The recently-passed holiday season offered the usual installment of cinematic blockbusters, none more celebrated than the latest installment in the Star Wars saga. Watching the multiplicity of human and drone interactions and all manner of flying vehicles and devices, raised again recurring questions in this technology-driven age: does life, indeed, imitate art, and if so, how do our human/machine interactions affect constitutional rights? For decades, science fiction writers and Hollywood have presented a vision of our future, that in many ways, the high-tech industry has sought to mimic and adopt. The rapid emergence over the last few years of unmanned aerial vehicles (“UAVs”) or “drones” brings this tension of new technologies and how we manage and regulate the human/machine interaction into an ever-brighter spotlight.
Drones have become ubiquitous. Lightweight, equipped with high-definition cameras, commercially-available and relatively inexpensive, UAV sales have skyrocketed. With so many drones soon flying, the federal government (specifically the Federal Aviation Administration (“FAA”)) has promulgated regulations attempting to protect U.S. airspace. In so doing, the FAA has taken a position on the type of uses, and users, that merit varying levels of regulatory governance, and many feel that the FAA’s initial efforts have missed the mark.
Of particular concern is the FAA’s explicit distinction between “hobby or recreational” and “commercial” drone uses and users. While the bright-line distinction is readily impactful across multiple industries, the problem created by this recent set of regulations is most notable in the newsgathering business.
In a time when defining “journalist” grows more and more difficult — in large part the result of technology enabling every single person who owns a “smartphone” with a high-definition camera, microphone, recording and storing capability and ability to immediately post (or ever-more frequently, live-stream) content on the Internet — the new FAA regulations unduly restrict “commercial” news organizations from taking full advantage of these new videographic and photographic capabilities afforded by UAVs. While perhaps most challenging to traditional or “legacy” media, the drone regulations present tough questions for “new” or emerging media, “citizen journalists” and the accessing of user-generated content.
In fairness, the fault does not lie (principally) with the FAA. When Congress passed legislation tasking the FAA with regulating drone use, it expressly limited those restrictions to commercial uses. Indeed, the Federal Aviation Administration Modernization and Reform Act of 2012 (“FAAMRA”) expressly prohibits the FAA from regulating “lightweight aircraft (under 55 pounds) used for hobby or recreational purposes.” Thus, while commercial operators are left to seek onerous, and rarely-granted FAAMRA exemptions, the hobbyist or recreational user is, generally, left at great liberty to use his/her drone largely unencumbered with government prohibitions.
But in the process of seeking to affect Congressional intent to regulate only commercial UAV use, the FAA’s limitations placed on commercial users unreasonably impinge on First Amendment free speech protections. For instance, while a “recreational” drone operator might capture aerial footage of an event or an accident or a catastrophe, with no prior intent to commercialize the footage, that person could readily decide to offer that footage to a media outlet, whereas that very same media outlet, or someone working commercially as a journalist (freelance or otherwise) could not themselves undertake to capture such drone footage in the first instance without first getting specific FAA exemption approval to operate the UAV, and then to do so only within the very narrow operational limitations afforded under a FAAMRA § 333 exemption. Of course, the recreational drone user need not seek to monetize aerial footage by the sale of photos or video to a media outlet; that recreational user might simply choose to post that content to his/her website, or to his or her social media feed, or even to live stream such video via Periscope, which as of late January 2016 will now be available via Twitter timelines (at least on Apple i-devices). Such an action also may provide that recreational drone user with economic value, in the form of “traffic” to his/her blog site or even ad revenue tied to social media sites such as YouTube.
First Amendment protections are not prescribed by whether the newsgathering activity is commercial or non-commercial in nature (issues settled decades ago in New York Times v. Sullivan, 84 S. Ct. 710 (1964) and Branzburg v. Hayes, 92 S. Ct. 2646 (1972)). So, the FAA’s disparate regulation of commercial or recreational drone users, at least in the context of newsgathering activities, would seemingly suffer constitutional infirmities. These issues have yet to be fully litigated in the UAV context, but within the last few weeks the FAA was sued in federal court over its registration requirements (Taylor v. Michael P. Huerta, as Administrator Federal Aviation Administration, Case No. 15-1495, United States Court of Appeals D.C. Circuit); the suit was brought by a hobbyist unhappy with the registration requirements, but it does not address the newsgathering issues raised in this blog article. Of course, protection of U.S. airspace for national security purposes, and the plethora of individual privacy considerations, also are in play. Mindful of the variety of as-yet uncharted issues that expansive UAV activity necessarily entail, thus far, media organizations have sought, albeit unsuccessfully, to coax a “newsgathering” exception from the FAA to work around the FAAMRA prohibitions, and recent 2015 FAA rulemaking pronouncements have failed to adequately address the problem.
While the FAA issued an interim final rule in December 2015, the rule’s focus is not on the important (but admittedly, more narrow) concerns of newsgathering organizations, but rather on how best to police the ever-more crowded skies above the United States, which necessarily implicates air safety, national security interests, privacy rights, among others, not to mention free speech considerations. Ultimately, these many considerations will require the engagement of other branches of government, such as the Department of Justice, the Federal Communications Commission, the National Security Agency and others. In the interim, the prospect of significant fines for violations of FAAMRA regulations are likely to keep most media organization’s (as well as other commercial users’) drone fleets grounded, and the utility of UAVs for more efficient, accurate and timely newsgathering and news coverage in check.