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Tagged: drones

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FAA Appeals Drone Decision

Last week, an administrative law judge invalidated a fine against Raphael Pirker by the Federal Aviation Administration for using a small drone for a commercial purpose.  I discuss the basis for the decision–in short, that the FAA implied that the type of craft Pirker was using was subject only to non-binding guidance–over at Forbes.  In that post and elsewhere, I cautioned drone start ups and others to wait and see what the FAA does in response to the ruling before rushing ahead with their idea for a drone-based business.  Today the FAA announced it was, in fact, appealing the decision.

How the appeal fares may depend on the way the appeals court characterizes the decision.  In issuing rules, the FAA has to follow the strictures of the Administrative Procedure Act, including issuing notice and soliciting comment.  The judge at one point refers to a defect in the FAA’s public notice concerning “unmanned aerial systems.”  According to the judge, “Notice 07-01 does not … meet the criteria for valid legislative rulemaking,” due to defects in title (not called an “Notice of Proposed Rulemaking” or “NPRM”) and timing (not issued 30 days in advance).  My understanding is that courts review procedural defects de novo under the APA.  Now, if an appellate court upholds the administrative judge’s decision on this basis, then the FAA loses authority to regulate drones in general, but only until they follow the proper procedure to create valid rules.

If the basis is that the FAA misinterpreted its own rules, however–i.e., the agency was wrong to sweep the drone Pirker was operating into its definition of “aircraft”–then arguably Seminole Rock / Auer deference applies.  Auer has faced its share of criticism, as my colleague Kathryn Watts explores in a forthcoming article in Georgetown Law Journal.  But it remains the law of the land, and requires courts to uphold agency interpretations unless they are “plainly erroneous” or else inconsistent.  I don’t see the FAA’s decision to include unmanned aircraft systems as aircraft as plainly erroneous.  Otherwise, you could simply replace the pilot of a cargo plane with a robot and suddenly the plane falls outside the authority of the FAA.  But the FAA’s decision could be inconsistent: As the administrative judge notes, official FAA communications repeatedly treat some categories of “model aircraft” or “modelers” separately than other UAS.

The basis of the invalidation of the fine could be a procedural defect, an inconsistent interpretation, or both.  The ruling is not entirely clear.  We will have to wait and see how the court reacts to the FAA’s appeal.  And even if the court upholds the judgment, we should probably expect a drone NPRM from the FAA to follow.  Those of you with deeper training in administrative law should feel free to jump in.

CLARIFICATION (March 13, 2014): Peter Sachs of Drone Law Journal points out that the first layer of appeal here is to a five-member panel of administrative judges.  They could in theory clarify the basis of the decision (or overrule it) before the case heads to an Article III court.  Thanks, Peter!

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Stanford Law Review Online: The Iraq War, the Next War, and the Future of the Fat Man

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.

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Stanford Law Review Online: The Drone as Privacy Catalyst

Stanford Law Review

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public.

Read the full article, The Drone as Privacy Catalyst by M. Ryan Calo, at the Stanford Law Review Online.