On Monday, August 22, the non-profit Electronic Privacy Information Center (“EPIC”) brought suit in the U.S. Court of Appeals for the D.C. Circuit against the Federal Aviation Administration (“FAA”), challenging the lack of any privacy controls in the FAA’s recent regulations governing commercial drones.  The suit follows the FAA’s issuance of final rules on the “Operation and Certification of Small Unmanned Aircraft Systems” on June 28, 2016.

In 2012, as part of the FAA Modernization and Reform Act (Pub. L. No. 112-95), Congress ordered the FAA to create rules governing the operation of unmanned aircraft systems (“UAS,” commonly known as drones) in the national airspace. The final rules adopted by the FAA allow for commercial use of drones of up to 55 pounds with certain safety requirements.  As commercial drones become more and more common, they raise a number of privacy questions.  Drones increasingly have sophisticated recording and surveillance equipment, and can be used for a wide variety of data-collection purposes.  For example, private investigators and paparazzi photographers have both used drones to follow and track targets.  Companies such as Google have used drones to supplement its Street View mapping information.  The new rules prohibit the operation of drones directly over people (other than the operator); however, the FAA Administrator recently announced that the FAA hopes to approve drone operations directly over people before the end of the year, which will likely make privacy issues more prevalent.

EPIC initially petitioned the FAA in 2012 to include privacy regulations as part of its rulemaking on drones.  But when the FAA issued its notice of proposed rulemaking on drones in early 2015, it stated that privacy concerns were beyond the scope of the FAA’s rules.  (EPIC also sued the FAA after that initial notice, but that suit was dismissed as premature.)

Though the FAA has not yet acted on drone privacy issues, these issues have come up in other contexts.  Congress has held a number of hearings on privacy impacts of drone use.  See, e.g., The Future of Drones In America: Law Enforcement and Privacy Considerations: Hearing Before the S. Comm. on the Judiciary, 113th Cong. (2013); Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems: Hearing Before the H. Comm. on the Judiciary Subcomm. on Crime, Terrorism, Homeland Security, and Investigations, 113th Cong. (2013).  To date, however, no laws have been adopted to address these issues. 

For more information on EPIC’s suit and drone privacy, click here.