Drone Privacy should not be the Provence of FAA in Washington

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Op-Ed by Mark Dombroff

I am a partner in the Northern Virginia office of Dentons US LLP. The focus of my practice is the aviation and transportation industry, including litigation, regulatory, administrative and enforcement matters, security, National Transportation Safety Board (NTSB) investigations and employee related issues. 
I have counseled and guided numerous aviation and other companies through accident/incident investigations, Federal Aviation Administration (FAA) investigations and civil litigation. Among others, this has included the Arrow Air crash in Gander, Newfoundland, the US Airways crashes in New York (Flight 405), Charlotte (Flights 1016 and 5481), Pittsburgh (Flight 427), US Airways Flight 1549: the “Miracle on the Hudson,” Alaska Airlines crash near Los Angeles (Flight 261), the Colgan Air crash near Hyannis, MA, the crash which took the life of PGA Champion Payne Stewart, the Circuit City accident near Pueblo, CO, the crash of The Galloping Ghost at the National Championship Air Races in Reno, NV, the 2013 crash of a National Airlines Boeing 747 at Bagram, Afghanistan and the SpaceShip crash on October 31, 2014, near Mojave, CA. 
I also handle numerous safety, enforcement and regulatory matters before the FAA/NTSB and other administrative agencies, whether arising from accidents or as independent matters. This includes matters involving not only the FAA and NTSB, but many issues involving State, TSA, Homeland Security, Justice and Treasury.
I provide counseling and representation not only to airlines, but also to aviation service providers, including airports, fuelers, ground handlers, fixed base operators, maintenance and overhaul companies, catering companies, security companies, airframe manufacturers and a number of other aerospace manufacturers.

FAA Drone Privacy

The United States Court of Appeals for the District of Columbia, oftentimes referred to as the second most powerful court in the country because so many cases involve the Government and end up in the Supreme Court, dismissed an appeal by the Electronic Privacy Information Center (EPIC) whereby they sought to compel the FAA, as part of the small UAS rulemaking, to promulgate privacy rules.

The dismissal was premised on procedural issues and, once Part 107 is published, there is little doubt that EPIC will re-file its appeal since it is pretty much a “slam dunk” that Part 107 won’t have any privacy rules. Noteworthy in the decision is a reference to the FAA Modernization and Reform Act of 2012, which mandates the FAA to enact “a comprehensive plan to safely accelerate the integration of civil unmanned systems into the national airspace systems.” The Court, in its decision, also notes that the Act “is silent as to any privacy consideration.”

Hopefully this latter statement by the Court is a less than subtle message to EPIC that when they re-file their appeal after Part 107 is enacted, they’re going to lose it again, but this time on the merits.

The simple fact is that the FAA has no business in the privacy business, no legal authority to engage in it and no desire to become the watchdog of drone privacy.

The FAA’s role is safety. Nothing else! Just safety. And, while they have their problems, they do that job better than any governmental aviation authority in the world. The fact that we have the safest aviation system in the world is no accident. Simply stated, the FAA has been, is and should be all about safety. Privacy is an issue which is and should be addressed at the state level.

The big problem at the state level is that way too many politicians in every state, urged on by privacy advocates, want to enact new rules and laws when, in fact, they may not be necessary. Plane-ly Spoken suggests that before UAS privacy legislation is enacted at the state level, the individual legislatures step back and consider whether they really need new legislation. We suspect that in many, if not in most, jurisdictions, existing laws, with little or no change, are perfectly adequate to address UAS privacy concerns.

And, oh yeah, what about those NTIA Privacy, Transparency and Accountability Voluntary Best Practices. While certainly an admirable intellectual exercise, the reality is that they’re actually an exercise in common sense. The whole stakeholder process undertaken by NTIA has been well-executed. It has certainly provided a forum for those focusing on privacy issues and produced an admirable set of recommendations for voluntary guidelines.

The practical reality is that most companies entering the UAS industry don’t need the NTIA to tell them how to exercise common sense.  Sure, there will always be those companies and individuals who, irrespective of whether or not there are recommended practices, won’t exercise common sense.  That’s especially true in the UAS world where the price of going into business is so low, both from an actual dollar, as well as a regulatory, perspective.

Whatever happens in the area of privacy, the one thing which is absolutely clear is that the FAA neither has, nor should have, any role to play.  Whether state legislators choose to forge ahead without taking a deep breath and conducting a thorough evaluation of whether they need any new legislation is best left to them.  Whether the NTIA process proves to be useful or simply an exercise in doing something because it’s “politically correct” remains to be seen.

The one absolute is that the FAA has no business in the privacy business!

A few comments in response to Mark’s essay:

  1. While you may not agree, the FAA staff believes that its workload exceeds its capacity to regulate the existing responsibilities. ADDING PRIVACY TO ITS LIST OF DUTIES WOULD NOT BE WISE.
  1. The primary focus of this governmental entity is the regulation of aviation safety. It has developed expertise on this subject and has engineers with a number of degrees relevant to aeronautics, an experienced cadre of flight policy mavens, staff knowledgeable with piloting, maintenance, training, aerospace medicine, airports, air traffic and the like. The lawyers on the staff have developed skills relating to aviation. It is bereft of any intellectual or academic training on privacy. Its closest parallel would be intellectual property relating to certification and their history on this comparable issue should not be considered as a recommendation to assume privacy within its agenda. MAKING THE FAA RESPONSIBLE FOR THE DRONE PRIVACY ISSUES IS NOT WELL ADVISED.
  1. Privacy, as a regulatory responsibility, would involve both the setting of a priori rules and policing them. The work force required to prevent, surveil and prosecute such restrictions would have to be virtually omnipresent. The sort of violations, about which the privacy advocates are concerned, can happen anywhere and anytime. Assuming that local police forces could take on this task, their existing major crimes duties are likely to receive higher priority. ANY MANDATE THAT THE FAA SHOULD POLICE PRIVACY WOULD BE PRACTICALLY FUTILE.
  1. Not all problems are best controlled from Washington. Those closer to the scene will be more likely, for example, to differentiate between a pernicious paparazzi and an innocent amateur drone pilot. City ordinances and state legislation are far more likely to comprehend local standards than the folks at 800 Independence Ave. Privacy likely is not such a well-formed issue as to be susceptible to a single national standard. KEEP THIS A LOCAL RATHER THAN A FEDERAL ISSUE.

Well said, Mr. Dombroff.


ARTICLE: UAS/FAA: The FAA Has No Business In The Privacy Business!

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