On March 31, 2015, the Electronic Privacy Information Center (“EPIC”) filed a petition (the “Petition”) with the U.S. Court of Appeals for the District of Columbia Circuit accusing the Department of Transportation’s Federal Aviation Administration (“FAA”) of unlawfully failing to include privacy rules in the FAA’s proposed framework of regulations for unmanned aircraft systems (“UAS”), otherwise known as drones. The Petition stems from the FAA’s November 2014 denial of another EPIC petition calling for the FAA to address the threat of privacy and civil liberties associated with the deployment of aerial drones within the U.S.

On February 23, 2015, the FAA published a notice of proposed rulemaking that proposes a framework of regulations to allow the routine use of certain small UAS in the national airspace system (the “Proposed Framework”). The Proposed Framework was promulgated under the FAA Modernization and Reform Act of 2012, which directed the Secretary of Transportation to (1) issue a final rule on small unmanned aircraft systems that will allow for civil operations of such systems in the National Airspace System (“NAS”), and (2) determine whether certain UAS may operate safely in the NAS, and if so, to establish requirements for the safe operation of such UAS. The FAA’s Proposed Framework does not, however, include privacy requirements, finding that privacy concerns are beyond the scope of the rulemaking and pointing to state privacy laws and other legal protections as a potential recourse.

In the Petition, EPIC accuses the FAA of unlawfully failing to create drone privacy rules, which EPIC claims was required under the FAA Modernization and Reform Act of 2012. The Petition requests that the circuit court set aside the Proposed Framework and instruct the FAA to conduct further proceedings to explicitly address privacy concerns in the Framework.

Although not addressed in the Proposed Framework, drone privacy concerns have not gone unnoticed. In conjunction with the Proposed Framework, on February 15, 2015, the White House released a Presidential Memorandum addressing the privacy, civil rights and civil liberties concerns associated with UAS, and tasking the Department of Commerce with establishing a multi-stakeholder engagement process to develop a framework regarding privacy, accountability and transparency for commercial and private UAS use. On March 4, 2015, the U.S. Department of Commerce’s National Telecommunications and Information Administration announced a new multistakeholder process seeking comments on best practices concerning privacy, transparency and accountability issues related to the use of commercial and private UAS.