I’ve written on this subject before, but it is probably an understatement to say the news media is eagerly anticipating the day it can use drones in newsgathering. The drone’s ability to go where people can’t and their relatively nominal cost makes them a potentially priceless addition to the newsperson’s arsenal.
So this memo from the Federal Aviation Administration is a big deal. It’s the first word on how the FAA will regulate in this area. And it might actually raise more questions than it answers. The memo addresses three issues:
- Whether members of the media may use unmanned aircraft systems (bureaucrat for “drone”) for newsgathering;
- Whether the media may use pictures, video or other information collected by a person using a UAS; and
- Whether a person who sells images collected by a UAS would need authorization for his or her operations.
The answer to item one is “case by case.” The memo says “[c]ommercial media may use a UAS for newsgathering if the FAA authorizes the flights.” The memo, however, provides no guidance on when or how the FAA will authorize the flights. And that alarms my pro First Amendment mind. If I am reading this correctly, the government is reserving the right to tell the press whether and how it can gather news using a now fairly common technology. And the government offers no criteria on how it will grant authorization. That seems amazingly arbitrary to me.
As to item 2, the FAA memo provides that the news media may use pictures and videos obtained from a UAS operated by a third person not affiliated with that media outlet. And the FAA correctly notes that it does not regulate whether a third party not involved in the operation of an aircraft can receive pictures and video gathered using that aircraft. That provision is consistent with case law finding the media may use material illegally obtained by a third party so long as the media was not involved in the illegal acquisition. What is not entirely clear is whether a reporter who obtains pictures from an unauthorized third party UAS operator will be able to assert a privilege against identifying the third party.
While 49 states offer some sort of shield law protecting reporters from compelled disclosure of source identity, there is no federal shield law. So if the FAA wants to find the operator, it may very well subpoena the news outlet that runs the pictures or video. And that outlet may not be able to quash the subpoena, since federal law would presumably apply.
In its response to number 3, the FAA is potentially opening up a rather large loophole. The FAA permits the use of model aircraft for hobby or recreational purposes, but not for commercial use. So, what happens if a recreational user sells photos or video captured during the course of the recreational use? The FAA says the issue will come down to the individual’s “true intentions” in operating the device. Which sounds a bit like the government peering into people’s souls. And that is never a good thing. In fact, the memo suggests the issue will depend largely on frequency. In the memo’s words: “[o]perations that frequently result in pictures, videos . . . sold to a third party may indicate that the operation is in fact commercial in nature notwithstanding the individual’s claim of a hobby or recreational purpose.” So, the old actions speak louder than words approach seems to be in order.
The memo is essentially a first step on what is sure to be a longer journey. Fasten your seat belts and return your trays to their upright position. This ride may get bumpy.