Drone regulation : compared case study under US and Swiss laws !
an article by Gabriel Avigdor
What is a drone and what does it do? Drones are those little guided quadcopters (also called FPV drones for ‘First Person View’) that we can find in the FNAC or in Xtreme sport videos on Youtube. They can be used for civil (private, commercial or humanitarian) or military purposes. We do not realize that they will invade our low sky and replace lots of current tools. As examples, drones can be used for:
- Delivery services for food or commercial and private mail: With its Prime Air program, Amazon announced an estimated time of delivery of max 30 minutes. The Swiss e-commerce company Qoqa has taken the lead on Swiss market of delivery by drones with a test phase for the first time in Switzerland called FlypaQ.
- Mapping and modelling like the Swiss company Pix4D with its mapping software that is able to create 3D modelling from 2D pictures.
- Fun and hobbies, like personal video recording, sport even and cinema. Autonomous drones used during sport activities are very popular as shown by the French start-up Hexo+. In Hollywood, the FAA authorized film producers to use drones for film shooting. Cameramen are being replaced by these drones to record scenes in the air or for car chase, which offers original angles of view. Skyfall, the Wolf of Wall Street or Harry Potter and the secret chamber contain scenes that have been shot via such drones.
- Observation, surveillance private or public, like locating or tracking people being pursued or surveillance of events by the police for Euro2016.
- For humanitarian or rescue purposes especially in area difficult to access or for sending food, medics, give logistics support when a natural disaster happens, etc.
- For military purposes, to attack specific targets, to defend, track or identify, spy or watch civil zones …
Ideas are not missing. From an economical point of view, there is a huge market growing up for the manufacturing, repair industry and for a bigger part software companies providing specialized software and mobile applications.
Disadvantages and risks. Potential often rhymes with risks. One can argue that not everyone owns a beautiful villa with a garden and a playground where the drone can land easily to deliver a new pair of shoes like in the sympathetic, but naive trailer of Prime Air drones of Amazon…How to deal with the lambda citizens living in buildings in the cities? Will there be landing points in the city to avoid a delivered package to be stolen? In addition, with 4K UHD cameras, video surveillance will cause problems related to privacy for individuals. The Swiss Federal Data Protection Commissioner (the Swiss Commissioner), published a note on this particular matter. Furthermore, as drones are either guided or autonomous flying vehicles with a certain weight, they may collide with flying objects (or animal) or with people on the ground. Liability issues will then occur as incident risks are real. This has already been demonstrated by the recent crash of a drone with a passenger aeroplane from the company British Airways just before landing at London Heathrow airport on April 18th, 2016. From a noice perspective, it would be easy to imagine that a sky overloaded with drones would cause damage to the environment as well as to the residents. Animal welfare organizations will likely mobilize for the cause. Even worse, one can imagine drones to be hijacked, hacked, but also used for terrorist purposes. Maybe there is here a threat that shall not be underestimated…
Future will tell us.
DRONE REGULATION IN THE USA – CASE STUDY
Producers of TV series are very creative to elaborate original and fun scenarios related to new technologies, especially when interpretation of the law remains uncertain. One of the latest episodes (S07e18) of the excellent TV show The Good Wife, created by Ridley Scott, is a story about a surveillance drone flying above a neighbourhood recording the area for potential crime that may be committed, which disturbs one of the residents. The litigation is divided in three acts like a case study for law students or cases for bar admission exam.
ACTE 1. The owner of the drone is a private organism that seeks to record acts of crime in the neighbourhood. The drone prototype flies several times a day and randomly over the houses, recording the streets and the houses, which means people that may be inside or outside their house. The fact is that on resident isn’t happy because, as a therapist, he practices at home and his patients are filmed from the air when they come for an appointment. The therapist takes legal action against the owner of the drone for violation of his private life, especially because the drone can film people that even appear through the windows of the house that have not given their consent. He also considers the drone responsible for a loss of patients and claim for compensation damages in an amount of USD 300,000 with a prohibition for the drone to fly again.
