Refining Drone Regulations in the Face of Increasing AI

As technology advances, the use of drones, both for individuals and for businesses, continues to expand. Drones are known as Unmanned Aerial Vehicles (UAVs) and are typically operated by a user providing pre-programmed instructions or from a user some distance away with a remote control.[1] In 1981, as model aircraft planes became more popular with the everyday consumer, the Federal Aviation Administration (FAA) released an operating standard for the use of UAVs.[2] Since then, drone technology has rapidly expanded, however federal laws and regulations regarding commercial use have not evolved in tandem. As such, the current FAA regulations may be greatly limiting the capabilities and utility drones can provide.[3]

The use of drones can be traced back ninety five years ago when the military began using UAVs to provide strike and reconnaissance services to battlefield commanders.[4] Drone use today has substantially evolved and drones are now used for a large variety of purposes.[5] For example, over the past decade, commercial drone use has evolved from virtually nonexistent to over 2,000,000 drones in operation.[6] Journalists use drones to reach otherwise inaccessible areas and to provide images from various angles.[7] In the construction industry, drones can be used to give a bird’s-eye view of construction sites and allow workers to monitor their progress, identify potential hazards, and detect structural defects early in the construction process.[8] Medical companies have used drones to deliver medical equipment and to transport samples quickly from one place to another.[9]

Drones are generally operated with pre-programmed instructions or operated by a human pilot from a distance, but the use of artificial intelligence has allowed drones to operate without complete human supervision.[10] These types of drones are referred to as Unmanned Aircraft Systems (UAS) and are defined by public law as aircrafts that can operate without direct human intervention from within or on the aircraft.[11]

The[EP1]  lack of supervision can have significant advantages when compared to traditional UAVs.[12]

Drones equipped with artificial intelligence can detect obstacles in their flight path in real-time and better avoid them, compared to a human operator who must be on constant supervision when operating a drone.[13] UAS are also able to stay airborne longer and cover further distances than would normally be possible with a human operator.[14] However, without the added security of human observation, UAS are subject to even more regulation than UAVs and their use is generally limited since it is subject to the issuance of an experimental certificate.[15]

The FAA requires that all drone users maintain a “line of sight” while operating their drone, prohibiting users from flying their drone beyond their own line of sight.[16] Critics of the “line of sight” requirement point out that this restriction negates much of the utility that drones can provide, such as allowing first responders to evaluate a hazardous scene without having to risk personal injury.[17] Individuals and corporations can avoid this requirement by obtaining a waiver from the FAA to allow for such drone use.[18] These types of waivers can take months to obtain and can inhibit the utility that drones can otherwise provide.[19] Although the FAA has been formulating new regulations to begin supporting the operation of UAS, its current “line of sight” requirement prohibits the utility a UAS may otherwise provide.[20]

Not only are current regulations lacking in function, but ethical concerns also raise doubt as to the utility that drones can provide. Drones, UAVs and UAS alike, have recording and transmitting capabilities that grab information in video and picture.[21] Author Ivana Budinska poses the example of an ethical dilemma of a drone being used for emergency purposes to capture video of mass victims after an incident.[22] The drone transmits the video to the operator, who then must decide what steps to take. Budinska asks “What ethical principles will apply if he/she has to choose whom he/she will give help to earlier and whom not to help at all?”[23] Not only may the images of suffering victims affect the operator’s psyche, but the videos and images will be able to be played after-the-fact, allowing the operator or decision-maker to verify their decisions, whether or not correct.[24]

Additionally, drone use and availability of drones varies substantially across countries and further use of drone technologies may bring about a “deepening of inequality and, ultimately, the tensions among the population.”[25] The widespread adoption of drones has been uneven across nations, with the United States standing out as a major consumer of the technology. In 2019, the United States dominated the drone market , with 30% of global drone sales taking place in the U.S.[26] China had the next largest share of sales at 8%, followed by Russia at 7%, and a myriad of other countries, with most of the world sharing in 24%.[27] Despite the pervasive use of UAS and UAVs in the United States, laws and regulations have yet to keep up.

