By Mickey H. Osterreicher and Matt Waite The legal landscape in the United States for small unmanned aircraft systems (sUAS), weighing less than 55 pounds, is subject to changing winds as legislators and regulators from federal, state, and local governments consider how to integrate these devices into society and the U.S. airspace. Federal policy is being driven by Congress, drafted by the Federal Aviation Administration (FAA), and overseen by the courts. More than 40 states have considered restrictions—most dealing with law enforcement’s ability to use unmanned aircraft systems—while six have either passed or are considering laws that would directly impact journalists’ ability to use sUAS for reporting. While several cities have outright banned drones (as they are more frequently called) in their communities, the most significant impact upon journalists wishing to use sUAS in the United States will be determined by the FAA and the states. The FAA’s Current Stance As of this writing, the FAA insists that it has regulatory control over sUAS in the United States,1and government entities with
explicit permission from the agency can fly them. Commercial operations are not allowed under FAA policy. The FAA’s primary concern is to protect the safety of other aircraft and people on the ground, however, Congress has recently requested that the agency consider issues of privacy when developing unmanned aircraft systems (UAS) regulation. In the FAA’s Modernization and Reform Act (FMRA) of 2012,2integrate UAS into the national airspace by September of 2015. The FAA, however, has been significantly delayed in meeting that schedule. The selection of six UAS test sites came almost two years late, and the procedure for sUAS rulemaking has been twice delayed. The FAA now says November of 2014 will be the earliest that it will make proposed regulations for sUAS public.3Final regulations will take 12 to 18 months after that notice to complete. The FAA’s current policy is facing legal challenges. The administration fined drone pilot and promotional video maker Raphael Pirker $10,000 for a 2011 flight over the University of Virginia campus. Pirker’s lawyer, Brendan Schulman, filed a motion to dismiss and on March 6, 2014, a National Transportation Safety Board administrative law judge granted the motion by vacating the charge, setting aside the fine, and terminating the proceedings against Pirker with prejudice (meaning they may not be refiled).4decision, Judge Patrick G. Geraghty wrote that none “of the definitions the FAA used for ’aircraft’ are applicable to, or include a model aircraft within their respective definition” and Pirker was “subject only to the FAA’s requested voluntary compliance” with rules for hobbyists. The judge further stated that the policy the FAA relied upon for its rules was “intended for internal guidance” and was “not a jurisdictional basis for asserting… enforcement authority on model aircraft operations.” Essentially, the court found that the FAA policy provided no power of authority over Pirker’s actions, and deemed the policy both non-binding and an invalid attempt at legislative rulemaking. While many viewed the decision as a green light for the use of sUAS, less than a day later the FAA filed an appeal,5the court’s decision and rendered the FAA’s current ban on commercial drone use unclear yet again— and its enforceability questionable. Other Legal Challenges There has been other pushback against sUAS operators beyond the instance involving Pirker. In February, police ordered Pedro Rivera, a photojournalist for WFSB TV in Hartford, CT, to cease flying his drone over the scene of a fatal car accident and vacate the area immediately. Officials later said Rivera was interfering with their investigation and contacted his employer, despite Rivera’s statement that he was operating on his day off. WFSB suspended the journalist for at least one week without pay. In response, Rivera filed a federal lawsuit against police, alleging violations of his civil rights. Rivera’s complaint states that “his device was hovering at an altitude of 150 feet” and that he was standing outside of the cordoned-off crime scene “operating his device in public space, observing events that were in plain view.” The complaint claims that “private citizens do not need local, state, or federal approval to operate a remote controlled model aircraft” and that police intended to “impede the exercise of” Rivera’s First Amendment rights to monitor the police response to a motor vehicle accident, while also chilling his free speech rights.
