Drone: Legal Issues to Consider for Legislation

 

Abstract

Drones are radio-controlled unmanned flights, vary in size and weight. In South Korea, a drone is regulated as the name of “Ultra-light plane” by Aviation act. In fact, a drone is the result of high technology that could be used for a variety of reasons and South Korea is encouraging drone-using business in these days. However, a drone has caused serious legal issues that regulations of South Korea are yet to prevent. Since the country is in the initial step of legislating restriction of drones, analyzing crucial legal issues and planning for regulations by referring to foreign legislation cases are required for its proper use. The 3 representative legal issues are i)risk of safety such as drone crash and drone strike, ii) infringement of privacy and iii) trespassing land property. For preventing dangers by drone crash or drone strike, legislators could consider mandatory registration of all drones and get drones to fly in the line of sight of its manipulators. Also, for civil privacy, Korean Government should consider seriously of bringing warrant for surveillance drone to not be a Big Brother. Furthermore, the regulation should restrain the all-time operation of drone sensor that has a high possibility of privacy infringement. Finally, the right of sky space of landowner should not be concerned over the right of drone flyer since the Korean Civil Code does not specify its range and the Aviation Act regulate proper flight altitude.

I. Introduction

 In the 5th Ministerial Meeting on the Regulatory Reform on May 18^th, Ministry of Land Infrastructure and Transport decided to deregulate current regulations about using drones: Ministry allowed to expand the range of business sectors using drones from existing four sectors (astronomical observation, agriculture sector, filming and pilot instruction) to all sectors and lightened the financial burden by lowering capitals required by law to start a business with a drone.[1] However, South Korea is not the only country that encourages drone-using businesses. In fact, a drone is a high-tech machinery that can serve a variety of purposes. For instance, this flying artificial intelligence (AI) can not only be a popular pastime as a flying camera but also be applied in agricultural sector, military operations, safety observation, and transportation. Thus, a large number of countries in the world promote the study of utilizing drones and making a profit out of them. On the other hand, as new technology always does, a drone has caused serious legal issues that regulations of South Korea have yet to prevent since the regulations are still in their initial stage. Therefore, analyzing crucial legal issues and planning for regulations by referring to foreign legislation cases are required to use this high-end technology properly.

 II. Definition of Drone

Drones are radio-controlled unmanned flights, varying in size and weight from 25g to 1200kg. A camera, sensor, and communication systems are usually attached for certain aim. In South Korea, a drone is regulated in the name of an “Ultra-light plane” by the Aviation act. In the Columbia Science and Technology Law Review, Timothy T. Takahashi explains the definition of the novel unmanned flight with its brief history in his article “Drone and Privacy”[2]

The word “drone” initially referred to large, radio-controlled, remotely piloted military aircraft. Unmanned aerial vehicles (UAV’s), such as the Global Hawk or Predator and Reaper, have seen considerable use overseas in the run-up to–and the aftermath of–the Second Gulf War. First generation drones carried only surveillance electronics; they were used solely for reconnaissance missions. Later generation drones were adapted to perform “hunter/killer” missions; they carry both surveillance electronics and weapons.

Today, media reports use the word “drone” to refer to all sorts and sizes of radio controlled, remotely piloted, semi-autonomous or fully autonomous aircraft, including hobbyist, radio controlled airplanes.

III. Legal Issues in Drone Usage

1. Safety Risks

(1) Examples and Cases of Safety Problems

1) Drone Strike

A drone strike, like a bird strike, is an ingestion of a drone into a jet engine or a collision between a drone and an aircraft. The strike not only gives negative impact on an airplane but it might also cause a serious fire that leads to aircraft explosion. In 2014, more than 80 cases of near misses took place in the UK including 12 cases of serious risk of a strike. Also, the U.S. Federal Aviation Administration announced that there were 583 near misses between drones and airplanes, and the number is three times larger than that of 2014.[3] Even though Ministry of Land Infrastructure and Transport has yet reported any near-miss cases of drone strike in South Korea, having proper measures to prevent dangers is still needed since drone sales increase as cost falls.

