drone

By Elisabeth Q. Prescott

This year’s U.S. Open has brought its fair share of excitement on the court.  The sport’s beloved Serena Williams, who was just two matches away from being only the fourth female to complete a calendar grand slam, was eliminated by an unranked Italian player, and an potential showdown between tennis’ rock stars Novak Djokovic and Roger Federer make this year’s tournament one for the record books.  Perhaps more notably, the tournament has seen much entertainment off the court, from Jimmy Fallon and Justin Timberlake’s dance tribute to Beyonce’s All the Single Ladies to fans booing current GOP presidential front-runner, Donald Trump.  While celebrity sightings at the tournament are somewhat expected, drone sightings are not.

In the opening week of the U.S. Open, a small, privately-owned drone crashed into open seats inside Arthur Ashe stadium, reigniting in the media conversations over private-sector use of drones and, in light of the fourteenth anniversary of September 11th, security concerns.  To say that September 11th is fresh for most Americans is an understatement. In fact, since September 11th, dialogue regarding terrorism concerns is no longer left to high-ranking public officials; rather, those concerns have permeated the typical American living room. With certain national organizations advocating for increased private-sector (particularly commercial) use of drones, we can expect that citizens’ groups having an interest in ensuring that individuals’ security and privacy concerns are properly balanced will take notice and will join the dialogue.

One of those national organizations advocating for integrating commercial use of drones in the National Air Space (NAS) is the National Association of Realtors.  On September 10, 2015, ironically one day before the anniversary of the 9-11 event, testimony of the NAR’s president, Chris Polychron, was taken by a House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet at a hearing on “Unmanned Aerial Vehicles: Commercial Applications and Public Policy Implications.”  In his testimony, Mr. Polychron highlighted that:

“the potential applications for UAS [unmanned aircraft systems] technology in the real estate industry are plentiful and growing.  They provide the opportunity for real estate practitioners to take unique and informative photographs and videos of properties that in many cases would require many time-consuming trips, or even using a helicopter or small plane to obtain.  Using UAS technology to do the same thing is less expensive, less time consuming, and less dangerous to everyone involved.”

and

“UAS technology will be an important tool especially for commercial real estate practitioners who work with these types of properties, such as shopping centers, office parks, parking structures or large tracts of land which can’t easily be captured in a single image.”

 Mr. Polychron readily acknowledged the reality that increased private-sector use of drones brings increased concerns regarding security and the protection of privacy.  In so doing, Mr. Polychron addressed, with the House Judiciary Subcommittee, NAR’s interaction with both the Federal Aviation Administration (FAA) and the National Telecommunications and Information Administration (NTIA), and the work of these groups to develop industry-wide standards for best practices, including security and privacy protection practices to allow for broader commercial use in the real estate industry.

Currently, commercial use of drones is prohibited unless a “Section 333” waiver has been obtained from the FAA.  However, earlier this year, the FAA took steps, through the FAA Modernization and Reform Act of 2012, towards more easily integrating drones for commercial use by releasing proposed rulemaking on integrating small UAS for commercial use into the NAS.  According to Mr. Polychron, “[t]his is the first step toward a regulatory environment where commercial drone use is legal and has prescribed federal guidelines.”

The use of drones in the real estate industry may be as exciting to real estate practitioners as a Djokovic-Federer U.S. Open match-up is to tennis lovers (or a Timberlake tribute to Beyonce is to SNL faithfuls).  Whether the ultimate regulatory regime, in which commercial use of drones is integrated, successfully balances security and privacy concerns remains to be seen.  Stay tuned.