Regulating drones under the First and Fourth Amendments.

AuthorBlitz, Marc Jonathan
PositionAbstract into III. First Amendment Rights to Record and Gather Information B. The First Amendment Right to Record on the Ground and in the Air 1. The Type of Recording: Photography Versus Nonphotographic Image Capture, p. 49-95

ABSTRACT

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive

legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand the constitutional restraints on public flight and constitutional protections afforded to private flight. Unfortunately, although there are a few Fourth Amendment precedents in manned aviation, they are mired not only in 1980s technology but also in the 1980s third party doctrine, and therefore do not reflect more recent Fourth Amendment developments and doctrinal fissures. There is also considerable uncertainty over First Amendment protection of information-gathering--for example, is there a right to record? Further, there is no judicial or scholarly analysis of how UAV flight fits within contemporary First Amendment forum doctrine, a framework that provides a useful starting point for analyzing speech restrictions in government-controlled airspace, but that comes with some uncertainties of its own. It is into this thicket that we dive, and fortunately some clarity emerges. Although the Fourth Amendment third party doctrine hopelessly misunderstands privacy and therefore under-protects our security and liberty interests, the Supreme Court's manned flyover cases can be mined for a sensible public disclosure doctrine that seems agnostic as to the various Fourth Amendment conceptions: we do not typically require only law enforcement to shield its eyes. Of course, both constitutions and legislation can place special restrictions upon law enforcement, and sometimes doing so makes good sense. But as a general Fourth Amendment matter, the officer may do and see as the citizen would. Hence to understand Fourth Amendment regulation, we must understand how the First Amendment limits government restraint on speech-relevant private UAV flight. Here we analyze the developing right to record and apply contemporary forum doctrine to this novel means of speech and information-gathering. If navigable airspace is treated as a limited public forum, as we propose with some qualification, then the Federal Aviation Administration will have significant--though not unlimited--regulatory leeway to evenhandedly burden speech-related UAV activities where doing so would reasonably promote safe unmanned and manned flight operations. The Agency, however, would likely need further congressional action before it can restrict UAV flight based on privacy rather than safety concerns. As the legality and norms of private flight correspondingly take shape, they will inform Fourth Amendment restrictions on government use.

TABLE OF CONTENTS INTRODUCTION I. CURRENT UAV REGULATION II. REGULATING LAW ENFORCEMENT UNDER THE FOURTH AMENDMENT A. Fourth Amendment Models B. Third Party and Private Search Doctrines III. FIRST AMENDMENT RIGHTS TO RECORD AND GATHER INFORMATION A. Recent FAA Limits on Drone Journalism and Videography B. The First Amendment Right to Record--On the Ground and in the Air 1. The Type of Recording: Photography Versus Nonphotographic Image Capture 2. Who Is Recording: Journalists or Others 3. The Subject of the Recording: Public Versus Private Matters 4. The Purpose of Regulation IV. FIRST AMENDMENT FORUM DOCTRINE A. Forum Classifications and Tests 1. Limited Public Forums and Nonpublic Forums 2. Reasonableness and Forum Purpose B. Classifying Navigable Airspace C. Regulating UAVs in Navigable Airspace as a Limited Public Forum 1. Time, Place, or Manner Regulations 2. Subject Matter and Speaker-Based Regulations 3. Amateur Versus Commercial Use 4. Privacy V. FOURTH AMENDMENT REPRISE CONCLUSION INTRODUCTION

The history of aviation is intimately tied to human aggression and defense. Hot air balloons were invented in the eighteenth century with the hopes of storming the fortress at Gibraltar, (1) after which observation balloons were used during the American Civil War and other nineteenth-century conflicts. (2) Indeed, Union and Confederate forces (ineffectively) attempted to bomb each other with explosives tethered to unmanned balloons. (3) Wilbur and Orville Wright became the first successful aircraft pilots in 1903, but the American War Department had already been funding Samuel Langley's parallel but ultimately unsuccessful efforts. (4) The first time that aircraft were used on a large scale was the "Great War," or World War I, and although there were pre-war forays, it was only after the war that civilian flight for airmail became commonplace. (5) World War II made clear the essential function of aviation in modern warfare; Vietnam saw significant use of surveillance drones; (6) and Operation Desert Storm and other late twentieth-century conflicts demonstrated the contemporary utility and efficacy of airpower. (7)

