On October 27, 2014, the Federal Aviation Administration (FAA) issued a new Notice to Airmen (NOTAM) that bans the use of “unmanned aircraft and remote controlled aircraft” near stadiums. The move comes in the wake of a number of reports worldwide, including within the United States, of “drone” use at sporting events. Though these incidents certainly raise legitimate safety concerns, the FAA’s response is problematic for a number of reasons. It exploits fear and post–9/11 anti-terrorism statutes to enact a solution that is of dubious legality and efficacy that could negatively impact law abiding citizens who pose no real threat to stadiums. More importantly, it is emblematic of a technopanic-driven approach to civilian drone policy that has only become more irrational and draconian in the last month.
What the FAA has Banned
Let’s begin by taking a look at the details of the new NOTAM. It bans the use of parachutes and aircraft, including “unmanned aircraft and remote controlled aircraft,” up to 3,000 feet above the ground and within three nautical miles of a stadium capable of holding 30,000 or more people. The ban goes into effect one hour before the beginning of the event and continues until one hour after the event. These include Major League Baseball, National Football League, NCAA Division 1, NASCAR, Indy Cup, or Champ Series events. “Knowingly or willfully” violating the NOTAM could result in a fine, up to one year in prison, or both.
But what counts as an an unmanned/remote controlled aircraft? Based on other FAA documents, specifically its 2007 policy statement purporting to ban commercial use of drones, these include toys of a kind that are becoming increasingly popular among consumers. That document states (PDF), “They range in size from wingspans of six inches to 246 feet; and can weigh from approximately four ounces to over 25,600 pounds.” For example, most of what is available in the Amazon “drone store” would fall under the FAA ban on drones near stadiums.
Several weeks ago, the NTSB upheld (PDF) the FAA definition of “aircraft,” which includes virtually anything designed to fly in the air. In March, a lower court judge found that the FAA definition was overly broad, leading to the laughable conclusion that toy gliders and golf balls could be considered “aircraft” and regulated as such. But the NTSB was not laughing in its reversal, agreeing instead with the FAA that the definition of “aircraft” really is that broad.
Perhaps emboldened by the decision, on the day that it was released, Jim Williams, head of the FAA’s Unmanned Aircraft Systems Integration Office, told the audience at The UAS Commercialization Conference that even tethered drones are still considered “aircraft” by the FAA and subject to FAA regulation. But if a drone on a string is still an aircraft, and an aircraft is anything that flies, then one is left to wonder if a child with a balloon at a stadium is now in violation of federal law. Based on the simplistic, literalist approach taken by the FAA and NTSB, it would seem that this is the case.
Of course, it is highly unlikely that federal agents will begin arresting children with balloons. But this simplistic, literal approach to defining “aircraft” also means that if you happen to live within 3 nautical miles (roughly 3.5 statute miles) of a stadium and fly a toy helicopter in the backyard with the kids on game day, you could pay a hefty fine or even go to jail. Don’t think the FAA would actually do that? Think again. In the wake of the recent NTSB decision, Jim Williams confirmed the FAA’s belief that it can regulate the “airspace” just inches above the ground in your backyard. This also is the agency, after all, that is attempting to fine a man $10,000 for flying a styrofoam airplane. And with the recent NTSB decision in their favor, it looks like they just might succeed. Though the FAA might not be coming for the kid with a balloon at a stadium, flying this radio controlled paper airplane in your backyard at the wrong time could be another story.
The Role of Fear and Ambiguity
Of course, it seems ridiculous that someone could go to jail for flying a toy in their yard near a stadium. However, the new FAA regulation comes against a backdrop of ongoing fears of airborne terrorist attacks on stadiums in the wake of 9/11. In fact, this NOTAM is the latest in a series issued since 9/11 and codified by Congress that defines the airspace around stadiums as “national defense airspace.” The primary change in this latest NOTAM is the addition of the words “unmanned aircraft and remote controlled aircraft.” In short, this latest NOTAM exploits fear and the structure of post–9/11 anti-terrorism laws to enact a new regulation on the use of model aircraft.
Fear can be a great motivator and justification. In this case, several kinds of fear converge to provide a powerful warrant for the FAA ban on drones near stadiums. These include fear of new technology, in this case drone fear; fear of the unknown, of what “could” of “might” happen; and, of course, fear of terrorism.
Fears related to drone safety, in particular concerns about so-called “near misses” with manned aircraft, have gotten a lot of attention in recent weeks. More detailed analysis, however, has shown those fears to have been largely unfounded. Nonetheless, they have resulted in one senator’s call for an expansion of the FAA’s drone ban to include not just commercial drones but all private drones. But, as Gregory McNeal has argued, “legislation and policy should be driven by real facts, not anecdotes and inflated stories.” This should especially be the case when those laws and policies could potentially send people to jail.
In this case, history does not support the idea that model aircraft pose a new threat to stadiums. Model aircraft have been lumped under the broader, somewhat ambiguous term “drone” or “unmanned aircraft system.” In the popular imagination, these latter terms seemingly denote the emergence of a new and, to many, frightening technology. While there have been some genuinely new developments in this area, not everything that has been swallowed by these new terms is actually new. In reality, model aircraft have been flown safely for decades and have, in that time, provided no serious threat to stadiums. In fact, for thirteen years after 9/11, model aircraft were not included in stadium-related NOTAMs.
