This was the most important sentence of the entire document. “By the same token that identifying the airborne location of an aircraft and collocated pilot with a transponder is not a Fourth Amendment search, the FAA says, using Remote ID to learn the locations of airborne drones and their pilots invades no constitutionally recognized privacy interest.”
How can transponders on airplanes increase airspace safety, yet IDs on drones are unwarranted surveillance?
Read the Court Document below.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-1087
TYLER BRENNAN AND RACEDAYQUADS LLC,
PETITIONERS
v.
STEPHEN DICKSON, ADMINISTRATOR AND FEDERAL AVIATION ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order of the Federal Aviation Administration
Jonathan Rupprecht argued the cause for petitioners. With him on the briefs were Elizabeth Candelario and Kathleen Yodice.
Casen B. Ross, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, Michael S. Raab, Attorney, John E. Putnam, Acting General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel, and Charles E. Enloe, Trial Attorney.
Joshua S. Turner and Sara M. Baxenberg were on the brief for amicus curiae the Association for Unmanned Vehicle Systems International in support of respondents.
Before: PILLARD, WILKINS and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: 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.
Brennan also claims that the Remote ID Rule must be vacated due to various procedural missteps he believes the FAA made in promulgating it. But none of those asserted flaws affects the validity of the Rule. The communications that Brennan challenges as ex parte did not materially bear on the rulemaking, so their exclusion from the administrative record did not interfere with the requisite opportunity for public comment. The Final Rule’s provisions for altitude measurement using geometric pressure and retrofitting of existing unmanned aircraft equipment are logical outgrowths of the Proposed Rule on which the public was able to—and did—comment. The FAA also fulfilled the statutory directive that it consult with the Radio Technical Commission for Aeronautics, Inc. (RTCA), the National Institute of Standards and Technology (NIST), and industry stakeholders. Finally, Brennan faults the FAA for not adequately addressing certain comments, but the FAA need not respond to purely speculative comments, and its consideration of about 53,000 public comments and detailed explanation of the policy choices in the Final Rule fully met its obligation under the Administrative Procedure Act (APA).
We accordingly deny the petition
BACKGROUND
I. Factual context of the Final Rule
The Remote ID Rule responds to the development of sophisticated yet inexpensive drone equipment, which “has allowed for hundreds of thousands of new operators to enter the aviation community.” Final Rule, 86 Fed. Reg. at 4395. Drones’ growing accessibility has unlocked a large recreational market for both factory- and home-made models: Of the 865,505 drones registered with the FAA by mid-2022, 538,172 were for recreational use. See Drones by the Numbers, FAA (May 31, 2022), https://www.faa.gov/uas/resources/by_the_numbers/. Meanwhile, rapidly accelerating commercial uses and planned uses of drones include infrastructure inspection, real estate photography, and agriculture management. Universities use them for research activities. The healthcare industry uses drones to deliver medical supplies, whether to quickly traverse high-congestion cities or to reach remote areas lacking other viable transport. Governments at every level increasingly rely on drones’ distinctive capabilities for tasks ranging from search-and-rescue missions to border patrol. Public and private emergency responders alike use drones to observe hard-to-reach accident sites, monitor natural disasters, and assist in rescue and recovery. See Amicus Br. of the Ass’n for Unmanned Vehicle Sys. Int’l at 5. And plans are afoot for major expansions of other, routine drone uses such as express package shipping and delivery. E.g., Final Rule, 86 Fed. Reg. at 4481.
All the while, increasing drone usage creates more air traffic. And the features that make drones so popular present novel and complex challenges to a smooth integration of drones into the 29 million square miles of U.S. airspace that tens of thousands of commercial and private aircraft share each day. Congestion increases risks of drone collisions with other aircraft, especially helicopters or agricultural aircraft flying at low altitudes, and aircraft taking off or landing at airports, landing strips, or heliports. The established U.S. air traffic control system depends on constant lines of communication between traffic controllers and pilots in flight to avert risks to aircraft and to people and property on the ground. But drones have no operator on board to receive or transmit air-traffic communications, nor do they communicate with a centralized FAA tower to coordinate with nearby aircraft. Without Remote ID, pilots must rely solely on visual inspection of the sky to avoid collisions with drones, and manned aircraft are likewise left without electronic data on the locations of any drones flying in their vicinity. Drones’ technical capability of flying at night, over people, and beyond their operators’ lines of sight pose additional risks associated with a lack of situational awareness, including collision with other aircraft or objects, falling on and injuring people, and straying into private or sensitive areas. Safety concerns pertaining to national security and law enforcement are intensified when unidentified drones of unknown origin and intent fly over airports, public facilities, energy production infrastructure, sports stadiums, or other open-air venues where the concentration of people is high or the ability to damage things and disrupt daily life is significant. See, e.g., Remote Identification of Unmanned Aircraft Systems (Proposed Rule), 84 Fed. Reg. 72,438, 72,455 & nn.22, 26 (proposed Dec. 31, 2019).
