Could The FAA's Drone Policies Violate The First Amendment?

from the strike-them-down dept

Wed, Dec 24th 2014 9:59am — Mike Masnick

Law professor Margot Kaminski has a fascinating post detailing how the FAA's "drone licensing" program could very much violate the First Amendment. A while back, she'd already expressed concerns about the FAA's attempt to ban the use of drones, noting that the bans blocked expression in the form of video and photography -- because, remember, taking a photograph is a form of expression. But the First Amendment question is even more stark now, thanks to the FAA's recent decision to let Hollywood use drones for commercial purposes, but no one else. As Kaminski notes, now the FAA is suddenly deciding whose expression is okay and whose isn't. That's a classic First Amendment issue.

The problem is that now the FAA appears to be playing favorites. All commercial uses of drones are banned—except for uses by those six companies that obtained an exemption (and by BP, which received an earlier exemption to use drones up in Alaska). There are 45 other applicants for an exemption under section 333, including a self-identified newsgatherer and a realtor who presumably wants to take photographs.

This potentially raises a First Amendment licensing issue. Does Congress’s treatment of these applications violate the First Amendment by putting too much discretion in the hands of government officials, allowing them to privilege one speaker over another? And if this is the case, what are the consequences for any licensing regime that happens to touch on First Amendment-protected activity?

The Supreme Court has long acknowledged that a too-discretionary licensing regime can raise serious First Amendment concerns. This is true even where a complete ban might be permissible. A brief recently filed at the NTSB on behalf of News Media Amici raised the specter of the FAA applying too-vague law in an arbitrary and discriminatory manner, in violation of the First Amendment.

Kaminski admits that this isn't a completely clear-cut case. The courts would have to determine if the licensing program is "aimed at speech" -- specifically the "law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks." That may be a high bar. Kaminski isn't sure the courts would go there yet, but notes it's a possibility. And, in that possibility, it could lead to challenges towards other licensing requirements as well.

If courts paint the definition of a “nexus to expression” with too broad a brush, then licensing schemes touching self-driving cars, smartphones, or the Internet of Things may also have to meet the First Amendment’s more stringent requirements. This potentially puts the First Amendment in tension with good innovation policy. As we attempt to encourage Congress not to rush to conclusions, and encourage agencies to experiment with regulatory schemes for new technologies, discretion may be something we want to afford them, rather than restrict.

Given that we've already seen evidence of drone innovation going overseas due to regulations at home, perhaps it might not be such a bad thing to have such regulations face that higher level of scrutiny.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: drones, faa, first amendment, free speech

26 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 24 Dec 2014 @ 10:26am

Surely there's no First Amendment issue in requiring a license or permit for a commercial entity to operate drone-mounted cameras, but, insofar as being a speaker grants an entity special treatment under such a licensing scheme, the government should have to give all speakers equal opportunity to obtain a license.
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 10:29am

FCC enforced broadcasting monopolies are a government violation of free speech. They essentially prioritize the speech of broadcasters over anyone else.
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 10:31am

Re:
Charging a lot of money effectively gives those with money a better opportunity.
[ link to this | view in thread ]
TheResidentSkeptic (profile), 24 Dec 2014 @ 10:37am

I believe the licensing and regulation are required.
We have already had a news story of an idiot flying a drone within feet of an airliner "just to watch it land". Aircraft engines are NOT designed to digest a flying camera platform and perform normally. I have to agree that requiring a license to operate (with emphasis on controlled air space) should be mandatory. The flight paths of airliners within 5 miles of major airports are well within the reach of commercial-quality drones. Consider the risks here - a car accident rarely wipes out hundreds of passengers at a time - improperly digesting a drone can bring an airplane down. Think of the impact in the Los Angeles landing corridor through downtown.
[ link to this | view in thread ]
Chris-Mouse (profile), 24 Dec 2014 @ 10:51am

If the FAA wants to regulate drones, it should be on the basis of safety only.
Drones large enough to be a hazard to aircraft should be licensed with a mandated requirement for built-in restrictions for flights near an airport.
Drones small enough to not be a hazard would be license free.
Drones that might be a hazard if they crash should be licensed somewhere in between those extremes.
Drones that could be a hazard to aircraft should be permitted near the airport only with written permission from the airport operator. Such permission to include acceptable flight locations, date, and times that the permssion is granted.

