Challenging the Drone Advisory Committee’s Failure to Release Records and Open Meetings
EPIC has filed suit to enforce the transparency obligations of the Drone Advisory Committee (DAC), a body created by the Federal Aviation Administration to study and make recommendations on U.S. drone policy. Although the DAC met regularly and issued recommendations to the FAA, it conducted much of its work in secret and released only a small number of committee records. And despite the imminent threat that drones pose to the privacy rights of millions of Americans, the few DAC records that are public reveal a near-total failure to consider the privacy impact of drones and drone surveillance. EPIC’s suit, brought under the Federal Advisory Committee Act (FACA), would force the disclosure of DAC records so that the public can understand the nature, content, and origins of the drone policy advice that the FAA relies on. EPIC also aims to determine how, if at all, the DAC addressed the privacy implications of mass drone deployment.
Less than two months after EPIC filed suit, the FAA terminated its long-running agreement with the umbrella organization assigned to manage the DAC (known as RTCA, Inc. or the RTCA Advisory Committee). The FAA then dissolved the original DAC and launched a new committee by the same name. At the first meeting under the new charter, the DAC announced that it was abandoning the system of subcommittees that the Committee had previously used to conceal much of its work from the public.
In February 2019, the U.S. District Court for the District of Columbia ruled that the FAA must search for and release to EPIC any undisclosed DAC records. As a result, the FAA produced 652 pages of previously unpublished documents to EPIC. However, the district court ruled that the FAA did not have to disclose records from the DAC’s secretive working groups. In September 2019, EPIC appealed that decision to the U.S. Court of Appeals for the D.C. Circuit. On April 30, 2021, a divided panel of the D.C. Circuit affirmed the lower court’s ruling. Judge Robert L. Wilkins, writing in dissent, accused the majority of “doing violence to the text” of the FACA and argued that the decision “undermines FACA’s purpose and greenlights an easily abusable system[.]” Noting the “obvious privacy concerns that drones present” and the fact that the DAC was “stacked with industry representatives,” Judge Wilkins warned that “[w]e should look with suspicion upon agency efforts to circumvent FACA by using subgroups.”
The Privacy Implications of Drones
The integration of drones into U.S. airspace will adversely affect millions of Americans. Reports of drones threatening the safety of aircraft, civilians, first responders, and law enforcement officers—as well as reports of surveillance by drones on private property and “drone stalking”—are on the rise. Many drone operators enable their drones to surreptitiously observe, record, or otherwise collect information from individuals without their knowledge or consent, even through walls or from thousands of feet in the air.
Drones are routinely equipped with high definition cameras that greatly increase the capacity for domestic surveillance. Drones can also gather sensitive, personal information using infrared cameras, heat sensors, GPS, automated license plate readers, facial recognition devices, and other sensors. Drones are even “capable of locking-on to an individual and following them while shooting video and avoiding obstacles,” including in “a dense forest or urban environments like a warehouse.”
Drone use and drone sales are rapidly growing. U.S. drone sales more than doubled between 2016 and 2017, and commercial drones are representing an ever-larger share of the worldwide drone market. Meanwhile, President Trump has taken steps to effect a “quick and dramatic expansion of drone use” in U.S. airspace.
Despite these alarming trends, the FAA has refused to promulgate generally applicable regulations to address the privacy risks posed by drones—even ignoring a Congressional command to do so in the FAA Modernization and Reform Act of 2012.
The Drone Advisory Committee
The Drone Advisory Committee was established by the FAA in 2016 and held its first meeting in September of that year. The FAA charged the committee with “identify[ing] and recommend[ing] a single, consensus-based set of resolutions for issues regarding the efficiency and safety of integrating UAS [unmanned aircraft systems] into the NAS [National Airspace System] and to develop recommendations to address those issues and challenges.”
Although the DAC held numerous meetings and released a small number of related documents, much of the DAC’s work took place outside of public view in smaller DAC subgroups. For example, the DAC established a DAC Subcommittee to “conduct more detailed business” than would typically be addressed by the full committee. The DAC also established three “Task Groups” to address specific drone-related issues. All of these DAC subgroups directly advised senior FAA officials about drone policy. Yet none of the DAC Subcommittee or Task Group meetings were open to the public, and very few records documenting their proceedings have been released.
Moreover, the few records that are publicly available suggest that the DAC almost entirely ignored public concerns about the impending risks of drone surveillance in the United States. Members of the DAC even admitted in a survey that privacy is a top public concern around drones and discussed forming a working group to focus on privacy issues. Yet there is no evidence that the DAC has fulfilled its essential responsibility to assess these risks to the public interest.
EPIC’s FACA Lawsuit
EPIC’s lawsuit seeks to enforce the transparency obligations of the Drone Advisory Committee set forth in the Federal Advisory Committee Act.
The FACA imposes two main openness requirements on every federal advisory committee (a term which covers any “committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof” which is “established or utilized” by an agency). First, advisory committees are required to make their meetings “open to the public.” The charter that governed the DAC makes it clear that this requirement extends to subcommittees, as well.
