The use of drones in the planning, design, and evaluation of the construction of a capital asset continues to evolve. Often, such usage is by inexperienced operators who lack both knowledge of and respect for the legal and practical aspects of drone use. There are many issues professional service firms need to confront if they intend to use drone photographs and videos in a lawful and effective manner.
Experienced photographers know that when they take pictures of a site or project from a plane or helicopter with an approved flight pattern, an approved crane or tower position, or an adjacent facility that they have entered legally, they need to focus only on the scope of their photography assignment. That is not always the case with drone operators—there are many drone operators who do not respect the privacy of individuals. While Americans are constantly ceding their personal privacy through various technologies, there are still tort laws in place that protect the privacy and confidentiality of individuals and businesses.
Professional service firms have to be aware that the use of drones is not a simple transition in the process of observing the work on a project site. As with web cameras, drone cameras often produce far more images than are used in the evaluation of a project. If not properly denoted in a contract, the scope of the firm’s services could include the use of all the available images as part of the firm’s duty to observe and evaluate the project as part of construction contract administration duties.
Additionally, while licensed drone operators are undoubtedly careful about having general liability insurance that protects others from their negligence in aerial activities, and follow the FAA’s rules and guidelines, many firms using drone photography are doing so as amateurs. Turning hobby activities into commercial uses is likely to be unlawful, dangerous, and uninsured.
As the FAA continues to refine the rules and processes for lawful use of drones and state and local governments enact controlling laws and identification requirements, it is likely that the future use of drones in design and construction will increase and the risks to the operators and the public decrease. But ignorance of or indifference to the many exposures faced in drone operations will only make drone operators targets for future litigation and possible criminal sanctions.