Drones in flight are also difficult to identify with the naked eye. Prior regulations required the exterior of all small drones flown in U.S. airspace to be marked with the device’s registration number. See 14 C.F.R. §§ 48.200, 48.205 (2021). But a number physically marked on a drone itself “is only visible upon close inspection, making visual identification of unmanned aircraft in flight difficult or impossible.” Final Rule, 86 Fed. Reg. at 4397. The known difficulty of identifying drones from afar increases the likelihood that drone operators will engage in reckless, prying, or aggressive behavior under cover of anonymity. Unseen and potentially untraceable operators may fly drones in uncoordinated, intrusive, or unsafe ways.
Errant drone flights are not unusual: In 2019, the FAA alone received an average of six reports daily from people who claimed to have witnessed unauthorized drone operations. Proposed Rule, 84 Fed. Reg. at 72,455. The FAA has noted the potential use of drones for illegal activities, including “carrying and smuggling of controlled substances, illicit drugs, and other dangerous or hazardous payloads; the unlawful invasion of privacy; illegal surveillance and reconnaissance; the weaponization of [drones]; sabotaging of critical infrastructure; property theft; disruption; and harassment.” Id. at 72,454. Extremists have increasingly sought to use drones to carry out violent attacks: Terrorists killed several people by detonating a bomb carried by a drone that flew above a military parade in Yemen. Id. at 72,455 & n.34. 2 The Islamic State and other terrorist organizations have reportedly modified commercially available drones so they can carry and release munitions and explosives. Id. at 72,455 & n.31.3 A would-be assassin used a drone to target then-President Nicolás Maduro in Venezuela. Id. at 72,455 & n.32.4 And British intelligence agencies uncovered a terrorist plan to fly drones into the engines of commercial airplanes as they took off from airports in the United Kingdom. Id. at 72,455 & n.33.
Fourth Amendment claim
It is hard to see what could be private about flying a drone in the open air. Activities that require privacy are not typically conducted aloft; in contrast to how we use our homes, cars, and cell phones, people do not ordinarily live in or store private objects or information in their drones. Rather, as with cars traveling on public streets and highways or helicopters taking off, drones that take to the skies ordinarily make themselves visible to onlookers. And a drone pilot who elects to fly outdoors puts an aircraft into airspace used by rapidly increasing numbers of other new users—both other aircraft piloted remotely and myriad aircraft taking off or landing with pilots aboard.
Brennan claims that the Rule interferes with his reasonable expectation of privacy without requiring a warrant, in violation of the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. His briefing highlights certain potential applications of the Rule: “To be clear,” he acknowledges, “Remote ID for recreational drones is very much appropriate when tied to legitimate safety and security concerns.” Pet. Br. at 20 (emphasis in original). But this Rule, Brennan asserts, was promulgated not to protect airspace safety but to enable the government to conduct “intrusive tracking of everyone, everywhere, all the time, with extremely low costs and ease of accessibility for law enforcement without judicial safeguards.” Id. at 30. Citing the Supreme Court’s Fourth Amendment precedent on electronic searches by law enforcement, Brennan argues that the Remote ID Rule matches or exceeds the intrusions those cases disapproved. Id. at 27-30 (citing Carpenter v. United States, 138 S. Ct. 2206, 2218 (2018), Riley v. California, 573 U.S. 373, 385 (2014), and United States v. Jones, 565 U.S. 400, 403 (2012); id. at 416 (Sotomayor, J., concurring)). Brennan also underscores the special Fourth Amendment solicitude for the privacy of the home and its curtilage, which he says the Rule invades because drones may be “flown close to the ground and hidden from view by vegetation and fences in a private backyard.” Pet. Reply Br. at 5; see id. at 12-13 (citing Kyllo v. United States, 533 U.S. 27, 33 (2001)); Pet. Br. at 22-25 (citing Collins v. Virginia, 138 S. Ct. 1663 (2018)).
