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Legal, Privacy Issues Hover as Drone Use Becomes More Popular

Increased drone usage begs the privacy question: Are we entitled to the airspace immediately around us?

Flying a remote-controlled chopper in the airspace above your neighbor's house is technically legal.

But flying the same GoPro-equipped craft around a home to create a real estate listing invites a big fine from the Federal Aviation Administration.

Welcome to the rapidly evolving world of drones.

These aircraft are not the same as those flown by the military. Personal drones typically are 5-pound, remote-controlled devices equipped with cameras for recording aerial video footage.

For the past few years, a growing community of drone enthusiasts in Wichita, Kan., has been dealing with federal laws limiting their use. But increased drone usage also begs a privacy question: Are we entitled to the airspace immediately around us?

Interest in personal drones -- which can cost as little as $1,000 to set up -- has been rising exponentially. Consequently, local drone enthusiasts say the FAA is going to have to update its policies in the coming years to accommodate what they believe is a revolutionary and profitable technology.

Eighteen-year-old Kyle Harper's interest in drones grew simply from his remote-controlled airplane hobby. From there, he started flying RC helicopters and eventually drones a couple of years ago.

His dad is a professional pilot, so it only makes sense that he would be interested in aviation, he said.

A 2014 graduate of The Independent School, Harper belongs to the Wichita Radio Control Club and the International Radio Control Helicopter Association. He occasionally flies at Chapin Park in south Wichita, though he said he's typically the only drone flier there.

"I've been around airplanes my whole life, but it's just a new perspective to be on the ground but still be able to see up in the air," Harper said.

He frequently buys and sells his custom-built drones; his latest model is a conglomeration of parts totaling about $2,000, he said. But drone and camera technologies have seen a sharp price decrease in recent years, Harper said, which has helped fuel the increase in drone usage.

"The technology has made it so easy to fly them," Harper said. "Someone with no experience could pick it up and use it. You don't have to do much."

But with an increase in users comes an increase in novice pilots, which has stigmatized the hobby, he said.

"I'm not out to spy on people; it's just something fun to do," Harper said.

Mike Gamache, CEO of Fleetfoot Marketing, became a drone enthusiast when he purchased a $300 craft from a kiosk in the mall and attached a GoPro camera.

"I crashed the GoPro on the ground, broke the lens and flew the helicopter in the lake," Gamache said. "So that was a $700 day."

Since then, Gamache has developed a stabilization mechanism for his drone that allows for extremely smooth video, he said. He's not divulging his design secrets, however, given the thousands of dollars invested in the technology.

"I ordered parts from Russia, from China," Gamache said. “I took a bunch of bits and pieces and did enough research and development to figure out how to stabilize the shots better."

Gamache, who said he has shot freelance footage for the History Channel and produced several commercials, said it is hard to beat the cost-effectiveness of drone video.

"When I see the capability to get a shot that would cost me half a million dollars for a couple thousand dollars, that's freakin' awesome, you know," Gamache said. "Every video person out there is excited about it."

Gamache has been trying to harness that potential for his real estate referral service while trying to stay within the boundaries of the law. In the past, he used drone footage to produce video real estate listings online, but he said he has since ceased for fear of legal repercussions.

"I'm just a little guy. Hopefully they don't care too much about me, especially because I'm doing everything I can to comply," Gamache said. "It's a liability that's not worth taking on."

Gamache still flies his drone around Wichita, filming neighborhood scenes and -- most recently -- Riverfest, but he said none of his recent footage was shot for profit. He said he looks forward to when the FAA will have a drone licensing program for commercial entities.

"There's so much opportunity for this, and I've seen it a long ways ahead of time," Gamache said. "I think it's of huge value."

The FAA remains strict on its guidelines: Unmanned aircraft systems, such as drones, may only be legally operated for hobby or recreational purposes. All potential commercial operations must have a certified aircraft, a licensed pilot and, most importantly, approval from the FAA, spokesman Les Dorr said.

"There is a safety-first consideration," Dorr said. "Yes, you have to have the rules out there even for an evolving industry."

The primary concern about drones, Dorr said, is that they could potentially interfere with an already-crowded airspace if not regulated properly.

"We're trying to make rules that will keep the level of safety at today's extraordinarily high levels in the busiest, most complex airspace in the world," Dorr said.

Only two drone models are currently certified to operate commercially -- Boeing and the Insitu Group's ScanEagle, and AeroVironment's Puma.

Previously, both models operated only in Arctic regions, but on Tuesday, the FAA granted approval for BP to use the Puma in Alaska. Both models cost in the tens of thousands of dollars and look more like a standard airplane than a 5-pound quadricopter.

The FAA is working on expanding commercial usage in "very limited, tightly controlled, low-risk situations," Dorr said. So far, seven video production companies -- mostly big-budget movie producers -- have filed for exemptions. By the end of the year, the FAA plans to propose a rule for small aircraft under 55 pounds, though Dorr could not comment on specifics.

Congress, in its 2012 FAA Modernization and Reform Act, mandated the organization have a plan for the "safe integration of civil unmanned aircraft systems" into the national airspace by Sept. 30, 2015.

Dorr said the integration of drones is going to be an "incremental" procedure, one that is not expected to be fully realized by the September date.

"It doesn't mean everyone is going to be able to fly whatever they want whenever they want," Dorr said. "We're showing progress by hitting certain milestones. The prime directive, as it were, is safety."

In addition to safety ramifications, drone usage is accompanied by a host of privacy concerns.

"There is lots of potential interplay between the development of drones and the law," said Patrick Hughes of Wichita's Adams Jones law firm. "Some of them are pretty clear: If you're using it to do something that you normally can't do, the fact you are using a drone isn't going to change anything."

As the law now stands, for example, homeowners are not entitled to all of the airspace above their home; after a certain distance, it becomes public airspace, Hughes said.

"If you're at a safe distance for air navigation, there's not going to be a private claim by the landowner for the drone," Hughes said. "You may be using your drone in violation of FAA regulations, but that's not something that the landowner has a right to enforce."

Though cases vary, Hughes said the basis for considering any drone legal issues is the intended purpose of the drone.

"It, like all machines, is a tool for some purpose, and the issues that are most likely to come up are what is it a tool for, and is that endeavor itself one that violates somebody's rights?" Hughes said.

It becomes a thorny issue, however, because it is difficult for homeowners to discern the purpose of a drone that may be flying 200 feet above their house, Hughes said.

"If there's a camera pointing down to your swimming pool, you've got a pretty good basis to guess, when it's hovering there, what it's doing," Hughes said. "The mere fact that something's flying over your house isn't going to give you a cause to believe you can sue whoever's flying the device."

The problem, Hughes said, is the technology is so recent that there is little prior case history to base legal judgments on. He said legal guidelines will likely be established with either upcoming FAA regulations or federal legislation.

"We are either going to have to simply accept that the benefits of this particular type of aviation are worth the inconveniences it might cause some people and leave things where they are, or collectively continue to be uncomfortable about it, or we're going to have to do something different," Hughes said.

©2014 The Wichita Eagle (Wichita, Kan.)