Flight for Your Rights

On February 14, the president signed into law the FAA Modernization and Reform Act of 2012, a whole section of which lays out the ways the national airspace will be opened up to drone flight over the next three years. Unmanned aircraft are coming.

A valentine to the military-industrial complex, the act commands the Federal Aviation Administration to work with industry, government, and the civil sector to get as many drones as possible into the sky as fast as possible. The FAA will develop new licensing standards and procedures for the operation of unmanned aircraft systems (UAS) in the national airspace, authorize test ranges for public safety agencies to practice operating their new tools, and eliminate existing restrictions on domestic UAS operation. By 2015, the government and the private sector will be flying drones through the skies above the U.S. (and elsewhere — one subsection of the act is dedicated to the expansion of unmanned aircraft use in the Arctic).

These orders come as part of a laundry list of deadlines and requirements that all serve to further something the FAA calls the NextGen initiative. NextGen, according to the FAA, is “an umbrella term for the ongoing transformation of the National Airspace System.” Currently, air traffic is controlled through a ground-based system. NextGen represents the “evolution” of air traffic control, and its goal is the replacement of the old ground-based system with a high-tech, satellite-based system of air-traffic management that will help prevent “gridlock in the sky.” NextGen “will allow more aircraft to safely fly closer together on more direct routes, reducing delays and providing unprecedented benefits for the environment and the economy through reductions in carbon emissions, fuel consumption and noise.”

Because UAS rely heavily on satellite GPS and automated sense-and-avoid capabilities to operate safely, their integration into the national airspace system will lay the groundwork for the incorporation of those technologies into bigger commercial aircraft. The ultimate goal of NextGen is nothing less than the total computerization and automation of air traffic over the U.S.

The FAA met its first deadline handily when, in mid-May, it debuted a simplified authorization process for public safety agencies. Its next big deadline is August 12, by which date the FAA must have established six test ranges where unmanned aircraft will be integrated into small chunks of the national airspace for both civil and public operators. August 12 is also the deadline for the designation of permanent areas in the Arctic where small unmanned aircraft systems will operate 24 hours a day for “research and commercial purposes.”

An unspoken but obvious goal of this push for increased drone use is economic: around 70 percent of drone manufacturers are based in the U.S. According to a 2011 study by the global marketing research group Lucintel, total revenue from unmanned aircraft systems is expected to exceed $7 billion over the next decade. Demand for the systems is increasing, both from developing countries and from the civil and commercial sectors. Once the national airspace is opened to civil operators, the drone industry’s customer base will be immense. Major aerospace and defense companies like General Atomics and Raytheon are poised to sell unmanned aircraft for humanitarian relief and natural disaster applications, for use in collecting scientific research data, for storm tracking and monitoring crop conditions, and for advertising. (Think those eat at joe’s banners that fly past the beach, but without the prohibitive cost of hiring a human pilot.) The preeminence of the U.S. in the field means that advances in drone use will translate to an influx of capital here at home.

What’s a Drone?

Most people use the word drone where Congress and the FAA use the less punchy unmanned aircraft system. As defined in the Modernization and Reform Act, an unmanned aircraft is any aircraft that is operated without the possibility of direct human intervention from within or on the aircraft. An unmanned aircraft system includes both the aircraft itself and all the associated elements that are “required for the pilot in command to operate safely and efficiently in the national airspace system.” This definition encompasses every kind of remotely controlled flying object, from the kind you see on the evening news to the kind you buy for your sister’s kid at a toy store. It officially designates  anything lighter than 55 pounds as sUAS — the little s stands for small.) The FAA regulates them all.

For the purpose of this article, though, I am going to use the narrower definition proposed by Ryan Calo, director of privacy and robotics at Stanford Law School’s Center for Internet and Society. Calo distinguishes drones from model airplanes and other remotely controlled aerial devices, specifying that drones as “unmanned aircraft that can fly autonomously — that is, without human control.” An autonomous UAS may be programmed with a destination or task and will proceed to that destination, or perform that task, without the direct real-time input of a human pilot.

The State of Things

Currently, use of unmanned aircraft is restricted to three types of operator: recreational, public, and experimental. The civil and commercial operation of unmanned aircraft systems will remain prohibited until the FAA has successfully implemented its plan for the integration of civil UAS. Recreational use of model aircraft will not be affected by the Act, and testing by manufacturers for research and development will continue much as it has for years. Public entities will see big changes as a result of the law, which drops many of the current restrictions on UAS operation and encourages local governments to invest heavily in unmanned aircraft.

Recreational Use

The FAA has long regulated and protected the use of model aircraft. The new law contains a special exception for recreational operators flying models: they don’t have to get any special licenses or dispensations, as long as they keep to the rules that already apply to them. Hobbyists may fly sUAS in the designated recreational airspace, capped at 400 feet above the ground. They may do so freely, provided they take certain precautions around airports and other high-traffic areas and  provided the operator keeps the aircraft in their line of natural sight.

These requirements are echoed in the FAA’s May 14 announcement of new, simplified rules for public safety agencies; it enables such entities to easily obtain authorization to fly small vehicles weighing 25 pounds or less, provided the operator is on site and keeps the UAS in their field of vision. So police and fire departments can now officially use remote controlled model airplanes as part of their exercises.

