Elie and Joe talk with a drone law expert about the expanding rights of drones and the diminishing rights of property owners who want to stop them. Steven Hogan is an associate with the law firm Ausley & McMullen and practices in the areas of commercial litigation and state and federal tax law. Before joining...
|Thinking Like a Lawyer - Above the Law|
Steven Hogan is an associate with the law firm Ausley & McMullen and practices in the areas of commercial...
Elie and Joe talk with a drone law expert about the expanding rights of drones and the diminishing rights of property owners who want to stop them.
Steven Hogan is an associate with the law firm Ausley & McMullen and practices in the areas of commercial litigation and state and federal tax law. Before joining the firm, Steven served at the Florida Supreme Court as a judicial extern in the office of Justice Charles T. Canady. He received his J.D. from Florida State University College of Law, magna cum laude and his B.A. from the University of South Florida.
Above the Law – Thinking Like a Lawyer
Everything You Wanted To Know About That Drone Spying Outside Your Bedroom Window
Joe Patrice: Hello listeners, this episode originally aired in February of 2016 and we are rebroadcasting it because it’s about drones, property rights and why Elie hates snowstorms. So stay tuned, we hope you enjoy the episode.
Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law and with me, as always, though not physically in the same room and it breaks my heart to have him so far away is Elie Mystal.
Elie Mystal: Hi I am Elie. I’m sitting here in my snowshoes and my puffy vest, trying to beat the cold.
Joe Patrice: Yeah, you being all suburban now. You don’t come in when the snow gets in the way.
Elie Mystal: Yeah, I don’t and that really — that’s — let’s get right into what’s grinding my gears on this morning. When it snows like it did on the East Coast this past week, I don’t know when you’re listening to it but as it surely will snow again on the East Coast at some point after the point when you listen to this podcast, people should not have to come into work, they just shouldn’t.
It’s dangerous, it’s bad, it’s inefficient. We live in the future Joe, we live in the future where there’s this thing called the internet, there’s this thing called Wi-Fi; unless your job is literally the oldest profession, you can pretty much do everything you have to do online and you know what, I think that probably even applies to the oldest profession at this point.
Joe Patrice: It probably does to that one. You do live in some sort of a weird anti-blue color bubble, where you assume that people can do retail jobs or manufacturing jobs from their homes, which is not at all true.
Elie Mystal: Retail jobs, who needs to buy anything when it snows like this. We got two feet of snow.
Joe Patrice: I mean they need to buy snow shovels dude.
Elie Mystal: Who needs to buy stuff? Who needs to buy stuff when there is two feet – well you — no, no, no, you buy the snow shovels before it snows.
Joe Patrice: Yes.
Elie Mystal: Once the snow is on the ground, you should be able to stay home, you should be able to stay home. The people at Target should be able to stay home, the people who work for GM should be able to stay home because nobody needs to buy a car on the day that it snows.
Joe Patrice: That’s not how an economy works.
Elie Mystal: So because you like money Joe, you’re willing to put lives at risk. That’s all you are saying.
Joe Patrice: I am not even about making money.
Elie Mystal: Your desperate love for consumer goods is willing to put lives at risk, that’s all you’re saying.
Joe Patrice: Yes, well the empty sophistry aside — no that’s not at all what I’m saying; what I am however saying is that things need to be built and done and some of those jobs require people to be at their job.
For that, put that aside, emergency workers, doctors, these are all things also that can’t be done online. People do need to get out that is said I am fully in support of your position that people who are lawyers, bloggers, various kinds of tech workers, the non-essential presence folks in the world, should absolutely be able to not be in their offices. That makes sense to me.
Elie Mystal: It took me two-and-a-half hours of driving to work yesterday, two-and-a-half hours. And I drove my mom and my wife because I was trying to be a nice husband and son and I swear to God — how like when people die of hypothermia, like right before they like strip off all their clothes and run around naked in the snow that’s killing them, like that’s actually what I want to do on my way into work yesterday, to just stop the car, take off my clothes and run outside.
