Tuesday, August 9, 2022

United States Court of Appeals Court Decision Preserves the Federal Aviation Administration's Remote Identification of Unmanned Aircraft Rules

On December 15, 2021, the United States Court of Appeals for the District of Columbia Circuit heard oral argument in the appeal of Tyler Brennan, RaceDayQuads LLC, Petitioners, v. Stephen Dickson, Administrator, Federal Aviation Administration, Respondents, Case No. 21-1087. The ruling under review was a final rule of the Federal Aviation Administration, Remote Identification of Unmanned Aircraft, published in the Federal Register at 86 Fed. Reg. 4390 (Jan.15, 2021) (“Remote ID Rule”). The Petitioners were seeking the relief of the Court to vacate the final rule and remand the proceeding to the FAA for the issuance of a new Notice of Proposed Rulemaking. The eagerly-awaited court decision was issued on July 29, 2022 (“Brennan Decision”).  The Brennan Decision was eagerly awaited because it potentially could have significantly affected the rollout of the FAA’s Remote ID program.  The Remote ID program is important for the support of other FAA programs involving Unmanned Aircraft Systems and ultimately to assist  the further integration of drones into the National Airspace System (NAS) airspace by addressing safety and security concerns. The court in its decision denied Brennan’s petition for review. The Brennan Opinion can be read here.

Petitioners’ central argument posited that the Remote ID Rule for drones violated the Fourth Amendment. Specifically, the Petitioners urged that the Remote ID Rule violated the reasonable expectation of privacy embodied in Fourth Amendment case law. The  Petitioners’ brief framed  the issue as “Whether the rule’s broadcast requirements constitute an unreasonable search in violation of the Fourth Amendment.”

The FAA’s Remote ID Rule requires that after September 23, 2022, manufacturers must produce standard uncrewed aircraft systems (UAS) which continually broadcast identifying information via radio or Bluetooth to receivers on the ground unless traveling in proscribed areas which permit Remote ID-free drones to fly. The identifying information includes (1) its unique identification number; (2) its latitude, longitude, geometric altitude, and velocity; (3) the latitude, longitude, and geometric altitude of the drone’s control station; (4) a time mark; and (5) any applicable “emergency status” indication (downed aircraft, low fuel, low battery, or other abnormal drone status not apparent from the nonemergency information or the drone’s appearance). As a result, the FAA likens the effect of Remote ID to a “digital license plate.” Remote Id Rule, at 86 Fed. Reg.  4396.

The court in its ruling determined that, since the Petitioners were challenging the Remote ID Rule itself, and not an application of the Remote ID Rule, i.e., an “as-applied” challenge, the Petitioners were challenging the Rule’s “facial validity”. The Court pointed out that this type of  Fourth Amendment claim was unusual; however, such claims are not  categorically barred or especially disfavored. City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015).  However, to  prevail, Petitioners “must establish that no set of circumstances exists under which the [rule] would be valid.” Brennan Opinion at 18. 

The court determined that Petitioners failed to meet this test.

The court ruled that Petitioners’ facial Fourth Amendment challenge failed because drone pilots generally lack any reasonable expectation of privacy in the location of their drone systems during flight. Brennan Opinion at 18. 

The court noted that the Remote ID Rule does not authorize any such privacy-invading practice, for three interrelated reasons.

First, the court noted that the Remote ID Rule calls for installation, not monitoring by law enforcement. Owners of existing drones who fly outdoors and beyond approved drone-recreation areas (ID Areas) must retrofit their equipment with Remote ID broadcast modules and, as of September 2022, commercially produced drones must be equipped with Remote ID.  Brennan Opinion at 20.

The court also noted that the brevity and occasional character of drone flights and the local nature of the Remote ID message makes the FAA’s access to location information via Remote ID unlike the kind of “dragnet” electronic surveillance to which Brennan objected. Brennan Opinion at 20.

Finally, the court noted that the Remote ID Rule appropriately limits access to personally identifying information in the FAA’s possession that could be linked to a drone’s Remote ID message to reveal who owns the drone system. Remote ID does not reveal the pilot’s or owner’s identity, address, phone number, or other personal information.  The unique identifier—the drone’s serial number—does not disclose who is flying the drone, whether it be the registered owner of the device or someone else. Brennan Opinion at 21.

Despite the denial of the petition for review, the court did note that

Nothing about the Rule itself supports Brennan’s assertions that it will be used by government in ways that violate drone pilots’ privacy rights. To be sure, it is possible that one day government or law enforcement collection of drone system operation data in and of itself could violate a pilot’s constitutionally cognizable privacy interest. But Brennan has not shown that such data collection offends the Fourth Amendment in every application of the Rule to the typically very public activity of drone piloting.” Brennan Opinion at 24. (Emphasis supplied.)


Thus the collection of data for use by law enforcement for reasons other than aviation safety and security may prove to be problematic, according to this dicta. Consequently, aside from an appeal of this decision, there could be future litigation concerning the actual collection of data by law enforcement which could allow litigants to move past the "facial challenge" barrier erected in the Brennan case.

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