Second, the FACA requires advisory committees to “make available for public inspection and copying” all “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the committee. The General Services Administration, which administers the FACA government-wide, has made it clear that this disclosure obligation extends to records of subcommittees. And unlike many agency records, advisory committee records must be proactively disclosed; agencies cannot force interested parties to file a Freedom of Information Act (FOIA) request in order to obtain such records.
EPIC’s suit asked the district court to take several steps: (1) order the DAC to preserve, index, and release all DAC records; (2) order the DAC to open all future DAC Subcommittee and DAC Task Group meetings to the public; (3) order the DAC to halt all proceedings until it has fully complied with its transparency obligations; and (4) set aside DAC recommendations and actions taken prior to the DAC’s full compliance with its transparency obligations.
Less than two months after EPIC filed suit, the FAA terminated its long-running agreement with the umbrella organization assigned to manage the DAC (known as RTCA, Inc. or the RTCA Advisory Committee). The FAA then issued a new charter for the DAC establishing that the DAC would be managed solely by the FAA. At the first meeting under the new charter, the DAC chairman announced that the Committee was abandoning the system of subcommittees previously used to conceal much of the DAC’s work from the public.
EPIC is the leading organization in the United States addressing the privacy issues that arise from the deployment of drones in U.S. airspace. As early as 2005, EPIC warned the public and policymakers about the adverse impact that drone surveillance would have on individual privacy.
In 2012, EPIC filed a petition with the FAA—joined by over 100 organizations, experts, and members of the public—demanding that the agency issue privacy regulations to safeguard the interests of the American public. EPIC has also twice brought suit against the FAA to enforce the agency’s obligation to establish privacy protections against drone surveillance. EPIC first sued the FAA when the agency denied EPIC’s 2012 petition and failed to address privacy issues in its first drone rulemaking. EPIC subsequently filed suit to challenge the FAA’s final rule on small drones.
In March 2018, EPIC filed a FOIA suit against the Department of Homeland Security to obtain the agency’s drone policies, reports, and procedures. In 2015, an EPIC FOIA request identified significant privacy and maintenance problems with the Department of Defense JLENS program, in which the Department conducted domestic surveillance using blimp-mounted radar and video equipment. After a JLENS surveillance blimp broke free, downed multiple power lines, and crash landed in Pennsylvania, the program was eventually cancelled. And in 2016, EPIC obtained key documents through a FOIA request concerning the work of the FAA’s Drone Registration Task Force.
EPIC v. Drone Advisory Committee, 369 F. Supp. 3d 27 (D.D.C. 2019)
- Complaint (April 11, 2018)
- Government Motion to Dismiss (July 3, 2018)
- EPIC Opposition to Motion to Dismiss (July 17, 2018)
- Government Reply in Support of Motion to Dismiss (July 27, 2018)
- EPIC Notice of Supplemental Authority (Oct. 16, 2018)
- Government Response to EPIC Notice of Supplemental Authority (Nov. 3, 2018)
- Memorandum Opinion (Feb. 25, 2019)
- Motion for Final Judgment (July 26, 2019)
- Order (July 26, 2019)
- Notice of Appeal (Sep. 4, 2019)
EPIC v. Drone Advisory Committee, No. 19-5238 (D.C. Cir. appeal docketed Sep. 11, 2019)
- EPIC Opening Brief (Jan. 10, 2020)
- Joint Appendix (Jan. 10, 2020)
- Government Brief (Feb. 10, 2020)
- EPIC Reply Brief (Mar. 2, 2020)
- Oral Argument Recording (May 12, 2020)
- Opinion (April 30, 2021)
- Production Batch 1
- Production Batch 2
- Production Batch 3
- Production Batch 4
- Production Batch 5
- Production Batch 6
- Production Batch 7
- Production Batch 8
- Production Batch 9
- EPIC Letter to FAA Acting Administrator Daniel K. Elwell (July 16, 2018)
- EPIC v. FAA (Drone Privacy Rules)
- EPIC v. DHS (Drone Policies and Reports)
- EPIC v. Army (Surveillance Blimps)
- EPIC Amicus Brief: State v. Davis (aerial surveillance)
- EPIC Testimony before Senate Judiciary Committee (domestic drones)
- Congressional Research Service: Domestic Drones and Privacy: A Primer
- Spotlight on Surveillance: DRONES: Eyes in the Sky
- A. Michael Froomkin and Zak Colangelo, Self-Defense Against Robots (March 19, 2014)
- Ryan Calo, The Drone as Privacy Catalyst, 64 Stan. L. Rev. Online 29 (2011)
- Michael Laris, A U.S. drone advisory group has been meeting in secret for months. It hasn’t gone well., Washington Post (Oct. 23 2017)
- Michael Laris, Federal drone advisory panel knocked for ‘lack of transparency and poor management’, Washington Post (Nov. 8, 2017)