Digital Production Buzz by  Larry Jordan,  December 17

To start off this week's guest interviews, we consider what can happen if your filmmaking drone loses control and somehow interferes with police operations. Joseph Tully, founder of California criminal law firm Tully & Weiss and author of “California: State of Collusion,” explains exactly that situation with student Owen Ouywang, who had go drone went rogue in San Francisco. Hear how to protect yourself and your production!

Larry Jordan: Last week, a police helicopter had to abort a stolen car chase in the San Francisco Bay area town of Martinez. Why? They were on a collision course with a drone gone rogue launched by a student who's now in the midst of a police FAA investigation. Tonight, we're joined by Joseph Tully, founder of the California criminal law firm Tully & Weiss and author of California State of Collusion. He's consistently named among the top 100 criminal trial lawyers in America and holds a certified criminal law specialist designation by the California Bar Association, an honor held by less than one-tenth of one percent of lawyers. Hello, Joseph, welcome.

Joseph Tully: Good evening. How are you?

Larry Jordan: And joining us as well is Owen Ouywang, the Chinese exchange student who was flying the drone at the time. Hello, Owen, welcome.

Owen Ouywang: Hello. Good evening, how are you?

Larry Jordan: Glad to have you both with us. Owen, I want to start with you and start with something simple – how long have you been flying drones?

Owen Ouywang: I've been flying drones since I was really a kid, so I was flying remote control helicopters since I was eight or nine.

Larry Jordan: And tell us what model you were flying and what you were filming when this drone runaway occurred.

Owen Ouywang: The model that I was flying was a DJI Phantom 3 advanced model and I have to clarify that I was not trying to get pictures or videos at the time. I was just trying to fly the drone.

Larry Jordan: So explain the situation. Start at the beginning, what happened?

Owen Ouywang: It was 8.30 or nine in the evening and I took out my drone to have a test flight, so I took it off from the front yard of my house. Then I started to fly the drone in an east direction and then I realized that there is a power line in the direction that I was trying to fly the drone, so I took the drone to the south direction. Then I believe there was some interference between the power line and my joystick and then I lost the signal of the drone. That activated a steer forward function which is a called a return to home function and that raises the altitude to a preset altitude and starts to fly it back and I believe that is where the near collision happened.

Larry Jordan: And the incident, as I understand it, was the drone was about 750 feet in the air, give or take a little bit, and started to interfere with a police helicopter which was in pursuit of a stolen car. Am I hearing that correctly?

Owen Ouywang: Yes, this is what I heard from the news as well.

Larry Jordan: So how did the police connect you with the drone?

Owen Ouywang: After the return to home function activated but the drone itself, the drone started to fly back from where it lost its connection with me. I heard a helicopter flying over my head after the drone got close to me. However, I did not know that was a CHP helicopter until the police officer started to talk to me about it.

Larry Jordan: Well, that's got to be a scary moment. Joseph, what's the current law on flying drones and was Owen obeying the law as you understand it?

Joseph Tully: Actually, he was. The scary thing about this situation is that this isn't a situation where you have somebody who's uninformed or being negligent or being reckless. Owen is a student pilot, he's flown six or seven different types of aircraft including a helicopter. Before he flew the drone, he had looked up the FAA guidelines and was doing his best to be safe and fly within those guidelines.

Joseph Tully: To answer your question about the current law on drones, there's no real law about drones so the situation is very analogous to automobiles. When automobiles first came out, there were no laws about vehicular manslaughter or anything like that and, as a society, we had to develop a body of law around this new technology, and that's where we're at now.

Joseph Tully: There could be maybe a battery – if I punch you, that's a battery, if I throw a baseball at you, that's a battery, if I flew a drone at you, that would be a battery – or assault with a deadly weapon, something like that. We could use those laws to apply them to this situation. However, we fully cooperated with the police and with the US Department of Transportation. They determined that because this was in return to home function, there is no criminal intent or criminal negligence on Owen's part and therefore there's no criminal liability. As I understand it, he's been cleared of any criminal charges at this point.

Larry Jordan: Now, the one thing that puzzles me is that there's a 500 feet limit to altitude with a drone and the drone went up to 750 feet. Was this a problem with the manufacturer?

Joseph Tully: It's a default setting in the drone, so it can be increased and in this instance Owen was in a situation where he's on a hill, there are other houses on that hill, there are other buildings in the area and there are power lines, so he actually – being safety minded – increased the default so that if it ever did go into the return to home function, it would fly up to a safe height and then return home, so it wouldn't hit a building or a power line and fall down on somebody and hurt them. Owen knows, being a pilot, that most pilots fly above a thousand feet – is that correct?

Owen Ouywang: Yes.

Joseph Tully: Ok.

