FAA Reauthorization Act threatens newsgathering

ASNE and APME members might not be aware that the FAA Reauthorization Act (HR 302) contains multiple provisions that may threaten their ability to gather news via the use of Unmanned Aircraft Systems (UAS), commonly referred to as “drones.” Note that we don't oppose the overall bill – which is certain to be passed by the Senate this week – but hope that we can effect removal of three provisions in particular, which have been incorporated into the bill from other, free-standing pieces of legislation: the Preventing Emerging Threats Act of 2018 (S 2836 and HR 6401) and the Safeguarding America's Skies Act of 2018 (HR 5366). 
Section 1602 is the most objectionable provision of HR 302. It literally incorporates the Preventing Emerging Threats Act of 2018 in name and language, allowing the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to take certain actions when it is determined that a UAS poses a threat to the safety or security of a “covered facility or asset.” These actions include, but are not limited to:
  • Detecting, identifying, monitoring and tracking the UAS;
  • Warning the UAS operator of potential enforcement action by any of several listed means;
  • Disrupting control of the UAS, without prior consent of the operator (including by disabling the UAS);
  • Seizing or exercising control of the UAS;
  • Seizing or confiscating the UAS; and
  • Using reasonable force, if necessary, to disable, damage or destroy the UAS.
As well-argued by the National Press Photographers Association, there are three major concerns with Section 1602:
  • It provides no reasonable accommodation for the news media. After all, it's one thing to ensure safety in the skies over covered assets by preventing a high number of random, unchecked UAS from threatening covered assets, but there should be an opportunity for responsible, vetted UAS operators to serve as a stand-in for the public when breaking news occurs. The bill requires that DOJ and DHS “avoid infringement of the privacy and civil liberties of the people of the United States and the freedom of the press consistent with Federal law and the Constitution of the United States.” Providing an exemption for the news media – subject to the requirement that an accredited member of the media coordinate with proper authorities in advance – will not only fulfill the requirement to adhere to the First Amendment, but also benefit the public. 
  • It does not property define a “threat,” which may trigger these enforcement actions. At a minimum, such a definition should be created through the “notice and comment” process of the Administrative Procedure Act to ensure that those subject to enforcement can help define the rules and understand when they may be subject to enforcement actions, rather than being left to the whims of law enforcement who may engage in selective prosecution of these provisions. 
  • Similarly, it does not define “covered asset.” This means that UAS operators could be subject to enforcement at any time (and, again, subject to selective enforcement) as covered assets are defined at a moment's notice – the definition being pulled out of thin air (pun intended) to suit the whims of law enforcement or protect against embarrassing – but justified and necessary – coverage.
This letter from the ACLU (which discusses both Section 1602 and other unrelated issues) might also be helpful.

The House has passed HR 302.  A Senate vote is pending. Because reauthorization was required before the end of the government's fiscal year (September 30), a one-week extension of existing FAA authorization and funding was also passed last week. That means we can expect a vote on HR 302 this week.

We hope you'll think about weighing in on this issue and alerting your readers of its importance.

Please do not hesitate to contact ASNE Legal Counsel Kevin M. Goldberg at 703-812-0462 or if you have any questions.