Drones – taking off or staying grounded?

While excitement grows in anticipation of potential mass adoption of drones, the industry has to overcome hurdles in the form of regulation

Consumer and commercial operators unveiled a panoply of unmanned flying devices at the CES conference in Las Vegas in January. From advanced parcel carriers to machines designed to fit in the palm of your hand, drones took centre stage.

Remotely piloted aviation systems (RPAS), or drones, open up the skies like never before, enabling businesses to profit from inexpensive and easy-to-use technology to make their operations more efficient. But while excitement grows in anticipation of potential mass adoption of drones, the industry has to overcome hurdles in the form of regulation.

Journalists were early adopters of drones. RPAS enable them to capture unfolding political or environmental events from a position of safety, delivering an objective perspective never seen before. Most drones are therefore now fitted with high-resolution cameras and other pieces of sophisticated data-capture equipment, allowing them to collect a huge amount of personal visual data.

Naturally, this has led to serious concerns that individual privacy will be jeopardised. Yet EU regulators have not yet considered this privacy issue to be worthy of new legislation. In October 2014, a large number of the representative National Ministers for Transport and Infrastructure expressed the view that existing data privacy laws were sufficient, with the Data Protection Supervisor confirming that RPAS have to obey the existing European data protection framework. 

Journalists, for instance, may not publish in the media any personal data collected through a drone, unless it is directly in the public interest.

National security

The matter becomes more urgent when discussing questions of national security. When does an unidentified flying device become a terrorist threat? Given the current tense political climate, there are growing calls to regulate and monitor the use and users of drones to minimise the risk of criminal or terrorist activity. 

Eyebrows were raised last year when mysterious objects were spotted hovering above French nuclear power plants. Neither the offending drones nor their pilots could be identified.

Regulators currently see the most viable option to be the introduction of an air traffic management system for smaller craft, monitoring all 4D trajectories. Although challenging to manage, this would force both manufacturers and individual users to adhere to incoming legislation, and would pave the way for the identical treatment of manned and unmanned vehicles.  

Personal safety

Regulators also realise the need to make drones safe to use, both for pilots and the general public. This safety-first approach means that drones will soon be forced to exhibit an equivalent level of safety to manned aviation operations through internationally adopted rules.

Nevertheless, this will always be challenging to implement. Some have suggested that traditional airworthiness certifications and pilot licensing should be complemented by forms of light-touch regulation and, in some cases, the mere identification of civil drone operators could be sufficient. 

Whatever happens, it will provide food for thought both for manufacturers and prospective users, because they will be required to know how, and to what extent, they are liable for the use of their products.

State of play

So what is the current state of play? Drone regulation remains governed by the restrictive aircraft regulation of individual EU member states. About 10 states have introduced limited regulation enabling the use of commercial drones, but flights must be conducted at an altitude below 100 metres, the drone must weigh less than 25kg and the operator must be in sight of the machine.  

However, the European Commission has now expressed its intention to develop common rules that should progressively replace national law from 2016 onwards, eventually allowing for more flexibility in commercial use and pan-European operations.

But there remain concerns that technological advances will progress at a faster pace than the regulators. It is vital that this does not happen, from the standpoint of both business development and international security.

Christoph Wagner is a partner at Morrison & Foerster and co-chair of the firm’s global media group

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