Peter Sachs ()
Look, up in the sky. It’s a bird, it’s a drone, it’s a lawsuit waiting to happen.
With increasing regularity, small, remote-controlled drones are making appearances in public airspaces, grabbing the attention of groups ranging from police officers to privacy advocates.
In recent weeks, there have been two highly publicized incidents involving drones in Connecticut. At the scene of a potentially dangerous quarry fire, a Branford man was heralded as a local hero when he used his personally owned, $1,200 drone equipped with a video camera to communicate hazards to firefighters below.
Another drone appeared at the scene of a deadly car crash. It’s owner was a journalist trying to use it to shoot video, and he was accused of being a public nuisance. That case is being investigated by Hartford police and the Federal Aviation Association.
The emergence of drones has been noticed by state lawmakers, who have drafted a bill that would stop police from using “unmanned aircraft” without a warrant. “Drones are definitely a hot topic right now,” said Rep. James Albis, D-East Haven, who drafted the proposal along with Rep. Matthew Ritter, D-Hartford.
“There are certainly a lot of privacy issues that start to emerge when you talk about drones,” Albis said. “While law enforcement or anyone else can use a plane to fly over your house, drones make it easier for anyone to do that, because they can get closer. And at some point, we need legislation to address, when does someone cross that line? When does the use of a drone become stalking, or harassment? These are all brand-new issues.”
Those aren’t the only issues: Some say a law is needed to make sure citizens don’t equip drones with weapons and use them for self-defense or home security.
And so it comes as no surprise that the question of just who has the right to use the small, remote-controlled aircraft—which can hover for 30 minutes or more in one location and capture images with sophisticated cameras—appears ripe for many different kinds of legal disputes.
“I’ve been asked a couple times already to comment on this and it’s not clear what will first present as the violation of someone’s legal interests,” said James Bergenn, a white-collar defense lawyer at Shipman & Goodwin in Hartford. “Right now, the initial issues will probably be violations of common-law privacy rights, trespass, harassment and/or infliction of emotional distress,” he said.
Invariably, a need will develop for lawyers who can handle other types of claims, including personal-injury lawsuits that could result from drones falling out of the sky and even criminal investigations involving use of drones by law enforcement authorities.
Peter Sachs is getting ready for that moment. “I’m thinking of starting my law practice again; there is definitely a growing need for legal services relating to drones,” said Sachs, a Branford resident. Already, he has launched a blog on legal issues involving drones, at dronelawjournal.com.
Sachs, 52, graduated from what was then the University of Bridgeport School of Law and spent his first year after school as a commercial litigator. “I didn’t enjoy it,” he said. So he became an entrepreneur, running an Internet service provider company from 1995 to 2000.
He now works as a private investigator. But, as a “lifelong geek,” he said he misses the legal wrangling and technological tinkering of his former jobs. His interest in technology and photography led him to buy a drone last year. “I’m also a helicopter pilot, but it’s really expensive to buy a helicopter, so I figured, drones are the next best thing,” Sachs said.
Sachs serves as a volunteer captain with the Branford Fire Department’s fire police, which assists with traffic control at fire scenes. On Jan. 30, colleagues who knew that he had the DJI Phantom 2 Vision drone asked him to bring it to the scene of a fire at the Stony Creek quarry.
With its four small propellers, the drone was able to “park in the air” over the fire, and determine if there were any hazards, such as chemical barrels or explosives, that firefighters should be made aware of. “In the words of the fire department, it was the only way to know whether or not to send people in to fight that fire,” Sachs said.
The FAA is revamping its regulations regarding drone use by private citizens. Although the agency has not contacted Sachs, it has sent 12 cease-and-desist orders to drone operators in Connecticut, alleging they are violating federal law because drones are not supposed to be used for commercial purposes.
But there have been no prosecutions brought, in part because the law is not clear.
Sachs’ view is that the FAA, which is not expected to unveil its new regulations until after 2015, lacks the legal standing to send the letters.
“The FAA is claiming you’re not allowed to use these drones for commercial purposes,” Sachs said. “But my stance is, there are no federal statutes or regulations which currently say you can’t use them for commercial purposes. The FAA’s anticommercial stance is not based on law.”
An FAA spokesman would not speak on the record. But the agency issued a statement that referred to “model aircraft” being banned from commercial uses.
“Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of authorization from the FAA,” the statement said.
Sachs agreed that there’s need to clarify the laws regarding drones, given that he was hailed for using his at the quarry fire while the TV news journalist is being investigated for using his drone at a car-crash scene.
Sachs chooses not to use his drone in his work as a private investigator, which includes looking into cheating spouses and employee thefts at businesses. But it’s his position that he could if he wanted to.
“It would be legal to use a drone as an investigator, but it would be cheating,” he said. “It would be too easy to use a drone to find information about people.”
Sachs is starting to think, however, about other commercial uses for his drone, including flying it over homes that are for sale and taking pictures. “I might at some point offer a service to inspect roofs or inspect power lines,” he said.
More likely, however, is that Sachs will relaunch his legal career.
“I do hope to become involved in drone law, because there is no such thing right now,” he said. “Just in the past few weeks, because of the two incidents, I’ve been asked a lot about my thoughts on the subject, as a lawyer. … There is going to be a ton of litigation involving these things.”
Jonathan Orleans, a Pullman & Comley attorney, agrees that the proliferation of drone use by both public and private entities will generate legal work.
“There will be work for lawyers writing regulations for local and state governments, to the extent that the federal government doesn’t occupy the field,” he said. “There will also be contract issues, work to allocate risk of harm rising from drone use.”
For instance, Orleans said, “if the drone someone rents or buys malfunctions and falls from the sky, injuring someone, who is liable? What if I modified it? What if I used it to spy on someone, or to steal trade secrets?”
Those questions will lead to a host of potential claims resulting from increased drone use.
“There will certainly be negligence and invasion of privacy claims made,” Orleans said. “And where the drone was operated for a government entity, such as for law enforcement purposes, there will be issues of government immunity. Given the multiplicity of potential uses for the technology and the inventiveness of lawyers, the potential for legal work is quite large.”
Christopher Carozella, an attorney and small-plane pilot from Wallingford, has represented other pilots who have been cited for safety violations, such as flying too low, by the FAA. He agreed that the lack of drone regulations is creating “an uncomfortable” situation.
“Right now, it’s a free-for-all,” he said. “There needs to be some licensing of the people flying these things. I mean, even the guys out in Colorado who are sitting at computer terminals operating drones in Iraq, those guys are trained fighter pilots. These things are serious aircraft.”•