2) Drone Crash

If a flying drone falls on the ground, two results might occur; a crash with another object including human being and drone explosion. Though manipulation of drones is not difficult even for novice users, the danger of crash always exists because drones keep their balance by wind[4]. For instance, a drone used as a flying camera had crashed into Himeji Castle, which is a UNESCO World Heritage site and made scratches by its rotor blades in the window frame[5]. More serious results would have occurred if it had crashed with people.

(2) Points of Legislation

In fact, new technology has been developing to secure safe flying of drones; sending jam signals when near miss is expected and impeding AI into drone which sensors the obstacles[6]. However these new technologies are not cure-all and safety regulations are still required for preventing danger. Since taking precautions is much more important than post treatment, legislators in South Korea need to find measures that would effectively curb drone strike or drone crash accidents. Moreover, legislators should consider who would be responsible for the damage or loss by drone accidents.

2. Privacy Infringement

Privacy issue occurs both by civilian drones and the drones used for a governmental purpose. Since the former one gather information for owner’s hobby and the latter one record it for surveillance, every citizen is exposed to the threat of being taken unwanted pictures, images, and videos without consent. Although Personal Information Protection Act and Constitution of Republic of Korea (Article 17) prohibit the invasion of privacy, a room for differing interpretations and institutional inertia hinder thorough protection of privacy. In other words, when a drone is used for a purpose of “searching,” as stated in Article 12 of Constitution of South Korea, requiring a warrant by a judge might be one of the solutions. Furthermore, for surveillance drones, a standard to decide whether the images are simple snapshots or the result of persistent surveillance is needed since the former one is not considered as a privacy issue[7]. Also, as South Korean law limits right to civil privacy for certain reasons, the specific grounds of restrictions and the permissible range of government’s action should be discussed. In this context, stretching or even revising existing laws for drone cases also merits consideration.

3. Right to property

When a drone flies, land ownership infringement might happen since land ownership includes the underground part and sky space as well. Yet, no civil code in South Korea defines the height and range of sky space that landowner would have, thus the legislator should refer to the precedent decisions of German court to prevent property disputes by flying UAVs.

IV. Proposal for Course of Legislation on Drone-Usage in South Korea

1. Legal Solution for Safety Issue

Aviation Act of South Korea states penalties for misusing ultra-light planes, such as “Using Aircraft without Certification of Airworthiness” or “Causing Danger by Negligence in Aviation” (Chapter X. Penalty Provision).[8] However, regulation for danger prevention needs to be implemented. First of all, all drone users must register their vehicles by law. Until now, a civilian drone that weighs less than 12kg need not be registered unless it is used for a commercial purpose, but legislators should be reminded that 12kg is enough to make such dangerous crash and a novice user who flies a drone for a hobby is more likely to cause an accident than a professional flyer with proper education and governmental registration. Also, hit-and-run by drones could be prevented by mandatory registration. Thus, legislators need to consult the case of the U.S. which is one of the few countries that requires mandatory registration at a cost of $5 because irresponsible operators will continue to pose a serious threat to aviation.[9] Also, they should keep in mind that the Transportation Security Administration of the US has enforced mandatory background checks to pick out dangerous users and require all drone users to be at least 16 years old and have pilot certificates to avoid security risk. Secondly, the latest regulation proposal by Federal Aviation Administration(FAA) is noticeable since it requires drones to fly in the “line of sight” of drone owner (manipulator), or at least who could monitor and communicate immediately with a manipulator.[10] Furthermore, the proposal suggests the drone to be at least 8km away from the airport. If the flight must be in the line of sights, it would restrict commercial use of a drone but it could surely decrease such drone crash as well.

2. Legal Solution for Privacy issues

(1) Examples of cases in the USA

Legal experts in the U.S have raised concerns over privacy infringement, especially by surveillance drones ran by the government they may eventually play a role as Big Brother Julie Cohen at the Georgetown Law School argues:

“Persistent surveillance—whether through monitoring internet browsing habits or from a drone overhead—undermines the formation of liberal individuals in the way that an over-reliance on GPS undermines the formation of a sense of direction. This is because pervasive surveillance tends to shape the actions, thoughts, and personalities of those being observed. Such changes happen gradually”[11]

 

Citizens of the U.S could declare their privacy against surveillance drones by The Fourth Amendment (Article 1. Section 7) which states that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[12] Thus, legal experts argue that public actors using surveillance drones require warrants as drones are capable of amassing amounts of data such as images of people and vehicles from high altitudes, text messages, and cell phone conversations by equipping live-feed video, infrared cameras, heat sensors, and radar.[13] Likewise, over 20 states of the U.S. have passed a bill that requires a warrant by the judge for drones used for information gathering.