Joe Patrice: Well that didn’t make any sense to me. We live in a city with actual public transit and even in your wild suburban outliers, you still have metro trains. There was zero reason for you to be driving, I never understood it.
Elie Mystal: I’m not going to – that was a mistake, I am not going to – I shouldn’t have taken the chance.
Joe Patrice: I mean, I know, you could have just asked me, I would have helped you out and have told you what to do like I always do.
Elie Mystal: Oh whatever you like I always get to work by like — there’s like a dogsled team of Brooklyn hipsters that like mush you into work everyday.
Joe Patrice: I just walk to the subway station that is literally outside my apartment and I come into the office that is right underneath it, it’s amazing, it’s like our tax dollars do something, it’s amazing.
Elie Mystal: I don’t have a good segue for Joe’s desire to kill people in the snow to drones but I will say that if you did have your own drone, you probably had an excellent bird’s-eye view of the destruction on the East Coast during this past snowstorm.
Joe Patrice: Oh, if you had a drone, you would have flown it in the office yesterday and stayed at home, which would have been creepy to have like a little picture — like an iPad picture of you floating in front of all of us, terrifying.
Elie Mystal: Whenever I got angry, I would just make the propellers flat.
Joe Patrice: Yeah, you wouldn’t have been able to type with the drone necessarily well you don’t really write anything anyway.
Elie Mystal: Let’s bring in our guest before I have to murder you.
Joe Patrice: Yeah, fair enough. Well, you can’t because you’re so far away unless drones come which brings us to our segue. Our guest today is Steven Hogan. He is an attorney with Ausley & McMullen and the key to why he’s here is he is a preeminent expert in drone law.
He was written the book – literally, written a book on it, ‘The Drone Revolution: How Robotic Aviation Will Change the World’. He is the host of the drone law Today podcast, which is at dronelawtoday.com. He knows what’s up when it comes to the flying angels of death that will destroy all of humanity.
So we decided we’d bring him in to talk about drones. Welcome.
Steven Hogan: Thanks Joe. Thanks Elie. And let’s reframe a little bit and call them the flying angels of big data, which will revolutionize any business you can think of. How about that?
Joe Patrice: All right, there we go. That’s exactly what Skynet wants you to say.
Steven Hogan: And here’s a winter time segue for you, I think I’ve got the solution to your snow problems. Are you ready?
Elie Mystal: I’m ready.
Steven Hogan: Move to Florida.
Joe Patrice: Oh yes, you’re in Tallahassee, right?
Steven Hogan: Yeah Tallahassee, Florida man so like this is about as far north as I will ever get. Whenever I see that ungodly whether that you all get up there, I just think man that is not fit for human habitation.
Elie Mystal: That’s incredible answer. I mean granted living where I live, there have been approximately zero times when an alligator has jumped out of my toilet to bite my ass. So I’m not sure I can fully go with you but I take your point.
So Steve, tell me a little bit more about the big data aspect because I think that’s one of the more interesting things about your take. Most people view drones as just the newest and most convenient way to spy on your neighbor’s wife. You seem to think they have a higher purpose than that.
Steven Hogan: Oh absolutely, absolutely. And it’s always interesting to me that anytime drones come up in almost any conversation the example that you just gave is one of two examples that come up. It’s always oh, somebody is going to spy on my wife or the other one is somebody is going to take pictures of my daughter by the swimming pool. And this is said by even people that don’t have daughters or swimming pools.
It’s like something deep in the zeitgeist, nut here’s what the real value proposition is with drone technology and this is important to understand because when you see people flying around like FPV drones, there’s a really a neat video that’s been making the rounds just recently of a drone racing league that was racing around these small — very small drone devices around the Dolphins Football Stadium.
