A New Directive Notes Agency Lacks Authority to Order Video Takedowns

HIGHLIGHTS:

  • The FAA has recognized that its inspectors cannot influence the takedown of videos recorded by unmanned aerial vehicles (UAVs), more commonly known as drones.
  • The agency notes that posted video is not sufficient evidence of a violation of the commercial UAV ban.

The Federal Aviation Administration, after more than a year of warning media companies and hobbyists that posting or linking to any footage filmed by drones may violate the law, has finally acknowledged that its inspectors cannot "direct or suggest" the takedown of drone-recorded videos.

Late last week, the FAA issued a directive titled "Aviation-Related Videos or Other Electronic Media on the Internet" to its field offices in the United States and abroad. The directive can be read in its entirety on the FAA website.

Citing the "escalating number of videos or other electronic media posted to the Internet" and filmed by unmanned aerial vehicles (UAVs) commonly known as "drones," the FAA directive acknowledges for the first time that UAV-recorded video postings do "not automatically constitute a commercial operation or commercial purpose, or other non-hobby or non-recreational use" of a UAV in violation of federal regulations.

The directive reinforces for FAA inspectors that "electronic media posted on the Internet is ordinarily not sufficient evidence alone to determine that" someone has unlawfully flown a UAV. It instructs inspectors, before taking any enforcement action, to gather other evidence that the person posting the video actually flew a UAV unlawfully.

Current FAA regulations ban UAV flights for commercial purposes unless the FAA grants an exemption for flights under restrictive circumstances.1 UAV flights for recreational purposes are permitted as long as the operator adheres to FAA safety regulations.2

The ban has led to much confusion in the agency's statements to the public. Last year, an FAA staff member warned an Ohio newspaper against running UAV video filmed by a hobbyist and provided to the newspaper after the fact.3 The FAA told the newspaper to "err on the side of caution" and not publish the footage because the FAA said it "would require more legal review to determine if it was a fineable offense to publish the video on [a news] site."

That advice – as the FAA's new directive tacitly acknowledges – likely violated decisions of the U.S. Supreme Court. The court has ruled in other contexts that journalists' mere receipt and publication of newsworthy information, even if the source violated the law to obtain the information, is protected under the First Amendment. The new FAA directive also makes clear that hobbyists operating drones in compliance with safety regulations – and not otherwise violating the law – are permitted to post videos on YouTube.

In February, the FAA issued its long-awaited Notice of Proposed Rulemaking for the commercial use of UAV.4 The deadline for filing comments to the proposed rule is April 24. The final rule is not expected to be in place until late 2016 or early 2017.