Comparably, the European Union enforced a civil aviation regulation in 2018 which mandated a number of regulations for member countries to comply with.[28] Such regulations, while extensive, provide no such “line of sight” requirement as instituted by the United States’ FAA. Regulation 2018/1139 requires unmanned aircraft to be “operated only if it is in in airworthy condition and where the equipment and the other components and services necessary for the intended operation are available and serviceable.” [29] In regard to the operator of the unmanned aircraft, they “must ensure that the aircraft has the necessary navigation, communication, surveillance, detect and avoid equipment, as well as any other equipment deemed necessary for the safety of the intended flight.”[30] Such regulations seem reasonable and much more amenable to the utility and circumstances drones can provide and account for.

Such rigid restrictions by the FAA are set in place to avoid collisions and potential injury should a drone crash into a plane, a bird, or some other object in the air.[31] While such restrictions may have been applicable with the advent of drone use, the improvements of artificial intelligence allow drones to react just as well, if not better, than their human operators. As such, the FAA may soon need to reconsider its general requirements for drone use and conduct a more thorough analysis of how drones utilizing artificial intelligence can provide a greater benefit to society when compared to their traditional human-operated counterparts.  

[1] Hadar Y. Jabotinsky & Michal Lavi, The Eye in The Sky Delivers (And Influences) What You Buy, 24 U. Pa. J. Const. L. 1329, 1338 (2022).

[2] Steve Calandrillo, Jason Oh, and Ari Webb, Deadly Drones? Why FAA Regulations: Miss The Mark on Drone Safety, 23 Stan. Tech. L. Rev. 182, 188 (2020). 

[3] Id. at 185.

[4] John F. Keane and Stephen S. Carr, A Brief History of Early Unmanned Aircraft, 32 John Hopkins APL technical Digest 558, 558 (2013) https://secwww.jhuapl.edu/techdigest/Content/techdigest/pdf/V32-N03/32-03-Keane.pdf.

[5] See id. at 569.

[6] Calandrillo, supra note 2, at 195.

[7] Jabotinsky & Lavi, supra note 1, at 1339.

[8] Id.

[9] Id.

[10] AI-Based Drone Operation, Saiwa (Oct. 17, 2023), https://saiwa.ai/blog/ai-in-drones/.

[11] Federal Aviation Administration, What is an Unmanned Aircraft System? (https://www.faa.gov/faq/what-unmanned-aircraft-system-uas#:~:text=An%20unmanned%20aircraft%20is%20a,%2C%20Section%20331(8) (citing Public Law 112-95, Section 331(8)).

[12] Supra note 10.

[13] See Jabotinsky & Lavi, supra note 1, at 1333.

[14] Syed Agha Hassnain Mohsan, Muhammad Asghar Khan, Fazal Noor, Insaf Ullah & Mohammed H. Alsharif, Towards the Unmanned Aerial Vehicles (UAVs): A Comprehensive Review, 6 Drones (2022), https://doi.org/10.3390/drones6060147.

[15] Jabotinsky & Lavi, supra note 1, at 1338.

[16] 14 C.F.R. § 107.31 (2017).

[17] See Calandrillo, supra note 2, at 186-87.

[18] Id. at 202.

[19] Id. at 236.

[20] Jabotinsky & Lavi, supra note 1, at 1332-33, 1338.

[21] Ivana Budinksa, On Ethical and Legal Issues of Using Drones, in Advances in Service and Industrial Robotics 710, 712 (Springer International Publishing 2019).

[22] Id. at 714.

[23] Id.

[24] Id.

[25] Id.

[26] Natalia Izakova, Larisa Kapustina, Michail Khmelkov, and Elizaveta Mokovkina, The Global Drone Market: Main Development Trends, 129 SHS Web of Conferences 1, 5 (2021), https://www.shs-conferences.org/articles/shsconf/pdf/2021/40/shsconf_glob2021_11004.pdf.

[27] Id.

[28] Council Regulation 2018/1139, L212/1 (EU).

[29] Council Regulation 2018/1139, L212/116  (EU).

[30] Council Regulation 2018/1139, L212/117 (EU).

[31] Jonathan Rupprecht, Section 107.31 Visual Line of Sight Aircraft Operation (2019),

RUPPRECHT LAW P.A.(2019), https://perma.cc/63KL-4F5Y; Operation of Small Unmanned Aircraft Systems Over People, 84 Fed. Reg. 3856 (Feb. 13, 2019)