In late 2013, the Federal Aviation Administration (FAA) announced six test site locations for the future development of unmanned aerial vehicle technology, often referred to as drones. The state of Nevada was one of them, in addition to entities in New York, North Dakota, Texas, Virginia, and Alaska. The FAA is seeking advancements in sense-and-avoid technology, system safety and data gathering, control station layout and certification, among many others.
For Nevada, this offers the potential for economic stimulus. The unmanned autonomous systems (UAS) industry is projected to reach $11 billion a year, with some 70,000 jobs tied to it, nationally. However, legal implications for the public and private use of the technology has become a growing concern.
About six months prior to the FAA announcement, the UNLV William S. Boyd School of Law created the UAS Law and Privacy Task Force. The group includes Boyd professors whose areas of expertise could be impacted by UAV development and further deployment: Ian Bartrum, Christopher Blakesley, Leslie Griffin, Thomas McAffee, and Rebecca Scharf. The group has spent the past year researching potential legal challenges in the UAV world - and there are plenty of them.
Venturing Into the Unknown
UASs raise numerous constitutional and statutory questions when used by the government, private entities, or private firms contracted by the government.
Bartrum raises the concerns that constitutional laws do not apply to private companies developing UASs under research contracts. The private entity may not be legally bound by some areas of the law and could have access to private, sensitive information that is intended for government-only use. This scenario, Bartrum adds, is only the tip of the iceberg. The group found many areas where current laws could be compromised or brought into question, including the Third, Fourth and Fifth Amendments as well as criminal, tort, employment, privacy, and even property law, among others.
"You can make these things yourself fairly cheaply and start flying a remote helicopter with a camera on it pretty quickly," he said. "There's a lot of work being done on the engineering side. But we wanted to make sure that part of the process involved some of these legal concerns."
Panel members have also met with UNLV's Howard R. Hughes College of Engineering program leaders. The college now offers a minor in unmanned aircraft systems program. It includes a law class to help future engineers understand the legal issues of the technology they develop.
McAffee, who teaches criminal procedure at Boyd, is concerned about Fourth Amendment privacy impacts. He points to regulations like the open fields doctrine and leniency applied to searches and seizures in drug cases through the years as examples of allowing trespassing activity for a perceived good cause. Applying that practice to drones can be dangerous, he said.
"It just seems to me that we've not done extremely well in terms of the scope of privacy interests," he said. "The court can be extremely permissive. ... The Fourth Amendment should offer some protection, but it doesn't because of what the court has afforded."
Blakesely, who also teaches privacy law classes, said the task force was assembled to think through legal scenarios and share these insights with the state and rest of the university. A memo the group crafted, detailing various potential legal concerns, was shared with the governor's office, state agencies, and others in the state.
"We're just putting this information out there to establish the law school's position and to signal the legal issues," he said. "My instinct is that most people don't understand the complexity of the issues and the breadth of the potential difficulties."