They’d set up a like a racecourse and you could see like first-person view of like you’re flying through it, that’s one thing that people think of with drones. The other thing they think of is just the hobbyist that’s out there flying around the public park and then they get to oh, I don’t want this thing spying on me. That is a sideshow. That is a sideshow. That’s not even the value proposition here.
The value proposition is this; what you have is a confluence of three different things that have literally never existed before in human history. Those three things are number one, stable, small, light, autonomous, semi-autonomous aerial platforms that are relatively inexpensive that you can get a good system for $500 and you can get a professional system for about $2,000.
I mean if you want to go nuts and spend 20, you can too if you’re doing some high-grade commercial work. So that’s one piece.
Elie Mystal: Or bombing ISIS.
Steven Hogan: Oh hush.
Joe Patrice: I mean Terminator drones are kind of a different game.
Steven Hogan: Right, right, that’s completely off the table, all right. So you’ve got these small autonomous platforms that are easy to fly. You don’t have to have a lot of expertise to flying, right.
And you also have very light, very capable, and very sensitive sensor technology that’s just getting better, and better, and better and that sensor can be a camera, that sensor can be an infrared or multispectral imaging device. And then you have a computer cloud back-end, where you can gather this data.
For example, in a precision agriculture context when you are flying over a farmer’s field and seeing what plants are stressed using infrared or other multispectral imaging and you can take that data and knit it together into a valuable information product to the end user; whether that end user customer is an agricultural enterprise that’s wanting information on its crops, whether it’s a building company that wants on-demand 3D as built surveys for their buildings or just about anything you can think of. And you mentioned the book earlier I have a whole page that lists tons of potential commercial operations really it’s only limited by the imagination.
Elie Mystal: And also — but it’s — but it’s also limited by regulation, let me put the thinking like a lawyer head on for a second. Look I’m democrat I’m a liberal I love regulation, it’s usually my first my go-to thing for all of life’s problems. The FAA’s current posture, the Federal Aviation Administration, the current posture is that it can regulate essentially every bit of airspace above your blade of grass and that that’s pretty much the scope of their power.
How does — how is that reasonable in a modern context where now as you point out we have these lightweight semi-autonomous easily affordable drones that can swoop in right above my blade of grass, how is that within the purview of what the FAA should be able to regulate as opposed to what I should be able to regulate as a private home owner potentially with a shotgun?
Steven Hogan: Alright, let’s bracket the shotgun issue, all right, let’s bracket it and set it aside for a moment, but what you have just put your finger on is the most important legal issue I think in this whole legal genre and I’m going to call it drone law I’m not afraid of the D word, okay?
Elie Mystal: Okay.
Steven Hogan: Use the word drone, we’ve been using it, to be precise you would say unmanned aircraft system and if you’re talking about the small ones which we kind of are, you would call it an SUAS or Small Unmanned Aircraft System. So just for clarity sake when we use the word drone or at least when I do I mean the small ones, okay?
So back to your — back to the issue that you raise, it has been settled. The thing that’s been settled are the legal issues relative to ownership of airspace above real property, okay. That body of case law came about way back when, when planes were new, and people were trying to figure out well can I stop these things from coming over my property? It’s the old — it’s the old idea that, if you own this plot of land you owned it all the way up to heaven and all the way down to hell, right?
Elie Mystal: Exactly!
Steven Hogan: Those issues were grappled with a generation ago and the outcome of all that case law and there is case law going, some very weird factual cases that you’ll find in law school texts is that these devices are necessary, so you get essentially the glide path up what the plane needs to get up you get the highway in the sky where they need to fly and then you get the glide path down and essentially there’s no property rights if you will that can stop that, right?
Elie Mystal: Which is why LaGuardia is allowed to exist?
Steven Hogan: Oh! Well, essentially yes, I mean and there’s cases grappling with those issues, but here’s the thing. All of that case law and all of those regulations that are on the books and all of the statutes that direct the FAA as to what they can regulate all presume that an aircraft is something with a person in it. That means that it has to be kind of big and that means it’s going to have a gas engine and it’s going to have — cause some real damage if it falls out of the sky people are going to die one way or the other.
