NEW ORLEANS – “Once you have tasted flight, you will forever walk the earth with your eyes turned skyward.” This quote, attributed to Leonardo da Vinci, sums up the FAA’s current preoccupation with the use of U.S. airspace. At the center of all that attention is, in terms of privacy and ethics, one of the big hot topics of our time: drones.
Officially known as unmanned aerial vehicles, or UAVs, they were the subject of discussion Sept. 18 at the Excellence in Journalism 2016 conference here, organized by the Society of Professional Journalists. Speaking on the matter was Mickey Osterreicher, general counsel at the National Press Photographers Association and photojournalist for almost 40 years. After showing everyone the da Vinci quote, he suggested that concerns over privacy are perhaps as old as the quote itself, harkening back to fears during the 19th century when personal cameras began to see use for the very first time. Osterreicher mentioned a treatise called The Right to Privacy,” written circa 1890 in the Harvard Law Review by Samuel D. Warren and Louis D. Brandeis. “It sounds almost like they’re talking about drones today,” said Osterreicher.
Consider this: the FAA officially owns the air, and has divided that air into airspaces. Drones operate in Class G airspace. “In 2012,” said Osterreicher, “President Obama signed the FAA Moderation and Reform Act, which was legislation that basically tried to find a way to safely integrate drones into that airspace.” This included the regulation of commercial and hobbyist drone ownership. At that time, for – say – a news organization to own and use a drone, “you had to apply for a 333 exemption. For this, you had to have a medical exam and a pilot’s license, even though you yourself were not flying.”
The FAA has changed that now. On August 29, the Small UAS Rule (Part 107) went into effect, replacing some of the initial requirements with ones that some might say are less complicated. Now, someone in a business or media organization trying to purchase a drone must pass an aeronautical knowledge test at an FAA-approved testing center, and must be vetted by the Transportation Safety Administration (TSA). “Part 107 also designates operational limitations,” Osterreicher added, “like a maximum airspeed of 100 mph. And you cannot be more than 400 feet above ground level.” What’s tricky, he said, is that “you may not operate above people who are not directly involved with the operation.” So, if a reporter is flying a drone over some type of event, which includes crowds of people, that operator could be held liable and be forced to pay a steep fine.
Why is any of this worth knowing? Because it pertains to the future of journalism, as well as to those aforementioned privacy concerns. There are also questions of civil liberties to consider, particularly in the case of hobbyists applying for drones, and then later dealing with an often uncertain and sometimes unsympathetic law enforcement when they are seen flying those drones in a controversial or suspicious area.
One case that perhaps best illustrates this latter concern is that of Rivera v. Foley, in which Pedro Rivera, a photographer and editor employed at a local television station in Hartford, Ct., flew his drone over a fatal traffic accident in order to obtain aerial coverage of the event. Police officers reportedly stopped him, insinuating that the airspace above the accident was part of “a crime scene.” The officers later contacted Rivera’s employer, complaining that Rivera had compromised the crime scene’s integrity. Rivera was subsequently fired, and afterward filed suit. Despite which side of this example one might fall on, or whether one ventures to have an opinion on it at all, we can expect issues like this to arise more and more often as drones populate the sky in increasing numbers. In fact, there have already been over 13,000 applications for commercial drones (this doesn’t even include personal drones), and by 2020, there could be as many as 1.3 million drone operators in the U.S. What are the potential consequences of this?
Drone registration, made mandatory as part of the Small UAS Rule, began on December 15, 2015. When a person registers, there is no limit to how many drones that person can own, so you can look at that 1.3 million figure and significantly multiply it in terms of just how many unmanned aerial vehicles will be populating the sky. Here, in part, is where privacy concerns come into play – not only amongst people who are against the use of drones, but also the privacy of people who might be using them. According to Osterreicher, drone database registration would be subject to a Freedom of Information Act (FOIA) request, and thus potentially be a vector for exposing people’s personal information.
Of greater note, of course, is the more widespread mistrust of civilian drone use, especially if those drones are equipped with cameras. Despite this, “drones are going to become very essential to journalism,” said Osterreicher. “There are immense benefits to using them: when there’s a flood, a wildfire, or any other kind of natural disaster,” a drone is the logical go-to, replacing the danger of using a manned aircraft and offering obvious photo and videographic advantages. “That  gas explosion that happened in Harlem, which leveled two whole buildings – some hobbyist took his drone up and was one of the first people to get a good look at what happened.”
Opportunities just like that one will increasingly present themselves to journalists, raising the appeal of using drones for news coverage. However, while the FAA continues to revise its drone laws, Osterreicher said that it’s an evolving process. Again referencing the Harlem incident, he remarked, “We have to decide, for example, whether a hobbyist can take photo- or video-obtained media captured with a drone, and sell it to a news organization.”
He also added that “today, a lot of news companies that don’t have drones use helicopters to capture aerial footage. Most of those copters are contracted out from another company. What if a news organization decides to do that with a drone, and then the operation of that drone” presents a danger to public safety or otherwise breaks the law? “Who gets sued?” Legalistic answers to such questions remain murky.
What’s certain is that drone use is going to become a part of daily life. Working people may need to reconcile their worries about privacy with their concerns about civil liberties, and at the other end of the spectrum, the federal government will need to work on passing comprehensive legislation that clearly defines how, where, and when drones can operate, removing the confusion that currently exists. “How will air rights and drone rights work?” Osterreicher concluded. “How will we work out questions of access, use, and trespassing? Unfortunately, everything – pun intended – is still up in the air.”
Photo: Excellence in Journalism session on drones. Blake Skylar/PW