speeds of 100 miles per hour or less, and at an altitude of 400 feet or less above ground level.[21] UAS operators must also be licensed pilots or obtain a small UAS rating, which requires the operator to be at least 16 years of age and pass an aeronautical knowledge test.[22] In addition, the UAV cannot be operated over people or in controlled airspace without air traffic control (ATC) permission.[23] ATC permission is not required to operate UAS in FAA Class G (uncontrolled) airspace.[24]

GETTING STARTED: Whether you’re a novice drone pilot or have many years of aviation experience, rules and safety tips exist to help you fly safely in the national airspace. Think of these tips as a pre-flight checklist to help you fly safely.

As stated above, the new FAR Part 107 rules cover non-recreational use. For guidance on the recreational use of model aircraft, including UAS, lawyers and operators must turn to Section 336 of the FAA Act. This section prohibits the FAA from creating any rule regarding model aircraft flown for recreational use so long as certain criteria are met.[25] The aircraft must be flown strictly for hobby or recreational use, operated in accordance with a community-based set of safety guidelines, not weigh more than 55 pounds, its operation must not interfere with manned aircraft, and notice must be given to an airport if the aircraft is operated within 5 miles of an airport.[26] Thus, UAS recreational users have two options for legally operating a UAS. They may follow Part 107 requirements or, in the alternate, follow the Section 336 requirements.[27] These new regulations are a good start but will require the cooperation of UAS users to be successful.

States have also gotten into the game of regulating UAS, despite federal authority in this area of law.

The States Are Getting Involved, Too

In addition to this new body of federal regulation, States have also gotten into the game of regulating UAS, despite federal authority in this area of law. In the seminal 1946 case of United States v. Causby, the U.S. Supreme Court confirmed the principle of federal rights in the national airspace system, confirming the federal government’s exclusive authority for regulation of “navigable airspace,” which at that time was set at 500 feet above the ground during daylight.[28] The issue in the case was whether aircraft overflight of private property at altitudes as low as 83 feet was a taking of private property within the meaning of the Fifth Amendment to the U.S. Constitution.[29] The Court left for another day authority over the regulation of airspace below navigable airspace, and whether authority would differ based on the purpose of the regulation sought.[30]

Since that time, however, the federal government has continued to zealously protect federal rights to regulate aviation, primarily through the authority of the FAA.[31] This includes regulation of safety, licensing, and national airspace, among other areas.[32] In theory, States and local governments have little legal authority to regulate airspace above their jurisdictions.[33] These rights are even more limited with regard to regulation of the operation of UAS,[34] especially since FAA rules now govern the operation and use of UAS from ground level to 400 feet and above.[35] But this has not stopped state governments from attempting to regulate UAS outside of these specific areas.[36]

Currently, most state regulation of UAS relates to the protection of individual privacy; that is, regulating when and how UAS can be used to record images of individuals.[37] There are, however, a number of States that have adopted “time, place, and manner” laws and regulations for UAS use.[38] It is these laws and regulations that most concern the FAA.[39] The FAA recommends state and local consultation with the FAA about the creation of any state or local law or regulation creating operational UAS restrictions regarding altitude, flight paths, area bans, and navigable airspace regulation, and equipment or training for UAS related to aviation safety.[40]

A good place to find the latest on state UAS law is on the website of the National Association of Criminal Defense Lawyers (NACDL), specifically NACDL’s Domestic Drone Information Center.

A good place to find the latest on state UAS law is on the website of the National Association of Criminal Defense Lawyers (NACDL), specifically NACDL’s Domestic Drone Information Center.[41] The site contains a state-by-state list of laws related to several subject areas, including enacted laws and active legislation.[42] For example, Texas has legislated prohibitions on flying UAS over critical infrastructure.[43] A complete survey of the current state laws and regulations of UAS is beyond the scope of this article. However, it is important that Air Force legal practitioners understand whether state laws and regulations, including local ordinances, exist near Air Force bases in states within the U.S. to properly advise commanders and policy makers. This necessarily includes knowledge of any local country regulations near U.S. air bases overseas.

Despite UAS rules for use, the increasing number of UAS in operation and advances in technology create greater and greater potential for interference with base and air operations as a consequence of ever-increasing UAS hobby and business use.

So Why Does this Matter to Air Force Legal Practitioners?