Arguments: The therapist alleges a violation of his private life based on the common law principle of “intrusion upon seclusion“, but loses the trial. Under first amendment of the US constitution, the right for the owner of the drone and the interest of all other neighbours to prevent acts of crimes by air surveillance wins against the privacy rights and the drone can fly!
FLY AGAIN OVER MY PROPERTY AND I WILL SHOOT YOUR DRONE !
ACTE 2. The drone continues to fly over the houses and the drone camera record the therapist taking his shotgun and destroys the drone while flying over his property. This time, the owner of the drone takes legal action against the therapist and asks for compensatory damages to get reimbursed of the value of the drone, which is an USD 80,000 prototype. In addition, the owner claims for USD 10,000 punitive damages as well as a prohibition for the therapist to shoot any drone that would fly over the houses.
Arguments: The therapist alleges that he shot the drone because he felt threatened. He argues that the drone was shot to repel a potential attack. His counsellors plead the “Castle doctrine“, created in 1628, which is a common law principle for legitimate defence specific to the property. Under this doctrine, a landlord can repel an imminent attack when there is a legitimate threat of an intrusion in his property or the house. As the judge considers that this situation does not constitute a reasonable fear/threat, he requires the lawyers to prove it. Therefore, the counsellors call a drone expert, who presents to the Court a video with civil and military drones showing that it is almost impossible to make the difference between civil drones and combat drones. We can also see that drone technology allows to capture infrared or heat detection images and that some other drones can feature connected technologies that can hack a computer from the air and can steal the landlord’s personal data. In reference to the castle doctrine, the expert concludes that a drone can be an intruder in the house without physically penetrating it resulting in a violation of the therapist’s property and privacy.
Despite those efforts, the drone owner wins this second act. The recording shows that, at the moment the therapist shot the drone, it was not flying in a stationary mode, but rather flying away the propertym which means he was “retreating”. In such case, the castle doctrine is not applicable to retreating because it is strictly prohibited to shoot in the back…
THE SKY IS ALSO MY PROPERTY, RIGHT?
ACTE 3. The final act intend to solve altitude issues related to unmanned aircraft systems. Basically, the question is to know whether the drone was still flying in the jurisdiction of the FAA (Federal Aviation Administration) when flying over the property of the therapist or not. As the drone was shot at a 200 feet altitude (60m), the Court must determine whether the federal rules of FAA still apply or if the case is governed by the rules of private property.
Arguments: The chief legal counsel of the FAA (from the enforcement and compliance division) is called to inform the Court whether it is legal or not to shoot an unmanned aircraft in this area of space. The legal counsel explains that between 0 and 500 feet (150m), there is a zone called “Classe G” that does not fall under the FAA’s jurisdiction. According to the therapist’s lawyers, it would be illegal to shoot a drone over 500 feet, but totally legal under.
The attorney of the owner of the drone, plead the US vs Causby case. In this case, military planes from the military airport where making a lot of noise in addition to flies over Mr Causby’s property. This situation caused a severe damage to Mr Causby’s, which forced him to abandon his business. Actually, the planes were flying at an altitude of 83 feet (25m) above the farm which led the chicken to jump over the wall killing themselves. This case refers to an old Roman law principle “Usque ad sideras et usque ad inferos” which inspired the common law principle of “from the depths to the heavens” related to vertical property. In Causby’s case, which he won, the limit of the vertical property was set at 83 feet. Thus, 200 feet (60m) is above 83 feet, which means the therapist was not entitled to shoot the drone that wasn’t flying over the space of his property. On that question, the lawyer of the FAA considers that between 83 and 500 feet, the regulation never said anything. The judge then considers that, in this case, the law is not adapted to technologies and rules in favour of the owner of the drone confirming Causby’s case.
This funny episode proves that, at least in the USA, one can play with the law and imagine scenarios that may be solved in such manner. The solution of such litigation may be based on very old case law related to airplanes frightening chicken, which may be inappropriate, but applicable to drones…
This first part only offers a summary of a TV show for further discussions. In no event shall this constitute a legal opinion under US law. For further information under US Law related to drones, this legal blog provides very detailed information and is only dedicated to the applicable regulation and rules of drones in the USA.
