BizTech Law Blog

FAA’s Takedown Orders Don’t Fly: Do You Need to Take Down Your Drone Videos?

Unmanned aircraft systems - drones - are become increasingly popular and less expensive. From drone pilot hobbyists to online retailers, recreational and business use of drone technology is likely to increase over the coming years. The Federal Aviation Administration (FAA) has taken notice.

We have previously written about the FAA and drones, and I have spoken on the topic.

On February 15, 2015, the FAA issued a framework of regulations: (https://www.faa.gov/regulations_policies/rulemaking/media/021515_sUAS_Summary.pdf) “that would allow routine use of certain small unmanned aircraft systems (UAS) in today’s aviation system, while maintaining flexibility to accommodate future technological innovations.” Final rules on the commercial use of drones are not expected until 2017, according to the Government Accountability Office.

The FAA recently waded further into the debate over the appropriate regulation of drones and drone-related activity with the release of a directive to its field offices that addresses the posting of videos recorded by drones online. The directive, titled “Aviation-Related Videos or Other Electronic Media on the Internet,” acknowledges that drone-recorded video or other electronic media do "not automatically constitute a commercial operation or commercial purpose, or other non-hobby or non-recreational use" of a drone in violation of federal regulations. Unless an exemption has been granted, the FAA currently bans all drone flights that are for commercial purposes. Recreational drone use that complies with FAA safety regulations is permitted.

The FAA’s communication to field offices comes after the FAA recently contacted several individuals by letter regarding videos posted online that allegedly were recorded during illegal drone flights. Those actions generated controversy and complaints on social media.

The FAA’s intent via the directive is to guide the actions of FAA safety inspectors when the FAA is notified that there are videos or electronic media that depict any aircraft operation that is "contrary to Title 14 of the Code of Federal Regulations (14 CFR) or statute." 

The directive explains to inspectors that "electronic media posted on the Internet is ordinarily not sufficient evidence alone to determine that" someone has unlawfully flown a drone. It directs inspectors, before taking any enforcement action, to gather other evidence that the person posting the video flew a drone unlawfully. The FAA added, however, that drone videos “may serve as evidence of possible violations and may be retained for future enforcement action.”

The directive further urges its investigators, when confronted with electronic media showing allegedly illegal activity, to engage in “critical thinking.” The first suggested response is “educational outreach” to the alleged offender in the form of the “UAS Information Letter Template for Inspectors” (attached as Appendix A to the directive). If educational outreach is ineffective, then inspectors are urged to conduct a full investigation of the activity.

The directive also acknowledges that the First Amendment of the U.S. Constitution prevents its inspectors from directing or suggesting the removal of drone-recorded videos. Specifically, according to the FAA, safety inspectors “have no authority to direct or suggest that electronic media posted on the internet must be removed.”

With drone use taking off, the government is racing to catch up with appropriate rules and regulations. We will continue to keep you apprised of the rules and regulations regarding drones. 

Categories: Social Media