D.C. Circuit, Appeals Court, dismisses a nonprofit’s petition for review of an FAA decision not to promulgate privacy-specific unmanned aircraft regulations (Electronic Privacy Information Center v. Federal Aviation Administration, et al.)

The Policy

What it does

Dismisses a petition to review an FAA decision on unmanned aircraft regulations due to administrative technicalities.

Synopsis

The Electronic Privacy Information Center (EPIC) petitioned the court to review the following decisions by the Federal Aviation Administration (FAA):

  1. Dismissal of EPIC’s petition urging the agency to consider privacy concerns in its rulemaking process to safely integrate unmanned aircraft systems (UAS) into the national airspace system (NAS); and
  2. Declaration in the Notice of Proposed Rulemaking (NPRM), that privacy considerations were “beyond the scope of [the] rulemaking.”

Both of EPIC’s claims were dismissed on administrative grounds (Citation 821 F.3d 39 (D.C. Cir. 2016)):

  1. EPIC’s petition to the FAA was time-barred. EPIC waited 125 days after the original dismissal, outside of the 60-day deadline set by statute; and
  2. EPIC’s petition was determined pre-emptive. The NPRM was not considered a “final order” capable of challenge and review under 49 U.S.C. § 46110. The court held that to allow the court to review an agency’s intent — as expressed in an NPRM—would be in direct contradiction with court precedent. (In re Murray Energy Corp. held that the court did not have the authority to review proposed agency rules. 788 F.3d 330, 334 (D.C. Cir. 2015)).

Because the case was dismissed on administrative grounds, the court did not reach the merits of the case. The content of EPIC’s petition, and the privacy concerns it urged the FAA to consider were not addressed by the court, leaving the question of whether those concerns were within the scope of the FAA’s rulemaking open for future review.

The Science

Science Synopsis

The FAA defines a “drone,” or “unmanned aircraft,” as an aerial vehicle designed for flight without a human pilot on board; the UAS is controlled by an operator on the ground. The scope of the UAS industry is wide-ranging, but current use-cases primarily serve the civil and public industries. Specific applications in these areas include military operations, law enforcement, wildlife tracking, search and rescue, border patrol, and photography. However, industry actors envision adaption of UAS for commercial purposes.

Relevant Experts

Diana-Marina Cooper, is the Vice President of Legal and Policy Affairs at PrecisionHawk. She has presented on technology and drone law issues at Stanford University, Columbia University, New York University, NASA, and more.

Alan Butler, is Senior Counsel for the Electronic Privacy Information Center. Mr. Butler has argued on behalf of EPIC in privacy and open government cases. He has authored briefs on behalf of EPIC in significant privacy cases, including an amicus brief in Riley v. California that was cited in the Supreme Court's unanimous opinion upholding Fourth Amendment protections for cell phones. Along with Jeramie D. Scott and EPIC’s director Marc Rotenberg, he is part of the team of Counsel who have worked on this case, and will work on it moving forward.

Mary “Missy” Cummings, PhD, Professor in the Duke University Pratt School of Engineering, Director of the Humans and Autonomy Laboratory and Duke Robotics, Associate Professor in the Department of Electrical and Computer Engineering, Associate of the Duke Initiative for Science & Society, Investigator in the Duke Institute for Brain Sciences.