However, a public actor may argue that the use of a drone is not a “search” in the Constitution as the actor did not trespass on constitutionally protected areas or the place where individuals have an “expectation of privacy”. Furthermore, a public patrol could claim that the inspection “that involves merely looking at what is already exposed to view … is not a ‘search’ for Fourth Amendment principles, and therefore does not even require the police to have reasonable suspicion.”[14] For instance, in the case of Florida v. Riley, when police failed to look into a greenhouse over a tall fence, they flew over the backyard at a height of 400 feet and saw marijuana plants growing through a crack in the greenhouse roof.[15] The Court did not consider this a search for which a warrant was required, and remarked that this helicopter surveillance did not violate the Fourth Amendment.[16] Therefore, several legal experts are saying that the case undermines the right of privacy and defining a concrete concept and range of “expectation of privacy” is important to guard the privacy of individuals by surveillance drones.

(2) Legislative Proposal for South Korea 

In the Aviation Act, South Korean government regulates the information gathering by Personal Information Protection Act(PIPT) (Article 23-4).[17] Currently, the PIPT penalizes a person who “reveals personal information that comes to his/her knowledge in the course of business or provides any third person with such information without due authority and a person who knowingly receives personal information for profit or unjust purposes”[18] and it also restricts the places where the information gathering tools could be installed. In the near future, when technology allows a drone to have a switchgear inside the sensor, the law should ban the sensor operation (e.g.audio, video, and image capturing) before the drone finds the target, so it does not record sensitive personal information which has no relation with the target information.

The Constitution of South Korea states in Article 12 that “no person shall be searched or interrogated except as provided by Act and warrants issued by a judge through due procedures upon the request of a prosecutor shall be presented in case of search.”[19] Therefore, as in the case of the U.S, the government could argue that some cases of surveillance drones need not have a warrant because it was not for “search”. Moreover, until now, there has been no such discussion of warrant requirement when a surveillance drone is used, so it could cause an infringement of constitutional rights in the near future. Recently, a civic organization has filed a constitutional appeal for governmental information gathering from mobile carriers without warrants.[20] Therefore, warrant requirement of drone shall be discussed after the Constitutional Court renders a decision on the appeal as the two issues could be categorized as the same topic.

Finally, Samuel Anthony Alito, an Associate Justice of the Supreme Court of the United States presented that society members usually think that “long-term monitoring impinges on expectations of privacy unlike relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable[21]”. As a result, lawmakers should consider in which range the public would consider reasonable to be watched and must ban the government from monitoring individuals beyond their tolerance limit.

3. Legal Suggestion for Property Rights

Rechtsanwalt Christian Solmecke, A German IT lawyer claims that, as interpreted from BGB (The German Civil Code):

“Flying over another person’s private property with a civilian drone does not infringe the property owner’s right to property and property owners cannot prevent external influences on the property, unless they have an interest in doing so, and property owner should tolerate the use of the air space above the property without receiving compensation”[22]

 

On the other hand, Senator Ralph Shortey in Oklahoma City proposed a bill that allows Oklahomans to shoot down drones if they fly above one’s property even without facing civil liability for causing damages.