Of course, just because model aircraft have not been used as tools of terrorist attack in the past does not mean that they cannot or will not be used in this way. There have been a number of stories about the potential use of model aircraft by terrorists. But, as I have written previously, those stories have been entirely speculative, exaggerations of real-world cases, or some combination of the two.
So the addition of model aircraft to the latest in a series of NOTAMs meant to protect stadiums from airborne terrorist attack is not in response to any actual terrorist threat to stadiums from model aircraft. What is going on here? Like many of the post–9/11 anti-terrorism laws, this NOTAM is being exploited for uses unrelated to terrorism. For example, we know that the vast majority of wiretaps authorized by the PATRIOT Act have not been terrorism related, but rather, drug related. Similarly, we know from reporting based on leaked NSA documents that much of that agency’s mass surveillance, typically justified publicly by reference to preventing terrorism and/or authorized under anti-terrorism laws like the PATRIOT Act, is not related to terrorism. Even though the NSA and other intelligence agencies do more than fight terrorism, terrorism serves as a frightening, convenient, and effective (if ultimately misleading) rationale for mass surveillance activities that might otherwise raise concerns or draw criticism. Similarly, a regulation originally intended to keep the nation’s stadiums safe from terrorist attack with manned aircraft now serves as a convenient tool for the FAA in its ongoing effort to keep a lid on the growing use of drones in the United States while it struggles to develop rules for their integration into the national airspace.
The FAA Ban is Security Theater
In addition to exploiting fear and anti-terrorism laws, this is a case of irrational, “security theater.” On the one hand, it’s not at all clear that the three nautical mile ban would actually do anything to stop a determined attacker in a traditional, manned aircraft. On the other hand, a three nautical mile ban applied to model aircraft is overly restrictive. For example, one of the more popular and advanced consumer-grade drones available to the public lists an “effective control distance” for its radio of 1,000 meters, or half a nautical mile. But even then, that distance can be diminished by radio interference, trees, buildings, and other environmental features. Many other consumer-grade “drones” do not even have this much range. A would-be attacker would likely find the range of his model aircraft weapon diminished even more once it was loaded down with an explosive payload.
In short, it is doubtful that the three nautical miles of closed airspace around stadiums would actually prevent a determined, aerial terrorist. At the same time, this same airspace restriction applied to model aircraft potentially implicates a distance six times greater than necessary to prevent what is, at best, a hypothetical threat from model aircraft.
Enforcement Risks Violating Property Rights
But this new rule for model aircraft comes with risks of its own. In an attempt to counter a hypothetical threat for which there is little real-world evidence, the addition of model aircraft to this ban encompasses many legitimate uses of those devices that pose no threat to a stadium–e.g. a family flying a toy helicopter in their backyard. Enforcement of the ban risks infringing on fundamental rights, in particular, the use and enjoyment of one’s own property. For example, Rice-Eccles Stadium at the University of Utah, where I work, is located in a largely residential area. On game days, thousands of home owners within three nautical miles of the stadium could face prison time for flying a toy on their own property. This could be the case even though the property owner might not even be able to see the stadium from his or her property or be operating a model aircraft capable of reaching the stadium in any case.
A New Rule for Model Aircraft
Finally, it is not clear that FAA has the legal authority to enforce this NOTAM with respect to model aircraft. Of course, FAA would likely argue that it is using authority granted by Congress in the wake of 9/11 to regulate airspace around stadiums. Congress did give them that authority. However, enforcement of this NOTAM against model aircraft users may violate Section 336 of the FAA Modernization and Reauthorization Act of 2012 (PDF), which clearly says that “the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft.” The agency is already facing criticism and even a legal challenge over its June 2014 interpretation (PDF) of this law, with critics charging that the agency has done exactly the opposite of what Congress instructed–i.e. FAA proposed new rules and regulations for model aircraft. As this revised NOTAM related to airspace around stadiums was not previously applied to model aircraft and now is applied, it could be considered a new rule for model aircraft. That is, applying an existing rule not previously applied to model aircraft is, in effect, a new rule.
In response, one could note that this law also says that the prohibition on creating new rules and regulations for model aircraft does not limit FAA’s ability to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” But taking enforcement action against a model aircraft user who actually endangered the national airspace is different from creating a new rule meant to prevent a hypothetical risk from model aircraft. With the changes to its stadiums airspace NOTAM, the FAA is engaged in the latter, not the former.
In short, there are legitimate safety concerns when it comes to drones and stadiums. However, this NOTAM exploits fear and post–9/11 anti-terrorism statutes to enact a solution that is of dubious legality and efficacy that could negatively impact law abiding citizens who pose no real threat to stadiums. It is reasonable to punish those who use a model aircraft in a way that actually endangers a stadium and event goers. However, applying standards clearly meant for manned aircraft to model aircraft, many no more than toys, is like swinging a sledge hammer to kill a (hypothetical) gnat. More importantly, it is emblematic of a techno-panic-drive approach to civilian drone policy that has only become more irrational and draconian in the last month.
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