Legal Considerations for Emerging Technologies

Transcription

1 Legal Considerations for Emerging Technologies 2018 New Hampshire Association of Natural Resource Scientists Annual Conference January 19, 2018 By: Maureen D. Smith, Director Orr & Reno, P.A. Concord, NH 1

2 Overview Emerging Technologies Legal Landscape Key Legal Questions Legislation/Regulation Potential Liabilities Practical Tips 2

3 Advances in Gathering Data - From Traditional Practices Aerial Photographs On-the-ground measurements 3

4 To LiDAR and Drones (UAVs) High Resolution/High Definition Regulatory/permitting requirements often push envelope to require broader swath of data, e.g., NHSEC rules Improved accuracy Efficiencies & Cost Replaces hand-held, on the ground measurements Projected worldwide spending in UAV industry expected to reach $11.5 billion/year over next decade 4

5 Emerging Technologies Aerial Photography -High altitude -Resolution Drones -Low altitude -Near the operator On-the-ground Measurements -Eye level or below -Physically present 5

6 Legal Landscape Statutory/Regulatory Requirements Federal, State, Local Criminal and/or Civil Liability Third Party/Tort Liability (invasion of privacy, trespass, nuisance, strict liability) Contracts and Employees Insurance Coverage Disclaimers/Copyright 6

7 Key Legal Questions Who has jurisdiction to regulate drones? Must government act to protect privacy rights in commercial use of drones? Can private property owners assert control over immediate air space to support private claims? Where is air space demarcation for private interest? When is notification or permission/access agreement necessary? Does typical insurance cover new risks? Are new disclaimers and guidelines/iprotocols needed to protect your business? 7

8 Federal Drone Regulation: Federal Aviation Administration FAA regulates navigable air space FAA bans commercial use of drones (14 CFR part 107) unless: Pilot registration At least 16 years old Pass aeronautical knowledge test at an FAA-approved testing center Vetted by the TSA Drone registration Must be less than 55 pounds Registered with the FAA 8

9 FAA (cont d) Operating requirements Aircraft must be kept in sight (visual line-of-sight) Cannot be operated from a moving vehicle Must fly under 400 ft Daytime flight only Speeds less than 100 mph Cannot fly over individuals Some operating requirements can be waived 9

10 State Legislation 31 states have passed drone laws Safety focus use of drones over private property, crowds, or populated areas Privacy focus Restrict use for surveillance Some carve-outs for specific industry uses real estate marketing, oil pipeline monitoring 10

11 New Hampshire Legislation HB 1759 pending (2018 legislative session) Prohibits certain government uses of drones Prohibits certain non-governmental uses of drones, e.g., near critical infrastructure Imposes criminal and civil penalties on government and its agents Imposes liability on drone owner/operator for causing injury to a person or a person s property Monetary penalties and attorneys fees for statutory violations 11

12 Local Ordinances NH Municipal ordinances may be preempted if New Hampshire legislature acts No NH municipal action to date Other local jurisdictions have taken lead 12

13 Private Bans: Commercial Property Owners 13

14 Potential Criminal/Civil Liability NH Law on Stalking If used to conduct surveillance HB 1729 implicates government/private, contractors/consultants Persons subject to criminal and civil sanctions can include corporations and other legal entities, as well as individuals 14

15 Private Party/Tort Liability Invasion of Privacy Intrusion where reasonable expectation of seclusion/privacy Liable if intrusion would be highly offensive to a reasonable person But act must be intentional Does merely flying drone qualify as intentional 15

16 Private Party/Tort Liability - Trespass Any physical intrusion of private property Causing an object to enter property may be sufficient Injured party must show interference with actual use or, or substantial damage to property Courts have found trespass at heights of feet above surface How to assess damages? Enjoin? 16

17 Private Party/Tort Liability Private Nuisance Invasion in another s interest in private use and enjoyment of land Invasion must be intentional and/or unreasonable Purposeful intent to cause interference or knowing that it would likely result Most actions involve recurring conduct rather than single event 17

18 Private Party/Tort Liability Strict Liability and Negligence Per Se No-fault liability if abnormally dangerous activity Exercise of due care would not absolve actor Whether drone is abnormally dangerous activity may vary based on circumstances Negligence per se standard exists in New Hampshire 18

19 Contracts and Employees Client contracts Obligations to comply with applicable laws/rules Releases and indemnities Employee qualifications/training Safety protocols and internal policy implementation Managing risk of corporate liability 19

20 Insurance Does your insurance policy cover the new technologies you are using? 20

21 Insurance Coverage Are existing policies of insurance sufficient What risks should be insured Terms of coverage and exclusions Confirmation and Monitoring 21

22 Disclaimers/Copyright 22

23 Purpose of Disclaimer? Protect yourself/your company? Protect the client? Protect the user of the map? 23

24 Impact of Disclaimer 24

25 Impact of Disclaimer 25

26 Impact of Disclaimer In Klamath-Siskiyou Wildlands Ctr. v. Gerritsma, 638 F. App'x 648, 652 (9th Cir. 2016), Court held that map depicting fragile soils was not a binding determination of the exact location of fragile soils BLM map included a standard disclaimer, that included: The BLM cannot assure the reliability or suitability of this information for a particular purpose. Balancing interests and consequence of disclaimer 26

27 Copyright Considerations Who owns the data Data itself not subject to copyright protection but data bases have moderation protection as compilations Compilation is subject matter that is expressive and creative Maps, charts and graphics can be copyrighted Can landowners assert ownership 27

28 Practical Tips Consider federal, state and local regulatory developments and restrictions Monitor pending House Bill 1729 Anticipate how law will be enforced Consider potential for private claims based on common law/tort and statutory restrictions Assess availability of waivers/exemptions 28

29 Practical Tips (cont d) Assess need for property owner notification or access agreement on case-by-case basis Consider emerging risks in drafting client contracts and internal guidelines Confirm insurance coverage for key risks Consider internal guidelines, protocols and training Review standard disclaimers 29

30 Contact Information: Maureen D. Smith* Nathaniel B. Morse Orr & Reno, P.A. 45 South Main St., PO Box 3550 Concord, NH (603) *The views expressed are those of the author and do not constitute legal advice or attorney/client communications