Construction Law Bulletin: Drone On But Consider the Risks
Heather M. Hawkins
It’s a bird … It’s a plane … No, it’s a drone. Chances are good that during the past year you’ve seen a drone flying in the sky, heard a story about rogue drones flying over the Super Bowl or watched entertaining videos on YouTube that are cautionary tales about what can go wrong when you fly a drone. But, what are drones and why are they important in construction?
Drones, or unmanned aerial vehicles (UAVs), are unpiloted or remotely piloted aircraft. They can weigh as little as a few ounces or as much as hundreds of pounds and some have the ability to accelerate to 60 mph in less than a second or launch into space. The appearance and use of drones has exploded around the world. In 2016, the Federal Aviation Administration (FAA) database had 461,433 registered drones in the United States. Today, there are over 1.3 million registered drones, in addition to hundreds of thousands of drones estimated as unregistered, and 116,000 registered drone operators.
Drone use is considered commercial, as opposed to personal or hobby, if the owner or operator of the drone intends to make money from the use of the drone or the drone is utilized in an operation that generates money. Commercial uses of drones include photography, videography, agriculture and weather forecasting. Companies like Amazon, UPS and Google are piloting programs for remote delivery in the United States and overseas. Drones are also used in military operations dating back to World War I, in law enforcement for surveillance and by NASA.
The 2017 Drone Market Sector Report found that construction (including design, building inspection and monitoring) was in the top three uses for commercial drone-based services, behind aerial photography, surveying and mapping and geographic information systems (GIS). Drones are changing how the construction industry operates in various stages of preconstruction and construction and after construction for marketing purposes or in legal disputes. Owners, developers, architects, engineers, construction managers and contractors are outsourcing drones from service providers or creating and using in-house resources to implement drones on their projects.
Before we look at the legal risks, what are the potential uses and benefits for drones in construction? Well, the possibilities are endless. Drones can access hard to reach areas such as roofs on high rises, tunnels and bridges. A drone can hover for long periods of time for in-depth analysis and viewing, while reducing the space and necessary equipment, like cranes, that you need to view a site or specific area. Drones also provide the ability to document site conditions and provide remote updates, supplement progress reports or substitute for on-site inspections. Drones are also used to increase safety on a project site – you can send a drone where you don’t want to send a human, monitor performance and site conditions and handle hazardous materials.
Drones are also used for data gathering. Using a drone for 3D mapping and surveying has the potential to provide more accurate measurements and information, which results in well-informed estimates and decisions before you bid or enter into a contract. Thermal imaging and other sensors installed on drones can detect faulty installation, moisture or hotspots.
The upsides of cost savings (in the form of equipment or man hours), efficiency (faster and real-time data gathering) and marketing (using images and videos to promote your services and projects) make drone use in construction incredibly appealing. However, with reward comes risk, and it is important that you consider the legal side to integrating drones into your operations.
The most important legal consideration for drone use is compliance with federal, state and local laws. The federal regulatory framework is rapidly evolving to catch up with the use of commercial drones. In 2016, the FAA promulgated the US Commercial Drone Operation Rules, Small Unmanned Aircraft Regulations -Part 107, which governs the use of drones weighing less than 55 pounds in commercial operations. Part 107 requires an Airworthiness Certificate for the drone itself and a Remote Pilot Airman Certificate for drone operators.
There are significant limitations placed on the operation of commercial drones. Drones are prohibited from flying over people who are not involved in the drone operation or under a covered structure. The drone must be operated in the visual line of sight of the remote pilot and only during daylight or civil twilight (30 minutes after sunrise and before sunset). Certain airspace is restricted, including the vicinity of airports and public events, as well as altitude (400 feet maximum over the ground or structure) and speed restrictions (100 mph). More regulation on the federal level is certainly coming, and there are proposals to modify the current restrictions on commercial drones to facilitate their widespread operation. If you are using a drone on a project, it is critical that you stay up-to-date on the FAA regulations and obtain the appropriate certifications for operation.
The majority of states have laws governing drones, and many are evaluating increased or new legislation. State and local laws range from simply requiring compliance with the FAA regulations to carrying insurance on commercial drones to further restrictions on when and where you can operate a drone. You should always check your specific state and local laws, and for any temporary no-fly zones near public events, to ensure compliance.
In addition to the ever-changing regulatory and statutory framework governing drones, there are other legal considerations. For example, personal injury and property damage are obvious risks that could lead to legal action. While you can never eliminate these risks (just Google “drone accidents”), proper operation and certification of your drone will minimize the risks and potential legal exposure if your drone goes awry.
While the FAA’s regulations do not address privacy, it is currently one of the most litigated areas for drone use. Some states specifically regulate (and criminalize) the use of drones to capture images of persons or private properties. But even if you are operating a drone in a state without such regulations, at a minimum, state laws and common law addressing rights to privacy will apply. Generally, you may not capture and use images of people or private property without written permission. It is important that you know where you are flying your drone, have permission to record people or property you do not own and have permission to use the images you capture if you do not have the rights to the subjects.
Property rights and trespass are another area of law to consider. There is a “no man’s land” of airspace above land and structures and below federally regulated airspace for aircraft. Trespass laws that historically applied to physical entry onto ground or structures are now morphing to include “aerial trespass” relating to drone operation. Again, if you are using a drone, know the property you are flying over and if you are flying over property you do not own or control, get permission in advance to reduce the risk of exposure to trespass claims.
There are countless other laws that could apply to drones. The Occupational Safety and Health Administration (OSHA) laws and regulations governing workplace safety, while not specifically mentioning drones, should be considered as they would be on any job site operation. Similarly, federal and state laws on recording employees in the workplace may apply. Trade secret and intellectual property rights are also implicated if you are capturing images or data to which you do not have property or licensing rights.
Newly adopted drone laws and the application of current laws to drone use are areas of concern. Regulation of drones will continue to increase with their expansion and integration into our daily lives and projects. The bottom line – comply with federal, state and local regulations and laws, get permission, consider the rules that already govern your site, and then, drone on.
 Note that other FAA aircraft regulations govern drones over this weight limit.
Heather M. Hawkins, a partner at Taft, focuses her practice on business and construction litigation, as well as securities and shareholder litigation. She has represented developers, general contractors, geotechnical engineering companies, investors and public companies, national retailers, automobile manufacturers and international manufacturers and distributors. To learn more, click here.