It's not the FAA's authority to judge based on why the drone flight is desired, only that it be a safe flight.
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 10:52am

I choose to express myself by robbing banks. By trying to arrest me the government is stepping on my first amendment rights. Free speech.
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 10:56am

Re:
In this situation the government is only allowing the MPAA to rob banks under different rules than anyone else.
[ link to this | view in thread ]
AC (profile), 24 Dec 2014 @ 10:56am

Limited resources
The airwaves comment above is the best analogy for airspace. This isn't about limiting an unlimited medium (e.g. speech) it's about the safest way to allocate a limited resource. Likewise, the EPA or other departments would be expected to shut down any expression that caused great harm to listed public resources. Promoting a political cause by spray painting owls in a national park? Probably not protected by the 1st amendment.

With that said, this should be one of those cases mentioned in the post where a complete ban would be OK, but discriminatory access may not be. Set up clear, focused, rules that keep people safe, then get out of the way.

Not near airports. Not above a certain altitude. Not over private property without permission. That sort of thing.
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 10:58am

Re: Re:
If the govt wants to give everyone a blanket set of guidelines they can comply with to fly drones they can. but for them to give certain groups exemptions over others like this is not OK.
[ link to this | view in thread ]
Mike Masnick (profile), 24 Dec 2014 @ 10:59am

Re: I believe the licensing and regulation are required.
I don't think most are arguing that there should be no regulations at all. But there is a real and legitimate concern that the FAA dragging its feet here, by basically disallowing all commercial use (other than to six Hollywood players) is really holding back innovation.
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 11:10am

Re: I believe the licensing and regulation are required.
Licensing does not solve the problem of an idiot obtaining a drone and flying it near to an aircraft, or someone ignoring what they were taught to obtain the license. Any day watching people drive provides many examples of people ignoring what they had to learn to get their license.
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 12:23pm

"ignoring what they had to learn to get their license"

Furthermore, in the case of pilot licensing, radio operator licenses, driver licenses etc there is an element of actual and community policing. Someone with a radio operator license using too high power a transmitter, someone driving drunk, someone failing to pass a medical for their pilot's license - will all probably be found and dealt with in some way.

What is the recourse for me if someone overflies my private property and takes photos of my 12 yr old daughter sunbathing and sells the photos to dubious buyers? How do I even know it happened? How are they identified?

How about requiring logging capability in all drones and mandatory realtime uploads. How else to verify that they follow the rules of the drone road?
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 2:19pm

here I thought the constitution free zones as well as the free speech free zones did that already
[ link to this | view in thread ]
Anonymous Coward, 24 Dec 2014 @ 4:20pm

Sorry as someone who has hit a drone with an aircraft I feel some of these idiots need some kind of training.
[ link to this | view in thread ]
Kal Zekdor (profile), 25 Dec 2014 @ 10:13am

Some thoughts on Drones
I have several points of view on Drones in general, and this regulation in particular. Firstly, regulations (of any kind) that can be exempted for those with enough clout, while restricting individuals and innovators, are always a recipe for abuse and discriminatory practice.

That said, blanket regulations by the FAA on Drone use are undeniably required. Common sense safety restrictions (avoiding airports for one) should certainly be implemented.

There are, additionally, privacy concerns. I do not believe that the regulation thereof falls under the FAA's purview, but piloting a Drone over private property without permission should be considered trespassing.

However, while common sense rules and regulations are indeed required, we also need to take care that said regulations do not hinder personal liberty or economic innovation. As I mentioned above, I have varied points of view on Drone regulation. In addition to my concerns as a citizen for my safety and privacy, I have concerns as a business executive. My company had to scrap a project and business venture due to FAA Drone regulations. (Specifically, the line of sight requirement.)

I'm not sure I have a conclusion, I just wanted to share what may be a unique perspective. I suppose I'll just leave you with this final thought. Too often have legislation and regulation been used as cudgels against innovation by those that fear it; if we wish for this nation to truly be as great as we like to claim, we must ensure that the Rule of Law is used to protect the People, and not to reduce them.
[ link to this | view in thread ]
Bergman (profile), 25 Dec 2014 @ 10:58pm

Re:
This. If the difference between an allowed toy and a disallowed drone is solely due to the fact that the drone exercises first amendment rights with a camera and the toy lacks the camera, then the FAA is absolutely in violation.

By all means, regulate hazards. But there are limits to government's authority.
[ link to this | view in thread ]
nasch (profile), 26 Dec 2014 @ 9:15am

Re:

How about requiring logging capability in all drones and mandatory realtime uploads. How else to verify that they follow the rules of the drone road?