But with drones, here the FAA has been given a completely different technological beast, alright, that the FAA classifies as an aircraft and therefore all the regulations that apply to aircraft all the case law that’s grown up around what you can and can’t do with aircraft apply according to the FAA to drones.
So this idea, this conception has come out that the FAA asserts jurisdiction if you will all the way down to the blade of grass, right and that’s never mattered really when you’re talking about manned aircraft.
It means something completely different like you mentioned when you have something that can hover 10 feet off the ground and maybe that’s its entire — maybe it doesn’t go any higher. So all of that old case law is essentially you can crumple it up in a ball and throw it over your shoulder it’s persuasive authority now and everything’s — everything old is new again.
Elie Mystal: What part of this involves and I think you hit the nail right on the head there, what part of this also involves the FAA doing what organizations what institutions do which is grabbing whatever power it can have. Is it not possible that there’s an organization or government entity that’s in a better position to regulate these small drones rather than the FAA which as you say are primarily concerned with passenger aircraft?
Steven Hogan: That’s a really interesting point and I think that’s something that’s going to be grappled with going forward and I’ll answer that in a couple ways. First I’ll say that the FAA is the main regulator of airspace, so I don’t see anybody else regulating what constitutes a safe drone flight, okay.
But you also have state’s state law that’s the repository of property rights, right, that’s the law stuff and this whole idea of how much you own above your property that is a collision, that is a direct collision in a preemption context between the FAA’s assertion of authority and traditional state law property rights, so there’s one collision.
Another collision and I don’t know that this is really a collision it’s more of a traffic jam if you will is that these drones, I mean, it’s not just an aircraft it’s also an information-gathering device, it’s also as one of my co-travelers in this drone law space by the name of Elizabeth Wharton with the — I want to say the Hall Booth Smith Law Firm in Atlanta Georgia she was a podcast guest and she writes about this stuff and she sees drones as part of the Internet of Things which also includes driverless cars and other robotics and other autonomous vehicles, so these drones are a part of that and what does that implicate?
That implicates the FCC with regard to bandwidth, wavelengths of how these things are communicating. It implicates the FTC which deals with data breach and data storage and data privacy and that sort of thing and drone companies that manufacture these things also have to be aware that the Department of State has a hand in this, because of the autopilots and the gyroscopes and even some of the sensors that you put on these things may implicate a set of regulations called ITAR which I forget exactly what that acronym stands for, but it’s essentially an arms control set of regulations from the Department of State and if that wasn’t enough the Department of Commerce has export laws that depending on what you put on one of these devices you may fall within one of the export laws even if you don’t send one of these overseas.
For instance if you hire an information technology person from a different country to work in your company and you have a certain sensor load out just because you have the IT person from another country in your company if they see the schematics you may have a deemed export and now you got a deal with those regulations.
Elie Mystal: Joe I want to open up some space on my left here and see it will take the bait. drone law is one of the few areas of law where I generally favor a federalist approach. I honestly don’t think that the best way to handle this is by a strong centralized authority, I think that our understandings of this must needs to be different in Texas versus than Manhattan.
Joe Patrice: No, no absolutely not. No this should totally be a federal thing. It comes to what we were just talking about with it being a big data, being its primary application, it needs to be something that is largely harmonized across the country, so that it can be used and exploited to the maximum of its ability.
Steven Hogan: I hear both of you and I think they’re both valid positions that could be taken from a policy standpoint. I’ll tell you what’s actually happening right now. What’s actually happening is that the FAA has gone so slowly with implementing drone regulations and by the way I’m not slamming the FAA, I’m not — frankly I’m not really criticizing the FAA it’s a hard thing and sometimes I come across as an FAA apologist frankly, but the fact is that they missed the deadlines that Congress set for them in the 2012 FAA Modernization Reform Act that directed them to write the regs that are applicable to this technology, right, so they have been slow.