And so it is that while unmanned aerial vehicles (UAVs), or drones, (8) had their genesis in Civil War balloons and World War Iera "aerial torpedoes," and conducted their first surveillance operations during World War II, (9) they came into their own during the more recent wars against terrorism, including most infamously General Atomic's Hellfire-equipped Predator. (10) The Predator's image is so prominent that when one of us chaired a panel on the privacy and social implications of stateside drones in 2013, a topic as far from military application as can be, an industry publication ran a short blurb accompanied by a photograph of a missile-toting Predator, and that graphic was supplemented with a polished gray human skull. (11) Obviously it can be difficult to detach our perceptions of drones from these awesome and controversial killing machines. It probably does not help that a generation was introduced to unmanned flight via science fiction like the Hunter-Killers of James Cameron's The Terminator, (12) and that modern films--including the 2015 Terminator Genisys--continue to depict drone killing machines, both imagined and actual. (13)

But the reality is that just as manned flight today has far more civilian applications than military, there is a wide array of nonmilitary applications for UAVs: firefighting and disaster recovery, precision agriculture and ranching, pipeline and other utility inspection, weather forecasting, newsgathering, mapmaking, real estate, amateur and professional photography and videography, filmmaking, sports broadcasting, tourism, prevention of poaching and other unwanted behaviors, search and rescue, and shipping and transport. (14) Already there is a dizzying array of UAVs either in development or on the market, including UAVs powered by the sun, (15) UAVs as small as an insect, (16) UAVs with integrated cameras, (17) UAVs that can autonomously track a particular target, (18) UAVs that will provide Internet connectivity, (19) UAVs that take direction from the tilt of a user's phone, (20) and (of course) UAVs for taking selfies. (21) To proponents, UAVs promise to substantially ease work that is "dull, dirty, dangerous, or difficult." (22) But their promise is far greater, potentially democratizing a huge portion of the world--the skies--previously the exclusive domain of the few. Whereas hobbyists can fly some UAVs within their visual line of sight, and public agencies and universities can engage in some flights through a fairly cumbersome regulatory approval process, commercial use is currently prohibited absent an FAA exemption. (23) But Congress has mandated UAV integration into the American national airspace by September 30, 2015, (24) a desire spurred at least in part by such integration already underway in parts of Europe and Asia. (25) And on February 15, 2015, the Federal Aviation Administration (FAA) took a first step by issuing a notice of proposed rulemaking regarding small UAVs (those under fifty-five pounds). (26) So even if the September deadline is missed, as now seems likely, integration is inevitable.

To opponents and skeptics, apart from concerns about flight safety due to lost link, collision, and other scenarios, (27) UAVs threaten to usher in Orwellian, ubiquitous surveillance. (28) There is no doubt that some in law enforcement are interested in pervasive surveillance of public spaces, (29) at least when triggered by certain events or unrest, (30) and UAVs promise to make that economically feasible. As we and other scholars have recognized, cost is an important limitation on law enforcement activity, so when such resource restraints are removed or substantially lessened, there may be greater need for legal restraints. (31) The Pentagon has developed a 1.8 gigapixel drone camera that, flying at over 17,000 feet, can view an object as small as six inches, vacuum in a million terabytes of data per day, and track moving objects across an entire city, (32) giving rise to what in 1982 Judas Priest could only imagine in its dystopian "Electric Eye." (33)

And we are all increasingly aware of the potential for government surveillance overreach. In the aftermath of the 9/11 attacks, Congress defunded DARPA's Information Awareness Office when its proposed Total Information Awareness program threatened to create and mine an unprecedented government database. (34) Federal and state law enforcement agencies recently sought the ability to track all vehicles and search all arrestee cell phones without constitutional restraint; the Supreme Court unanimously rejected both. (35) Seemingly limitless NSA surveillance is debated as a result of the disclosures of Edward Snowden, (36)...

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