As is generally understood in aviation, laws and rules have great value in mitigating and, hopefully, preventing accidents, mishaps, or other negative outcomes. Of course, laws and regulations that serve preventative purposes are not always successful. It is becoming increasingly clear that despite UAS rules for use, the increasing number of UAS in operation and advances in technology create greater and greater potential for interference with base and air operations as a consequence of ever-increasing UAS hobby and business use.[44]

This was expected. Even as the new UAS rules were being debated, the FAA envisioned that the number of UAS operating in the national airspace would “operate well beyond the operational limits proposed” in the rule.[45] As in all of aviation, errors and mistakes happen, and potential UAS mishaps are no exception. In the latest FAA report, UAV sightings to air traffic control facilities continued to increase during 2016, with 1,274 reports from February through September, an increase from 874 during the same period the year prior. The vast majority of UAS operators are hobbyists,[46] but even if licensed and trained, the mere proliferation of UAS raises risk. Therefore, knowledge of laws that regulate and govern responses where prevention has failed is also important.

Flying drone
Close-up of a drone flying in the sky. Stock Photo © iStock.com/Murmakova

Allied Partner Nations Face the Same Threat

Besides the United States, there are numerous nations[47] that have also regulated UAS in some form.[48] As is the case in the U.S., the dangers of UAS use is increasingly understood.[49] Two representative U.S. allies provide a good representation of the other legal responses to UAS.

Japan

On 22 April 2015, a UAV containing small amounts of radiation landed on the roof of the Japanese Prime Minister’s Office.[50] Prior to that time, the focus in the Japanese legal community seemed to be on the legal regime governing the use of UAS in international airspace and within territorial seas, primarily from China.[51] For example, in reviewing the state of Japanese law and UAS, the emphasis was on foreign use of UAS during acts of aggression.[52] Japanese public concern was similar, with numerous articles published on the Chinese drone threat, especially near disputed territories.[53]

However, senior legal officials within the Japanese Self Defense Force (JSDF) foresaw potential threats from UAS use within the Japanese mainland and asked U.S. Forces representatives in Japan to meet and discuss possible legal and operational approaches to countering this emerging threat.[54] In March 2015, military officials from JSDF and U.S. Forces Japan met to discuss options, just one month prior to the April 2015 incident.[55] That incident was a wake-up call for Japanese authorities of the potential dangers of drones, including in possible terror attacks.[56]

Implementation of Japan’s first regulation of UAS occurred on 9 December 2015,[57] and the rules are basic. The Japanese UAS law requires UAS operators to get government approval to fly over densely populated areas, events, or near airports. UAS operators also must have 10 hours of experience flying the UAS to exercise these privileges.[58]

United Kingdom

Attention to UAS in the United Kingdom (UK) is also very high. UAS regulations in the UK are contained in the country’s current Air Navigation Order.[59] Under the Order, there is virtually no regulation for A UAV weighing under seven kilograms except a requirement to maintain visual contact with the UAV and operate it so as to “not endanger persons or property.”[60] A UAV weighing over seven kilograms must remain within 400 feet of the ground and UAS operators must have permission from air traffic control to operate in controlled airspace.[61] Additionally, if the UAV is equipped for data surveillance, it may not fly within or over any congested area or open-air assembly of more than 1000 people, or within 50 meters of a vessel or person.[62]

However, as noted above, the existence of these rules has not prevented all UAS incidents. Despite the UK’s UAS regulations, there have been numerous incidents of a UAV flying dangerously close to commercial aircraft in the UK with the number of near misses involving aircraft and a UAV quadrupling in 2015 from the prior year.[63] As an example, on 18 July 2016, an A320 Airbus aircraft on approach to Heathrow International Airport nearly collided with a UAV at an altitude of 4,900 feet when the UAV passed over its right wing.[64] It was the third such near miss for aircraft approaching Heathrow for landing.[65]

The UK Airprox Board, which is comprised of members of the UK Civil Aviation Authority and Military Aviation Authority, as well as members from air traffic control, commercial air transport, and general aviation[66] is increasingly concerned. Air proximity incidents involving a UAV are rapidly becoming more common as the numbers of proximity reports involving a UAV accelerates.[67] Members from the Royal Air Force and the U.S. Air Force are equally concerned about such incidents near or over military airfields within the UK. For example, in the UK, “Tailspotting” is a popular pastime, often involving dozens of individuals with sophisticated camera equipment congregating at the ends of active military runways in a bid to capture photographs of US and UK military aircraft operating out of Royal Air Force bases.[68] It’s easy to imagine that the capability to get high quality photographs from a UAS is an attraction that could lead to potential incidents.