Larry Jordan: Well, one of the things I want to point out is that Owen had been very proactive in stating what the problem is, stating what he did, stating how this has come out and is serving as a role model spokesman to say, “Hey, pay attention to this,” so that there's been no attempt to hide the fact this occurred, so Owen, thank you very much for joining us and explaining this today. I want to make that really clear. But, Joseph, is Owen still responsible for flying the drone, even though the drone has gotten out of his control?

Joseph Tully: That's a really difficult question and the answer is probably maybe. Again, this is a new field in law. It was in autopilot mode. He lost connection with the drone through no fault of anything that he did. Would it be your fault if your cell phone lost connection with somebody while you were guiding them someplace and they got lost? In this case, the drone lost connection, through no fault of Owen's, and because it lost connection it went into this return to home safety function.

Larry Jordan: Based upon this, and especially because he interfered with a police helicopter, what charges if any is Owen facing, or what penalties, if any?

Joseph Tully: Right now, he's been cleared of any criminal liability, so there are no federal charges, there are no state criminal charges. There are guidelines that you're not supposed to fly within five miles of an airport and there's an airport nearby, within five miles of where this was, so there may be a penalty with that. But it's my understanding that there are no clear fines or penalties. Again, there's no real body of law around drones right now.

Larry Jordan: My understanding is that there is new drone legislation pending. Can you describe what that is?

Joseph Tully: Well, I've had a chance to review it very briefly and it seems to be focused on just registration. So any drones between half a pound up to 55 pounds have to be registered with the FAA and if you don't register you face very stiff civil penalties of up to $27,500 and perhaps some criminal liability as well. But the regulations seem to be dealing with registration itself and not how to fly the drone or flying irresponsibly.

Larry Jordan: We have a live chat going on right now and, Owen, you answered this question earlier but Eric is asking why you were flying the drone if you weren't filming at the time.

Owen Ouywang: I was just trying to test the flight of the drone. People get a drone, they do not fly it only when they want to film. I was just trying to fly it around. That's what I wanted to do.

Larry Jordan: Basically practicing.

Owen Ouywang: Yes, exactly.

Joseph Tully: And actually he has a passion for flying. Again, he's a student pilot, he's close to getting his license, he flies any kind of aircraft he can and he's going to school to become an airline mechanic, so he loves flying.

Larry Jordan: Joseph, should drone manufacturers provide a different kind of programming for their drones to help solve this problem? Is this a manufacturing issue? Is this a regulation issue? An airspace issue? Where do you think the boundaries lie?

Joseph Tully: I think there is a technological fix. I think the emerging technology of vehicle to vehicle communication, the internet of things where different objects can talk to each other, should be implemented into drones as a fix to this. Also, when I'm in cruise control in my car, if somebody pulls in front of me, my car will slow down and adjust with the laser assisted cruise control with the radar installed in it. I think the drones having radar or vehicle to vehicle communication would have avoided this incident.

Larry Jordan: Joseph, if you were to give guidance to other drone operators who want to fly their drones responsibly and avoid the kind of problem that Owen's going through right now, what advice would you give them?

Joseph Tully: First and foremost, I would say that a drone is not a toy, so everybody who gets a drone under the tree at Christmas, don't wake up and just start flying it right away. Be very responsible with it. Again, Owen's situation is somebody who's intelligent, who's knowledgeable and was trying to do the right thing and yet still ended up in a bad situation which could have been really bad, so I would say treat it extremely safe, go to a waterfront, go to a place where people fly kites, where you can have visual sight with the drone at all times. Stay away from crowds of people and objects, so a nice open, flat area where there aren't a lot of people would be the place to fly a drone.

Larry Jordan: Another legal question for you, Joseph. What are the liability rulings on drones? If damage is caused, who's liable?

Joseph Tully: I think we would have to go back to cars or aircraft and use existing law and start applying it by analogy to drones. If I fly a drone through the window of your house and I purposely do that or I negligently do that, then I would be responsible for it. If I'm flying a drone responsibly and you are – I don't know why somebody would do this – but you're piloting erratically maybe an airplane or something like that and you hit the drone just because you're flying erratically, that would be your fault.

Joseph Tully: Then I think there's probably going to be a big body of law relating to manufacturer's liability. For instance, had something happened here, as you pointed out, there's not a clear liability situation. The drone was in autopilot mode, it has been programmed to be safe and yet there's no vehicle to vehicle communication and there's no radar installed in the drone where it could have avoided hitting an object, a building, a tree or another flying vehicle.

Larry Jordan: Owen, I can just imagine the stress you're under and I very much appreciate you coming on this show and explaining the situation, so I hope this gets resolved successfully from your point of view.

Owen Ouywang: Thank you very much.

Larry Jordan: And Joseph, for people who want to learn more about your law practice, which is amazing, what website can they go to?

Joseph Tully: They could go to tully-weiss.com.

Larry Jordan: And Joseph Tully himself is speaking. Joseph and Owen, thanks for joining us today.

Joseph Tully: Thank you very much.