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The Fight Between Privacy Laws and Free Speech Following Drone Use in Journalism

November 9, 2016 In Blog By Sarah Kehoe

The Fight Between Privacy Laws and Free Speech Following Drone Use in Journalism

Changes to the rules governing the use of drones released by the Federal Aviation Administration (FAA) August 29 that make it easier to legally operate a drone have meant that journalists can now use drones to gather footage for their work.

Before August, anyone wanting to fly a drone was required to get a recreational or private pilot certificate, which required 40 hours of lessons with a flight instructor and costed around $9,000, according to a report by the Columbia Journalism Review. Now, anyone wanting to operate a drone can do so if they obtain a remote pilot certificate and passing a background security check conducted by the Transportation Security Administration (TSA). The new changes also state that it is legal for someone without a certificate to operate a drone as long as someone who has one supervises them.

The most common use for drones is for broadcast news where reporters can use a drone to take photographs and videos of areas during natural or man-made disasters from the air. Matt Waite, founder of the Drone Journalism Lab, spoke in a Columbia Journalism Review article about how journalists can combine drone footage with virtual-reality technology to create a 3D virtual model of a location that will make audience members feel like they are there “walking through a news event.”

This use of drones by journalists has stirred up privacy and trespass concerns among private citizens, causing legislators to limit their use in 43 of 50 states as of Jan. 22, 2014, according to information posted on the American Civil Liberty Union’s website. For example, California passed a law that banned paparazzi from flying drones over the private homes of celebrities. Texas recently passed a law that made it illegal to fly a drone higher than eight feet in the air and to photograph private property without the permission of the landowner, according to research by John C. Jarvis at the Southern Illinois University Carbondale.

These attempts by states to regulate how drones are operated by media organizations could eventually involve issues of prior restraint. The First Amendment Handbook of the Reporters Committee for Freedom of the Press says that prior restraint occurs when a government agency restricts what a media outlet can publish. This means that reporters can argue that the FAA is in violation of the First Amendment if the FAA denies a news organization’s request to fly a drone. Additionally, there are currently laws providing First Amendment protection for reporters using drones that are for the purpose of communicative photography.

There is no case law yet deciding these issues, but there may be soon as there are several pending cases. For example, in Rivera v. Foley et al., Pedro Rivera, a photographer and editor at the local television news station, is suing police for violating his First and Fourth Amendment rights after police prevented him from using a drone to document a fatal car accident, citing that such a recording was against FAA regulations.

Margot E. Kaminski, in an article published in the May 2013 issue of the California Law Review, wrote that “courts have not determined yet whether privacy rights or free-speech rights will ultimately win out in this debate, and that it also remains to be seen how privacy and speech interests interact.”

 

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Sarah Kehoe