Uncharted territory: the FAA and the regulation of privacy via rulemaking for domestic drones

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Author: Melissa Barbee
Date: Spring 2014
From: Administrative Law Review(Vol. 66, Issue 2)
Publisher: American Bar Association
Document Type: Article
Length: 12,221 words
Lexile Measure: 2410L

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TABLE OF CONTENTS Introduction I. Overview of Unmanned Aircraft Systems II. The FAA's Statutory Authority and Current Regulatory Framework A. FAA Regulation of UASs in the NAS B. The FAA Modernization and Reform Act of 2012 III. UASs and Privacy Rights A. The FAA's Stance on Privacy B. Current State and Federal Legislation Concerning Domestic Drones and Privacy C. The Divisive Debate Over the Appropriate Entity IV. The Practicality of the FAA Regulating Privacy Policy V. Moving Forward A. Recommendations for the FAA B. Recommendations for Congress Conclusion

INTRODUCTION

The Federal Aviation Administration (FAA or Agency) has traditionally been tasked with regulating safety in the United States' national airspace. (1) However, the role of this vitally important federal agency may be shifting in order to keep up with the rapidly emerging use of private and public drone technology. Drones are unmanned aircraft that are piloted remotely and are equipped with surveillance equipment such as powerful cameras. (2) While their use is typically associated with military operations overseas, (3) drones are increasingly being used in the skies over the United States. (4) Unbeknownst to much of the public, local and federal law enforcement agencies, border patrol agents, firefighters, and public universities conducting research all use drones domestically. (5) Thus far, the FAA has tightly controlled the public use of domestic drones. (6) However, their use is expected to increase dramatically as drone technology continues to advance, the technology becomes more accessible and affordable, and the U.S. regulatory schemes are adapted to keep up with and support emerging technology. (7) As a result, the FAA has estimated that by 2030, more than 30,000 unmanned aircraft systems (UASs) will fly in the skies over the United States. (8) With nearly limitless possibilities for the uses of UASs, domestic drones are expected to become a part of the everyday lives of Americans in the near future. However, the addition of such an enormous number of unmanned aircraft flying alongside and sharing airspace with manned aircraft will require complex modifications to the regulatory structure of the national airspace system (NAS). (9)

Because UASs will be operating in national airspace, the FAA is responsible for formulating regulations and policies on their safe integration and use. (10) To keep ahead of this emerging phenomenon and in anticipation of the regulatory challenges it will present, Congress has directed the FAA to develop a comprehensive plan for the safe and efficient integration of both public and private UASs into the national airspace through the FAA Modernization and Reform Act of 2012 (FMRA). (11) The all-inclusive regulation of UASs will present many unique challenges for the FAA. One of the foremost concerns is how the FAA can ensure that citizens' fundamental privacy rights will not be infringed upon once the nation's skies are teeming with UASs capable of sophisticated and intrusive surveillance. (12) Another concern is whether the FAA, which has rarely, if ever, implemented rules concerning the protection of fundamental privacy rights before, is adequately equipped to take on...

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Gale Document Number: GALE|A374527257