EFF and others file amicus brief against FAA drone restriction on recording immigration agents

Amicus Brief Filed in Drone Restriction Case

The Electronic Frontier Foundation (EFF), alongside the ACLU, ACLU of D.C., National Press Photographers Association, and Professional Photographers of America, submitted an amicus brief to the D.C. Circuit. The brief supports the petitioner in the case Levine v. FAA, which challenges an FAA drone flight restriction that had been rescinded.

Details of the Rescinded Restriction

Earlier this year, the FAA issued a flight restriction that effectively criminalized the recording of Department of Homeland Security officers, including immigration agents from ICE and CBP, and their vehicles. This restriction applied even if the drone was over half a mile away from the "mobile assets." Although a drone operator sued the FAA in March, the FAA rescinded the restriction in April.

Arguments for Continued Judicial Review

The petitioner argues that the court should still evaluate the legality of the withdrawn flight restriction. This is because drone pilots could still face penalties for violations that occurred while the restriction was active. Additionally, the rescission did not appear to be a fundamental change in policy, suggesting the FAA could reinstate the restriction at any time to avoid judicial review.

First Amendment and Drone Recording

The amicus brief emphasizes the unique capabilities of drones for information gathering, noting they provide perspectives not possible with ground-based cameras and are more cost-effective and safer than chartered aircraft. Drones have been used to document protest activities, police use of force, and natural disasters. The brief asserts that using drones to capture images and video is an information-gathering activity protected by the First Amendment, similar to recording law enforcement with cell phones. It also suggests the FAA's restriction was specifically intended to prevent recording immigration agents and hinder accountability.