DRONE REGULATION IN SWITZERLAND
What is the regulation in Switzerland and how would a Swiss Court rule this case ?
In Switzerland, unmanned aircrafts systems are regulated by the Federal Office of civil aviation (FOCA). It is governed by the Swiss Federal Act related to Aviation (LA) and the Federal Ordinance about special category aircrafts (OACS). “Air rules” also supplements this regulation with EU law related to the maximum flying altitude. Because of the developments of the civil drones market, FOCA recently amended its Ordinance and gave some guidance. From a legal perspective, drones are mostly remotely piloted aerial vehicles. They are de jure aircraft models, which corresponds to Small Unmanned aircraft Systems (sUAS) in the USA. Up to a weight of 30 kg these aerial vehicles can basically be operated without a special permission under the condition that the pilot keeps a permanent eye contact with the flying object (art. 17 OACS). Under those rules, drones are not allowed to fly above gatherings of people. Any exception to these principles requires an authorization from the FOCA, that can be required through this page, especially for drones that are operated without any eye contact.
For further information, visit the website of the FOCA or AirShoot suisse.
HOW TO APPLY US CASES UNDER SWISS LAW ?
It seems interesting to wonder, from a theoretical point of view, how the fictive litigation of Ridley Scott would have turned if it had happened in Switzerland. Of course, US trials are extremely different from EU countries and are based on common law principles (Anglo-saxon influence) that differ a lot from civil law principles (Roman law influence) .
ACTE 1 – Private surveillance from the air. The first act basically raises two questions: how can a citizen use a drone for private surveillance and to what extend can the landlord claim for damages to the owner of the drone for loss of customers.
Arguments : Drone surveillance is related to both aviation rules and right to privacy or right to publicity (art. 28 of the Swiss civil Code and Data protection Act). With autonomous unmanned aircraft flying without constant visual eye contact from the pilot, the owner needs a permit from the FOCA. It is likely that for privacy rules or publicity rules, as well as security of the residents and noise pollution, no permit would be delivered for an autonomous, frequent and random fly over a residential neighbourhood. It would be a case by case question that may only be decided by the FOCA. A surveillance drone records images from the air on the private and public domain. Video surveillance on the public domain is not allowed by private individuals or companies without concluding an agreement with the local authorities. According to the Swiss Commissioner, such surveillance on the public domain is generally considered as disproportionate and prohibited, unless the area filmed on the public domain is very small. Because the rights to privacy of passers-by would be violated, such surveillance would probably be illegal as it is the role of the police to prevent acts of crimes and to have jurisdiction in this field.
CONSENT THAT HITS THE NAIL ON THE HEAD
Regarding drone videosurveillance on the private domain, the Swiss Commissioner published a memento related to surveillance by private individuals. In summary, if a person cannot be identified, especially if faces or licence plates are blurred, the Data protection Act will not apply. Other questions would raise such as neighbourhood law in relation to excessive noise imissions (art. 684 al. 2 of the Swiss Civil Code). As the purpose of the surveillance is to know the author of the crime, the faces would not be blurred, and this images would be stored, used, published or even sent to the police. To be legal, every filmed person should consent to this recording (art. 13 Privacy Act) after having been informed (art. 4 al. 5 privacy Act) of the surveillance. It could be done through warning signs with detail information of the owner. In a recent decision 4A_576/2015 of March 29th, 2016, the Swiss Supreme Court considers that even inside a building, one single tenant can refuse to be filmed and can require the landlord to withdraw all the cameras of the building. In the Ridley Scott case, there may be other less invasive ways for the owner of the drone to prevent acts of crimes. The answer would certainly be different for surveillance of a commercial property with no passers-by and with high security risks.
