The United States Court of Appeals for the District of Columbia, oftentimes referred to as the second most powerful court in the country because so many cases involve the Government and end up in the Supreme Court, dismissed an appeal by the Electronic Privacy Information Center (EPIC) whereby they sought to compel the FAA, as part of the small UAS rulemaking, to promulgate privacy rules.

The dismissal was premised on procedural issues and, once Part 107 is published, there is little doubt that EPIC will re-file its appeal since it is pretty much a “slam dunk” that Part 107 won’t have any privacy rules. Noteworthy in the decision is a reference to the FAA Modernization and Reform Act of 2012, which mandates the FAA to enact “a comprehensive plan to safely accelerate the integration of civil unmanned systems into the national airspace systems.”  The Court, in its decision, also notes that the Act “is silent as to any
privacy consideration.”

Hopefully this latter statement by the Court is a less than subtle message to EPIC that when they re-file their appeal after Part 107 is enacted, they’re going to lose it again, but this time on the merits.

The simple fact is that the FAA has no business in the privacy business, no legal authority to engage in it and no desire to become the watchdog of drone privacy.

The big problem at the state level is that way too many politicians in every state, urged on by privacy advocates, want to enact new rules and laws when, in fact, they may not be necessary. Plane-ly Spoken suggests that before UAS privacy legislation is enacted at the state level, the individual legislatures step back and consider whether they really need new legislation.  We suspect that in many, if not in most, jurisdictions, existing laws, with little or no change, are perfectly adequate to address UAS privacy concerns.

And, oh yeah, what about those NTIA Privacy, Transparency and Accountability Voluntary Best Practices. While certainly an admirable intellectual exercise, the reality is that they’re actually an exercise in common sense.  The whole stakeholder process undertaken by NTIA has been well-executed.  It has certainly provided a forum for those focusing on privacy issues and produced an admirable set of recommendations for voluntary guidelines.

The practical reality is that most companies entering the UAS industry don’t need the NTIA to tell them how to exercise common sense.  Sure, there will always be those companies and individuals who, irrespective of whether or not there are recommended practices, won’t exercise common sense.  That’s especially true in the UAS world where the price of going into business is so low, both from an actual dollar, as well as a regulatory, perspective.

I was lucky enough to trade few emails with Mark this past weekend discussing the NTIA recommendations and the propensity of state legislators to look like they are doing something by writing new laws. We agreed that Governor Brown of California had the correct approach in limiting new drone laws which did little more but replicate statutes already on the books.
I have no real sense of how Mark feels about the Fox Rothschild’s post on the Voluntary Best Practices. Lawyers being notoriously litigious, there is no doubt someone will try to argue that voluntary really means mandatory. Mark?




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