Comments of ICLE and TechFreedom, In the Matter of Operation and Certification of Small Unmanned Aircraft Systems, FAA
Summary
“We believe the Federal Aviation Administration (FAA) has failed to appropriately weigh the costs and benefits, as well as the First Amendment implications, of its proposed rules for the Operation and Certification of Small Unmanned Aircraft Systems (UAS). The proposed rules would unduly burden both current and future economically and societally valuable uses of drones, in some cases effectively banning obviously valuable uses outright. Among other things, the proposed rules would effectively prohibit the use of commercial drones in populated areas, undermining what may well be drones’ most economically valuable uses.”
The proposed rules would unduly burden both current and future economically and societally valuable uses of drones, in some cases effectively banning obviously valuable uses outright. Among other things, the proposed rules would effectively prohibit the use of commercial drones in populated areas, undermining what may well be drones’ most economically valuable uses. Absent justification that such overbroad and costly rules are required to ensure the public safety, they are more restrictive than necessary to satisfy the FAA’s core statutory responsibility: to protect the safety of the general public.
Moreover, these rules constitute a de facto ban on most — indeed, nearly all — of the potential uses of drones that most clearly involve the collection of information and/or the expression of speech protected by the First Amendment. Indeed, many of the rules likely amount to a prior restraint on protected commercial and non-commercial activity, both for obvious existing applications like newsgathering and for currently unanticipated future uses. The same failure to tailor the rules according to an appropriate analysis of their costs and benefits also likely causes them to violate the First Amendment. Without proper tailoring based on the unique technological characteristics of drones and a careful assessment of their likely uses, the rules are considerably more broad than the Supreme Court’s “time, place and manner” standard would allow.
Finally, the FAA’s stated interest in protecting safety may be viewed by a court as being, at least in part, a pretext for attempting to regulate the use of UAS to collect information in order to address “privacy” concerns about uses many would find unsettling. We do not dismiss such concerns, but we believe there are better – and more legally supportable – ways to handle them than the effective ban in populated areas imposed by the proposed rules. If every new technology required the consent of everyone who might hypothetically be harmed by it, however small the risk, technological progress would come to a standstill, especially the progress of technologies that allow us to better observe, understand and communicate about the world…”