Meet America’s First Drone Defense Lawyer

Photo: Flickr/A. Michael Wiley

In late December, Kramer Levin, one of the largest law firms in the United States, became the first firm to set up a commercial unmanned aircraft systems practice group. Essentially, the firm became the go-to spot for drone cases, and it has already been heavily involved in the area. They’ve taken to defending the first man fined by the Federal Aviation Administration for the commercial operation of a drone and now have plans to help other companies that hope to become leaders in the commercial drone space. Motherboard spoke with Brendan Schulman about why focusing on drone law has become necessary and what’s going to happen as the FAA begins to open airspace for drones.

 Schulman tweets about drone law here. 

MOTHERBOARD: So the big news this week is that the FAA has selected the operators for the six commercial drone test sites. Good news?

Schulman: They’ve been selected but it’s not clear when they’ll become operational. Judging by how things have gone so far, we may be waiting a long time. The test sites were supposed to be selected in August 2012, so we’re already behind. Whether we can now play catchup is an open question. 

What do you mean by that—do you think the FAA has dragged its feet on this issue? Have they hurt the industry?

In my opinion, absolutely yes. The FAA undertook plans to issue regulations back in 2006 and they really haven’t done much yet. They haven’t told small companies what the regulations are going to look like. Instead there’s been a commercial ban that’s had a stifling effect on investment dollars in the US. Many companies have gone overseas to develop the equipment and to develop the technology. If you want to do a commercial video shoot and you don’t want to consider the regulations, you can take that work to Australia or Canada or the United Kingdom and you can get the work done in an officially sanctioned way. 

The announcement of the test sites doesn’t yet tell us all that much about how they’ll be used and how they’ll apply in the future. I think the delay has been very costly. By one estimate, our country is losing $26 million a day for every day we don’t have this technology.

Your law firm just became the first to have a specific drone practice group—when did it become clear to you that this is something the firm needed?

We had first case involving the commercial use of this technology and the FAA. We’ve been working on that for seven months. As we talked to people in the industry, it became clear there was a big gap between state of technology and the availability of legal advice and counseling to companies developing the technology, to industries that want to use the technology, and investors who want to invest in it. We have lawyers in different disciplines—intellectual property lawyers, corporate lawyers, privacy lawyers—working on this. One thing that we have in common is that we’re excited about the technology. We also feel like we’re creative problem solvers, and this is the kind of space that’s going to take some creativity to work in.

Tell us more about the first case you’ve taken on.

The FAA proposed fining Raphael Pirker $10,000 for the operation of a commercial drone that was taking aerial video of the University of Virginia campus for possible use in a commercial video. What they’ve alleged is that he was flying his 5 pound styrofoam model aircraft near buildings and cars and sidewalks and trees and that application was careless or reckless. They have nothing that specifically addresses model aircraft or commercial drones. We think that having the same safety regulations on a 5 pound model airplane as you have with a large jetliner is inappropriate.

And you’ve filed a motion to dismiss?

Yes—the motion to dismiss is pending right now in front of the judge. If we prevail, that’s the end of it. If not, there’s the possibility for appeal or we’ll proceed to trial on whether the flight is reckless or not.

Do you see this as a one-off thing or could this open the door for other people to fly commercially before the FAA officially issues licenses?

I think it’s a very important case. What we’ve done is call into question the ban on drone use. It’s an activity that was permitted in the past without regulation. They used model aircraft to film The Aviator, and nothing happened in regulation until recently. Instead of issuing a rule using the required notice-and-comment process, they just issued a policy statement saying business use is prohibited. We’ve argued that’s not an enforceable policy statement. If we prevail on that argument, I think it has implications for other people who are seeking to use these for commercial purposes.

It sounds like, for lack of a better term, your group will be very “pro-drone.” Do you see yourself taking on any of these privacy issues or cases where a drone may be misused? Or will you be on the regulation and commercial side mostly.

I think we’re pro-technology. To say we’re pro-drones suggests it has something to do with the military. I think we recognize there’s tremendous economic and artistic and humanitarian benefit that arises from this technology. That’s where we hope to focus our work for clients on this field. Any technology can be abused, and often the misuse of technology occurs outside the legal framework. There’s only so much you can do as a matter of law to curtail inappropriate use of technology. We’re here to help businesses that have great humanitarian and social applications for drones.