And in the absence of clear federal guidelines what has been happening is that state houses, the legislatures of almost all 50 states have grappled with this at one point or another are trying to pass laws to regulate drones and what I would have tried to make clear to the drone community and what I write on like LinkedIn Pulse that’s almost my writing is and on the drone law Today Podcast, check it out on iTunes we’re also instituted in your favorite podcast player.
I got to get that plug, but what I tried to explain to the industry at large and my audience tends to be people that are in the industry or lawyers that are trying to advise people that are in the industry is that the FAA will have everything to say about what a safe drone flight is, right, but states with their traditional authority, that to deal with everything that’s not delegated to the federal government will have almost everything to say about what is and is not permissible in the context of an otherwise safe flight. So when we talk about privacy questions I think that’s a state issue I do not think that that’s a federal issue and the FAA agrees.
Joe Patrice: See that’s terrifying because Rhode Island is way too small like doesn’t the drone just take off and also that’s not in Rhode Island anymore? I get Alaska, they can have their own rules.
Elie Mystal: The same thing used to happen with Cadillacs, right, like as soon as you started up you’re going to know another state. Steve, let me ask you what happens, because you are focusing on, on as you put it otherwise safe flight. What happens when these things go bad? If I know one thing about technology is that often it breaks and blows up in your face, and I am thinking about this specifically in the context of tort reform and in the context of using drones for business.
I think the easiest example for most people is Amazon’s purported fantastical future where they are going to drone strike packages upon you from the sky. What happens when the Amazon Drone that’s being, that’s owned by Amazon is being piloted by an independent contractor yadi yadi yada, flies the drone into your window and cuts your face off. Who do I get to sue?
Steven Hogan: Well, first I hope that if something like that happens in Florida, your first call would be to use Steven M. Hogan of the Ausley & McMullen Law Firm, who can then advise you of your rights.
But there is two prongs to answering that question, and before I get to those two prongs, let me say one thing about Amazon. When that announcement came out, and it’s about two years ago from where we sit right now, that Amazon was considering doing or was serious about doing drone package deliveries. If you go back and see exactly when that press release hit, it hit right before Cyber Monday on that particular December. And if you go back, Google CheckME, you will find out that that’s true.
And when I saw that hit, I am like naw come on, I mean that’s, that’s ridiculous. That, that’s a joke, right? Well, it’s not a joke, because what I have what I found in that following year they hired, Amazon hired a top drone lawyer in the space and I will refrain from naming names, but he was a friend and co-traveler, and as soon as Amazon hired him, I thought oh! Man, they are serious and then they hired another guy that I knew. It’s like oh! Man, they are double serious, because they are hiring good people.
I am not, I am not really geeking out on the technology, I mean that’s just not my strength. I see it and I stand in all, but I mean, but I couldn’t tell you how it works. So I have no opinions on exactly how their prototype that they announced recently, will actually work, but I would take them seriously. I wouldn’t consider it to be a fantastical future in the, in the sense that it’s vaporware, because I don’t think it’s vaporware so let me just say that about the Amazon.
Elie Mystal: It’s a lot of sense.
Steven Hogan: Yeah, at the end of — as I have said, two prongs to answer your question. The first prong that I think is going to be important in this context is insurance. I mean the drone law world right now is – it’s own version of the Wild West, but frankly the drone insurance world is even wilder.
I mean drone insurance companies are writing policies left and right, some understand the technology better than others and I have had, oh gosh, his name is now Chris Proudlove from Global Aerospace came on the drone law Today podcast and talked about his company’s approach, and that is a serious insurance company that they insure, Fortune 500 companies that are getting drone fleets to experiment with. So they are serious and they know their stuff.
So companies like that are pricing the risk correctly I think, or you would assume they would. But other companies are writing policies and perhaps other agents are writing policies that are pretty fast and loose, that don’t require the drone operator to have the proper exemption from the FAA in order to operate commercially.