The FAA responds that the Remote ID Rule does not invade any reasonable expectation of privacy, both because aviation is extensively regulated and because the Rule applies only to drone flights outdoors. FAA Br. at 23-34. By the same token that identifying the airborne location of an aircraft and collocated pilot with a transponder is not a Fourth Amendment search, the FAA says, using Remote ID to learn the locations of airborne drones and their pilots invades no constitutionally recognized privacy interest. Id. at 23-24 (citing United States v. Bruneau, 594 F.2d 1190, 1197 (8th Cir. 1979)). Even if the Rule did implicate constitutional privacy, the FAA contends that the searches it contemplates are excepted from the Fourth Amendment’s warrant requirement. FAA Br. at 21-37; see also Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (special needs search); New York v. Burger, 482 U.S. 691, 712 (1987) (administrative search of “closely regulated” business).
Brennan’s pre-enforcement Fourth Amendment claim seeks vacatur of the Remote ID Rule, Pet. Br. at 20, 65, so we understand him to be challenging the Rule’s facial validity—an unusual but not unheard-of type of Fourth Amendment claim. See City of Los Angeles v. Patel, 576 U.S. 409, 415-16 (2015) (citing cases). To prevail, Brennan “must establish that no set of circumstances exists under which the [rule] would be valid.” Ass’n of Priv. Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 442 (D.C. Cir. 2012); accord United States v. Salerno, 481 U.S. 739, 745 (1987). Identifying potential applications of the rule that could be unlawful is not enough. Sherley v. Sebelius, 644 F.3d 388, 397 (D.C. Cir. 2011). And because “[v]irtually every legal (or other) rule has imperfect applications in particular circumstances,” Barnhart v. Thomas, 540 U.S. 20, 29 (2003) (emphasis in original), we need not—indeed, cannot—“resolve every hypothetical presented” by Brennan, Nat’l Ass’n of Reg. Util Comm’rs v. FERC, 964 F.3d 1177, 1188 (D.C. Cir. 2020); see also Am. Bankers Ass’n v. Nat’l Credit Union Admin., 934 F.3d 649, 667-68 (D.C. Cir. 2019). Where a challenged rule does not exceed statutory authority and comports with the APA, “we will uphold the provision and preserve the right of complainants to bring as-applied challenges against any alleged unlawful applications.” Ass’n of Priv. Sector Colls. & Univs., 681 F.3d at 442.
Brennan’s facial Fourth Amendment challenge fails because drone pilots generally lack any reasonable expectation of privacy in the location of their drone systems during flight. A “search” for purposes of the Fourth Amendment occurs when government action infringes a sphere an individual seeks to preserve as private and the expectation of privacy is one society considers reasonable under the circumstances. Carpenter, 138 S. Ct. at 2213; Smith v. Maryland, 442 U.S. 735, 740 (1979); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Brennan does not dispute the general visibility to onlookers of drones in the sky. Drones fly in the open, and people ordinarily lack a reasonable expectation of privacy “for activities conducted out of doors in fields.” Oliver v. United States, 466 U.S. 170, 178 (1984). “[O]pen fields beyond the curtilage of a home, whether or not privately owned, are not among the protected places and things enumerated in the [Fourth] Amendment’s text, so they fall outside the Fourth Amendment’s coverage.” N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1264 (D.C. Cir. 2020) (discussing Oliver, 466 U.S. at 176-80) (formatting modified). And there is no reasonable expectation of privacy in the movement of objects outside a residence where they can be viewed from a public route or adjoining premises, United States v. Knotts, 460 U.S. 276, 281-82 (1983), nor in activities conducted in the curtilage of a home, even behind a hedge or fence, if they may be viewed by “naked-eye observation” from an “aircraft lawfully operating” above the property, California v. Ciraolo, 476 U.S. 207, 213 (1986).
Brennan suggests pilots might use a drone’s control station inside a home or fly the drone in its curtilage below the treeline out of public view. But the Rule does not mandate Remote ID for drone flights indoors, thus exempting flights inside a home, barn, or other private building. See Final Rule, 86 Fed. Reg. at 4404. Nor does it require Remote ID for drone flights in netted outdoor enclosures. Id. And nothing in the administrative record establishes that drones covered by the Remote ID Rule are usually flown from or in private spaces not visible to others, making drone systems’ potential uses there no basis for facial invalidation.
Because we hold Brennan’s Fourth Amendment facial challenge fails to establish that the Remote ID Rule requires drone operators to submit to warrantless intrusion on their constitutionally cognizable privacy interests, we need not and do not here address the government’s alternative argument that an exception to the warrant requirement applies.
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