By Constance M. Pendleton
Drone journalism is taking flight, despite the FAA’s general prohibition on the commercial use of drones—including by the media—in U.S. airspace until 2015. The FAA estimates that by 2018 there will be 7,500 commercial drones, or unmanned aerial vehicles (UAV), in the air. Drones offer a host of new opportunities, enabling the media to report news stories from new angles more safely, accurately, and cost effectively. But U.S. law has yet to catch up with the available technology. Drones are essentially grounded for commercial use, and the FAA considers news organizations and news gathering to fall into the “commercial” use category, even though journalists are creating editorial content. Hobbyists flying model aircraft, however, are exempt.
Legal questions remain unanswered as the FAA works to integrate commercial drones into U.S. airspace and the first legal cases begin to emerge. Just a week after the FAA announced that “there are no shades of gray in FAA regulations. Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of FAA approval” (for drone journalists, that means certified aircraft and pilots, and operating approval), see FAA’s Feb. 26, 2014 Press Release, “Busting Myths About the FAA and Unmanned Aircraft,” an administrative law judge at the National Transportation Safety Board (NTSB) ruled that the FAA does not have authority to regulate commercial drones, see Huerta v. Pirker, No. CP-217 (NTSB Mar. 6, 2014).
Not your Pentagon’s drone
For as little as $350, a camera can be mounted on a drone—some small enough to fit into a reporter’s backpack—launched into the air and capture live video footage and photos of newsworthy events—the devastation of hurricanes, floods, wildfires, tornadoes, and other large scale environmental disasters, political protests abroad, or traffic reports closer to home. Drones provide a safer way to report in war zones or cover terrorist attacks and to get access to otherwise inaccessible locations. They have already been used to film sports events in Australia, to capture a food processing plant’s illegal dumping of pig blood into a river in Texas, and to report on hydraulic fracturing and controlled burns in Missouri. From covering drug-smuggling operations to elephant poaching, drones offer new possibilities for investigative journalists to film from the air that which would be hazardous or impossible to capture from the ground.
For aerial newsgathering, $300 or $1500 for a drone is a far cry from the hefty price tag of a $4 million helicopter and pilot traditionally used by news broadcasters. While drones make aerial newsgathering more affordable and accessible, the typical 15 to 20 minute battery life of a multi-rotor drone limits its use, and the small size means its ability to capture images is more vulnerable to wind, rain, and other air turbulence. Some drones are nimble enough to fly through traffic tunnels, to dart through windows and doorways, or, conceivably, to hover outside a 20 story building to capture pictures (and potentially audio) of a celebrity through her apartment window. While a drone’s noise and the challenges of carrying a heavy telephoto lens may limit their paparazzi uses for now, drone journalism, and the specter of “airborne paparazzi,” has critics, most recently Diane Feinstein, raising questions about privacy and ethics. After a drone peeked in the window of her home during a protest, Senator Feinstein appeared on “60 Minutes” demanding regulations address these issues: “When is a drone picture a benefit to society?” She asked. “When does it become stalking? When does it invade privacy? How close to a home can a drone go?”
Existing state laws providing causes of actions for intrusion upon seclusion, publication of private facts, trespass, and unconsented taping still apply and protect subjects of news from unlawful newsgathering, as they do in the traditional newsgathering context. Some of the additional restrictions currently being discussed to address drone-specific privacy concerns—such as requiring advance permitting—implicate First Amendment rights and should be evaluated carefully.
Safety and liability are another concern. A 2013 report by the Reuter Institute for the Study of Journalism at the University of Oxford raises questions about how small drones will negotiate the airspace between large commercial and military aircraft at major news events without colliding and endangering people. Recently, a Brooklyn man was killed by a drone he was operating, and a drone flown by a wedding photographer reportedly left a groom with several stitches. Drones covering contested elections in Moscow and capturing footage of canned dove hunts at a hunt club in the U.S. have been fired upon. But, so too journalists engaged in traditional newsgathering. Pilot training, liability waivers, and drone insurance covering property damage and personal injuries are a start, but other safety precautions are needed.
Eight states—Florida, Idaho, Illinois, Montana, Oregon, Tennessee, Texas, and Virginia—have passed laws regulating drones and most other states are considering such legislation. Some proposed bills specifically cover use by journalists, or require permission from a property owner before flying over private land. Some state legislators have introduced “Ag Gag” laws prohibiting drones from filming above private property—a result of investigative reports into illegal agricultural activities by animal rights groups.
