The FAA’s remote identification rules for unmanned aircraft (Remote ID) are back on track.  The United States Court of Appeals for the District of Columbia Circuit has just rejected the last serious challenge to the implementation of the new rules.

In January 2021, the FAA released its comprehensive rules for Remote ID.  Under these rules, all unmanned aircraft produced for use in the United States must be equipped with a system that continuously broadcasts publicly readable radio signals providing location and performance data, as well as the aircraft’s serial number.  In addition to commercial operators, the Remote ID rule  also applies to most aircraft flown by hobbyists, with the exception of those aircraft flown in certain well-defined locations preapproved by the FAA. 

Shortly after the final rule was released, a challenge was filed to the rule in the D.C. Circuit, claiming that the rule amounts to constant, warrantless governmental surveillance in violation of the Fourth Amendment.  In addition, the petitioners argued that the rule was invalid because the FAA violated the Administrative Procedure Act (APA).  The alleged APA violations included claims that the FAA conducted improper ex parte communications with third-parties during the notice and comment period, failed to consider certain comments submitted by the public, and made inappropriate changes to the proposed rule without starting a second notice and comment period.  Based on these issues, the petitioners asked that the court vacate the Remote ID rule in its entirety. 

The FAA countered these arguments by claiming that the Remote ID system is analogous to a “digital license plate” and that there is no right to privacy in the movement of an aircraft in public airspace.  The FAA also argued that the privacy concerns were limited because the aircraft identification data can only be linked to the personal information of the aircraft operator by the FAA, and that this data can only be used by FAA to promote aviation safety.  In addition, the FAA informed the Court during oral argument that the system does not store the  Remote ID data for subsequent record searches by either public or private individuals.  Finally, the FAA argued that it conducted the rulemaking properly, and that the changes between the proposed and final rule were a logical outgrowth of the original rulemaking. 

The Court’s introduction set the tone for the opinion and its rejection of the petitioners’ challenge:

Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security.

The Court then went on to discuss the emerging importance of unmanned aircraft and the growing need for a more efficient means to integrate them into the national airspace system.  The Court surveyed a number of incidents involving the improper use of drones resulting in safety hazards, as well as the use of small UAS in terrorist attacks overseas.  The Court noted that the Congress had specifically instructed the FAA to address these safety and security issues, and that the FAA actions were consistent with the fact that the United States Government “has exclusive sovereignty” over the airspace of the United States.

In rejecting the petitioners’ Fourth Amendment claims, the Court began by observing that:

It is hard to see what could be private about flying a drone in the open air.  Activities that require privacy are not typically conducted aloft; in contrast to how we use our homes, cars, and cell phones, people do not ordinarily live in or store private objects or information in their drones.

The Court also found that the information gathering by the FAA was appropriately limited to the time the aircraft was in flight, and that the data is not stored for later, long-term analysis.  The Court was also persuaded by the fact that there was no general access by law enforcement to the personal identifying information, and that the information is protected both by the Privacy Act and by “all due process and other legal and constitutional requirements.”  The Court admitted that hypothetically, at some point in the future, the government might to seek to improperly use the data in a specific case, but concluded that this concern was not enough to invalidate the rule entirely, and that those issues should be resolved on a case-by-case basis. 

The Court also rejected the petitioners’ APA claims.  The Court held that the APA does not bar all ex parte communications, and that the petitioners had not shown that any of the allegedly improper FAA contacts resulted in improper changes to the final rule.  The Court examined all of the changes between the NPRM and the final rule in detail, and concluded that all of the changes were within the scope of the rulemaking.  As a result, no further process under the APA was required.  Finally, the Court examined the FAA’s consideration of the 53,000 comments submitted by the public in response to the proposed rule, and concluded that the FAA met all of the requirements of the APA.  The Court’s unanimous decision affirming the Remote ID rulemaking is an important development.  If the rule had been overturned, the entire rulemaking would have to have been redone.  This would have resulted in a delay of at least another year to the implementation of the Remote ID system.  Now that this last hurdle has been cleared, the FAA can move ahead on establishing formal rules for operating unmanned aircraft beyond visual line of sight.

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