Civil Liberties Groups Warn FAA Drone Rule Could Restrict Journalism

Coalition argues the proposed Section 2209 rule should better protect First Amendment newsgathering while allowing security restrictions around critical infrastructure.

By DRONELIFE Features Editor Jim Magill

Citing the important use of drones in news-gathering, a coalition of civil liberties groups is advocating for changes to a proposed FAA rule designed to allow important fixed sites, such as prisons and nuclear power plants, to apply for restrictions limiting the flights of UAVs over their facilities.

In a comment submitted on the proposed rule, Section 2209 of the FAA Extension, Safety and Security Act of 2016, the American Civil Liberties Union (ACLU), Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), and Electronic Privacy Information Center (EPIC) warned  that the rule, if applied too broadly, could squelch important independent drone-based journalism.

“Restrictions must also be strictly confined to the most serious risks lest they create a dense patchwork of restrictions that together create confusion and significantly restrict, burden and impose barriers on drone operations by journalists, ordinary people, and ordinary people engaging in journalism,” the comments state.

Owners and operators of critical infrastructure sites and other key facilities have long sought the implementation of the proposed Section 2209 regulation. Last month, based on the number of comments it had received, the FAA extended the comment period on the proposed rule, from July 6 to August 5. As of July 13, the agency had received 578 comments, an FAA spokesman said.

“We think that journalism needs to be better accounted for in the crafting of the rules and that journalistic uses of drones need to be woven into the approach to creating these flight restrictions,” Jay Stanley, a senior policy analyst with the ACLU, said in an interview.

According to a notice of proposed rulemaking (NOPR) the FAA has proposed to grant flight restrictions to facilities in 16 sectors of the economy: chemical; commercial facilities; communications; critical manufacturing; dams; defense industrial base; emergency services; energy; financial services; food and agriculture; government services and facilities; healthcare and public health; information technology; nuclear reactors, materials and waste; transportation systems; and water and wastewater.

Stanley said the expanse of the proposed rule could have broad implications for citizens who fly drones in pursuit of First Amendment-protected activities.

“The sheer number of such flight restrictions could, in some scenarios, add up to a situation where it just becomes onerous for ordinary people and journalists,” he said.

“There are obviously very real security concerns for something like a nuclear power plant. I think everybody understands that,” Stanley said. “But there does need to be a process by which those concerns are balanced against the importance of journalism and aerial journalism.”

In their comments, the advocacy groups cited a number of instances in which people have used drone photography and videography to expose wrong-doing.

In one case, an amateur drone photographer in Texas discovered a river of pig’s blood from a slaughterhouse flowing into a waterway. Another incident cited in the comment occurred during the Standing Rock pipeline protests of 2016. “Journalist Myron Dewey captured aerial video of the authorities spraying protesters with fire hoses in sub-zero conditions.”

Absent some changes, owners and operators of covered facilities potential could use Section 2209 to prevent such drone pilots from bringing such abuses to light, the advocacy groups contend.

The proposed rule contains provisions that allow “established, known and conspicuous operators” of drones to seek limited exemptions to the flight restrictions imposed under Section 2209. Under the proposed rule, operators can seek such exemptions to operate public safety UAVs and drone delivery service vehicles, but not for purposes of aerial journalism.

“The words ‘journalist,’ ‘reporter,’ ‘journalism,’ and ‘newsgathering’ do not appear in the proposed rule or in the agency’s discussion in the preamble to the rule,” according to the comments.

“Given the central importance of journalism and newsgathering in a free society, and how our Constitution has enshrined protections for such activities, we urge the FAA to more explicitly recognize and incorporate into its evaluation criteria these uses of drones.”

Questions about the word ‘debilitating”

Another alleged deficiency of the proposed rule is that it cites the need for facility owners requesting the imposition of flight restrictions to demonstrate that any potential damage to their property would have a “debilitating impact” on “security, national economic security, national public health or safety or any combination of those matters.”

Stanley said the phrase “debilitating impact” is too broad and poorly defined.

“Does debilitating mean that immediate widespread stoppages in business, transportation and the provision of services?” he asked. “Or are we talking about something that, in case of a transportation-equipment manufacturing facility that there might be a supply chain problem in two months?”

He added that the potential of harm caused by the malicious use of drones to a facility must be balanced against the rights of the pubic to use drones for beneficial purposes. One of the arguments commonly cited for establishing no-drone zones over agricultural facilities, such as cattle feed lots, is that criminal UAV pilots could use drones to drop poison into water tanks, potentially tainting the nation’s food supply.

But Stanley said that potential harm should be weighed against the potential benefit of allowing drone pilots to keep a watchful eye on agricultural facilities to be able to spot incidences of animal abuse or other acts of wrongdoing.

“We’ve seen that the agricultural world has been an arena where there have been real clashes over First Amendment rights, where we have seen, for example, factory farms not wanting activists to film or record or be able to report on what’s going on these farms,” he said.

“The most important thing is that there is a balancing process. There could be debates between facilities and journalists and other stakeholders about exactly what that right balance is. But right now, there’s no balancing process at all in terms of the First Amendment uses of drones.”

Read more:

• Comments Underscore Stakes of FAA’s Section 2209 Rule (CORRECTED)
• What is Section 2209 and Why is the Drone Industry Urging the FAA to Implement it as Fast as Possible?
• Who Gets to Fly? ACLU Paper Examines the Future of Drone Access