News organizations, advocacy groups including the American Civil Liberties Union (ACLU), and even former FAA officials are sounding the alarm on what could be the “most sweeping prohibition on UAS [uncrewed aircraft system] activity across the United States ever imposed.”
That is how the News Media Coalition—which includes the Electronic Frontier Foundation, Getty Images, National Press Photographers Association, and publishers of major newspapers such as the New York Times and Washington Post—described an FAA temporary flight restriction (TFR) that penalizes the operation of drones, including those used for newsgathering, near Department of Homeland Security (DHS) “mobile assets.”
TFRs can cover nonfixed assets, such as stadiums that host major professional sporting events like the Super Bowl. Air Force One usually travels within a 30 nm TFR, like a giant bubble. Typically, though, the FAA tells drone pilots exactly where they cannot fly.
The restrictions around DHS mobile assets—implemented under the guise of national security—are more ambiguous, covering “vessels and ground vehicle convoys and their associated escorts” and granting authority to seize or intercept a UAS if it is deemed a threat to “personnel.” Violators could face fines, prison time, or the loss of their drone or remote pilot authorization.
Observers worry about how the TFR could be implemented amidst the backdrop of Immigration and Customs Enforcement (ICE) raids taking place across the U.S. in cities such as Los Angeles, Chicago, and Minneapolis.
The News Media Coalition said it violates the First and Fifth Amendments and called for the FAA to lift it immediately.
Dawn Zoldi, a 28-year U.S. Air Force veteran and CEO of a tech consulting firm, wrote in an op-ed that the lack of definition around “associated escorts” creates a “roving, invisible, and potentially retroactive bubble…around any operation that DHS or its partners decide to treat as sensitive.”
“[The TFR] seems to warn that anyone flying a drone anywhere in the country would be in violation if an ICE or Border Patrol ‘convoy’ decides to drive beneath them,” Jay Stanley, senior policy analyst for the ACLU Speech, Privacy, and Technology Project, wrote in his analysis Thursday. “Such a ‘drive-under’ is actually quite likely in places where thousands of immigration agents are rampaging through neighborhoods such as Minneapolis-St. Paul.”
No Drone Zones
The TFR is described in a notice to airmen (NOTAM), FDC 6/4375, that replaced a previous NOTAM. Brandon Youngblood—the former head of the FAA Air Traffic Organization’s UAS Security and C-UAS Integration office, which wrote the original NOTAM—explained that it was previously limited to naval vessels operating in U.S. coastal waters and Department of Energy assets moving nuclear materials.
“It was never meant to cover all DHS ground assets which are literally everywhere,” Youngblood wrote in a LinkedIn comment.
The TFR designates as “national defense airspace” any airspace within 1,000 feet vertically or 3,000 feet horizontally of DHS facilities and mobile assets, prohibiting UAS from flying within it unless separately authorized. Per guidance from the FAA’s UAS Support Center, “at any time during an operation, if the remote pilot/operator is approached by a federal agent and advised they are operating within a TFR, then the remote pilot/operator should cease operation.”
“If you see a federal agent via a drone, you’re more than likely violating national security airspace,” Youngblood said in another comment. “This essentially just shut down Minneapolis, and other cities’ airspace with federal agents dispersed throughout the city. There is no way for the FAA to populate these restrictions on a map without highlighting the exact position of federal agents.”
Youngblood also commented that the TFR conflicts with airspace use rights granted to U.S. citizens under federal law.
The News Media Coalition agreed that it is “difficult, if not impossible, to imagine how any UAS operator could know at any given moment whether they are operating inside of the airspace covered by the TFR.” The group said it has yet to find an FAA point of contact for journalists to request access to restricted airspace, “despite several phone calls and emails.”
“The use by immigration enforcement officials of unmarked, and frequently rented, vehicles, and the lack of advanced notice of their location compounds the problem of compliance,” it added.
Youngblood and other observers, such as the Commercial Drone Alliance (CDA), said the TFR could even hit operators that are otherwise compliant with regulations. Commercial drone delivery, inspection, and photography services, as well as drone as first responder (DFR) law enforcement programs, could all be impacted.
“The Commercial Drone Alliance is inquiring with federal regulators to ensure authorized commercial and public safety drone operators have the information they need to remain compliant, but in the meantime, operators should be aware of these new restrictions and plan accordingly,” the group said in a statement.
Will It Hold Up?
According to Zoldi, whether the TFR stands will depend on how it is implemented. If it covers all UAS operations, the government could say the restriction is “content-neutral,” or tied to a time, place, and manner rather than a specific message.
“If, instead, it becomes a tool to push news drones out of the sky whenever coverage becomes uncomfortable, expect litigation,” Zoldi wrote.
Youngblood likewise said selective enforcement “greatly reduces [the TFR’s] legal defensibility and deterrence from operators entering in the first place.”
If a court deems the enforcement to be content-based, it could require the government to show a compelling need for the TFR and prove it is using the “least restrictive” methods possible.
“Most laws cannot survive that standard of review,” Zoldi wrote.
Courts could also deem the 1,000-foot vertical and 3,000-foot lateral standoff distance to be overly restrictive. News organizations may be prevented from acquiring aerial footage of non-DHS assets when it cannot be captured on the ground. A judge could rule that infringes on First Amendment rights protecting newsgathering.
“Nearly every federal court of appeals has recognized the First Amendment right to film law enforcement performing their duties,” the News Media Coalition wrote.