Testing, Research and Development

The second category of available UAS license is the Special Airworthiness Certification — Experimental Category. The SAC-EC is a limited license available to UAS manufacturers. It allows them to fly their prototypes for research and development purposes. The certification only permits this narrow scope of operational use and is only granted to aerospace companies.

The Electronic Frontier Foundation filed a Freedom of Information Act suit against the FAA for a list of the entities currently issued experimental Special Airworthiness Certificates. The list, released by the EFF on April 19, is relatively short and includes all the familiar players in the military-industrial complex: Raytheon, Honeywell, Telford, General Atomics.

Government UAS Operation

By far the largest players in the domestic UAS field are the governments of the U.S., from federal agencies to state and local administrations. These public entities have more access than any other type of operator to the national airspace system, although their available certification is both time- and location-limited. Public entities may obtain certificates of Authorization to fly UAS for specific missions. When North Dakota police revealed the role that UAS played in the arrest of Rodney Brossart, it showed public safety agencies — especially rural ones — the advantages of owning a UAS.

Brossart, an antigovernment “sovereignist,” had taken possession of a neighbor’s cattle after they wandered onto his property. When the police arrived, Brossart and two family members chased them away with high-powered rifles. After sixteen hours, and with a warrant, the Grand Forks police department asked DHS to help them locate Brossart — who they only knew was armed and somewhere on his 3,000 acre farm. DHS was able to pinpoint his location, and officers avoided the hazardous prospect of wandering around a huge farm in search of an angry sovereignist with a shotgun.

The EFF also requested information on Certificates of Authorization in its FOIA suit and received a list of all the public entities that have applied for authorizations to fly UAS in the national airspace. The list reveals some unusual bedfellows: everyone knew that DARPA and the military have permission, but the list also includes local government entities like Otter Tail County, Minnesota, and a who’s who of colleges and universities from Cornell to Eastern Gateway Community College in Ohio.

The FAA is pushing for more small public entities to invest in UAS. It is lowering the cost of entry into the national airspace, while the manufacturers of UAS lower the cost of purchasing small aircraft. They are widely touted as high-tech, low-cost solutions to a host of persistent problems, from lack of reliable traffic policing to assessing the risk of SWAT missions. (Their actual economic efficiency is not nearly so clear-cut; a May 30 government audit of the Customs and Border Patrol UAS program revealed it to be over $25 million over budget, with insufficient qualified staff and equipment to meet even its stated goals.)

The Future After the FAA Modernization and Reform Act

UAS can be flown recreationally; they can be employed by public entities, and they can be flown experimentally by the aerospace industry. But the elephant in the national airspace system is the inability for any private entity to use a UAS in commerce. Unmanned aircraft serve as platforms for a wide range of technology. Most operators will use their aerial capabilities to deliver some other value — to collect hard-to-get data or carry a payload to an out of the way location. They are designed to carry equipment and are commonly equipped to conduct almost constant surveillance using video and infrared cameras, heat sensors, and radar. Some have super-high resolution cameras, facial recognition technology, and the capacity to intercept mobile-phone and Wi-Fi networks.

The industry and the FAA have been vocal about the many potential applications of UAS in the civil sector. UAS manufacturers point to the diverse ways public entities have already employed the technology. Although it originated as a means of supporting military and security operations, UAS technology is now used for border surveillance, law enforcement, scientific research, and environmental monitoring. In a 2010 UAS Fact Sheet, the FAA listed possible civil uses from farming to commercial photography, and breathlessly declared that unmanned aircraft systems “may increase efficiency, save money, enhance safety, and even save lives.”

Obvious commercial applications include advertising, communications, and broadcasting. The FCC has proposed using UAS as emergency cell phone “towers,” flying them into disaster areas to provide mobile phone reception. These applications are in many ways the most unsettling, because they reveal the ease with which UAS operators might collect personal information. A cell-phone drone could just as easily intercept mobile communications as enable them. Advertising increasingly relies on personal data metrics to serve up information specially tailored to individuals’ interests. Is it beyond belief that the tracking and facial recognition capabilities of sUAS might be used to, say, send signals to electronic billboards as you walk past them so that they display messages relevant to your tastes? If sUAS become as cheap and common as Congress hopes, it might be no trouble at all to throw some drones into the air — each one capable of tracking up to 65 individuals — to gather data about their habits and provide them with personalized advertising.

Even UAS employed for less worrisome purposes pose a threat to privacy, since any UAS that flies around scraping up data indiscriminately could pick up something incriminating about you. Would the government have access to the records of a local UAS operator? Would law enforcement need a warrant to go through such records — records that could include visual data they wouldn’t otherwise be able to access?

It isn’t the law that is struggling to catch up to drone technology; it’s us. Like it or not, the NextGen computerized autonomous national airspace is coming. It’s not a joke, and it’s not science fiction. Coming to terms with that is important. Disbelief won’t help at this point. The coming shift in our national airspace will push our boundaries. We’ll be able to mount legal challenges against particularly egregious uses of the technology — it’s unlikely that the sheriff of Montgomery County, Texas, will get much mileage out of his wet dream of a remote-controlled aircraft armed with tear gas and rubber bullets — but we won’t be able to imagine every permutation this technology will take. This is going to be some Minority Report–level shit.

Amid all the unknown unknowns on domestic drones, one thing is for sure: The sky is about to get super weird.