EFF joined an amicus brief alongside ACLU, ACLU of D.C., National Press Photographers Association, and Professional Photographers of America to encourage the D.C. Circuit to vacate an FAA drone escape limitation that violated the First Amendment correct to document law enforcement. This is an crucial case—Levine v. FAA—challenging the capability of the authorities to punish drone pilots who document law implementation officers busy in authoritative business.
As we wrote concerning earlier this year, the FAA issued a escape limitation for drones that had efficiently criminalized the record of Department of Homeland Security officers, including immigration agents from ICE and CBP, and their vehicles (what the FAA called “mobile assets” including “ground conveyance convoys and their connected escorts”) equal if the drone was complete fractional a mile away.
A drone operator, represented by the Reporters Committee for Freedom of the Press, sued the FAA in March [PDF]. But in April, the FAA rescinded the escape restriction.
The petitioner asserted in his opening brief that the court should measure the legality of the escape limitation equal although it was withdrawn. Drone pilots could motionless be punished for violations that occurred whenever the escape limitation was in effect. And the FAA could reinstate the escape limitation at any time, stated that the rescission did not appear to indicate “a true alter of heart” but fairly an attempt by the agency to evade judicial review.
The amicus brief, submitted in assistance of the petitioner, noted that drones are distinctive since they provision “perspectives that cannot be captured by ground-based imagery,” and they “are far additional maneuverable than ground-level cameras, and they are the two much cheaper and much safer than using a chartered aircraft or chopper to document newsworthy events from above.” The concise highlighted that drones have captured “bird’s-eye images of objection activity” and “police uses of power against protestors,” and have “allowed journalists to provision the community alongside up-to-the-minute data concerning natural disasters without putting themselves in harm’s way.”
The concise asserted that using drones to grasp images and video is information-gathering action protected by the First Amendment (similar to using cell phones to document law enforcement). The concise additionally asserted that the FAA’s escape limitation appeared to be issued specifically to ban the record of immigration agents and thus hinder accountability for their implementation actions—it certainly wasn’t a coincidence that the FAA imposed “no-drone zones about all roving DHS patrols fair as those patrols were provoking serious national backlash.” If that’s true, it would create the FAA’s act a content-based limitation on address that is topic to strict scrutiny—the highest First Amendment standard—and presumptively unconstitutional. And equal under small rigorous standards of First Amendment scrutiny, the escape limitation is unconstitutional since the FAA can’t articulate any valid governmental involvement justifying specified a sweeping limitation on speech.
Resolving this matter to defend First Amendment entitlements is particularly urgent as authorities agencies continue to sink billions of dollars into innovation designed to oppose drones—technology that could effortlessly be deployed against journalists and another group expecting to use drones to document authorities abuse.
We encourage the D.C. Circuit to assessment the petition and to vacate the FAA’s escape restriction, which would dispatch a communication that the authorities can’t evade accountability by punishing those who exercise their First Amendment rights.
