EFF Urges D.C. Circuit to Vacate FAA Drone Rule That Barred Filming Immigration Agents

The Electronic Frontier Foundation has joined an amicus brief asking the U.S. Court of Appeals for the D.C. Circuit to vacate an FAA drone flight restriction that effectively criminalized recording Department of Homeland Security officers — including ICE and CBP immigration agents — and their vehicles from the air. The brief was filed with the ACLU, the ACLU of the District of Columbia and two photographers' associations.

A restriction aimed at the recording, not the airspace

The Federal Aviation Administration's restriction covered what it called "mobile assets" — "ground vehicle convoys and their associated escorts" — and applied even when a drone was over half a mile away. In practice, drone pilots who filmed ICE and CBP agents on duty in public became potential violators.

A drone operator represented by the Reporters Committee for Freedom of the Press sued the FAA in March. In April, the agency rescinded the flight restriction.

Why the dispute continues after the rescission

The petitioner argues the court should still review the restriction's legality: pilots can still be punished for violations committed while it was in effect, and the FAA can reinstate the rule at any time. The withdrawal, the brief says, looks less like a true change of heart than an effort to avoid judicial review.

The amicus brief stresses that drones offer "perspectives that cannot be captured by ground-based imagery." They are far more maneuverable than ground-level cameras and much cheaper and safer than chartering a plane or helicopter. Drones have produced bird's-eye images of protests and of police uses of force, and have let journalists cover disasters without putting themselves in harm's way.

A content-based restriction facing strict scrutiny

Gathering images and video with a drone is information-gathering activity protected by the First Amendment, the brief argues, much like using a phone to record law enforcement. It also contends the restriction looks designed to ban recordings of immigration agents and hinder accountability for their enforcement actions: the FAA imposed no-drone zones around all roving DHS patrols just as those patrols provoked intense national backlash. If that is correct, the rule is a content-based restriction on speech subject to strict scrutiny and presumptively unconstitutional. Even under looser standards it fails, because the FAA has not articulated a valid governmental interest that justifies such a sweeping limit on speech.

EFF notes the question is urgent as agencies sink billions into counter-drone technology that could easily be turned against journalists documenting government abuse. It urges the D.C. Circuit to review the petition and vacate the restriction.