Erin C. Borek | Phillips Lytle
The use of drones in the construction industry is expanding rapidly. Drones can be used at construction sites to collect a wide array of data, leading to more accurate designs, increased jobsite safety and better informed construction plans.
While hopefully not a concern at the start of a job, the data collected by drones can also be used advantageously down the road during legal disputes, lessening the reliance on subjective testimony concerning job progress or impediments. However, along with the increase in drone use across industries is a parallel expansion of rules regulating their use at all levels of government, as well as growing concerns over the potential invasion of basic privacy rights. Before relying on drones for project management, construction professionals must balance the benefit of obtaining the data with the potential legal risks that come along with it.
It is indisputable that drones can provide numerous advantages in the construction industry. Drones can assist with real-time site assessments, providing precise measurements almost instantaneously that would alternatively take numerous man hours over several days to produce. They can record the topography of a site and compare the excavation or fill process as a project progresses. They can provide live feeds so conditions can be inspected in real-time. Drones reduce human error resulting in better, more accurate designs, and allow safe access to dangerous or hard to reach areas of construction sites. Drones can also accurately record job progress daily or even hourly, eliminating the need for an individual to record and manage photographs and videos. Importantly, drones can perform all this data collection without project shutdowns or interruptions.
Further, if and when disputes arise on a project, the information collected by drones during the project greatly assist in the evaluation of design errors, job progress or even missing equipment. Take, for example, a dispute between a general contractor and subcontractor over schedule delays. Information collected by a daily flyover from a drone could prove (or disprove) claims that a general contractor was not properly coordinating work or allowing access to site, or claims that a subcontractor was not properly staffing the job.
However, the use of drones and the data collected implicate both safety and legal concerns. First, a drone is an unmanned flying aircraft and carries with it the threat of malfunction or collision that could cause harm to those on the ground. In addition, the data collected by drones threaten constitutional rights, specifically those concerning privacy and unlawful search and seizure. Drones record all information, not just relevant information. They collect data on all people and objects within a subject area, recording things like license plates, clothing, body language or even conversations.
Given these concerns, all levels of government—town, county, state and federal—are constantly issuing and revising rules over drone use. For example, the Federal Aviation Administration (FAA) regulates the use of drones and unmanned aircraft systems for both personal and commercial use. All commercial drone operators must become FAA-certified drone pilots by passing a knowledge test and obtaining a remote pilot certificate.[1] The FAA also implements No Drone Zones, which are areas that are completely restricted from flight or areas subject to local restrictions and/or temporary flight restrictions.[2]
In addition to federal regulations, several cities, towns and counties maintain their own drone restrictions. Just recently, New York City introduced new rules that greatly expand the allowable use of drones. A previous law effectively outlawed drones by preventing any person from taking off or landing an aircraft within the city unless approved by the New York City Department of Transportation or Port Authority of New York and New Jersey. See Administrative Code of the City of New York § 10-126(c). However, in July 2023, New York City Mayor Eric Adams announced the city was passing new rules that create a permitting process for the use of drones and allow the public to request locations within the city to be designated for a drone’s takeoff or landing. Rules of City of New York Police Dept. (38 RCNY) § 24-03. Under these rules, a person may apply (30 days in advance and for a $150 fee) to the New York Police Department for a permit to take off or land unmanned aircrafts within the five boroughs, but must also post notices within a certain radius of takeoff and notify community boards about the operation of the drone. Id. § 24-03 (c), (e); § 24-05(e)(1)-(2).
As it applies to construction sites, these rules leave some important unanswered questions. For example, must a company wishing to use a drone to perform daily assessments of a project’s progress apply 30 days in advance for each day of continual use, paying the $150 fee each time? Must the company make the required notices every day? Does one permit cover multiple flights within a single day if using the same takeoff and landing point?
Outside of New York City, there is great variance among other towns and cities in New York State regarding the regulation of drone use or the lack thereof. For example, in 2013, the Syracuse Common Council issued a resolution that no city agency will operate drones in Syracuse until federal and state laws, rules and regulations are adopted that protect individuals’ privacy rights. It appears, however, that this resolution would not apply to a private company using a drone to collect data on a construction jobsite.
Similarly, the Code of the City of Buffalo contains a provision that “[n]o person, firm or corporation shall fly or permit any aircraft to be flown over any part of the city at an altitude of less than 1,000 feet above the highest obstacle within a horizontal radius of two miles from the aircraft.” City of Buffalo, N.Y. Charter ch. 63-2 (A) (2019). While presumably this restriction applies to drones—including drones used on construction sites—whether and how this code is enforced is unclear, and the city has yet to issue any ordinances or resolutions concerning drone use.
In addition to these examples of city regulations, there are several towns, villages and counties within New York that regulate drone use, along with several that have no rules at all.
Importantly, even with the various rules and regulations across these levels of government and the serious concerns over possible violations of constitutional rights, there is a dearth of case law on drone use or municipalities’ attempts to regulate that use. As a result, the actual real world consequences of collecting this massive amount of data without filters, or even ignoring the various regulations altogether, are unclear and still developing.
Despite the uncertainty, the value of the information derived from drone use as it applies to construction projects is considerable and may outweigh the potential legal risks that stem from the collection of vast amounts of information. While drone users should be knowledgeable (and respectful) of the applicable rules concerning drone use in the area in which they operate, they also should not, at this point, hesitate to use this technology to its fullest potential.
Erin C. Borek is a partner at Phillips Lytle LLP and member of the firm’s Litigation Practice Group with a focus on construction litigation. She can be reached at (716) 847-7048 or eborek@phillipslytle.com.
[1] Fed. Aviation Admin., Certificated Remote Pilots including Commercial Operators, https://www.faa.gov/uas/commercial_operators (last updated August 8, 2023).
[2] Fed. Aviation Admin., No Drone Zone, https://www.faa.gov/uas/resources/
community_engagement/no_drone_zone (last updated August 11, 2023).
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