UAS threats to Air Force operations can come in two forms: unintentional and intentional.

Mitigating the Threat—Being Legally Prepared

Whatever the potential cause of a UAS incident near or on an Air Force installation in the U.S. or overseas, Air Force legal practitioners need to be prepared to deal with the possibility. As outlined above, incidents are occurring more frequently and with greater potential consequence. UAS threats to Air Force operations can come in two forms: unintentional and intentional. Of course, in both cases, prevention is the best approach, but preparation for post-incident response must also occur, both in security preparedness and in legal preparedness.

Unintentional Threats to Operations

Unintentional threats entail accidental UAS use and trespass over or into air bases despite laws and regulations. This can occur from UAS operators flying a UAV unknowingly near or over Air Force installations. However, a more probable situation is the desire of the public to see Air Force air operations. The ease with which UAS can now be operated and the high-quality imaging equipment available on UAS likely make Air Force air bases and other airports tempting targets for UAS operators.

On the legal front, issues of potential liability should be of special concern. Potential UAS incidents could involve a collision with Air Force aircraft, UAV guidance failure, or accidental operational failure over air bases resulting in damage to infrastructure or injury to persons on the ground. Thus, if not already happening, Air Force lawyers should ensure that UAS issues are being discussed as part of the AICUZ or other similar forum at bases in the U.S.,[69] or in similar forums at overseas locations. Close cooperation with local authorities in planning for prevention of trespass or overflight of Air Force facilities is crucial to mitigate the risk of potential accident from both commercial and hobbyist UAS operators.

Legal deterrence as a result of incursions or accidents must also be considered. Where violations of the UAS rules do occur, Air Force lawyers should be proactive in cooperating with local and base law enforcement authorities in collecting evidence for potential prosecution, whether within the U.S. or overseas. This includes potential prosecution for trespass into areas of exclusive or concurrent federal jurisdiction under the Federal Assimilative Crimes Act[70] by Air Force judge advocates or civilian attorneys appointed as Special Assistant United States Attorneys.[71]

It is not just terrorist groups that are the threat. According to a recent report out of the United Kingdom, the potential threat from UAS is also from organized crime groups, lone-wolf actors, and even corporations engaging in industrial spying or espionage.

Intentional Threats to Operations

A far more difficult problem for the Air Force to overcome is the intentional UAS threat to operations near or on air bases. Intentional threats entail deliberate UAS use and trespass into air bases where laws and regulations are insufficient to prevent. Preparation for operational responses and their legal consequences must be robust.

History has demonstrated that intentional base incursions can occur suddenly and at great cost. As an example, on 31 January 1981, long before the era of UAS, members of a Puerto Rico independence group were able to cut through a fence and quickly destroy eight fighter aircraft.[72] The potential threat of similar types of incidents from UAS is more pronounced and growing, especially in the area of terrorism. In January 2017, the Islamic State released on social media images of commercially available drones adapted for dropping small bombs on Iraqi military targets with pinpoint accuracy and devastating results.[73] These UAS vehicles are simply airborne delivery platforms for improvised explosive devices.[74]

EXPAND YOUR KNOWLEDGE

It is not just terrorist groups that are the threat. According to a recent report out of the United Kingdom, the potential threat from UAS is also from organized crime groups, lone-wolf actors, and even corporations engaging in industrial spying or espionage.[75] Of course, in all cases, the first line of defense must be regulatory countermeasures. These can include not only the creation of civil aviation rules as noted above, but can also include point-of-sale restrictions and manufacturing restrictions.[76] Much like some gun purchase laws, point-of-sale restrictions could include identification requirements for purchase.

