Privacy Cases

EPIC v. FAA

DOWNLOAD EPIC-v-FAA-DC-Cir-Petition pdf 1.6MB

Challenging the FAA’s Failure to Establish Drone Privacy Rules

Congress required the FAA to develop a “comprehensive plan” to “safely” integrate drones into the national airspace. In 2012, over 100 organizations, experts, and advocates joined EPIC in petitioning the FAA to establish privacy protections prior to the deployment of commercial drones in the United States. In 2014, the FAA responded to EPIC’s petition, claiming that drone privacy implications “did not raise an immediate safety concern.” The FAA further stated, “the FAA has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system. We will consider your comments and arguments as part of that project.” But in 2015 when the FAA announced a rulemaking on commercial drones, the agency purposefully ignored privacy concerns, stating that privacy “issues are beyond the scope of this rulemaking.” EPIC promptly filed suit on against the FAA (“EPIC v. FAA I”) challenging the FAA’s denial of EPIC’s petition and the FAA’s failure to include privacy in the small drone rulemaking. The D.C Circuit ruled that EPIC’s was time-barred from challenging the denial of EPIC’s petition and premature in challenging the Small Drone Rulemaking. The FAA finalized the Small Drone Rulemaking in 2016 and EPIC filed suit again (EPIC v. FAA II) and has challenged the FAA’s failure to address privacy in the Small Drone Rulemaking.

Background

The FAA Modernization and Reform Act of 2012 (Public Law 112-95) orders the Transportation Department to conduct a public rulemaking to safely integrate drones into the national airspace. “Drones” or “unmanned aircrafts” are aerial vehicles that operate without a human pilot onboard. The Federal Aviation Administration (FAA), a component of the Department of Transportation, is the agency responsible for licensing domestic drones. Drones are equipped with highly sophisticated surveillance technology that threatens personal privacy. Drones’ collection of personal information, including physical location, poses a public safety problem for millions of individuals. And, as stated by Senator Ayotte, Chair of the Subcommittee on Aviation Operations, Safety, and Security, “Unlimited surveillance by government or private actors is not something that our society is ready or willing or should accept. Because [drones] can significantly lower the threshold for observation, the risk of abuse and the risk of abusive surveillance increases.”

On March 8, 2012, EPIC, joined by over 100 organizations, experts, and advocates, petitioned the FAA to “conduct a rulemaking to address the threat to privacy and civil liberties that will result from the deployment of aerial drones within the United States.” On February 23, 2015, the FAA denied EPIC’s petition. On this date, the FAA issued a notice of proposed rulemaking (NPRM) to “adopt specific rules to allow the operation” of drones. The NPRM states, “[t]he FAA also notes that privacy concerns have been raised about [drones],” but privacy issues “are beyond the scope of this rulemaking.”

Congress explicitly ordered the Transportation Department to conduct a public rulemaking to safely integrate drones into the national airspace. As EPIC’s petition described in detail, drones are equipped with increasingly sophisticated technology that gathers sensitive personal details, including location information and biometric information. A necessary component in the safe integration of drones is ensuring meaningful, effective privacy protections.

The FAA violated the law when it failed to issue and solicit public comments on proposed drone privacy regulations.

EPIC’s Petition to the FAA

On March 8, 2012, EPIC, joined by over 100 organizations, experts, and advocates, petitioned the FAA to “conduct a rulemaking to address the threat to privacy and civil liberties that will result from the deployment of aerial drones within the United States.” EPIC explained the substantial civil liberties and privacy threats that drones pose. For example “[g]igapixel cameras used to outfit drones are among the highest definition camera available, and can ‘provide real-time video streams at a rate of 10 frames a second.’ ” EPIC noted that some drones could track “up to 65 different targets across a distance of 65 square miles” and that drones can gather sensitive, personal information through drone infrared cameras, heat sensors, GPS, sensors that detect movement, automated license plate readers, and facial recognition technology. This type of technology presents a unique threat to privacy because of drones’ persistent surveillance and, “by virtue of their design, their size, and how high they can fly, [drones] can operate undetected in urban and rural environments.” EPIC highlighted examples of contemporary drone uses, including “paparazzi drones,” private detectives using drones, Google’s use of street-level drones for Google Street View, and criminals using drones to stalk and harass. EPIC petition states, “[w]ith special capabilities and enhanced equipment, drones are able to conduct far more detailed surveillance, obtaining high resolution picture and video, peering inside high level windows, and through solid barriers, such as fences, trees, and even walls.”

EPIC urged the FAA to “assess the privacy problems associated with the highly intrusive nature of drone aircraft, and the ability of operators to gain access to private areas and to track individuals over large distances.” In light of the substantial privacy threats that the impending deployment of drones in the U.S. poses, EPIC and the coalition petitioned the FAA to:

  1. conduct a notice and comment rulemaking on the impact of privacy and civil liberties related to the use of drones in the United States. In order to adequately address all of the potential threats, the FAA should examine and report on the impact on privacy to individuals within the scope of their comprehensive plan to safely integrate civil drones into the national airspace, required under 322(a) of the FAA Modernization and Reform Act;
  2. conduct a notice and comment rulemaking on the impact of privacy and civil liberties related to the use of drones by government operators pursuant to the agency actions required under § 324(c) of the FAA Modernization and Reform Act; and
  3. take into consideration during the notice and comment rulemaking the use and retention of data acquired by drone operators; the relation between drone operation and property rights; the ability of an individual to obtain a restraining order against a drone vehicle; and use limitations on drone vehicles and requirements for enforcement of those limitations. In relation to the government use of drones, the rulemakings should also consider the application of the Privacy Act of 1974 to the information gathered by drone operators.

FAA’s Response

On June 28, 2016, the FAA denied EPIC’s petition. On this date, the FAA issued a final rule on the “Operation and Certification of Small” drones. The rule states that “privacy concerns have been raised regarding the integration of [drones] into the NAS,” but privacy issues “are beyond the scope of this rulemaking.” Instead of a public notice and comment rulemaking, the FAA and Transportation Department will participate in the National Telecommunications and Information Administration (NTIA) “multistakeholder process aimed at developing privacy best practices for the commercial and private use of [drones].” The NTIA “multistakeholder process” will not produce any legal restrictions on the use of domestic drones for aerial surveillance nor establish any legal rights for individuals who are subject to drone surveillance in the United States.

Prior to the NPRM, the FAA wrote a letter to EPIC on November 26, 2014, claiming that the “issue [EPIC has] raised is not an immediate safety concern.” The FAA further stated, “the FAA has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system. We will consider your comments and arguments as part of that project.”

But, as the FAA made clear when the agency issued the NPRM, the agency will not consider EPIC’s comments because, according to the agency, privacy issues “are beyond the scope of this rulemaking.”

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