EFF has long warned against the dangers of warrantless drone use by law enforcement, as well as the dangers to privacy posed by private use of drones. Those dangers are still real, and we will continue to defend against them.
But like any technology, drones can be used for good as well as evil. There are plenty of uses for drones that don’t affect people’s privacy and that are beneficial for society. For example, journalists can use drones to get a unique perspective on public events (especially when a news helicopter would be too expensive or take too long to deploy). Teachers can use them for educational purposes, by providing kids a fun way to experiment with and learn about technology. And of course drones can be used for photography, taking pictures for everything from real estate to art. They can even be used in Shakespeare!
Unfortunately it may be a long time before any of these privacy-neutral, positive uses realize their full potential in the US. That’s because the Federal Aviation Administration (FAA) has proposed restrictive regulations [PDF] that would force researchers, educators, artists, environmentalists, and journalists to jump through bureaucratic hoops before they can fly their drones, without any corresponding increase in safety or privacy for the general public.
What’s Wrong With the FAA’s Proposed Rules
The first major problem with the FAA’s proposed regulations is that they don’t even pay lip service to the privacy implications of widespread drone use. According to the FAA, “privacy concerns have been raised about unmanned aircraft operations”, but “these issues are beyond the scope of this rulemaking.”
And there’s another major problem: the rules reflect the FAA’s bizarre obsession with the difference between “hobby and recreational” use and all other use. This distinction means that for the most part, the new rules don’t apply to you as long as you fly your drone purely for fun. The second your flight implicates any non-“hobby” use, however (such as selling photos you took via drone, or providing footage from your drone to a news organization, or even just posting the video to YouTube yourself) then some overzealous FAA bureaucrat may try to subject you to a $10,000 fine. Given the proposed rules, this strange distinction puts many beneficial uses of drones at risk.
Worse yet, this distinction does nothing to further the FAA’s mandate to ensure safety. After all, the hobby status of a flight doesn't serve as a very good proxy for its safety. And while the FAA’s proposal does promote safe operation for non-“hobby” uses, the rules are overly conservative, creating onerous registration, certification, and operation requirements which will stifle many uses for drones which could be conducted safely and without any impact on peoples’ privacy.
What Sort of Rules is the FAA Proposing?
For one thing, the FAA is proposing that all drones must be registered—even tiny toy drones—if they’re used for a non-hobby purpose. As Judge Patrick Geraghty noted in the Pirker case [PDF], by the FAA’s logic “a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the” FAA’s registration requirement. Thus if an elementary school held an outdoor paper airplane contest as part of the school’s science curriculum, every single paper airplane would have to be registered before it could be flown.
But even if every paper airplane were registered the competition would still be forbidden, because you also have to be 17 or over to fly a drone for a non-hobby purpose. Perhaps more realistically, this means a middle school teacher couldn’t let her students fly a toy drone outside as part of a class on technology and robotics.
Additionally, to fly a drone for a non-hobby purpose you will first have to take a test and get an “Operator Certificate.” At first blush this sounds reasonable—after all, we don’t want inexperienced pilots flying drones all over the place. But the test is a written one only, which means it won’t do very much to ensure safe drone operation in the national airspace. Worse yet, it won’t actually test for any sort of piloting skill. Instead, it tests for knowledge of “team management,” “airport operations,” “airspace classifications,” and “the effects of drugs and alcohol”—topics that are clearly irrelevant for most low altitude drone use.
Before you can get your Operator Certificate, though, you have to pass a background check run by the TSA. If you’ve ever refused to become an informant for the FBI, questioned the government’s national security apparatus, or even just been the subject of a mistake by an FBI agent, there's a chance you won’t be allowed to fly a drone for money.
The rules also include restrictions on how drones can be operated, rules that make sense in general but are so overbroad that they will prevent a wide range of perfectly safe drone use. For example, you can only fly between sunrise and sunset, so using a drone to take night footage for your indie film—even on an otherwise closed outdoor set—is illegal. And you’re not allowed to fly a drone over people not involved in the drone’s operation—even a sub-one-pound quadrotor flown by a journalist to estimate crowd size at a protest.
To be clear, we’re not saying that there shouldn’t be some sort of safety regulations for drones. After all, drones can be dangerous, both to people on the ground, as well as to manned aircraft. But the FAA’s current rules are much too conservative, forcing the same operational restrictions on everything from a sub-one-pound foam quadrotor to a large 55-pound fixed-wing drone.
Drones Are Different
The fundamental problem with all of the FAA’s proposed regulations is that the FAA seems to be stuck on regulating drones the same way it has regulated manned aircraft for nearly 50 years. The FAA doesn’t seem to understand that drones are a fundamentally different technology. Small drones pose fundamentally different safety risks than manned aircraft (especially when flown at low altitudes away from airports). Drones (especially quadrotors with built-in hovering capability) are also much easier to fly. Drones can be automated to perform certain tasks. And of course, in part because of some of these differences, drones pose a greater risk to our privacy.
Instead of trying to shoehorn drones into the same model they’ve used for decades, the FAA should start from scratch and develop innovative new regulations for a fundamentally different technology.
What You Can Do
Fortunately there’s still time to prevent the FAA’s rules from stifling innovation, education, and free speech. The FAA is currently accepting comments on its proposed rules, and we’ve made it easy for you to join us in telling the FAA to change course.
More specifically, the FAA should allow low-altitude general-purpose use (education, journalism, photography, etc.) with minimal restrictions. The FAA shouldn’t put any registration or certification limits (including age limits for operators) on small drones (less than 2kg, and made of frangible materials) flown at least five miles away from an airport and lower than some maximum altitude (e.g. 100 feet), so long as the drone is flown within line of sight. Additionally, the FAA should allow drones in this category of operation to be flown at night, as long as they are equipped with lights that make them visible from the ground.
Comments on the proposed rules are due by this Friday, so act now to make sure the FAA doesn’t ground good drones before they have a chance to take off.