Mical Caterina thought he was doing a favor for a friend when he took photos at an August public event honoring Cecil, the African lion killed last year by a Minnesota dentist, an incident that sparked an international uproar.
Attendees of the Aug. 15 gathering would form a “human lion” to pay tribute to the animal in a “grassroots memorial,” according to the Facebook page created for the event. Caterina was asked to fly his drone over the ceremony to capture the display outside Conway Community Recreation Center.
Before agreeing to help out, Caterina told event organizer Kevin Foley he needed to make sure of several things:
- he wouldn’t be flying over any people, which he wouldn’t be;
- he wouldn’t be flying in a residential area, which he wouldn’t be;
- and he wouldn’t be flying within 5 miles of the closest airport, St. Paul Downtown Airport, which was 5.2 miles away.
According to Caterina’s retelling, an aviation safety inspector with the FAA sent a letter to event organizer Foley on Aug. 14, one day beforehand, after learning that an aerial photo would be taken.
After learning of the FAA’s correspondence with Foley, Caterina placed a call to David Nelson, the inspector, to discuss the upcoming flight. Caterina says he never heard back from Nelson.
The next day, at the event honoring Cecil the Lion, Caterina flew his drone 254 feet in the air, according to the flight data record from the drone, an Inspire 1 manufactured by DJI.
The FAA fined Caterina $55,000 for violating five different regulations.
The FAA also alleged Caterina was flying within 5 miles of an airport and, therefore, failed to establish two-way communication with air traffic control, which “endangered the National Airspace System.”
…His model drone, an Inspire 1, has a No Fly Zone geofencing system, which makes it nearly impossible for Caterina to fly within 5 miles of an airport.
This is a lengthy, extremely well-reported article by Melissa Quinn. It includes comments from a number of our leading attornies including a very vocal Peter Sachs, John Taylor, Jonathan Rupprecht and others.
I found an explanation from Stephen Mann, a former commercial pilot who publishes as I Am Dronemann who offered some insight into the FAA’s position:
This is an example of not understanding what the FAA means by “commercial”. The pilot’s defense is that he was not compensated for the flight and many think “commercial” means that money changed hands”, but profit or lack of it has no bearing on whether the flight is commercial or not. If you take photos or video from your drone for a charity, then good for you. But if the charity uses one of those photos in promotional material or an ad, it’s a commercial flight.
Attorney Peter Sachs laid out what could be the defense position in the article:
When asked to interpret whether Caterina’s flight constituted recreational or commercial use, Sachs, the Connecticut lawyer, said it depends on the intent of the drone pilot at the time of the flight.
“They just wanted to use the imagery to use not to further their business, but further their cause,” he said of those who organized the Cecil event. “As long as that place wasn’t making any money off of it, he was furthering a cause. I think that falls under a hobby. Your hobby is activism. [The FAA] can allege commercial all they want. In my mind, it’s not commercial.”
I believe that you will be hearing a lot about this case. It did not come up in the article for discussion, but for the life of me, I don’t understand how Caterina could conclude that he wouldn’t be flying over people… I mean it’s a picture of???
Fascinating as all of this is, the reason I am sharing the article is because I wanted to draw your attention to the last paragraph – the DJI geofencing system that “makes it nearly impossible to fly within 5 miles of an airport.” It offers an interesting complement to DJI telling the EU to build a continental database to provide geofencing data and the Department of Interior’s concept of building a national wildfire database to provide geofencing data.
Sooner or later, some smart lawyer – like Rupprecht or Sachs – will ask what DJI’s responsibilities are in all this and to what extent the operator relied on the manufacturer’s assurances. Where did the data come from (probably the FAA), who ensured the quality of it, was the latest data available, did the user load the latest version? And is “nearly” good enough?
All of these (and more) are legitimate questions as we move from aviation into cyber law. As is the question of who should defend him and whether the manufacturer or developer should also be a defendant.
In this regard, we can look to three recent articles about the evolution of autonomous car insurance and liability. The first was Volvo’s decision to accept liability in the event of an autonomous car crash caused by their software. Their point was that they would not be able to sell such a car without assuming responsibility.
The second was Adrian Flux’s announcement in the UK of autonomous car cover. One of the most interesting exclusions was that the owner had to install any software update within 24 hours of the owner being notified by the manufacturer or developer.
The third is a story this week about Tesla headlined Tesla Knows When You’ve Been Naughty. Each car is constantly connected to the manufacturer via the Internet so in essence the black box is now in the cloud. This is fundamentally no different from the telematics concepts proposed by Unmanned Risk and now Acend.