On Wednesday, EPIC, otherwise known as Electronic Privacy Information Center, launched its counterstrike against the FAA regarding the lack of privacy rules within the FAA’s newly enacted Small UAS Rule, Part 107. EPIC first petitioned the agency to establish drone-related privacy rules in March 2012, shortly after the passage of the FAA Modernization and Reform Act (FMRA). The D.C. Circuit Court of Appeals denied the group's challenge, finding it was premature because the FAA had yet to issue a final rule.
The passage of the FMRA required the FAA to prepare a comprehensive plan to integrate commercial and recreational unmanned aircraft systems (UAS), commonly known as “drones,” into National Airspace System.
The gravamen of EPIC’s complaint centers on the definition of “hazard” – specifically, its argument that “this term is both clear and broad: hazard encompasses all sources of danger, not just traditional safety risks associated with manned aircraft” and therefore includes hazards relating to intrusion on the individual’s privacy. Because the Small UAS Rule did not address the issue of privacy, EPIC believes the FAA did not comply with Congress’ mandate under the FMRA. The FAA has yet to file its response and declined to comment. Nevertheless, the Administration has previously countered that their mission does not include regulating privacy and that the FAA is effectively powerless to regulate airframes “extraneous to the airworthiness or safe operation of aircraft in order to protect individual privacy.”
Of the drone cases currently being litigated, the EPIC case is arguably the most vexing. Certainly, the FAA cannot reasonably be expected to regulate all conceivable hazards, and the FAA is an aviation administration – not a privacy enforcement agency. On the other hand, there are indeed litanies of privacy and security dangers that in turn create significant civil and criminal liabilities for UAS operators.
Unless Congress steps in and offers additional clarification, the D.C. Circuit may very well determine whether the FAA is the proper agency to oversee these “hazards.” This is a case that we will closely monitor.