News and Commentary. The FAA has issued a Temporary Flight Restriction (TFR) over the Dakota Access Pipeline Protest, prohibiting any aircraft other than law enforcement from flying over the site for a 4-nautical mile radius. Regardless of the claim that the TFR is for “safety,” the effect of the TFR is to block any legitimate documentation of activities on either side: something that law enforcement – accused of using excessive force – would seem to have an active interest in preventing. But drone advocates – including drone law experts John Goglia in this week’s Forbes piece, and Peter Sachs in Drone Law Journal – ask a legitimate question: does the FAA have the right to prevent citizens from flying over any situation merely because it is potentially embarrassing to government forces?
Background: The #NoDAPL Protest
The Dakota Access Pipeline is an underground oil pipeline project of over 1,000 miles planned by Dakota Access, LLC, a subsidiary of Energy Transfer Partners. It begins in the Bakken oil fields in Northwest North Dakota and the proposed route runs southeast, through South Dakota and Iowa, to end in Illinois. The proposed route runs underneath the Missouri River half a mile from the Standing Rock Indian Reservation; any spill would impact the water supply for the tribe, as was documented by the EPA and Department of the Interior (DOI): however, the pipeline was granted an exemption from the environmental review required by the Clean Water Act and the National Environmental Policy Act by using a loophole in construction permitting.
In an effort to voice dissent to the pipeline, the Sacred Stone Camp was formed on April 1, 2016. Since then the protest camp has grown to include thousands of protesters. The response of law enforcement in attempts to clear the camp has escalated to include arrests, the recent use of water cannons trained on protestors in freezing temperatures, rubber bullets, and attack dogs. Law enforcement denies using excessive force; but bystander video of these situations certainly brings the government tactics into question, such as this video of the use of water cannons which clearly shows the water being trained on the people, rather than fires as law enforcement claims.
The FAA TFR: a “Terrible Precedent.”
The FAA has issued a TFR over Standing Rock, citing “law enforcement operations” as the reason for the TFR, as required by law. TFR’s are to be issued to “[p]rotect persons and property on the surface or in the air from a hazard associated with an incident on the surface.” But attorney Peter Sachs, a drone advocate and publisher of Drone Law Journal, says that “law enforcement operations” is a pretty broad definition of a “hazard” or safety issue – since the only safety issue would appear to be caused by the law enforcement operations themselves. In fact, the most significant effect of the TFR is not safety, but a media blackout; which Mr. Sachs describes as throwing “in essence, a ‘giant tarp’…over the site, allowing law enforcement to act with impunity and without any witnesses.” Mr. Sachs explains that there are 3 degrees of TFR that the FAA can use – some of which specifically allow media to fly. “They opted for the most restrictive one,” says Sachs, explaining that while there may be occasions when a TFR to support law enforcement and keep media out is necessary and indicated by law – such as the Boston Marathon bombing, or the 9/11 attacks – these examples are few and far between. “Largely, a TFR should not be issued if the purpose or effect is to infringe upon the 1st Amendment. This is a terrible precedent.”
The FAA responded to DRONELIFE’s inquiries with a statement rejecting the premise that the TFR effectively blocks out the media. The FAA says that media who meet their requirements are allowed to fly with permission:
The Federal Aviation Administration carefully considers requests from law enforcement and other entities before establishing Temporary Flight Restrictions (TFR) in U.S. airspace. The TFR currently over the pipeline protest was approved to ensure the safety of aircraft in support of law enforcement and the safety of people on the ground.
The TFR includes provisions for media to operate aircraft – both traditional and unmanned – inside the TFR, provided that operators comply with the language of the Notice to Airmen. In the case of unmanned aircraft, operators must also comply with the requirements of Part 107 and coordinate beforehand with the FAA. We’ve had no requests from media who meet those requirements.
The key to this statement may be “media who meet those requirements.” To date the only media outlet with an official drone program appears to be CNN: it’s unclear if any other news media, including local news, bloggers, or citizen journalists could possibly be granted permission. And as recent narratives such as the “Black Lives Matter” movement demonstrate, major news outlets generally only begin to cover a story when it has reached a critical mass in social media and the blogosphere.
The fact that the reports of what is actually taking place at Standing Rock differ depending upon who is reporting is the most significant argument for allowing drones, citizen and official alike. Like body cameras on police, drone footage should protect both sides from exaggeration or falsified accounts. Cora Peirce, a Native advocate and community leader in Wampanoag land preservation efforts, says that the drones allow people all over the world to make their own decisions about conditions at the Sacred Stone Camp. “This is the largest peaceful protest in our country’s history,” says Ms. Peirce. “It’s vitally important to see what’s going on for yourself.” She adds that reports of militarized action have been largely denied by local law enforcement, who have said, for example, that the water cannons clearly shown were simply a fire truck trying to put out fires. “The drone footage shows real events – and they are often in direct conflict with reports from law enforcement.”
Shooting Down Drones
Some of the feeling that the TFR is a deliberate attempt to prevent documentation is based on the fact that law enforcement has reportedly shot down 9 citizen and local media drones to date, which is a federal felony. These attacks have been documented by video also, as in the example posted below which clearly shows law enforcement taking aim at the drone.
While the incidents have been widely reported on social media, the only official complaints made to the FAA are those of law enforcement, who reported a citizen drone being flown “in a threatening manner.” The FAA responded to DRONELIFE’s request for comment on this issue with a standard statement issued to other journalists also:
Although the FAA is aware of anecdotal reports of drones being shot down, the agency has received only one official report. On Oct. 23, a drone was shot down with bean bags after allegedly being flown in a threatening manner near a law enforcement helicopter. That incident is still under investigation.
The agency also is investigating several incidents in which protestors have allegedly flown their drones in violation of the provisions of the TFR.
“Not Part of the FAA’s Mission.”
Regardless of opinions on whose drones are causing a safety hazard, drone expert John Goglia, writing for Forbes, says that the issue is clear: “Keeping the media from documenting law enforcement actions is not part of the FAA’s mission. Nor is it a legal basis for issuing flight restrictions.” Both Goglia and Sachs point out that the only other time a similar TFR was issued was over the protests against the police shooting of a black teenager in Ferguson. In that case, there is hard evidence that the purpose of the TFR was specifically to keep the media from reporting on the protest: transcripts obtained by the Associated Press of a recorded air traffic control line leave absolutely no doubt that the FAA cooperated in a deliberate media blackout.
The FAA is in a difficult position. They are responsible for the safety of the skies; they are a federally mandated agency. They must work with law enforcement and other agencies in emergencies and natural disasters. They are required to balance the needs of all aircraft requesting access to airspace. However, in clearly political situations, the FAA may find itself on the wrong side of history if it makes covering up embarrassing situations for law enforcement all over the country part of its job.
Miriam McNabb is the Editor-in-Chief of DRONELIFE and CEO of JobForDrones, a professional drone services marketplace, and a fascinated observer of the emerging drone industry and the regulatory environment for drones. Miriam has a degree from the University of Chicago and over 20 years of experience in high tech sales and marketing for new technologies.
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