The FAA—Future Plans and Concerns Last November the FAA produced three documents,6together, provide a roadmap and expected timetable regarding future sUAS regulations. As noted in the introduction, the FAA’s traditional responsibility has been to ensure public safety, with the new added consideration of privacy. At the time of writing, the mechanisms the agency appears to be investigating for regulation purposes include pilot certification, restrictions for where sUAS can fly, and minimum hardware capabilities. However, to date the FAA has provided few specifics about what official regulations will look like, and less than a month after releasing the roadmap delayed its timetable again. With this in mind we can only speculate about what regulations may contain. The roadmap suggests that current FAA regulations requiring “pilot and crew certification,” which include meeting medical, training, and security/ vetting requirements as well as passing written and physical exams, could be applied to sUAS.7FAA roadmap language refers to operation of sUAS in “approved airspace” and under specified “procedures.”8Given the unpredictable nature of newsworthy events and the spontaneity of when and where they occur, the abstraction could be concerning for journalists. The FAA’s USA Comprehensive Plan, which includes portions of the roadmap, insinuates more specific and potentially untenable regulations restricting initial sUAS flights to “daytime”9populated areas.”10undefined references to “performance constraints” and “approved procedures” may also lead to arbitrary and capricious operational restrictions upon sUAS operations. Of equal concern may be a requirement that any sUAS be operated within the “visual line-of-sight (LOS) of the flight crew”11such things as filing a flight plan and using a transponder. Many of these potential rules would put regulatory compliance beyond the means of most sUAS operators. Additional issues that need to be properly addressed are vehicle registration and regulations regarding the recording and reporting of safety data. Aside from these safety concerns is the issue of privacy. Congress, in an Explanatory Statement to the Consolidated Appropriations Act, 2014,12conduct a study on the implications of UAS integration into national airspace on individual privacy”13and that the report “be completed well in advance of the FAA’s schedule for developing final regulations on the integration of UAS into the national airspace.”14legislatures, however, are not waiting for the FAA to act. State Laws In total, 44 states have considered or passed bills to restrict drone use, the vast majority of them aimed at law enforcement use. However, Idaho, Texas, and Iowa have passed laws that directly impact private and commercial use of drones. And, as of this writing, bills are also being considered in Washington, Wisconsin, and Georgia that would directly impact if, or how, sUAS can be used for newsgathering. For the most part, such legislative measures appear to address concerns regarding privacy rights and private property. In one form or another, the bills seek to either criminalize or provide civil penalties for photographing a person “where they would have a reasonable expectation of privacy” or make it illegal to photograph private property without consent of the property owner. Enacted: Texas: Texas law15capture images of a person or private property using an unmanned aircraft flying higher than eight feet in the air without permission of the person or property owner. The law also provides civil penalties for “disclosure, display, distribution, or other use of any images captured” in violation of the law—which allows nineteen exceptions under which such use is permitted.16Newsgathering was excluded as one of those exceptions in the final amended bill. Idaho: Idaho law17reads: “No person, entity or state agency shall use an unmanned aircraft system to photograph or otherwise record an individual, without such individual’s written consent, for the purpose of publishing or otherwise publicly disseminating such photograph or recording.” It exempts flying model airplanes so long as they are used for recreation or sport. The law does not criminalize such activity but instead provides “for a civil cause of action”18for damages and legal fees.
Iowa: The Iowa House bill19criminalizes the use of an UAS “to capture an image of an individual or private property with the intent to conduct surveillance, or to stalk, follow, or intimidate another person”20aggravated misdemeanor21(punishable by up to two years in jail or a fine of up to $6,250). The companion bill in the Senate bars “entering upon or in property for the purpose or with the effect of unduly interfering with the lawful use of the property by others, including interference using visual, auditory, or photographic means that intrudes upon legitimate privacy interests in, on, or around private property that is not normally open to the public... .”22in the course of drone operations the charge is raised from a misdemeanor to a felony. Proposed: Georgia: The proposed Georgia bill23duplicate of the Texas statute except it contains only eighteen exceptions, omitting as redundant the one that permits drone photography over private property if it is within 25 miles of the border with Mexico. Washington: In Washington, the proposed legislation24unauthorized use of unmanned aircraft equipped with a sensing device (including cameras) a “gross misdemeanor”25one year in jail, a $5,000 fine or both.26drones may be flown above private property with the consent of the owner who has “received actual notice that the aircraft is equipped with a sensing device.”27the UAS must also be “clearly and conspicuously labeled” with the name and contact information of the aircraft’s owner and operator.28for drone flight “above public lands in a manner that does not unreasonably interfere with the rights of others and the operation is not otherwise prohibited by law or rule.”29Iowa, the Wisconsin bill30“prohibits a person… from using a drone that is equipped with video or audio recording equipment to photograph, record, or otherwise observe another individual in a place where the individual has a reasonable expectation of privacy.”31penalty for such use is a Class A misdemeanor, subject to a fine of up to $10,000, imprisonment for up to nine months, or both.32The First Amendment states in pertinent part that the government may not abridge freedom of speech or of the press. Through precedential case law, photography is deemed a form of expression protected as free speech. But those constitutional protections are not absolute. They are subject to reasonable time, place, and manner restrictions. Should regulations be put in place, they often cite the necessity for maintaining public safety. Such regulations must also be content-neutral and narrowly tailored while also leaving open alternative avenues of communication.
Applying these standards to a free speech/free press argument, the FAA may be successful in enforcing certain restrictions. But depending on the language it promulgates and the extent to which those regulations prohibit sUAS use, the agency may be open to constitutional challenges by journalists and others. Conclusion With the exponential proliferation of cellphone cameras and the ease with which images of all types (still and video) are disseminated, many legislators have attempted to regulate traditionally protected First Amendment activities with bills that have been dubbed as “anti-paparazzi” or “ag-gag.” The constitutionally suspect language of those bills is now being repurposed in attempts to prohibit the use of sUAS for various uses including newsgathering— even though most of the concerns the language addresses are already covered by the same common law tort principles used to allay privacy fears. States should expect more legal challenges against laws prohibiting the use of drones, especially in states where prohibitions are not content neutral, are overly broad and vague, and in the case of newsgathering, limit more speech than is necessary to achieve a significant governmental purpose. Most importantly, the lagging FAA rulemaking scheme and increasing state legislation emphasize the need for practical sUAS regulations that will strike a fair balance between concerns over air safety and privacy, and the rights of journalists and the public to use a new tool for newsgathering.