Will drone operators need a pilot’s license? Will advance permitting be mandated, requiring the media to present a flight plan for approval before taking aerial pictures for a story—a likely prior restraint that would jeopardize the media’s ability to report breaking news and leave discretion in the hands of bureaucrats to decide what uses are valid and in the public interest? Restraints on drone journalism could create legal ramifications for traditional newsgathering. With both practical and constitutional implications, the media needs to be part of the dialogue with regulators and lawmakers as the laws are developed and implemented.
Can states regulate drone use in the first place? U.S. airspace is under FAA jurisdiction, and, the FAA asserts, so are drones. The question has yet to be tested in court, but state laws may well be pre-empted by federal law.
Status of Federal Law
In 2012, Congress enacted the FAA Modernization Re-authorization and Reform Act requiring the FAA to develop new regulations for “safe integration” of drones in navigable airspace by September 30, 2015. In February, the FAA said it expects to publish a proposed rule later this year. The FAA has missed prior rule proposal deadlines and Congress may well have to delay the 2015 deadline as the FAA works out the safety and privacy issues. But, for now, we have a roadmap.
On November 7, 2013, the FAA released its first annual “Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap,” giving a glimpse of the regulations that should help safely integrate commercial drones into U.S. airspace. In early 2014, according to the roadmap, the FAA will issue a Notice of Proposed Rulemaking for small UAS (sUAS). sUAS are small unmanned aerial systems, smaller than 55 pounds and with limited range and altitude—the type most likely to be used by journalists and TV producers. The rulemaking will address the classification and registration of drones, certification of drone pilots, approval of drone operations, and drone operational limits. Drone journalists may not need certificates of authorization from the FAA once the final rule is in effect, but the rules may require a license and background check (including a training course, examination, and medical qualification) to operate a drone, and users will likely have to report safety data to the FAA.
In addition, there will likely be limits on drone operations, such as keeping the drone within the “visual line-of-sight” of the pilot, flying under 400 feet, and not over populated areas—inhibiting the ability to film over a film set or over newsworthy events taking place in all but remote areas. Advanced approval of a news outlet’s drone operation is especially troublesome and would likely run afoul of the First Amendment, especially if not content neutral. The FAA recently selected six drone test sites to help develop the regulations, which will help inform the dialogue on use of drones going forward. Certification at one of the test sites may be required before a commercial drone operator is permitted to fly a drone.
Journalism schools at the University of Missouri, the University of Nebraska, and the Tow Center for Digital Journalism at Columbia University have drone programs. Some budding reporters are taking classes on how to operate drones to report stories safely and responsibly, within legal and ethical parameters. But the FAA has ordered journalism schools to cease any further flights until they obtain FAA permission. Their programs are grounded as they wait for FAA regulations and, because they are public entities, for Certificates of Waiver or Authorization (COA). A COA—available only to federal, state and local governments, law enforcement, and public universities – will grant the student journalists permission to fly only within a predetermined and relatively small space, severely limiting them from conducting any reporting in the field. To date, the FAA has granted only one—COA—to a commercial operator—an oil company for use off the coast of Alaska. For now, the FAA is likely to reject most commercial applications for COAs.
While working on permanent guidelines, the FAA says it is closely monitoring drone operations through complaints from the public and businesses and by watching Internet postings and news reports. The agency has issued verbal warnings and about a dozen warning letters, regarding the “improper operation” of drones. The FAA has also issued orders to stop operations and has fined at least one person for operating a drone in violation of FAA safety guidelines. But the FAA has not gone so far as to say that commercial drone operation is illegal.
Recent Court Decisions: A recent significant ruling that the FAA does not have authority to regulate commercial drones leaves the law in a state of flux and puts pressure on the FAA to accelerate its rulemaking process. On March 6, in Huerta v. Pirker, an administrative law judge at the NTSB ordered that the FAA could not fine a photographer for taking photos and video from a model airplane. In 2011, without an FAA pilot certificate, Pirker piloted a $130 Ritewing Zephyr powered foam glider above the University of Virginia to take aerial photos and video for an advertisement for the UVA medical center. The drone used a camera mounted on it which sent real time video to Pirker the ground.
The FAA ordered Pirker to pay a $10,000 fine, not because he broke any law or was flying a commercial drone per se (though the order explicitly noted that he received compensation), but because his operation of the drone was allegedly “reckless.” The FAA asserted that Pirker “deliberatively operated” the drone “at extremely low altitudes over vehicles, people, streets, and structures”—10 to 400 feet over the university—“in a careless or reckless manner so as to endanger the life or property of another” in violation of the Federal Aviation Regulations. The FAA also alleged that Pirker operated the drone through a tunnel, above walkways and streets, near railroad tracks and a heliport, and in such a way that one person on the ground had to run for cover to avoid being hit. Pirker also allegedly flew the drone at higher altitudes, up to 1500 feet, and failed to take precautions to prevent collision with other aircraft.
