Large-scale protests are part of the political landscape in a way they haven’t been since the 1960s, and drones are an important but challenging part of that phenomenon. Experts weigh in on how to balance safety and civil liberties on the fly.
Drone footage helped shape the national discourse about the Dakota Access Pipeline in 2016, even as dangerous close encounters with manned helicopters kicked off a conversation about public safety. The role of drones in documenting protests has been both vital and fraught, and they’re definitely not going anywhere. Both reporters and activists have embraced drones as an accessible, cost-effective way to document events from the air, but regulations and enforcement haven’t quite caught up.
Is it going to be the Wild West up there forever? Changing FAA regulations may help, but observers say it’s time for open dialog between drone users, police, and the FAA ― and all involved parties have work to do.
In the last few years, drones have captured compelling, important footage of events like the clashes between protesters and police at Standing Rock. And drone operators’ right to record public gatherings from the air, as long as they’re not threatening the safety of other aircraft or people on the ground, is generally protected by the First Amendment.
But government agencies can restrict the time, place, and manner of speech, assembly, or news-gathering, as long as those restrictions are reasonable and in the public interest. For instance, that could mean requiring protesters on the ground to have a permit and not block traffic, fining someone for shouting “Fire!” in a crowded theater, or keeping private aircraft out of the way of public safety aircraft during an emergency.
“Those restrictions must be content- and viewpoint-neutral, and they must be narrowly tailored to serve a significant government interest ― in this case that would be air safety,” says Mickey Osterreicher, general counsel for the National Press Photographers Association. With lots of aircraft in the same airspace, often operating with different goals in mind, accidental collisions are a serious risk. Add in buildings, power lines, and large crowds of people on the ground below, and you’ve got a decidedly high-stakes situation.
And the accessibility of drones means more aircraft in the sky, often in the hands of people who aren’t used to operating in such a busy flight environment. And that can make an already-tense situation even more hazardous if it’s not managed carefully.
To help prevent a collision, law enforcement can ask a regional FAA office to issue temporary flight restrictions, limiting access to airspace around an event. They’re usually always granted. Those restrictions come in several forms, but generally, they prohibit everything but public safety aircraft, unless pilots — including drone operators with Part 107 licenses ― apply for waivers granting them access to part of that airspace. The idea is that this way, air traffic control can keep track of who’s flying where and make sure that two aircraft aren’t in the same place at the same time.
Legally, the FAA can’t issue a TFR unless there’s a legitimate safety concern. They can’t, for instance, restrict access to the skies over an event because local law enforcement or a private company doesn’t want media attention. And most of the time, that’s the case. However, recordings of conversations between St. Louis County police officials and the regional FAA authority in 2014 have raised serious concerns about the motivation for the TFR around the area of the protests occurring in Ferguson at the time.
“When a drone enters a TFR without authorization, that operation has not been de-conflicted with other known and approved aircraft also operating in the TFR. This poses a safety threat to the other aircraft in the air and to surface operations,” says an FAA representative.
Events at Standing Rock last year demonstrated what can happen when drones fly too close to police helicopters in an already-tense situation. In October 2016, protester and photographer Myron Dewey allegedly flew his drone at a police helicopter. That incident, which prompted an FAA investigation that so far appears inconclusive, ended with law enforcement allegedly firing at the drone.
And those events raise a complex set of issues which have yet to be fully resolved by lawmakers.
The Standing Rock encounter stirred debate about whether — or when — police have the legal right to take down a drone that gets close enough to risk the safety of a manned aircraft. That issue is part of a broader debate about whether private citizens can shoot down drones flying or loitering over their property. In recent months, the Trump administration has pushed for increased ability for law enforcement agencies to use counter-drone technologies, but the proposed legislation is likely to face legal challenges.
“Where Standing Rock gets really tough is not could protesters use drones to photograph police activities and show those to the world and say, ‘look at what’s going on.’ I absolutely think they should be able to do that,” says Matthew Waite, founder of the Drone Journalism Lab at the University of Nebraska-Lincoln.
But he adds, “There’s a lot of video out of Standing Rock where activists were flying their drones at the police, and it was a deliberately provocative act. They were flying them very, very close to the police, and they were shocked ― shocked, I tell you ― when the police pulled out shotguns and shot their drones out of the sky.”