For circumstances where legal measures fail, detection and other counter-UAS measures must also be examined. The FAA is currently evaluating UAV detections systems around Denver International Airport as part of six future technical evaluations that will also include Atlanta, Eglin Air Force Base, and Dallas, among others.[77] The FBI is also testing a detection system at JFK airport in New York.[78]

U.S. military officials are taking note. Citing unauthorized flights of UAS over Navy and Air Force installations, Air Force General John E. Hyten, the commander of U.S. Strategic Command, recently testified before Congress of the growing threat to the safety and security of nuclear weapons and personnel,[79] and testified that both the Air Force and Navy are working to design counter-UAS systems that can effectively detect and potentially engage small UAS.[80] Despite efforts, detecting intentional or malicious UAS users may be difficult. Some current small UAS can operate an amazing seven kilometers from the operator.[81]

Private industry is getting involved too. Manufacturing restrictions for UAS can include building “no-fly” zones into the UAS firmware and creation of device limits on carrying capacity and range from the UAS controller. A more common solution for the UAS manufacturer is adding “geofencing” software or firmware to the UAS system. Geofencing basically prevents the UAS from taking off or operating in restricted airspace, as programed by the manufacturer.[82] Although geofencing appears to have great promise, the systems are far from fool-proof, however.[83] Of even more concern is that some manufacturers are adding geofencing system bypasses into their software. This includes DJI, a Chinese company and the largest manufacture of UAS.[84] The opt-out system does contain an identification feature that allows the company to provide user information to authorities for UAS misusers,[85] but that seems unlikely to dissuade the most determined intentional misuser, however.

Another company, CACI, has created a system called Skytracker that can construct a perimeter boundary around facilities to physically detect UAS. The system also detects where the operator is located, which may be critical, especially for intentional UAS intrusions.[86] The FAA began testing Skytracker in 2016.[87]

For Air Force legal professionals, understanding how counter-measures may operate is important in preparing for legal challenges to potential Air Force use of such measures, as well as legal responses where use of counter-measures could result in potential damage to persons or property. Should more advanced physical counter measures be developed, such as electronic fencing, or kinetic counter-measures, potential tort and claims liability from such operations must be considered.

The Way Forward

Air Force JAGs and legal professionals must be aware of the growing and changing UAS industry. Potential effects on present and future Air Force operations are significant. Our legal community must be prepared to assist commanders and policy makers with an understanding of current federal and state laws and regulations surrounding UAS use within the U.S., and similar laws in host nations. An understanding of the limits of the law in preventing accidental or intentional UAS use near or over air bases is also critical. It’s time to pay more attention to this major technological and legal challenge.

About the Author

Colonel Stephen M. Shrewsbury, USAF (ret.)

(B.S., Metropolitan State College; M.S., Florida State University; J.D., University of Utah; LL.M., The Judge Advocate General’s Law Center and School). Assistant Professor of Business Communications and Legal Studies, Stephen F. Austin State University, Nacogdoches, Texas.

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Did You Know

B4UFLY is an easy-to-use free smartphone app that helps unmanned aircraft operators determine whether there are any restrictions or requirements in effect at the location where they want to fly.

