On January 25, 2018, oral arguments were heard in Electronic Privacy Information Center (EPIC) v. the Federal Aviation Administration (FAA) case by a D.C. Circuit panel. The court questioned EPIC’s standing to contest the FAA’s regulations, which cover all Americans; EPIC alleges that the FAA’s omission of privacy safeguards in its small unmanned aerial systems (UAS) rule violates its congressional mandate to regulate UAS “hazards.” Last week, EPIC had to show that the FAA was obligated to tackle privacy issues in its small UAS rule and establish that it had standing to contest the rule as a group specifically affected by the FAA’s action (or inaction if you will). Judge David B. Sentelle asked, “What harm is there that is specific to EPIC?” EPIC’s response: Just because there is a mass sort of effect on the general populace, doesn’t limit specific, individual claims.

The panel of judges also questioned the requirement for the FAA to regulate privacy concerns in rules governing commercial UAS that weigh less than 55 pounds simply because the 2012 FAA Modernization and Reform Act required the FAA to account for drone “hazards.” EPIC’s response: Beyond the language of the statute lies an explanatory statement drafted by congressional staffers that specifically discusses privacy and should obligate (says EPIC) the FAA to regulate for those concerns. Judge Merrick B. Garland said, “ You’re going to need something that says Congress.” We will continue to follow the outcome of this case

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