Months later, though, there’s still debate about exactly what happened in the air over Standing Rock. Dewey maintains that his drone was nowhere near the police helicopter, but the North Dakota Highway Patrol tells a different story, claiming that at least one drone passed within 50 feet of the helicopter’s blades, which would have put the lives of the flight crew at risk. Law enforcement acknowledges that it fired at least one drone that came close enough to the helicopter to cause safety concerns for the flight crew.
Photographer Dean Dedman, Jr.’s DJI Phantom 3 Advanced drone was damaged by such shots, but kept flying and captured video of the incident. Dewey says he lost contact with his drone and can’t be sure whether it was actually hit.
When asked for an update on the Standing Rock incidents in early July, an FAA representative said only, “The FAA conducted several investigations into potential violations. We don’t have any further information. Others were conducted by local law enforcement.”
Waite says, “My feeling about Standing Rock is that it’s a terrible example [of drones and police aircraft sharing airspace], because nobody looks good here.”
For regulators, the challenge ahead is the same in the air as on the ground: Keep all parties safe without running afoul of the First Amendment. That likely means taking a hard look at how TFRs are issued and defined, as well as improving the waiver process.
“Upon receiving any request to enter a TFR, the FAA evaluates the request by coordinating with the incident commander and local air traffic control to determine that the operator can safely enter the airspace without disrupting the operation or endangering others,” says an FAA representative.
One of the biggest problems with the current system, according to Waite, is the time that process takes, especially for drone operators who want to film fast-moving events like protests. For example, look to the case of the only drone pilot granted a waiver to fly in the TFR area around Standing Rock. New Mexico-based photographer Robert Levine applied for a waiver to fly his drone in the restricted airspace, and several days later, he received it.
“But it took them so long to approve the waiver that the protest had moved on, so the area that he was allowed to fly was not where the protest was going on anymore, and it was pretty much useless,” says Waite.
The cost of following the rules in such cases means there may be moments when journalists, in particular, feel that violating the TFR is in the public interest.
“There are scenarios that I can construct, where there’s a moral case for putting a drone in the air to do video of something happening, waiver be damned,” says Waite. “There have already been ethical cases where something was going on of such public importance that really, the public needed to know about, that it required journalists crossing a legal line.”
But there are always consequences, and the First Amendment doesn’t protect reporters who break the law to get a story, as Osterreicher cautions.
“If I wanted to get to the scene of a fire or some real breaking news story, if I was speeding, the excuse of, ‘I’m on my way to a news story’ is not going to get me out of a speeding ticket or going through a red light,” says Osterreicher. “In this case, we believe that all journalists need to obey the existing laws.”
The same likely goes for activists documenting protests. The First Amendment protects the right to assemble, but a protest permit doesn’t automatically cover the surrounding airspace, and reasonable time, place, and manner restrictions still apply.
But a new, streamlined waiver approval system could help. Next year, the FAA plans to launch an automated waiver authorization system for airspace access, called Low-Altitude Authorization and Notification Capability, or LAANC.
“This automated process will enable real-time notification when operators request to operate their UAS in controlled airspace. Additionally, LAANC will be used to approve requests in controlled airspace with negligible risk to safety and other air traffic operations,” says an FAA representative.
Meanwhile, the FAA is working to expand its existing process called Special Governmental Interest COA Addendum Processing under Part 91, which allows expedited processing of waiver requests for civilian flights working with government agencies in emergency response situations. “This process is being expanded to include Part 107 operations and is tentatively scheduled to go into effect on August 1, 2017,” said an FAA representative. That expansion would include journalists and commercial drone photographers, potentially making it easier and quicker for them to get access to the skies above protests and other significant events.
While the FAA has some work to do, much of the responsibility for keeping airspace safe rests with drone operators, whether they’re activists, reporters, or laypeople. For everyone in the ecosystem, bringing some clarity to drone operations over protests is going to take a lot of talking, and Waite and Osterreicher agree that now is the time for those conversations.
“I think it’s really important, and I’ve been stressing this, for there to be an early and continuous dialog and communication between the public, the news media, and law enforcement,” Waite says.
Osterreicher agrees: “The time to try to work out whether somebody can or can’t fly isn’t in the middle of a breaking news story, and so that’s why I stress the importance of news organizations having conversations with law enforcement.”
Featured image: pixabay/LoggaWiggler
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