May 13, 2014
Are drones a free speech issue?
by Sal Robinson
Drones have a new friend: media companies. A coalition of major media companies, among them The New York Times, The Washington Post, the Associated Press, the Hearst Corporation, and the Tribune Company, filed an amicus brief last week that argued that drone use should be protected under the First Amendment, as part of an ongoing case against Raphael Pirker, a drone operator known as “Trappy” who was fined $10,000 in 2011 by the Federal Aviation Administration for shooting a promotional video of the University of Virginia campus (this video, for the curious).
The FAA claimed Pirker had operated the drone in a reckless manner (lots of zooming below underpasses and the occasional buzzing of a surprised-looking UVA student) and without a license; Pirker fought back, and in March, his fine was overturned by the National Transportation Safety Board, who argued that the FAA didn’t have the legal authority to enforce the ruling, since there is no law on the books banning commercial drone use, merely an “advisory statement” from the FAA suggesting that they are illegal. The FAA has appealed the NTSB decision. And they’re definitely behaving as if drones are actually illegal, refusing to issue drone permits to news organizations and chastising media companies and journalism schools for using them, as they have increasingly been doing.
The media companies’ amicus brief is an escalation in this struggle. As reported on by Jason Koebler for Vice’s Motherboard, their case hinges on the idea that the FAA has treated all drone use, whether by operators like Pirker or by news organizations, as commercial. But this is incorrect, they argue.
“In each case, the FAA has averred to its restrictions on the use of UAS for ‘business purposes,’” the brief continues. “The FAA has failed entirely to take [the] First Amendment into account in regulating the use of UAS.”
Drones are certainly good at journalism: they’re cheap and effective, able to get footage that other methods of aerial surveying can’t always match. You can see why media companies want to use them. But is the use of them really an exercise of freedom of speech, and the attempt to control them a violation of fundamental rights? What about privacy, air traffic issues, and the fact that they occasionally fall out of the sky?
Even the Professional Society of Drone Journalists acknowledges that they still creep us the freak out, recently posting on their site the results of a Pew Research Study on emerging technological developments. Of all the advances that the next 50 years or so might bring,
respondents were least likely to agree that “personal and commercial drones are given permission to fly through most U.S. airspace” is a good thing in the near-term. Drones were not the most unfavorably-rated technology, however. Compared to drones, respondents were slightly more likely to view the ability for parents to alter the DNA of their offspring as a negative.
That’s right, most Americans thought widespread drone usage was only slightly more disturbing than customizing the DNA of your unborn child like an In-N-Out burger. Matthrew Schroyer, founder and president of the Society, sees this as an image question, writing that “the public needs to experience how responsible drone use can make their lives better, and how drones can help deliver more informative, immersive, intelligent news reports.” OK, fine, this is obviously going to be an uphill battle: as long as drones are used by the U.S. military to remotely bomb civilian targets, the technology is not going to seem innocuous to even the densest and most patriotic of survey respondents.
But, in terms of the media companies’ case — and with the caveat that I’m a rank layman, an ink-stained editorial wretch about as far from a First Amendment lawyer as you can get — it just doesn’t seem right to me that simply because a handy new technology for collecting information exists, that means that the use of it should be protected by the First Amendment. It seems like back-to-front logic: build your drone (or your phone-tapping system or your surveillance program), and constitutional protection will come. And drone use clearly supports media companies’ commercial ends, as well as their loftier ones.
April Glaser and Jennifer Lynch, blogging for the Electronic Frontier Foundation last fall, agree with me (unsurprisingly) (but with much more background than me), arguing that the very capabilities of drones mean that the FAA has a duty to implement procedures that protect civil liberties:
It is especially important for the FAA to define basic data collection procedures for domestic drones because the technology enables a kind of surveillance not achievable by manned aerial or ground-based law enforcement or commercial entities. Some drones are capable of staying in the air for 16-24 hours at a time, much longer than a manned aircraft ever could. Drones can fly altitudes above 20,000 feet with super high resolution cameras and can monitor and track many people at once or intercept phone calls and text messages. Drones also cost far less to purchase, operate and maintain than helicopters and planes.
In other words, they’re Super Journalists, and along with their greater powers comes the need to regulate just what exactly they can do with them.
Sal Robinson is a former Melville House editor. She's also the co-founder of the Bridge Series, a reading series focused on translation.