Will the FAA be ordered to draft privacy regulations?

Under the FAA Modernization and Reform Act of 2012, the Federal Aviation Administration was tasked with integrating unmanned aircraft systems (UAS) into the National Airspace System. Shortly after the act was signed into law, a privacy watchdog, Electronic Privacy Information Center, along with over 100 other organizations and experts, petitioned the FAA for rule making on privacy issues related to civil use of small UAS.

In February 2015, the FAA published proposed rules governing use of small UAS in civil operations, but those rules did not include privacy safeguards. The FAA took the position that privacy issues related to small unmanned aircraft operations were beyond the scope of this rule making. In response, the Electronic Privacy Information Center filed suit in the D.C. Circuit Court of Appeals. The court heard oral arguments on February 10, 2016, and we eagerly await the decision on whether the FAA will be ordered back to the drafting table.

If not the FAA, then who?

In its response brief, the FAA referenced an ongoing interagency effort with the National Telecommunications and Information Administration to develop a framework for privacy, accountability and transparency for commercial and private use of UAS. This multistakeholder discussion began with President Obama's February 15, 2015, Presidential Memorandum on "Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems." Although several draft guideline and best practice documents have been circulated during recent conferences, the end result of this effort will not be binding regulations.

In the meantime, state and local governments grapple with whether to implement their own UAS privacy laws. Many are holding off due to the distinct possibility that federal regulations will eventually preempt state and local laws in this area. But some states and cities have already adopted their own regulations to set expectations of when and how law enforcement can use UAS and to provide remedies for unauthorized use of UAS over private property. These regulations often require prior approval before flying UAS over private property, and one local ordinance even requires a 25 foot buffer between UAS and humans. Unlawful searches and in flight invasions of privacy are two of the more obvious types of privacy concerns, but securely collecting and storing the massive amounts of data UAS are capable of quickly generating raises additional privacy concerns. Therefore, some of the proposed regulations also require annual reports on data collection and local or state-level registration of UAS. Although local regulations arguably better meet the needs of each community, it is easy to see how they will quickly result in a patchwork of inconsistent laws that will make compliance and enforcement a challenge.