The decision is significant because, in dismissing the fine, the judge found that at the time Pirker flew his model aircraft there was no enforceable FAA rule or regulation applicable to model aircraft or classifying model aircraft as UAS. Regulations approved for manned aircraft do not apply to unmanned aircraft. Pirker’s drone was subject only to the FAA’s voluntary safety guidelines, the court said.
The decision finds the FAA’s 2007 policy statement banning the commercial use of model aircraft to be unenforceable. As the FAA reiterated in its February press release, just before the Pirker decision was issued, the FAA’s 2007 policy statement provides:
You may not fly a UAW for commercial purposes by claiming that you’re operating according to the Model Aircraft guidelines (below 400 feet, 3 miles from an airport, away from populated areas.) Commercial operations are only authorized on a case-by-case basis. A commercial flight requires a certified aircraft, a licensed pilot and operating approval. To date, only one operation has met these criteria, using Insitu’s ScanEagle, and the authorization was limited to the Arctic.
See FAA Feb. 26, 2014 Press Release. Not surprisingly, the FAA immediately appealed the ALJ’s decision to the NTSB. The case could go to the D.C. Circuit. Until the appeals in Pirker are exhausted and/or proper regulations are in place, which could take years, FAA fines on drone journalists may not stick. But operators will fly at their own risk and may have to spend money in court appealing any such fines themselves.
Even before the ALJ’s decision in Pirker, media organizations and citizen journalists have taken and broadcast drone footage, despite FAA prohibitions. Some recipients of FAA cease and desist letters have reportedly ignored the letters and have continued to operate drones in U.S. airspace without penalty. Some media companies have gone off shore or overseas beyond FAA jurisdiction to countries that are more hospitable to drones. Other news outlets have likely obtained footage after the fact from hobbyists who are exempt from the FAA’s commercial drone prohibitions, though they are still expected to steer clear of airports, fly no higher than 400 feet, and stay within the line of sight pursuant to the FAA’s voluntary guidelines for hobbyists. Advance agreements with and payment to hobbyists to obtain news footage, while protecting the media from liability for drone-related injuries, may be deemed an impermissible end run around the commercial drone prohibitions and could raise the risk of FAA enforcement against both the news organization and the hobbyist. Paying a hobbyists for drone footage after it is taken reduces risk for the media, but likely increases the hobbyist’s risks that he could be deemed a commercial drone operator. Recently, a newspaper reportedly obtained drone footage from a hobbyist who got police approval to film at the scene and stopped filming when police told him to stop.
As another lawsuit, Rivera v. Foley, No. 3:14-cv-00196-VLB (D. Conn. Feb. 18, 2014) demonstrates, however, law enforcement may not always be so hospitable. In February, Pedro Rivera, an off-duty TV station photographer and editor who used a drone to film the scene of a fatal car crash in Hartford, Connecticut, including the victim’s dead body, is suing the local police for civil rights violations after they ordered him to stop filming and to leave the area. Rivera stayed outside the police perimeter and flew the drone 150 feet in the air above the accident. But police alleged the drone could have jeopardized public safety and violated the federal rules on drone use. While Rivera was not charged with any crime, the FAA is investigating the matter and Rivera was suspended from work for a week after police called his employer to complain. Rivera alleges in his suit that the police chilled his free speech rights in order to prevent the public from having access to video reports about police investigations of crimes.
In anticipation of the ethical issues drone journalism presents, the Professional Society of Drone Journalists has established a code of ethics to supplement traditional codes of conduct for journalists. See http://www.dronejournalism.org/code-of-ethics/. The guidelines focus on newsworthiness, safety, sanctity of law and public spaces, and privacy. Stories must be sufficiently newsworthy to justify the risks of using a drone. Drones should be used only when there are no other safer ways to investigate a story. Reporters should be trained to safely operate drones. Equipment must be in suitable condition and drones should be flown in a safe manner and under proper weather conditions. Finally, operators must abide by airspace regulations, and traditional privacy and ethics standards.
Whether advising investigative journalists, stock photo houses, or producers and broadcasters of television programming, media lawyers will have to navigate the legal and ethical issues drones present under current newsgathering, privacy, and aviation laws, as well as under any rules and decisions to come. Regulations, policies, and standards are being developed right now. The question as to how drone journalists will fare shouldn’t be left up in the air. The media must be part of the conversation.