Would the FAA have the authority to do that? Particularly since your concerns are not directly related to aviation, but to privacy. It also seems like an awfully big hammer to swing at such a fringe problem.
[ link to this | view in thread ]
nasch (profile), 26 Dec 2014 @ 9:16am

Re:
Sorry as someone who has hit a drone with an aircraft I feel some of these idiots need some kind of training.

That is certainly legitimate, but the point here is not that training shouldn't be required, it's that whatever the requirements are, they should be applied to everyone, not one set of rules for Hollywood and a different set for everyone else.
[ link to this | view in thread ]
nasch (profile), 26 Dec 2014 @ 10:14am

Re: Some thoughts on Drones
piloting a Drone over private property without permission should be considered trespassing.

Just to play devil's advocate, should flying a kite over private property without permission be trespassing? If not, what's different about a drone? And by drone do you refer only to autonomous vehicles, or also remote controlled ones?
[ link to this | view in thread ]
Anonymous Coward, 26 Dec 2014 @ 11:10am

Re: I believe the licensing and regulation are required.
If you have a problem with idiots who flying on runways just to watch it land, then you should have a problem with this law, because them and the police are pretty much the only ones protected.
[ link to this | view in thread ]
Kal Zekdor (profile), 26 Dec 2014 @ 6:37pm

Re: Re: Some thoughts on Drones
In my opinion, if the Kite had a camera attached, I'd say yes. It's less about moving equipment over other's property, more so a privacy concern. Still, a valid question, and the entire point of my previous post was we need to ask these questions instead of making knee jerk reactions.

In this specific case the mode of transport is irrelevant, whether autonomous drone, remote piloted, or a camera on a string, but there is precedent for control of the air space above private land (up to a point). See Air Rights. While the FAA does designate the height (and to some degree, the activity) that those Air Rights extend to, I am unsure where the legal authority of private citizens exercising control over their Air Rights resides.

Tl;dr: It's up to the land owner. If you don't have their permission, you can't do it.
[ link to this | view in thread ]
John Fenderson (profile), 27 Dec 2014 @ 7:05am

Re: I believe the licensing and regulation are required.
The law has prohibited flying R/C aircraft in that way for many, many decades already. I'm not seeing how a licensing requirement would make the behavior any more illegal.
[ link to this | view in thread ]
nasch (profile), 27 Dec 2014 @ 9:23am

Re: Re: Re: Some thoughts on Drones
Tl;dr: It's up to the land owner. If you don't have their permission, you can't do it.

It's much more complicated than that. You might be interested in this podcast that explores the topic:

http://www.npr.org/blogs/money/2014/05/23/314915583/episode-541-who-owns-the-air
[ link to this | view in thread ]
Kal Zekdor (profile), 27 Dec 2014 @ 1:44pm

Re: Re: Re: Re: Some thoughts on Drones
There is a fair amount of ambiguity and conflicting precedent involving the 100-500ft airspace. That's one of the things that needs to be ironed out. However, the idea of Air Rights has strong legal precedent, and it is (slowly) being applied to UAVs and Drones. While the case law is currently murky, I do believe that Air Rights is the best option at hand to mitigate the privacy concerns inherent in remote flying cameras. Certainly better than any ham-fisted approach that may be being considered.
[ link to this | view in thread ]
Anonymous Coward, 1 Jan 2015 @ 11:29pm

Re: Re:
For this reason, IMO licences other than for naturally limited resources should be issued at a cost-recovery price only.
[ link to this | view in thread ]
Anonymous Coward, 1 Jan 2015 @ 11:48pm

Re: Re: Re: Some thoughts on Drones
Using whether the drone is over private property is problematic, because at 500m (IIRC that's the ceiling here for unlicensed RC aircraft), in a suburban area you can get almost as good a view of your garden from outside as inside (although it would be harder to peep into your windows).

I think a better standard would be to restrict the photography of anything which cannot be seen with the average unaided eye from a public place from a viewpoint ordinarily available to the general public (so on a double-decker bus route, the view from the top deck is fair game, but not elsewhere, for example). Anything visible in such a situation should be fair game to photograph and distribute without permission of the subjects, except where the photographer has committed or is an accessory to an offence which makes a significant contribution to the content of the imagery (that is, you're not committing any additional offence if you happen to photograph your car parked illegally - it is just to avoid creating a loophole in CP laws).

However, I would require the photography platform to be at least as noticeable as a human observer in that location.
[ link to this | view in thread ]