In Enforcement Regulation of Aviation Act, drones have a low ceiling of 150m, which is much lower than that of conventional flights.[23] Also, if legislators try to have drones in the line of eyesight, the altitude limit could be lower in the future. However, the low ceiling of 150m, which is higher than the flight altitude of the U.S and the U.K., seems appropriate for ultra-light drones which cause much little noise and less damage in case of accident than other kinds of aviation. Furthermore, since the Civil Code of South Korea does not contain any express provisions on the scope of a landowner’s air rights, there is no reason to place the right of a landowner before those of a drone flyer unless the landowner has a special interest in the sky space over 150m or civilian drones are flown so regularly as to be considered as a trespass of his or her property.[24]

V. Conclusion

Even though only three legal issues, i)risk of safety such as drone crash and drone strike, ii) infringement of privacy and iii) trespassing land property are discussed in the article, a drone might cause other legal issues as it could be used for a variety of purposes. Thus, as deregulating restrictions of using drones, government and legislators should also devise preventive measures of legal problems that drones could have. Proper measures for proper use of a drone would bring sound development of technology and economy in South Korea.

 

 

[1] Drone, Unmanned Car…Breaking Down the Legal Barriers for New Technology, NewsDonga, (May 19, 2016), http://news.donga.com/3/all/20160518/78175975/1 (last visited July 2016)

[2] Timothy T. Takahashi, Ph.D. Drone and Privacy, Colum. Sci. & Tech. L. Rev. 72(Columbia Science and Technology Law Review) (March 2013)

[3] Geoffrey Thomas, Tragic drone strike with plane ‘inevitable’ CNNnews, (April 18, 2016), http://edition.cnn.com/2016/04/18/opinions/drones-planes-accidents/ (last visited July 2016)

[4] Drone the Multi-Player, Who has Responsibility for accident?, Korea It Times (June 21, 2016)

[5] Businessman claims responsibility for drone crash at Himeji Castle, The Japan Times (Sep 20, 2015) http://www.japantimes.co.jp/news/2015/09/20/national/drone-crashes-roof-himeji-castle-national-treasure/#.V4iqW97r2A_ (last visited July 2016)

[6] Drone having Obstacle Sensor and Altitude Adjustment Operator, Chosunbiz (June 27, 2016) http://biz.chosun.com/site/data/html_dir/2016/06/27/2016062700010.html (last visited July 2016)

[7] A looming threat The Economist (Mar 19, 2015)

http://www.economist.com/blogs/democracyinamerica (last visited July 2016)

[8] Aviation Act

[9] Geoffrey Thomas, Tragic drone strike with plane ‘inevitable’ CNNnews (April 18, 2016) http://edition.cnn.com/2016/04/18/opinions/drones-planes-accidents/ (last visited July 2016)

[10] https://www.faa.gov/uas/getting_started/fly_for_work_business/ (last visited July 2016)

[11] A looming threat, The Economist (Mar 19, 2015), http://www.economist.com/blogs/democracyinamerica (last visited July 2016)

[12] Timothy T. Takahashi, Ph.D, Drone and Privacy, Colum. Sci. & Tech. L. Rev. 72(Columbia Science and Technology Law Review) (March 2013)

[13] Domestic Drones: Technical and Policy, University of Washington Technology and Public Policy Clinic, (2013)

[14] Arizona v. Hicks, 480 U.S. 328 (1987).

[15] Florida v. Riley, 488 U.S. 445 (1989)

[16] Domestic Drones: Technical and Policy, University of Washington Technology and Public Policy Clinic, (2013)

[17] Aviation Act

[18] Personal Information Protection Act, Article 71

[19] The Constitution of South Korea, Article 12

[20] A Civic Organization claimed that Information Aggregation without Warrant violates Constitution, YTNnews, (May 18, 2016), http://www.ytn.co.kr/_ln/0103_201605181224353086 (last visited July 2016)

[21] United States v. Jones, 132 S. Ct. 945, 961 (2012)

[22] Rechtsanwalt Christian Solmecke, Civilian drones and the legal issues surrounding their use, Wilde Beuger Solmecke, (18. Feb 2014), https://www.wbs-law.de/internetrecht/civilian-drones-legal-issues-surrounding-use-50459/ (last visited July 2016)

[23] Enforcement Regulation of Aviation Act (Article 68)

[24] Rechtsanwalt Christian Solmecke, Civilian drones and the legal issues surrounding their use, Wilde Beuger Solmecke, (18. Feb 2014), https://www.wbs-law.de/internetrecht/civilian-drones-legal-issues-surrounding-use-50459/ (last visited July 2016)

 

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