We should talk about that before this podcast is over about how you fly commercially legally, because it’s — it’s important so on insurance side, some of these policies that again written are probably going to be litigated. Once insurance companies that say that they are paying on right now decide to stop paying on them. So insurance is going to be a big piece of that.
The other piece of that frankly is going to be tort cases. It’s going to be the plaintiffs bar assessing these things out and finding and suing everybody and then seeing who has the deepest pocket and that’s really how it’s going to — how it’s going to play out.
Elie Mystal: I live in fear of a situation where a guy is injured, has significant medical bills and he can’t sue Amazon but he can sue the $15 an hour, I am sorry, if Bernie wins $15 an hour, a drone operator guy who can’t possibly cover his medical bills.
But you are talking about flying safely, I have got a three year old, I figure as soon as he is able to beat Rainbow course on Mario Kart 8, at about a 100 cc that he will be a ready for a drone. What do I got to do to get him legally able to play with his new toy?
Steven Hogan: Well, this is a good distinction right now, because right now there are essentially three categories of drone regulation depending on how you use them, and I will just say before we get into it that differing regulatory regimes based on the intent of the user is kind of insane, right?
I mean that one, like you could have three flights for three different purposes and we will talk about all three in a minute, but assume that the flight is exactly the same. Different regulatory regimes would apply to each flight, and that is crazy, because when we are really talking about safety, we should — safe should be safe. Safe should be legal. Well, sometimes safe is not legal based on the intent of the user.
Elie Mystal: This sounds like a really good government work right now.
Steven Hogan: Well, it’s complicated lawyer stuff. So I have been heartened by the fact that other lawyers are jumping into this and trying to spread the word and make it as clear as possible. That’s the point of me getting that book out there last year.
And by the way your listeners can get a free copy of my book, ‘The Drone Revolution’ at dronelawtoday.com/book, that’s dronelawtoday.com/book, and you get a free download or it’s on Amazon if you want a hard copy or at Kindle, but anyway, so what are these three categories that that apply? The first category is Recreational Use, and that Elie would be, what your son would be using.
Elie Mystal: Let’s hope, let’s hope.
Steven Hogan: Let’s hope, let’s hope, right. Unless he has a pilot’s license he shouldn’t be flying it for commercial purposes and I don’t think they would let three-year-olds get a pilot’s license yet.
So, let’s just assume it’s for recreational use. What you would do is go the FAA’s website and I don’t have the site right in front of me, but if you Google FAA Drone Registration you will find it, and the FAA has opened up an online registration process where you register your drone. And when you register your drone, you are doing that for hobbyist purposes, recreational purposes, and then you get a number from the FAA that you can then put on your drone. That’s an N number, so it identifies who owns the drone? That would be you.
And along with that registration the FAA gives you a pretty easy — easy to follow set of instructions on how to fly safely, and generally it’s be safe. Stay under 400 feet, stay away from airports and don’t fly too close to people. That’s really what it comes down to. So recreational flying is pretty open.
Now commercial flying is a second regulatory bucket if you will. This is much more restrictive and if you are making any sort of profit in any sort of way, not even profit, revenue in any sort of way connected to a drone operation then you qualify as a commercial operation according to the FAA. That’s even so far as to hey, I took a video on my drone and I put it up on YouTube and I am getting YouTube ad revenue of like $2 a month.
Elie Mystal: Really? That would qualify as commercial use, just the P2P —
Joe Patrice: Yeah, but I love that both of us jumped in on that like what really?
Steven Hogan: Well yes, really. In fact the FAA had — they stopped this policy for a time and I want to say last year in 2015 this was happening. FAA personnel were trolling YouTube looking for drone videos and sending cease-and-desist letters to every — to anybody that they could find the identity of saying, that’s commercial use of drones don’t do it.
Elie Mystal: Wow.
