D.C.Cir.: FAA drone registration requirement violates no REP

The FAA rule requiring all drones when flying to transmit information about themselves violates no reasonable expectation of privacy. They operate in public airspace, which the federal government controls, and the rule requires a digital license plate but only electronically readable. The information transmitted is not generally available. Brennan v. Dickson, 2022 U.S. App. LEXIS 20973 (D.C.Cir. July 29, 2022):

Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security. Congress recognizes as much. It passed a law in 2016 requiring the Federal Aviation Administration (FAA) to “develop[] … consensus standards for remotely identifying operators and owners of unmanned aircraft systems” and to “issue regulations or guidance, as appropriate, based on any standards developed.” FAA Extension, Safety, and Security Act of 2016 (FAA Extension Act), Pub. L. No. 114-190, § 2202(a), (d), 130 Stat. 615, 629 (2016). And in 2018, Congress extended the FAA’s authority over small recreational drones. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, § 349(f)(3), 132 Stat. 3186, 3299 (2018). In response to Congress’s call to prioritize the development of capacities to increase airspace awareness and promptly mitigate threats as a means to protect the safety and security of U.S. airspace, the FAA promulgated the Remote Identification (Remote ID) Rule challenged here.

Remote ID technology requires drones in flight to emit publicly readable radio signals reflecting certain identifying information, including their serial number, location, and performance information. Those signals can be received, and the Remote ID information read, by smart phones and similar devices using a downloadable application available to the FAA, government entities, and members of the public, including other aircraft operators. The FAA likens Remote ID to a “digital license plate.” Remote Identification of Unmanned Aircraft (Final Rule or Remote ID Rule), 86 Fed. Reg. 4390, 4396 (Jan. 15, 2021); FAA Br. at 17. Like a license plate, Remote ID acts as a basic building block of regulatory compliance by attaching a unique, visible, yet generally anonymous identifier to each device in public circulation. Unlike a license plate on the back of a car, however, Remote ID is detectible in real time only when the drone is moving. Also unlike a vehicle’s license plate, which can only be read by the naked eye from a few yards away, a Remote ID message can be “read” by people within range of local radio signals yet not near enough even to see the drone itself.

The FAA separately obtains certain nonpublic personally identifying information from drone owners as a requisite of their unmanned aircraft registrations, and that information is protected by the Privacy Act, 5 U.S.C. § 552a. A Remote ID message may only be matched to that nonpublic information and used by the FAA or disclosed to law enforcement outside of the FAA “when necessary and relevant to a[n] FAA enforcement activity,” Privacy Act of 1974; System of Records Notice, 81 Fed. Reg. 54,187, 54,189 (Aug. 15, 2016), and even then it is subject to “all due process and other legal and constitutional requirements,” Final Rule, 86 Fed. Reg. at 4433. The Rule does not otherwise authorize private or public actors access to drone owners’ or pilots’ nonpublic personally identifying information, id. at 4433-34, nor does it permit or contemplate storage of Remote ID data for subsequent record searches.

Petitioners Tyler Brennan, a drone user, and RaceDayQuads, the drone retailer Brennan owns (referred to jointly as Brennan), want the Rule vacated. Brennan asserts that the Rule’s Remote ID requirement amounts to constant, warrantless governmental surveillance in violation of the Fourth Amendment. His request for vacatur of the Rule, amounting to a facial challenge, must fail because drones are virtually always flown in public. Requiring a drone to show its location and that of its operator while the drone is aloft in the open air violates no reasonable expectation of privacy. Brennan hypothesizes that law enforcement authorities could use Remote ID to carry out continuous surveillance of drone pilots’ public locations amounting to a constitutionally cognizable search, or that the Rule could be applied in ways that would reveal an operator’s identity and location at a home or in an otherwise private place. But he has not shown that any such uses of Remote ID have either harmed him or imminently will do so, thus he presents no currently justiciable, as-applied challenge.

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