There have been a number of important new developments in the battle over domestic drones in the United States this week, many of which lend support to the concerns that I have raised in my last two posts.
First, the FAA has confirmed this week that it is launching an official investigation into the use of a drone, in this case a small, multirotor aircraft, over the 4/20 rally in Denver, Colorado. Allen Kenitzer of the FAA told ABC News 7 in Denver that “Anyone who wants to fly an aircraft – manned or unmanned – in U.S. airspace needs some level of authorization from the FAA.” The ABC News 7 story goes on to claim, likely as a result of FAA misinformation, that “the [voluntary model aircraft guidelines] specifically exclude the flying of model aircraft for business purposes.” Finally, based on an FAA “fact sheet” about unmanned aircraft systems, the article says that use of such devices, which includes model aircraft, is prohibited “over densely-populated areas.”
This story supports my first concern, which is that the FAA’s purported ban on domestic “drones,” which includes everything from children’s toys to military Predator drones, is not only arbritrary and capricious, but also risks infringing First Amendment rights when enforcement action is taken against photographers and journalists.
In regard to FAA’s arbitrary and capricious attempts to enforce its purported ban, and as I noted previously, there is nothing in the voluntary guidelines for operation of model aircraft [PDF] that prohibits their use for business purposes. Additionally, though the voluntary guidelines recommend that a model aircraft operator “select an operating site that is of sufficient distance from populated areas,” it goes on to advise that one “not operate model aircraft in the presence of spectators until the aircraft is successfully flight tested and proven airworthy.” Determination of what is a “sufficient” distance and when the aircraft is safe to fly in the presence of spectators is left up to the operator, as these are voluntary guidelines. The guidelines cannot be read as providing a definite, enforceable prohibition against flying a model aircraft for business purposes, over a crowd, or both.
Next, as I mentioned in a previous post, FAA enforcement to date has been directed often against individuals and groups engaged in aerial photography or videography. In the Denver case, one can see what appears to be a camera hanging from the bottom of the multirotor aircraft in question, suggesting that its operators were engaged in aerial photography or videography. Attempts at banning or taking enforcement actions against individuals using these devices for photography or videography, especially if they are engaged in newsgathering activities, risks running afoul of the First Amendment.
The second important development comes from the Pew Research Center, which released the results of a survey on “U.S. Views of Technology and the Future.” It indicates that the American public remains highly skeptical of the use of drones inside the United States. Only 22% said that this would be a good thing, while 63% said that domestic drones would be a negative. As I noted last week, domestic drones, including model aircraft once considered toys, are now an object of full-fledged threat inflation. These numbers would seem to indicate that this threat inflation is working.
But, as Matthew Schroyer of the Society for Professional Drone Journalists noted, use of drones for purposes beyond surveillance and targeted killing, such as journalism, can serve as “the ‘good ambassador’ that opens the door to commercial and recreational drones.” Evidence may be emerging that this is the case.
One such use, which has gained a great deal of attention in the last month, is the use of model aircraft in search and rescue operations. The FAA garnered a great deal of negative press after it took action to stop a group of volunteers from using these devices for search and rescue. This week, the targeted group, Texas EquuSearch, filed a lawsuit against the FAA seeking to have its order lifted. The attorney in the case, Brendan Schulman, has already succeeded in winning a March ruling against the FAA after it sought to fine Raphael Pirker $10,000 for operating a styrofoam airplane for commercial purposes. That case is now under appeal, but prospects for the FAA are uncertain at best.
Again, all of this is not to say that there are no legitimate concerns when it comes to the use of unmanned aircraft, large and small, in the domestic airspace. Someone could have been harmed if the device in Denver had crashed into the crowd. But that does not mean that the FAA can suddenly claim that voluntary guidelines in existence for over thirty years say things they do not say. Nor does it mean that those voluntary guidelines are suddenly enforceable regulations. Legitimate safety concerns also do not mean that the FAA can arbitrarily ban, without following the proper procedures and without a higher level of scrutiny, use of this technology in activities that are otherwise constitutionally protected.
Finally, none of these actions by the FAA is addressing the concern that is likely the most important driver of public fear and skepticism: government use of drones. The outrage we have seen over the last month in the wake of the FAA’s action against Texas EquuSearch is an indicator that people can recognize and accept socially beneficial uses of this technology. The plethora of laws being proposed and passed in states around the country, however, is an indicator that peoples’ primary concern is government, in particular law enforcement, use of the technology for surveillance.
This is not a wholly unfounded fear. We know that drones have been an important surveillance tool used by the National Security Agency, for example, in U.S. counterterrorism operations overseas. We also know that there is increasing interest among domestic law enforcement agencies who would like to use drones for surveillance. One recent case, in which police used a drone with an advanced surveillance camera system on it to monitor an entire city, is certainly cause for concern.
Ultimately, however, it is important that we do not allow our fears to distract us from real dangers. A powerful new technology in the hands of the surveillance state is a real danger. Toy airplanes are not. Current attempts to ban the use of the latter by journalists and search and rescue volunteers does nothing to restrict the former. We also cannot allow fear to justify cutting corners when it comes to rule making, and certainly not to justify infringing constitutional rights in the process.
Latest posts by SeanLawson
- With Drone Strike On ISIS Hacker U.S. Escalates Its Response To Cyber Attacks - September 15, 2015
- The Death of Cyber Doom? Not So Fast - April 6, 2015
- The Sony Hack, It’s Still Not War Or Terrorism - December 20, 2014