Endnotes

[1] Various terms have been used to describe UAS, including unmanned aerial vehicles (UAV), remotely piloted aircraft (RPA), and drones. The Department of Defense uses “unmanned aircraft system.” See Joint Chiefs of Staff, Joint Pub. 1-02, Dictionary of Military and Associated Terms, at 252 (8 November 2010) (As Amended Through 15 February 2016). This article refers to UAS for aerial systems and UAV for only the aerial portion of the system.
[2] Symposium, RPAs and Non-International Conflict–A Strategic/Legal Assessment, 36 Cardozo L. Rev. 667, 672 (2014).
[3] See Alan Pertman, 70 Drone Companies to Watch in 2017, UAV Coach (23 January 2017), http://uavcoach.com/drone-companies.
[4] Press Release, Teal Group Corp., Teal Group Predicts Worldwide Civil UAS Production Will Total $65 Billion in Its 2016 UAS Market Profile and Forecast (6 March 2017), http://www.tealgroup.com/index.php/pages/press-releases/32-teal-group-predicts-worldwide-civil-uas-production-will-total-65-billion-in-its-2016-uas-market-profile-and-forecast.
[5] Wojciech Moskwa, World drone market seen nearing $127 billion in 2020, Bloomberg Technology (9 May 2016), http://www.bloomberg.com/news/articles/2016-05-09/world-drone-market-seen-nearing-127-billion-in-2020-pwc-says.
[6] U.S. Dep’t of Air Force, Instr. 32-7063, Air Installations Compatible Use Zones Program (18 December 2015) (implementing U.S. Dep’t of Def., Instr. 4165.57, Air Installations Compatible Use Zones (AICUZ) (2 May 2011)) [hereinafter AFI 32-7063, AICUZ].
[7] Id., para. 1.2.5.
[8] Id., para. 1.1.2.1.
[9] Id., para. 2.25.
[10] See SkyViewHD, About SkyViewHD, http://skyviewhd.com (last visited 21 May 2017).
[11] Id.
[12] Jordan M. Cash, Note, Droning On and On: A Tort Approach to Regulating Hobbyist Drones, 46 U. Mem. L. Rev. 695, 703 (2016).
[13] Who’s Leading the Drone Market? BBVA Innovation Center (5 July 2016), http://www.centrodeinnovacionbbva.com/en/news/whos-leading-drone-market [since being cited, this link appears to no longer be available].
[14] Id.
[15] Id.
[16] See Elaine D. Solomon, PART ONE: Unmanned Aircraft Systems (“UAS”) – aka Drones Usages and Regulation: Where Are We Headed?, Blank Rome LLP (June 2014), http://www.blankrome.com/index.cfm?contentID=37&itemID=3330 [since being cited, this link appears to no longer be available] [17] FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11.
[18] Id. § 332.
[19] Operation and Certification of Small Unmanned Aircraft Systems, 80 Fed. Reg. 9544, 9552 (proposed 23 February 2015) (to be codified at 14 C.F.R. pt. 107).
[20] Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42064, 42065-42066 (rule in effect 28 June 2016); 14 C.F.R. Part 107.
[21] See Summary of Small Unmanned Aircraft Rule (Part 107), FAA News (21 June 2016), https://www.faa.gov/uas/media/Part_107_Summary.pdf.
[22] Id.
[23] Id.
[24] There are a number of Classes of airspace under FAA rules. Class G airspace is uncontrolled airspace, which is the majority of airspace in the U.S. Most controlled airspace is near airports or around other sensitive facilities or flying areas. See Fed. Aviation Admin., Types of Controller Airspace, https://www.faasafety.gov/gslac/ALC/course_content.aspx?cID=42&sID=505&preview=true (last visited 25 March 2017); see also, Swayne Martin, This is How Class G Airspace Works, Boldmethod (14 July 2016), http://www.boldmethod.com/learn-to-fly/airspace/class-g-airspace.
[25] See 14 C.F.R. § 101.41 (2016); see also Fed. Aviation Admin., 14 C.F.R. Part 91 (2014), Interpretation of the Special Rule for Model Aircraft, at 6, https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf (link no longer available, related information can be found here https://www.faa.gov/uas/resources/policy_library/)
[26] Id.
[27] See Fed. Aviation Admin., Unmanned Aircraft Systems (UAS) Frequently Asked Questions, Flying For Fun (recreational or hobby), para. 2, https://www.faa.gov/uas/faqs/.
[28] United States v. Causby, 328 U.S. 256, 263 (1946).
[29] Id. at 258.
[30] Id. at 266
[31] Daniel Friedenzohn & Mike Branum, Unmanned Aircraft Systems and Technologies: Challenges and Opportunities for States and Local Governments, 10 Fla. Int’l Univ. L. Rev. 389, 391 (2015).
[32] See Fed. Aviation Admin., What We Do, https://www.faa.gov/about/mission/activities/ (last visited 21 May 2017).