Except neighbourhood issues, the liability of the owner of the drone for loss of customers is interesting. This is a case of civil liability in the form of an economical damage caused by a third party to the customers of a resident with a decline in turnover. There is no contract between the parties, which means that basic rules of tortious liability. Such trial would not be easy for the neighbour to win especially if the drone is entitled to fly. If it is not, the therapist must prove that civil liability rules have been violated according to article 41 of the Swiss Obligation Code. He would need to prove that (1) he has suffered a prejudice (decline of turnover), (2) in “natural and adequate causal relation” with the fly of the drone over the houses, (3) that the owner of the drone violated a specific article of the law (legal principles or articles such as violation of the Data Privacy Act) and (4) that the owner of the drone committed a fault (wisful misconduct or negligence). If these four conditions are met and if the therapist can quantify the amount to claim, he would be entitled to claim for damages…
GIVE ME MY GUN SO THAT I CAN SHOOT THIS GODDAMN DRONE !
ACTE 2 – Shooting the drone. Weapons regulation is very different in Switzerland compared to the USA. Very far from the second Amendment of the US Constitution that give to every US citizen the right to wear a gun, Switzerland prohibits any acquisition, possession or use of automatic weapons (art. 5 al. 1 to 3 of the Swiss Federal Act related to weapons). The fact that one can buy a gun if he holds a licence (art. 8 LArm), does not mean that he would be allowed to have free use of it. If someone shot from his garden like the therapist did, the neighbours would very likely report such act by calling the police or to criminal authorities for fraud to the Swiss weapons Act, or to have taken a risk for the neighbours life or physical integrity in case the drone crashes. The issue would be similar if the therapist destroys the drone without any weapons resulting in a risky zone. It would depend on the weight, the height and the place where the drone could land or crash in case of an accident. If nobody is hurt and no risk was created, the owner of the drone could only claim for reimbursement of the drone if the drone was flying illegally over the therapist’s property.
I SAY: THERE IS A DRONE FLYING OVER MY GRASS !
ACTE 3 – From the depths to the heavens. Switzerland abandoned since a long time the Roman Law principle under which a landlord can repel any threat or disturbance to one’s property from the hell to the heaven, which meant regardless of the depths or the height. Jurisprudence related to article 667 al. 1 CC explains that a landlord can master aerial space and prevent or stop any misconduct from a third party in this space if it undermines peaceful use of the property. However, the Swiss Supreme Court declares, in a first case, that property right shall continue at least up to a height of 10m to 40m corresponding to a cable car passing over a constructed house or building. The Court also declared that it is illegal to fly at a low altitude in the nearings of a private airport without consent of the landlord who may be entitled to oppose. Therefore, a landlord is entitled to protect and defend himself against damages to his property from third parties, for example against noise disturbance at an altitude of 108m, but not 600m…
Argumentation : Given the mentioned jurisprudence, it is certain that property rules apply up to 40m, likely up to 108m, and unlikely with a doubts between 108m and 600m. In the Ridley Scot story, the drone was flying at 60m (200 feet) above the property of the therapist. Therefore, the drone would still be in its property and, to the extend that the fly caused a prejudice to the therapist, who must have a legal interest to exercice its rights against the owner of the drone.
SEE YOU IN A CRIMINAL COURT ! BUT REALLY, BASED ON WHAT ?
From a criminal point of view, one can advice to file a complaint to the Prosecutor (district attorney) or the police based on a violation of domicile (unlawful entry). In Switzerland, this offence (art. 186 of the Swiss Penal Code) would be difficult to apply as it related to humans, entering a garden closed with a fence. Thus, it is hard to fence off the sky…To know if an unmanned aircraft can imply to hold its owner as liable for for unlawful entry is questionable. Unmanned aircraft may cause injuries, but in this case no accident has occured. If someone is placed in a life-threatening position by the drone another offence could be questionable, but hardly applicable (art. 129 CP). Legitimate self-defence related to unlawful entry can apply. Under Article 15 CP, imminent attacks can be legally repelled, for example, against its property or if one’s individual freedom is violated. The therapist could also try to file a complaint for violation of the Swiss Data Protection Act (art. 34 et 35 LPD)…
If shooting a drone is forbidden in your country, well you may be forced to use on of these techniques :