This is the first part of a multi-article series on the subject of unmanned aerial systems (drones) and their impact on New York State, as well as the nation. In the coming days we will be covering additional data and information provided by the FAA, NYS Dept of Labor, US Dept of Transportation and other direct sources. This initial article will address the creation of drones, some of the larger arguments for and against domestic drone use, and several of the legislations (proposed and enacted thus far) that affect this new industry. This and future articles will not only look at the testing and proposed use of drones from a national viewpoint, but also as it relates to the Griffiss International Airport test site in Oneida County, NY
The birth of the modern unmanned aerial system (UAS), commonly called drones, can be traced back to 1849 in an attack on the city of Venice via unmanned balloons filled with explosives. What might be more direct a connection can be seen in the World War II with the combination of radio controlled aircraft and aerial torpedoes. The TDN-1 might be the closest version of a drone to the eyes of most Americans today. In the 1940 it was called an “assault drone”, and is considered the first American unmanned drone to launch off of an aircraft carrier. It had the ability to drop a 1000 pound bomb, but due to the complexity at the time was never used in combat.
In the Viet Nam War, some 3,400 unmanned aerial vehicles (UAV) were used for reconnaissance. It wasn’t until Israel used UAV in combination with manned aircraft in 1982 against Syria, and secured a victory, that the precursors to the modern UAV started to be developed in earnest. This lead to the creation of the Predator series of drones that are most recognizable today. The Predator was first used in 1995 in the Balkans, and in 1996 in Iraq. After 2001 they became common use in Afghanistan, through use today in multiple regions around the world.
But as well known as these drones may be, they are NOT the UAS that the FAA has been talking about creating regulations to control. Domestic drone use is confined to UAS that have more in common with radio controlled helicopters and planes, at least in how they look. But this industry in its infancy has been estimated to be able to generate $81 billion, create 100,000 jobs, all in 10 years. Based on the preliminary FAA rules released February 15, 2015, domestic drones will likely be less than 55 pounds in weight; limited to 100 miles a hour in flight speed; limited to the line of sight of the operator; and prohibited from being used to carry any object. The proposed FAA regulations also require a license to be issued by the FAA after a comprehensive test is taken.
The entire issue of domestic drone use came to a head when the FAA Modernization and Reform Act of 2012 was passed in February 2012. Within the Act there was the critical inclusion of Subtitle B Subsections 331-336. This section required the FAA and Department of Transportation to create a set of rules, licensing requirements, testing sites, and safety studies primarily within 180 days of the passage of the Act, with a deadline of September 30, 2015, to
“…develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”
Thus the modern era of domestic drones was born. Like all births, this was not to be an easy task. Prior to the FAA Reform Act of 2012 being passed by Congress, privacy advocacy organizations such as the ACLU were outraged by the concept of domestic drone use. Once the Act was passed, the lack of substance on the issue of privacy caused an open letter to be issued to the FAA requesting in part,
“The notice and comment rulemakings should take into consideration the use and retention of data acquired by drone operators; the relation between drone operation and property rights; the ability of an individual to obtain a restraining order against a drone vehicle; and use limitations on drone vehicles and requirements for enforcement of those limitations. In relation to the government use of drones, the rulemakings should also consider the application of the Privacy Act of 1974 to the information gathered by drone operators.”
Proponents of domestic drones, point to the benefits that drones may bring. Uses such as border control and patrol, emergency response – such as with fires or building collapses, commercial use, and enhanced law enforcement capability to protect and defend citizens from various threats and dangers. As for the privacy concerns, Ben Geilom of the Association for Unmanned Vehicle Systems International, said
“With any new technology, there will certainly be the ability to abuse that technology. But there are also safeguards that are already in place that can serve as the framework.”
A more academic argument for drones can be found in the article by M. Ryan Calo, Director for Privacy and Robotics, Center for Internet & Society at the Stanford Law Review
“Existing privacy law will not stand in its way. … Drones may help restore our mental model of a privacy violation. They could be just the visceral jolt society needs to drag privacy law into the twenty-first century.”
While these are the major arguments for and against civilian UAS, they are hardly the only ones. Still the reality is that drones have been in use for a long time, notably by the FBI since 2006. Sadly that use has been wholly unregulated, without any real restriction as FBI Director Robert Mueller demonstrated when he advised Congress in 2013 that the FBI still had yet to develop guidelines for the use of drones that had been operational for 7 years at that point. The requirement for FAA to have clear and well defined rules over domestic UAS can only serve to limit the potentially broad and undisclosed use of drones by the Government as is currently the case.
Of course the FAA, DoT, and various commercial and political concerns were not sitting idly by as three years passed before the first proposal of regulations and requirements were drafted. Especially on the political end. That’s where the Unmanned Systems Caucus (Drone Caucus) come into the picture.