[33] Richard M. Tast, Unmanned Aerial Systems: Domestic Statutory Issues, 93 Neb. L. Rev. 773, 789 (2015).
[34] Id. at 790.
[35] See Summary of Small Unmanned Aircraft Rule (Part 107), supra note 21.
[36] See, e.g., Friedenzohn & Branum, supra note 31, at 393-400.
[37] Dawn M.K. Zoldi, Drones at Home: Domestic Drone Legislation—A Survey, Analysis and Framework, U. Miami Nat’l Sec. & Armed Conflict L. Rev. 48, 50 (2014).
[38] Id. at 61.
[39] See Fed. Aviation Admin., FAA Issues Fact Sheet on State and Local UAS laws (17 December 2015), https://www.faa.gov/news/updates/?newsId=84369.
[40] See Fed. Aviation Admin. Off. of the Chief Couns., State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, at 3 (17 December 2015), https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf (link no longer available, related information can be found here https://www.faa.gov/uas/resources/)
[41] See Nat’l Ass’n of Crim. Def. Lawyers, Domestic Drone Information Center, https://www.nacdl.org/Landing/DomesticDroneInformationCenter
[42] Nat’l Ass’n of Crim. Def. Lawyers, DDIC Bill Map, https://nacdlwfe1.azurewebsites.net/Map/DDIC
[43] Tex Code Ann. § 423.0045 (2016).
[44] See BBVA Innovation Center, supra note 13.
[45] Operation and Certification of Small Unmanned Aircraft Systems, 80 Fed. Reg. 9544, 9552 (proposed 23 February 2015) (to be codified at 40 C.F.R. pt. 107), https://www.regulations.gov/document?D=FAA-2015-0150-0017.
[46] Press Release, FAA Registered Nearly 300,000 Unmanned Aircraft Owners, Fed. Aviation Admin. (22 January 2106), https://www.faa.gov/news/press_releases/news_story.cfm?newsId=19914. Nearly 300,000 UAS owners registered with the FAA in the first month of its new registration system.
[47] For purposes of this article, the author uses the term “states” to refer to one or more of the 50 U.S. states, and “nations” to refer to foreign states.
[48] See, e.g., Law Libr. of Cong., Regulation of Drones 1 (2016), https://www.loc.gov/law/help/regulation-of-drones/regulation-of-drones.pdf.
[49] See id.
[50] Drone ‘Containing Radiation’ Lands on Roof of Japanese PM’s Office, The Guardian (22 April 2015), https://www.theguardian.com/world/2015/apr/22/drone-with-radiation-sign-lands-on-roof-of-japanese-prime-ministers-office.
[51] See, e.g., Hitomi Takemura, Unmanned Aerial Vehicles: Humanization from International Humanitarian Law, 32 Wis. Int’l L.J. 521, 521–522 (2014).
[52] Id. at 523–525.
[53] See, e.g., Jonathan Kaiman and Justin McCurry, Japan and China Step up Drone Race as Tension Builds Over Disputed Islands, The Guardian (9 January 2013), https://www.theguardian.com/world/2013/jan/08/china-japan-drone-race; see also, Daniel Schearf, Japan, China Territorial Tensions Rising Over Unmanned Drones, VOA News (31 October 2013), http://www.voanews.com/a/japan-china-territorial-tension-rising-over-unmanned-drones/1780574.html.
[54] This assertion is based on the author’s professional experience as the U.S. Staff Judge Advocate for U.S. Forces Japan from July 2012 to July 2015. The former Legal Affairs General for the Japanese Self Defense (JSDF) Joint Staff, CAPT Seiji Kurosawa, called the author of this article to set up these detailed discussions, which both participated in on 11 March 2015. The Legal Affairs General within the JSDF is equivalent to the Legal Advisor to the Chairman of the Joint Chiefs of Staff in the U.S. Department of Defense.
[55] Id.
[56] See Yoshitaka Hirauchi, Investigating Drone Timeline, NHK World News (23 April 2015), http://www3.nhk.or.jp/nhkworld/english/news/shoanalysis/20150423.html.
[57] Television Broadcast, Regulations on Drones Take Effect on Thursday, NHK World News (9 December 2015) (on file with author).
[58] Id.; see also, Libr. of Cong., Global Legal Monitor, Japan Current State of Unmanned Aerial Vehicle (UAV) Regulation (citing Aviation Act art. 132, as amended by Act No. 67 of 2015), http://www.loc.gov/law/foreign-news/article/japan-current-state-of-unmanned-aerial-vehicle-uav-regulation/.
[59] The Air Navigation Order 2016 (SI 2016 No 765), Art. 94, http://www.legislation.gov.uk/uksi/2016/765/contents/made
[60] Id.
[61] Id., art. 94(4)(c).
[62] Id., art. 95.
[63] See Meenal Dhande, The Current Scenario of Global Drone Regulations and Laws, GeoSpatial World (19 November 2016), https://www.geospatialworld.net/article/present-global-drone-regulations-laws/.
