All Over Albany

A future that's up in the air

State Police say this drone collided with a chimney on the state Capitol in September and ended up on the building's roof. / photo: New York State Police

The recent incident in which a guy is accused of crashing a drone into a chimney of the state Capitol building got us thinking about how we should look at a future in which all sorts of machines could be buzzing around buildings and treetops -- and what sort of rules there should be for such a future.

Up to this point the feds have set general guidelines for how private citizens can use drones, while setting stricter rules for commercial use. Meanwhile, states have passed all sorts of laws. Arkansas and Georgia have banned drone use around their capitols. Others have laws aimed at keeping drones from being used for voyeurism. And Michigan has a law prohibiting drones from being used to... harass hunters. Here in New York State a bill has been hovering in the New York State legislature the last few sessions that would restrict the use of drones for surveillance by both private individuals and law enforcement.

So we got in touch with Albany Law professor Robert Heverly, who studies these sorts of intersections between the law and tech -- he's written about attempts by governments to set rules for drone use.

Our conversation floated from topics like whether it's trespassing to fly something above a person's property, to privacy, to whether we're headed for a dystopian drone future...

Heverly explained that for the most part when it comes to flying, the feds have most of the power...

Generally, the [Federal Aviation Administration's] position is that we get to decide when and where people get to fly stuff and this is within our authority and we'll decide those things. As far as local towns or villages or even states getting involved in the actual flying aspect of this it's kind of risky for them. There might not be as much control as they might like.

So what some states have done is tried to do things that say a flight over someone's property is a trespass and land owners are allowed to defend their property against trespass. And the FAA hasn't even reacted publicly too well to that ... Because a jet flying over your house at 10,000 feet, that takes off from an airport, that's not a trespass, and you can't charge for trespass. There's other federal law that developed during the times airplanes first came into more use that says that's probably correct.

Whether that's true for someone flying a drone 20 feet over my property when I have a two-story house, now you start to get into some areas where it's a little less obvious about who gets to say and do what.

A lot times in situations like this it's easier for people to think in metaphors or comparisons. So when we're thinking about drones should we be thinking about it like it's flying an airplane, or is it like driving a car, or is it like something else?

It's interesting, because when airplanes first started being more widely used there were some who were arguing they couldn't fly over people's property and they could only fly above established highways. So they'd only be able to fly above a road.

We hear a lot of those same kind of things now. "If Amazon's going to start delivering packages by drone, their drones should follow the road network and then only veer off when they're delivering a package..." If their property backs on to mine, with one property in between it, they're not going to take all the roads around the outside to get their package to my house. So it'll be interesting to see how those competing types of demands get settled at the national level and at the local level as time goes on.

Or we just accept that these things are going to be around. Certainly when someone crashes their drone into your house they owe you damages, there's very little question about that. But for them to fly over your house? That's a separate question.

That question of damages for what you might call improper drone use, or an accident of some sort, seems like an interesting question. If you crash your car into someone else's car and it wasn't done intentionally, we don't generally treat that as a criminal matter. But like in this most recent case at the [state] Capitol [-- which ended up including reckless endangerment charges --] and maybe some other cases, should we be looking at that as a criminal matter, or should it be more like a civil matter?

Doing damage to public property is a crime. So even if you drove your car and crashed it into something in the Capitol area, I guess they can charge you with a crime if they wanted to -- they don't usually. ... If they can do that if you just made a mistake or had a problem, that's more a question of a criminal law thing...

But I don't see any reason to treat this differently than anything else that we've got going on around us. The biggest thing that people have is the privacy implications of it. And somebody certainly can use a drone to violate someone's privacy. Most drone users aren't doing those kinds of thing. They're just flying drones around and getting cool pictures and they're posting them on Youtube. Or they're starting to do work for real estate companies to advertise houses and businesses, because bird's eye views where you can fly down and around the house are really cool and people like them.

So there's a market for this stuff. And they're not really doing bad things, they're not really trying to push the envelope. They're trying to just do what the technology allows them to do. And then we have all these issues -- can you fly over the neighbor's property, what if the wind blows it over to the neighbor's property -- that then come up.

So if a state legislator, or some other sort of public body, came to you and said, "We're interested in giving a serious look at this issue. We just want to lay out some ground rules basically to help clear things up to the extent that we can." Where would you tell them to start?

I'd almost tell them that in many cases to just leave it for a bit.

If they wanted to do something, do it generalized. So if they think they have the authority to act, don't make it specific to drones. If you don't want people taking pictures through the windows of other people's homes -- and your local counsel says the town has that authority -- then you've got your rule. Why make it applicable just to drones?

There's this sort of fascination at the lowest levels of government all the way up to Congress that they get starry-eyed about the new technology and start making rules just for that technology. Just think about it: What is the behavior that you don't want to happen -- prohibit the behavior, regardless of what the technology is that people are using to do it. And then go from there.

When you look to future, is it more dystopian or more optimistic on drones?

I'm probably a bit less concerned with commercial and civil use. If we can get gas-guzzling delivery trucks off the roads and instead use battery-rechargeable drones to do the kind of deliveries that we have trucks driving around doing, that could be a positive for the communities and the environment. That said, they're not necessarily quiet, so it changes what it's like to live in the community where you are -- you'd hear them doing whatever job they're doing. So, I don't see it as either one.

I'm a bit more worried about law enforcement use and weaponization, the kind of things that we do when we send our drones to other countries. Because there's no reason why some of those things couldn't be done here in certain circumstances where governments think that would be a good thing to do. So that concerns me more than commercialization.

The thing is, if people really, really hate the drones and really don't want them around, when businesses try to take them up there's gonna be backlash. So if Amazon gets a lot of people mad at them because the drones are flying around delivering packages and annoying everyone, they're going to find a new way, or they're going to go back to the old way. So I think the market can handle some of that, and I think people can handle some of that.

As it looks right now, lots of people aren't interested in drones. They don't want to own a drone. They don't want to fly it around, they don't want to take pictures with it. There's a subset of people who are enthusiasts. Maybe we'll get more of those people as they grow up with it. But I don't see a sky full of drones in the future. And I guess I don't see as much of that dystopian thing. But I do see changes that we would need to become accustomed to, like drones going across your property at a height airplanes don't fly -- just having them being more of fixture in the sky.

And then all it's going take is five or six problems where drones crash and injure people or injure property and there will be calls for regulation and things might change the way they go.

This interview has been edited and condensed.
____

Heverly mentioned to us that he has a drone that cost less than $100. "It doesn't do any of the fancy sort of stuff, but it's still pretty cool to get it up in the air and get it above the tree level and do a sweep around and just see what you can see. That's not a view I would otherwise ever have unless I could afford a helicopter."