A Legal Moment

It's a Bird, It's a Plane!
No, It's a UAS!

     Drones are an increasing feature of our governmental, commercial, and personal Landscape -- and Lawmakers are scrambling to keep up.

   It has been estimated that an average person walking, working and driving in a medium-sized city in the United States is captured on video 100 times a day. Until recently, these cameras were in fixed, visible locations such as banks, government offices, police vehicles, at stop lights, in parking garages, and in people’s hands.  You can locate the camera, their owner and their apparent use.  But now mobile cameras, flown overhead by unknown entities with unknown intentions, are becoming more prevalent.

   Commonly called “drones,” but technically defined as "Unmanned Aircraft Systems” (UAS), these flying machines were initially designed for military reconnaissance purposes. As the technology has advanced and hardware and software costs fall, civilian day-to-day uses of drones are developing rapidly.

     Private and government drone activity has caused, and continues to cause public outcry over potential violations of privacy rights, claims of trespass, or unauthorized commercial exploitation of activities or property captured surreptitiously by drone-based video.  Some have advocated the right to shoot down a UAS over their private airspace.  This is illegal. It is a federal felony to shoot at an aircraft, model, unmanned or commercial.            

     So what are the rules?  As it happens, the rules for legal use of UAS, recreational or commercial, have been in limbo for a number of years, and continue to be in limbo thanks in part to delays by the Federal Aviation Administration (FAA) in enacting regulations covering drones.
Pending Federal Law

     Forecasting that drones would have an increasing presence in our skies, in 2012 Congress passed the “FAA Modernization and Reform Act,” which tasked the FAA with integrating drone flight into the National Airspace System (NAS). The Act specifies that the FAA must have their rules and procedures in place by September 2015.

     Pursuant to the Act, on February 15, 2015, the FAA issued proposed rules that would impose certain requirements for operation of drones:

•    The drone must weigh less than 55 pounds, fly not faster than 100 mph, nor higher than 500 feet;

•    Drone flights can only occur during standard daylight hours and within visual sight;

•    The pilot of the drone must be at least 17 years and have passed an FAA knowledge test; and
•    The drone must be registered with the FAA.  (An airworthiness certification is not required.)

     The FAA also indicates that it is considering issuing separate regulations for drones weighing less than 4.4 pounds.  The final FAA rule is due out this September.  The proposed FAA rules seem primarily focused on regulating flight in federally controlled airspace rather than addressing the manner and intention of recreational and commercial use.

New North Carolina Law

     In the absence of final FAA rules, in 2014 North Carolina enacted a law (SB 744) imposing regulations on the public, private and commercial use of drones.  

     SB 744 allows law enforcement to use drones – pursuant to a warrant – to counter an act of terrorism, to oversee public gatherings, or to gather information in a public space.

     It also authorizes infrared and thermal imaging technology for certain commercial and private purposes including the evaluation of crops, mapping, scientific research and forest management.

    Under the law, all agents of the state who operate drones must pass a knowledge and skills test developed by North Carolina’s Division of Aviation.

     In addition, SB 744 creates several new crimes.  It is now against North Carolina law to use a drone to interfere with manned aircraft; to possess a drone with an attached weapon; to fish or hunt with a drone; to harass hunters or fisherman with a drone; to unlawfully distribute images obtained with a drone; and to operate a drone for commercial purposes without a license.

Privacy Provisions

    SB 744 makes it unlawful to take a photo or video of a person, without their consent, with the intent, or for the purpose, of distribution; it prohibits drone surveillance of a person or private property; and it provides a civil cause of action against persons who have violated another person's privacy.

     Because federal law generally preempts state law in matters involving airspace, it will be interesting to see how well North Carolina’s attempt to regulate drones will stand up in the face of FAA regulations when they are finally enacted.

    And of course drone technology will continue to advance.  Smaller, lighter, bumblebee-sized drones for private use are on the drafting table, if not yet in flight.  The manner and intent of their use will continue to test our theories of personal privacy, public access, freedom of the press and the limits of government surveillance.


Other Recent Articles
Clifford C. ("Kip") Marshall is a trial attorney with, and President of, Marshall, Roth & Gregory, PC.  Recognized as a "Best Lawyer" (Government Relations Practice) for the past five years, Kip's practice encompasses all forms of land and title litigation, commercial litigation and catastrophic injury.
To receive more information on this topic or to suggest topics for future editions of "A Legal Moment," feel free to contact Kip by email ( or telephone (828.281.2100).

Or visit our firm's website.

Other articles which may be of interest to you may be found in our Newsletter archives.

You may not rely on this content as legal advice for any specific situation, but should instead contact an attorney for specific advice.
Copyright © 2015 Marshall, Roth & Gregory, PC, All rights reserved.
Email Marketing Powered by MailChimp