[64] Passenger Plane Approaching Heathrow ‘in Near-miss with Drone 650ft to the East of the Shard’, The Telegraph (17 November 2016), http://www.telegraph.co.uk/news/2016/11/17/passenger-plane-approaching-heathrow-had-near-miss-with-drone-65/; see also, Robin Perrie, DRONE DISASTER DODGED: Major Air Disaster Narrowly Averted Over London After Drone Nearly Collides with Passenger Plane Near the Shard, The Sun (16 November 2016), https://www.thesun.co.uk/news/2200187/major-air-disaster-narrowly-averted-over-london-after-drone-nearly-collides-with-passenger-plane-near-the-shard.
[65] Id.
[66] See The UK Airprox Board, https://www.airproxboard.org.uk/Learn-more/About-us/.
[67] See, e.g., Monthly Airprox reviews, The UK Airprox Board, https://www.airproxboard.org.uk/Reports-and-analysis/Monthly-summaries/Monthly-Airprox-reviews/.
[68] This article’s author has observed small and large groups of “tailspotters” with sophisticated camera equipment at the ends of the runways at RAF Lakenheath and RAF Mildenhall on numerous occasions between July 2015 and March 2017.
[69] See AFI 32-7063, AICUZ, supra note 6.
[70] 18 U.S.C. § 13 (1996). The Assimilative Crimes Act makes state criminal law applicable to conduct occurring on lands reserved or acquired by the Federal government as provided in 18 U.S.C. § 7(3) (1994), when the act or omission is not made punishable by an enactment of Congress. See U.S. Dep’t of Justice, Criminal Resources Manual § 667. Assimilative Crimes Act, 18 U.S.C. § 13 (1996), https://www.justice.gov/usam/criminal-resource-manual-667-assimilative-crimes-act-18-usc-13.
[71] 28 U.S.C. § 543 (2010) (providing for Special Assistant U.S. Attorneys); see also U.S. Dep’t of Air Force, Instr. 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by Civilians, para. 2.3 (30 September 2014).
[72] See Harold Lidin, Terrorists in Puerto Rico Destroy Guard Jets, Wash. Post (13 Jan. 13 1981), https://www.washingtonpost.com/archive/politics/1981/01/13/terrorists-in-puerto-rico-destroy-guard-jets/70ed9e1e-2b4b-475d-b54b-8ae393a8a01f.
[73] Rowan Scarborough, How ISIS-controlled drones like this are striking new fear within the U.S. military, Wash. Times (24 January 2017), http://www.washingtontimes.com/news/2017/jan/24/isis-drone-dropping-precision-bombs-alarms-us-mili/.
[74] Id.; see also, ISIS Weaponized Drone Usage, YouTube (24 January 2017), https://www.youtube.com/watch?v=7X2ORSlPJ10 (video removed for violating YouTube’s Terms of Service).
[75] See The Remote Control Project, Hostile Drones: The Hostile Use of Drones by Non-State Actors against British Targets, 12–13 (January 2016), http://remotecontrolproject.org/wp-content/uploads/2016/01/Hostile-use-of-drones-report_open-briefing.pdf.
[76] Id. at 14.
[77] See FAA Evaluates Drone Detection Systems Around Denver, Fed. Aviation Admin. (16 November 2016), https://www.faa.gov/news/updates/?newsId=86869.
[78] See FAA Tests FBI Drone Detection System at JFK, Fed. Aviation Admin., (1 July 2016), https://www.faa.gov/news/updates/?newsId=85546.
[79] See Bill Gertz, Drones Threatened Nuclear Facilities, Wash. Times (8 March 2017), http://m.washingtontimes.com/news/2017/mar/8/inside-the-ring-drones-threatened-nuclear-faciliti/.
[80] Id.
[81] See Douglas James, 15 Drones with the Longest Control Range, DronesGlobe (5 January 2017), http://www.dronesglobe.com/guide/long-range-drones/. One such drone is the DJI Inspire 2, which retails from around $3000. Id.; see also, CNET, Hands on with DJI’s Better, Faster $3,000 Inspire 2 Drone (17 November 2016), https://www.cnet.com/products/dji-inspire-2/preview/.
[82] See Tim Moynihan, Things Will Get Messy if We Don’t Start Wrangling Drones Now, Wired (30 January 2016), https://www.wired.com/2016/01/things-will-get-messy-if-we-dont-start-wrangling-drones-now/.
[83] Id.
[84] See Leo Kelion, DJI Drones GainGeo-fencing Safety Feature Opt-out, BBC News (5 July 2016), http://www.bbc.co.uk/news/technology-36717538.
[85] Id.
[86] See CACI, Skytracker UAS Solution, http://www.caci.com/Skytracker/Solutions.shtml (last visited 31 March 2017).
[87] See Unmanned Systems Technology, FAA Tests SkyTracker’s UAS Tracking Capabilities, Unmanned Systems News (23 February 2016), http://www.unmannedsystemstechnology.com/2016/02/faa-tests-skytrackers-uas-tracking-capabilities/.

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