RaceDayQuads, a racing drone retailer based in Orlando, Florida, and Tyler Brennan, a drone operator (collectively, Petitioners), filed a Petition for Review of the Federal Aviation Administration’s (FAA) Remote Identification (Remote ID) Rule for drones with the U.S. Court of Appeals for the D.C. Circuit. This week, the Court ruled in favor of the FAA. In the decision, Judge Cornelia Pillard said, “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. Congress recognizes as much.” Brennan v. Dickson, 2022 WL 3008030, at *1 (D.C. Cir. July 29, 2022), available here.
The Rule for Remote ID was promulgated by the FAA in response to Congress’s mandate for the FAA to mitigate threats created by the use of drones in U.S. airspace and to protect the safety and security of the airspace.
The Petitioners claimed that the Rule allows for constant, warrantless governmental surveillance in violation of the Fourth Amendment; however, the Court rejected this argument, holding that the Rule simply requires the drone and its operator to show its location while the drone is in flight in open, public airspace. The Court determined that, therefore, the Rule does not violate the reasonable expectation of privacy, and that Remote ID is a “far cry” from continuous surveillance.
The Rule requires drones in flight to emit publicly-readable radio signals that output the drone’s serial number, location, and performance information. Those signals can be received, and the Remote ID information read, by smartphones and similar devices using a downloadable application available to the FAA, government entities, and members of the public, including other aircraft operators. Remote ID is similar to a “digital license plate” according to the FAA. Similar to a license plate, Remote ID provides a unique and visible, but generally, anonymous identifier. However, unlike a license plate, Remote ID is only detectable when the drone is in flight. The Rule requires manufacturers to either incorporate this Remote ID capability into the drone itself or design a module to attach to the drone.
The FAA separately collects some personal information from drone operators as part of its required drone registrations. A Remote ID is only matched to that non-public personal information and used by the FAA or disclosed to law enforcement outside of the FAA “when necessary and relevant to a[n] FAA enforcement activity.” Even when disclosed pursuant to this exception, “all due process and other legal and constitutional requirements” still apply to those data. Otherwise, the Rule does not authorize private or governmental access to non-public personal information of the drone operator. Furthermore, the Rule does not permit the storage of Remote ID data for later use by governmental entities. The Court said, “Drone pilots generally lack any reasonable expectation of privacy in the location of their drone systems during flight. A ‘search’ for purposes of the Fourth Amendment occurs when government action infringes a sphere an individual seeks to preserve as private and the expectation of privacy is one society considers reasonable under the circumstances.” 2022 WL 3008030, at *7. To read the full opinion click here.