November 8, 2013

With a New FAA "Roadmap," Drones May Soon Land in Indian Country

Holland & Knight Alert
Philip Baker-Shenk

This week, the Federal Aviation Administration (FAA) released its first detailed plan for commercial use of drones in the United States. This could mean that relatively inexpensive aerial tools may become available in the next few years to aid tribal governments in fulfilling their responsibilities for public safety and resource management.

On November 7, 2013, the FAA released what it calls a "roadmap" for integrating "UAS" (unmanned aerial system) drones into the national air space. It addresses the federal government's goals over the next decades for the development of policies, regulations, research and development, and certification, all geared toward the safe integration of UAS. It describes the establishment of six test sites, in locations to be chosen over the next few months, reflecting a diversity of climate, geography and ground infrastructure.

Privacy Considerations

The roadmap does not directly address the privacy issues cited by many members of Congress as a key concern. Instead, it reports that "although the FAA’s mission does not include developing or enforcing policies pertaining to privacy or civil liberties," the test site operators will be required to establish privacy policies governing their tests. The roadmap states that the record of the tests performed under those policies "will help inform the dialogue among policymakers, privacy advocates, and the industry regarding broader questions concerning the use of" UAS in national air space.

While the FAA appears to focus on safety and operations issues, and defers privacy concerns, at least for now, the release of the roadmap is a significant step toward opening the skies up to a wide variety of uses for UAS.

The FAA will only approve UAS operations by issuing special airworthiness certificates for experimental research and development, training and flight demonstrations, or certificates of authorization or waiver for public aircraft. Tribal operations may encounter some difficulty qualifying for approval under these authorities.

FAA guidance allows UAS to be flown for recreational/non-business purposes as long as the drone is kept below 400 feet and flown a sufficient distance from populated areas, airports and manned aircraft.

The FAA released the roadmap pursuant to Congress' passage in 2012 of the FAA Modernization and Reform Act. The law requires the FAA to begin preliminary planning to integrate UAS into the national airspace. In the aftermath, members of Congress, industry and privacy advocates have publicly weighed in on safety and privacy issues.

Support for Critical Services

UAS platforms hold the potential to open up new opportunities for crucial tribal government services best provided with aerial support. From wildlife and crop and species management, to public health and safety response, to trespass deterrence involving poachers and artifact thieves, to search and rescue operations, to emergency and disaster mitigation — UAS photography can help bring more accurate, useful and responsive public safety and property management information to tribal governments at a lower cost. 

Tribal governments need a seat at the table as the U.S. Congress and federal regulators examine privacy and safety concerns in regulating domestic drone use. UAS technology provides a safe, non-intrusive, lower-cost means for tribal governments to obtain important information they need to govern more effectively. Like all other governments, tribes should have access to the best tools available to carry out tribal self-governance.

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