Privacy is None of the FAA’s Business

While most people agree that unmanned aircraft raise unique privacy issues, the question remains who is in the best position to deal with those concerns.  The FAA has repeatedly indicated that it does not have the resources, expertise, or inclination to be the nation’s drone privacy watchdog.  As a result, privacy issues continue to be worked out at the state and local levels.

The Electronic Privacy Information Center (EPIC) disagrees with this approach, and has spent years attempting to force the FAA to conduct a comprehensive rulemaking on drone privacy and enforcement.  After several false starts, the United States Court of Appeals for the District of Columbia Circuit finally heard argument on EPIC’s claim that the FAA is required by Congress to regulate drone privacy.  Unfortunately for EPIC, the argument did not go very well.

We here at Planely Spoken have followed this suit since it was filed, and have written in the past about the problems with EPIC’s positions.  The D.C. Circuit seems to have the same concerns, and only let counsel for EPIC talk for about a minute before interrupting with a question about standing.  For those of you without a legal background, the courts do not just let anyone come in and file a lawsuit on any topic.  The person bringing the suit must have an actual injury that they are trying to get the court to redress.  The Court was concerned that EPIC was not trying to remedy a particular injury to a member of EPIC, but rather alleging a general injury that is held by all members of the public, which the Court will generally not address.

The Court was equally skeptical about EPIC’s argument that the FAA is required to regulate privacy.  According to EPIC’s counsel, the Congress instructed the FAA to regulate “hazards” pertaining to UAS operation, and that the term “hazard” includes hazards to people’s privacy rights.  The Court, however, pushed back on this argument, noting that the term hazard is generally understood to imply a safety issue.  In addition, the Court noted that the FAA is a safety oriented agency, and that it would be unusual for Congress to have intended that the term “hazard” to mean matters beyond safety.

The only other Congressional directive on the matter identified by EPIC was a statement in comments by staff to a 2014 appropriations bill that instructed FAA to produce a report on privacy issues.  The Court noted, however, that the word “privacy” does not appear in the actual appropriations act, statements by staff don’t bind agencies, and that appropriations are not codified and expire automatically.  As a result, this statement cannot have any effect after 2014.

While oral argument in a case does not always reflect the ultimate outcome, it appears likely that EPIC will lose its case and the FAA will not be ordered by the court to conduct a privacy rulemaking.  To the extent that Congress or the Administration ultimately decides that a “European style” comprehensive set of federal privacy standards is needed, the Department of Transportation, Federal Communications Commission, Federal Trade Commission, or some other regulatory body should handle it.  The FAA’s focus on safety has served the public well, and should not be changed to include other matters.

For those that are interested, the full argument can be listened to HERE.

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