Steven Hogan: So I am not just talking into the air, that actually happened –
Joe Patrice: Since the FAA has solved every other problem in the world.
Steven Hogan: Well, to their credit they stopped that. That wasn’t the best use of FAA personnel time so they are not doing that anymore to my knowledge but it shows you the extent to which the FAA broadly construes the term commercial use.
Elie Mystal: It also just as an aside, it’s also just a commentary on how much of our law enforcement these this day and age involves a government regulator trolling YouTube looking for – that’s where we are in America right now.
Steven Hogan: Now remember the FAA is civil. They are not going to go criminal on anybody, at least in these enforcement situations. If you want to come right back around shooting them out with a shotgun we can do that and that has a criminal element, but let’s bracket that again for a moment.
So if you want to do a commercial operation the FAA says that you have to comply with all the aviation regulations that apply to aircraft. You see the problem?
Elie Mystal: Yeah.
Steven Hogan: All the aircraft regulations deal with manned aircraft. So when you have a drone and you’re trying to follow the manned aircraft regulations, well where is the cockpit? Where does the pilot sit?
Elie Mystal: How much am I allowed to drink before flying my drone?
Steven Hogan: Well none because you’re the pilot in command.
Elie Mystal: It’s my pleasure.
Steven Hagan: Sure so — so that’s the problem. So the solution to this problem is that the FAA is offering an exemption to the regulations and the exemption is called the Section 333 exemption. The Section 333 refers to a section in the FAA Modernization and Reform Act of 2012 and this is on the book if you want to geek out on it and what that section says is that the FAA can make case-by-case determinations that certain flights would be safe and the National Airspace System without a final rule having been promulgated.
And since the FAA still has not promulgated a final rule probably will not do so until next year at the earliest 2017 then you need an exemption to the regulations in order to fly and once you get your exemption that exemption is essentially your set of airline or aircraft regulations that your commercial operation has to adhere to so that’s how you fly commercially.
And the third and final bucket of regulatory stuff would be public use or civil use of drones and that would be government use, so law enforcement or even your property surveyor that wants to use it to make better maps for your property tax rolls. To do that it’s easier. You don’t have to get a Section 333 exemption. You just need to file for what’s called a COA, it’s called a Certificate of Waiver Authorization abbreviated COA or COA and that COA will allow a government operation to operate a drone as a “public aircraft” but it’s limited to government purposes so there is a limitation on what government can do to the extent that public universities that would normally qualify as an entity that could fly public aircraft cannot use a COA as Authority for training their students, tuition paying students on how to fly drones because that according to the FAA is a commercial use so they have to get a Section 333 so those three buckets.
Joe Patrice: Wow! It is amazing how messed-up and not quite clear, the FAA is.
Steven Hagan: It’s kind of like yeah — it’s kind of like trying to unravel spaghetti on a plate and trying to find the one that you want.
Joe Patrice: And just how kind of detached it is from how kind of real people on the ground no pun intended are using these things. The YouTube angle is shocking to me because that’s half the god damn point.
Steven Hagan: That’s right and you know it’s interesting. I’ve spoken about drone law a lot over the past few years and I’m going to go down to Orlando to speak to another group actually tomorrow and one slide, one graphic that I always put in my slide deck is a an excerpt from a FAA document that purports to show the difference between hobbyist use and commercial use right and hobbyist and this has several examples in a table and it’s it gets kind of absurd until you get to the bottom where on the left it says hobbyist use.
Flying a drone to take pictures of your garden because that brings you enjoyment, I’m paraphrasing but that’s essentially what it says and then on the other side of the table, on the right on the right hand it says a commercial use would be flying over to take a picture of your garden because you’re trying to determine your crop yields because you want to sell it for money that’s a commercial use and you need a special exemption. How do you like that? The flights are identical.
Joe Patrice: It makes no sense.
Elie Mystal: It makes no sense.
