The Federal Aviation Administration (“FAA”) has denied a petition submitted by the Electronic Privacy Information Center (“EPIC”) to initiate a public rulemaking to address the “threat to privacy and civil liberties that will result from the deployment of aerial drones within the United States.”
In 2012, EPIC petitioned the FAA to conduct a notice and comment rulemaking on the impact of privacy and civil liberties related to the use of unmanned aircraft systems (“UAS,” commonly referred to as “drones”) in the United States. The public has the right to request the FAA to initiate such a notice and comment rulemaking for the purpose of adding a new regulation via the submission of such a petition. See 14 C.F.R. § 11.39(c); 14 C.F.R. § 11.61(a); 14 C.F.R. § 11.63(a).
It is likely that EPIC submitted its petition to spur the privacy component of the drone rulemaking process the FAA is charged with undertaking under the FAA Modernization and Reform Act of 2012, enacted February 14, 2012. In the petition (submitted to the FAA in a letter dated February 24, 2012), EPIC claimed that drones pose a substantial threat to privacy due to their capacity for constant, persistent and undetected surveillance and described various examples of increased drone use by law enforcement. The petition was signed by over one hundred organizations, experts and members of the public. Among other requests, EPIC asked that the rulemaking take into consideration the use of drones by government operators and the ability of an individual to obtain a restraining order against one or more drones.
In a letter dated November 26, 2014, the FAA denied EPIC’s petition. Under 14 C.F.R. § 11.73 (cited in the FAA’s denial letter), the FAA must consider the following criteria when making a decision as to whether to amend current regulations based on a petition for rulemaking: (1) the immediacy of the safety or security concerns raised; (2) the priority of other issues the FAA must deal with; and (3) the resources the FAA has available to address these issues. In its denial letter, the FAA stated: “After reviewing your request, we have determined that the issue you have raised is not an immediate safety concern. Moreover, the FAA has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system. We will consider your comments and arguments as part of that project.”
Since EPIC’s petition, the FAA has responded to public comment on proposed privacy requirements for drone test sites and promulgated such requirements.Unmanned Aircraft System Test Site Program, 78 Fed. Reg. 68360 (Nov. 14, 2013). The regulation requires drone test site operators to have privacy policies in place and to comply with such privacy policies. There are currently six drone test sites in the United States.
According to an analysis of draft drone regulations obtained by the Wall Street Journal (“WSJ”), the regulations “are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls.” See Jack Nicas and Andy Pasztor, Drone Flights Face FAA Hit, Wall St. J., Nov. 24, 2014. Although the FAA agreed to consider EPIC’s comments in its denial letter, according to the WSJ article, the new regulations would not address privacy concerns over the use of drones, according to people familiar with the matter.