FAA -privacy-NOT GOOD
FAA– basic mission- GOOD
FAA –some things-NOT SO GOOD
for good reasons
The learned aviation lawyers at LeClairRyan are frequently cited here because they are able to translate complex legal issues into plain English. Below is their explanation of the lawsuit being prosecuted by the Electronic Privacy Information Center seeking an order to mandate the FAA to issue regulations to assure that UAS operators do not violate the privacy of citizens proximate to these omnipresent aerial vehicles. Their full explanation is below for your perusal.
The title, “Privacy is None of the FAA’s Business”, is a reminder that the aviation safety agency has limits to its competence. Within its mission focus, it has 47,000 employees who know their stuff; in fact, this organization is considered by many as the best at their job:
A brief outline of the FAA’s mission includes:
- Creating a system of safety standards for aircraft, pilots, airlines, airports, manufacturers, the ATC system (another branch) and all of the people/functions within these categories
- Regulating air navigation facilities and flight inspection standards
- Encouraging and developing civil aeronautics, including new aviation technology
- Issuing, suspending, or revoking pilot certificates
- Regulating civil aviation to promote transportation safety in the United States, especially through local offices called Flight Standards District Offices
- Developing, operating and maintaining a system of air traffic control and navigation
- Researching and developing the National Airspace System (NextGen)and civil aeronautics
- Developing and carrying out programs to control aircraft noise and other environmental effects of civil aviation
- Regulating U.S. commercial space transportation
- aviation research and aeromedical research
Based on this panoply of expertise, many have expectations that the FAA can do more. The LeClairRyan article points out that the FAA is not good at “privacy”. The legal principles associated with this area of the law are among the most complex of that profession. [EPIC, for example, has a staff of over 25 professionals (including interns); a Board of fifteen and an advisory board of over 100]. The FAA does not. In order to make any privacy rule effective, it would have to employ thousands of local detectives.
Over its history, the public and Congress have asked/expected the FAA to do a number of things for which it is neither well suited nor staffed:
- aircraft seat comfort– safety yes; comfort is too subjective
- intellectual property rights—one of the standards for granting a PMA is that the applicant’s design is identical to the drawing of the TC holder. The IP associated with these specifications, form, fit and design is extremely complicated. The TC owners assert that the PMA violates their rights and request that the FAA deny the PMA based on this IP. The FAA literally cannot arbitrate these disputes.
- First Amendment rights—the press and protestors have demanded that the FAA void TFRs over events of high interest. The existing procedures defers to law enforcement authorities to request this air space protection for safety and security reasons. The better arbiter of these disputes is the judiciary—not the FAA.
- RATE-MAKING—Congress, consumers and associations frequently write to the FAA asserting that air fares and charges, fees assessed by airport proprietors, fuel prices, etc. The Airline Deregulation of 1978 deleted the CAB’s authority to regulate fares; that power was not explicitly transferred to other federal agencies. The FAA has economists who primarily deal with benefit/ cost analyses of proposed regulations, the justification (usually a B/CA) for an AIP grant, inclusion of a contract tower in federal funding, staffing of facilities/functions, the financial basis for NextGen, and a whole host of other econometric calculations—just not rates.
Occasionally, individuals suggest that the FAA point out where the next Mid-Continent airport, for example, should be built. For a lot of good policy and legal reasons, the FAA cannot and should not do.
The good news is that the FAA is exceptionally good at all of the other FAA functions. [SEE ABOVE ORGANIZATION CHART.]
Privacy is None of the FAA’s Business
Blog Plane-ly Spoken
USA January 30 2018
While most people agree that unmanned aircraft raise unique privacy issues, the question remains who is in the best position to deal with those concerns. The FAA has repeatedly indicated that it does not have the resources, expertise, or inclination to be the nation’s drone privacy watchdog. As a result, privacy issues continue to be worked out at the state and local levels.
The Electronic Privacy Information Center (EPIC) disagrees with this approach, and has spent years attempting to force the FAA to conduct a comprehensive rulemaking on drone privacy and enforcement. After several false starts, the United States Court of Appeals for the District of Columbia Circuit finally heard argument on EPIC’s claim that the FAA is required by Congress to regulate drone privacy. Unfortunately for EPIC, the argument did not go very well.
We here at Planely Spoken have followed this suit since it was filed, and have written in the past about the problems with EPIC’s positions. The D.C. Circuit seems to have the same concerns, and only let counsel for EPIC talk for about a minute before interrupting with a question about standing. For those of you without a legal background, the courts do not just let anyone come in and file a lawsuit on any topic. The person bringing the suit must have an actual injury that they are trying to get the court to redress. The Court was concerned that EPIC was not trying to remedy a particular injury to a member of EPIC, but rather alleging a general injury that is held by all members of the public, which the Court will generally not address.
The Court was equally skeptical about EPIC’s argument that the FAA is required to regulate privacy. According to EPIC’s counsel, the Congress instructed the FAA to regulate “hazards” pertaining to UAS operation, and that the term “hazard” includes hazards to people’s privacy rights. The Court, however, pushed back on this argument, noting that the term hazard is generally understood to imply a safety issue. In addition, the Court noted that the FAA is a safety oriented agency, and that it would be unusual for Congress to have intended that the term “hazard” to mean matters beyond safety.
The only other Congressional directive on the matter identified by EPIC was a statement in comments by staff to a 2014 appropriations bill that instructed FAA to produce a report on privacy issues. The Court noted, however, that the word “privacy” does not appear in the actual appropriations act, statements by staff don’t bind agencies, and that appropriations are not codified and expire automatically. As a result, this statement cannot have any effect after 2014.
While oral argument in a case does not always reflect the ultimate outcome, it appears likely that EPIC will lose its case and the FAA will not be ordered by the court to conduct a privacy rulemaking. To the extent that Congress or the Administration ultimately decides that a “European style” comprehensive set of federal privacy standards is needed, the Department of Transportation, Federal Communications Commission, Federal Trade Commission, or some other regulatory body should handle it. The FAA’s focus on safety has served the public well and should not be changed to include other matters.
For those that are interested, the full argument can be listened to HERE.
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