Steven Hagan: From a logical standpoint no but you can understand if you follow the thread from the beginning how the FAA got there it’s almost like dealing with the weight of past generations and trying to fit this new technology into something it doesn’t — that wasn’t made for it.
Elie Mystal: Yes square peg round hole so it’s —
Joe Patrice: Can we can we end with this question of shooting? Here’s my example tell me why this is okay. If R2-D2 rolls up on my property, he’s trespassing and I am allowed to kick his little drone ass but if R2-D2 hovers onto my property I’m legally prohibited from doing anything to him how does that make sense?
Steven Hagan: That’s an interesting point and in fact there is a law professor at the University of Miami by the name of Michael Froomkin who has written a paper that you can grab on SSRN called Self-defense against Robots and Drones that grapples with that exact issue.
Joe Patrice: Of course there’s a lot of paper on this. I am going to get that that’s awesome.
Steven Hagan: You can either get it or you can listen to my interview with them on the Drone Law Today podcast, he was one of my first live guests if you will. So there’s that okay and that is absolutely an issue that is going to be grappled with in the context of traditional state, self-help doctrine. There’s a tiger on my land I want to protect myself from that tiger, I mean we’ve all been there in law school.
So that’s one answer but the other answer is assuming that R2-D2 shows up on your lawn in a US jurisdiction okay let’s just say R2 is inside the drone okay.
Joe Patrice: He is flying thing like an 35:42. That is an aircraft for all purposes under the Federal Aviation Statutes and Regulations and if you shoot an aircraft out of the air guess what you just did?
Elie Mystal: Yeah.
Steven Hagan: Essentially yes. You are now a felon, a US felon and you can go to jail for five years on up and pay about a quarter million dollars in fines and if you want more about that you can check out the podcast entitled Don’t Shoot That Drone where I talk more about that and I’ve also got an article up on LinkedIn Pulse that goes in deep with the regulations and I think that’s entitled Don’t Shoot That Drone it’s a federal crime. So it’s easy to find it on my LinkedIn profile.
Elie Mystal: Well all I can say is that if any drone shows up on my property trying to take pictures of my wife or my daughter that I don’t have they’re going to get a load of my 350 pounds fat black ass that’s what’s going to happen to them, put that on their YouTube page.
Joe Patrice: The issue is I’ve seen Elie tried to jump so it’s not that drone can get out really quick. So hey thank you so much for joining us — remember everybody I mean he’s mentioned already but he’s got a book which you can download from his website, he’s got a podcast, he has mentioned some of the key issues which I think we’re all going to go and listen to right now. Thank you so much. Elie do you have any parting words?
Elie Mystal: This is fascinating. I didn’t know like 35% of the words coming out of his mouth and that was amazing.
Joe Patrice: Yeah and actually the part of the idea for this podcast came up because Elie wrote an article about drone law where he was just like I’m sure there’s somebody who knows the answer to these things and the answer is yes there is and it’s you.
Steven Hagan: We try we try and I want to thank you all for all the work that you’ve done over the years reporting on the legal industry because frankly when I was in law school so many years ago knowing nothing about the legal industry other than I wanted to get in it Above the Law was one of my main resources to learn what this industry was even about. So thank you all for the work that you’ve done over the years.
Joe Patrice: Well thank you. I mean more to Elie, I am the new guy so you probably missed a lot of me but Elie definitely was around.
Elie Mystal: Pay it forward man, all right.
Joe Patrice: Yeah, so thank you so much for being here. Thank you all for listening. If you aren’t subscribing, you should be subscribing we are on all the various places for you to subscribe. We are writing on Above the Law, ATL Redline, we have got Twitter accounts. You could follow us literally all over the place. Elie do you want to complaint about snow anymore or is this — or you done?
Elie Mystal: No because watch next week and then complaint about global warning.
Joe Patrice Yeah, yeah, well it’s okay. All right with that we will talk to you soon.
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Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.iTunes Google Play
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