As part of the Act of 2012, testing sites were to be created to evaluate the potential use, regulations, and commercial potential of domestic drones. The Drone Caucus, a coalition of members of Congress seeking to advance the use of domestic drones and secure testing sites in their respective districts and States, worked diligently to advance the cause. One example is Rep. Richard Hanna (one of 3 members of the Drone Caucus from New York State) who was directly involved in increasing the number of initial drone testing sites from 3 to 6. Rep. Hanna was also fervent in securing New York as one of the 6 test sites, as he said in March 2013,
“We certainly can push the point, to the extent that we are on the drone caucus and we have the ability to write letters and talk, and talk up our community.”
It should be noted that the Drone Caucus had 5 mission statements as its goals. None of those statements included efforts to protect 4th Amendment rights, nor create legislation that would define the use and/or limits of domestic UAS. In fact, at some point on or after November of 2014, the website for the Drone Caucus ceased to exist [unmannedsystemscaucus.mckeon.house.gov]. This was quite possibly due to the loss of Rep. Buck McKeon in the 2014 election (he chose not to seek re-election) and a failure of any other member of the Caucus to take on the responsibility of maintaining a public presence and allowing constituents to see the actions and goals of the Caucus.
Even though the Drone Caucus had dropped the ball on protecting the rights of the public and the 4th Amendment, other members of Congress had not. Senator Charles Grassley of Iowa, Rep. James Sensenbrenner (R-Wis), Rep. Joe L. Barton (R-TX), Rep. Edward J. Markey (D-MA) and even Sen. Charles Schumer of NY all took up the cause. Sen. Grassley noted on April 2013,
“… justices also have indicated that the length of time an individual is kept under surveillance and the breadth of data collected through such surveillance may inform a reviewing court whether a particular surveillance practice constitutes a Fourth Amendment search. These cases highlight how the Fourth Amendment applies to 21st century technology but, again, given the speed at which these technologies are evolving, Congress has a necessary role in addressing the use of these technologies.”
Aside from the political quagmire regarding UAS, several industry groups, comprised of universities, private business, government institutions and private citizens formed to address the quickly developing arena of domestic drones. One of those organizations was Northeast UAS Airspace Integration Research Alliance (NUAIR Alliance). NUAIR Alliance submitted a proposal for the Griffiss International Airport in Oneida County, NY in February 2013 stating,
“These test sites present enormous economic development opportunity, and are expected to create thousands of jobs and attract billions in investment for the states that win a designation,” stated Rob Simpson, President of CenterState CEO and Chairman of the NUAIR Alliance.”
A year later, February 2014, NUAIR sought funding from New York State. They stated at the time the amount of $1.2 million a year would be needed to operate for the next 2 years. Hopes were high that the 2014 summer would bring results from the FAA and that the pace of development could be advanced as planned. NUAIR projected that drone testing would bring in $145 million and 500 jobs to New York State – no timeframe on these figures was provided.
In August of 2014, the FAA declared that Griffiss International Airport would be one of the initial 6 drone testing sites in the U.S. The first client approved for test flights was Cornell Cooperative Extension, and was followed by 44 other test flights to date. Sen. Schumer stated on August 7, 2015 that he would push the FAA to “move as quickly as possible” as the potential for “thousands of jobs and millions of dollars in economic revenue” for the region was at stake (as opposed to his comments 4 days earlier in opposition to drone testing). In that same article Rep. Dan Maffei stated that some 2600 jobs and an “economic impact of $600 million by 2017” could be generated by the drone testing for New York and Massachusetts.
The privacy concerns of the drone testing can be seen in this document. As noted by the ACLU in December 2014, the document is the equivalent of the Texas privacy protections, which is not a compliment. When asked for comment about the privacy concerns related to UAS for this article, Larry Brinker Executive Director of NUAIR Alliance stated,
“There really isn’t a problem. The camera on a UAS is the same a camera on a plane or a person. Laws already exist for that. The same laws apply because the item is just a tool.” – 2/19/15
Mr. Brinker noted that this has not been a real issue in testing, as most tests on the site at the moment are involved with proof of concept or research and development. He also stated that President Obama’s memo on February 15, 2015 addressed many of the concerns of groups like the ACLU and resolves those concerns.
At this point, it is expected that the FAA will miss the September 2015 deadline created by the Act of 2012 for creating a final set of rules and regulations addressing unmanned aerial systems. To date, the Congress has yet to pass any legislation specifically intended to address domestic use of drones and protection of 4th Amendment rights. Politically, the question of domestic drone use has for the time being fallen from the radar of most politicians, pundits and news media.
In part 2 we will be looking at the financial costs, revenues, and job impact of UAS testing to date.