As RJI’s director of aerial journalism, I have closely followed the Federal Aviation Administration’s proposal to require drone manufacturers to enable drones in the U.S. to transmit a digital ID while in flight. I first wrote about the plan in January, praising its ability to help clear the air of pilots who don’t follow proper safety procedures but questioning the power the proposal gives law enforcement agencies to track flights made by journalists.
Now, a crucial date in the rules process is almost here. The FAA will accept comments on the rule until Monday. You can add your own comment to the agency here.
The plan does provide for some level of anonymity for pilots by using a “session ID” to which to tie personal data. That ID would not be visible to the public, meaning a pilot could not see who else was in the air and that only regulators could. But the proposed rule leaves a back door for local, state and federal law enforcement to track flights and pilot movements with no anonymity attached.
With help from Kathy Kiely, the Missouri School of Journalism’s Lee Hills Chair in Free Press Studies and Lyrissa Lidsky, the dean of the University of Missouri School of Law, I drafted a comment that explains the concerns journalists have over the potential for law enforcement to monitor drone-based newsgathering activity. Agencies, I wrote, could “have intimate knowledge of where a given news organizations is gathering footage and information. This would lead to the potential for retaliation, intimidation and deterrence in newsgathering.”
I also suggested an alternative to allow an independent third party — an arbiter — decide when law enforcement would have access to that data. Government officials would have to make their case for access to the flight records to this arbiter, and the pilot or news organization would be able to respond.
That would eliminate most of my concerns about the proposed rule, giving it the push needed to help improve safety in the skies, but not impose a chilling effect on journalists who worry their every move in the air is being followed by law enforcement.
Kathy Kiely raised the same concerns to the FAA proposal in her own filing to the agency. “It is the digital equivalent,” she wrote, “of allowing agents of the government to wander through newsrooms every night, scooping up information on stories in progress.”
Our comments join more than 24,000 others already filed concerning the propose rule change. The vast majority of the comments come not from journalists but from the recreational drone community. Its members have criticized the rule for its potential negative impact on the cost of flying drones for a hobby. Manufacturers have also complained the proposal would be costly for their businesses and potentially thwart innovation.
But others have also raised concerns over the rules impact on journalists and newsgathering. In the publicly-filed comments, Loretta Alkalay, an attorney and adjunct instructor at the Vaughn College of Aeronautics, raises concerns about the impact the rule would have on journalists and their First Amendment freedoms.
Alkalay wrote, “People who use drones – including amateur photographers and citizen journalists – have the right under the First Amendment to collect images without being identified and tracked by the government except with a showing of compelling government need.”
The need now is to make your voices heard.
My name is Stacey Woelfel and I am the Director of Aerial Journalism for the Reynolds Journalism Institute (RJI) and run the Missouri Drone Journalism Program for the Missouri School of Journalism. In my official capacity, I applaud the efforts of the Federal Aviation Administration to develop an in-air remote identification system for small unmanned aircraft systems. Regulation in this area is sure to lead to safer flying, both for sUAS operators and for the general public, as well as greater accountability for those who use the National Airspace System. I also applaud the inclusion of safeguards for the privacy of aircraft operators’ information through the availability of a session ID system to remove direct identification of pilots.
I am concerned, however, that the availability of that session ID data to law enforcement and federal security agencies is alarming for members of the news media who use drones for newsgathering. The proposed rule, as now written, would allow the agencies mentioned above to be able to access flight records of news organizations, allowing those agencies to have intimate knowledge of where a given news organizations is gathering footage and information. This would lead to the potential for retaliation, intimidation and deterrence in newsgathering.
One possible remedy to this shortcoming in the proposed rule would be to amend it to establish an independent arbiter which would hear requests from law enforcement or national security entities, allowing them to make their cases for the need to access those flight records, and giving the parties whose records have been requested the right to object to the release of said records. This remedy would allow records to be accessed when the flight data would be used to enforce FAA Part 107 rules and other NAS use restrictions, but would not allow the data to be used to create a chilling effect on the free exercise of journalists’ First Amendment rights.
I thank you for considering this comment on the proposal as it moves through the approval process.
As the Lee Hills Chair in Free Press Studies at the Missouri School of Journalism, I welcome the opportunity to comment on the FAA's proposal to develop an in-air remote identification system for small unmanned aircraft systems.
Drones have become valuable tools for journalists, and we support efforts to build trust in their use by making them safer and their pilots more accountable. However, we believe government can best serve the public interest by protecting data gathered under the proposed new system from unwarranted inspections even by law enforcement and federal security agencies.
Law enforcement agencies sometimes become the subjects of journalists' investigations. Giving such agencies unfettered access to flight records, providing them with detailed information on where footage and information is being gathered, therefore could have a chilling effect on newsgathering. It is the digital equivalent of allowing agents of the government to wander through newsrooms every night, scooping up information on stories in progress.
Happily, there's a compromise that would preserve journalists' ability to serve as watchdogs for the public while giving government agencies access to information they need if something goes wrong: Amend the rule to require anyone who wants access to the data to justify the request, before a judge or other independent arbiter. In all but a rare few cases where time is of the essence (these could be determined by a judge), the journalists whose information is being sought should have the opportunity to argue for quashing the request.
This change would preserve the ability of journalists and the public to serve as a check on overreach by public agencies, and would be in line with the system of checks and balances that is at the heart of our constitutional system of government.