The Electronic Privacy Information Center (“EPIC”) filed suit in the U.S. Court of Appeals for the District of Columbia Circuit on March 31, 2015, to force the Federal Aviation Administration (“FAA”) to conduct a rulemaking process for drone-related privacy issues. 

EPIC is appealing the FAA’s denial of its initial request for the FAA to conduct public rulemaking on privacy concerns raised by the use of drones.  In a letter dated February 24, 2012, EPIC petitioned the FAA to conduct a notice and comment rulemaking on the impact of privacy and civil liberties related to the use of unmanned aircraft systems in the United States.  The public has the right to request the FAA to initiate such a notice and comment rulemaking for the purpose of adding a new regulation via the submission of such a petition.  See 14 C.F.R. § 11.39(c); 14 C.F.R. § 11.61(a); 14 C.F.R. § 11.63(a).

The FAA denied EPIC’s petition on November 26, 2014.  In its denial letter, the FAA stated that, “[a]fter reviewing your request, we have determined that the issue you have raised is not an immediate safety concern.  Moreover, the FAA has begun a rulemaking addressing civil operation of small unmanned aircraft systems in the national airspace system.  We will consider your comments and arguments as part of that project.”  

EPIC petitioned the court to “hold unlawful the FAA’s withholding of proposed drone privacy rules, which Congress required the agency to issue under the FAA Modernization and Reform Act of 2012.”

EPIC alleges standing under 49 U.S.C. § 46110(a), which allows “a person disclosing a substantial interest in an order issued by the Secretary of Transportation . . . [to] apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit.”  This statute has been used to appeal orders ranging from the FAA’s refusal to permit the construction of an airstrip to an individual’s removal from no-fly lists.

It is unclear how the court will rule in EPIC’s case.  However, in City of Los Angeles v. U.S. Federal Aviation Administration, 239 F.3d 1033, 1036 (9th Cir. 2001), the court stated that, “Every court of appeals case that could be found exercising jurisdiction under 46110(a) involved airline commerce and safety.”

We anticipate this to be the first in a series of legal actions that will be taken by privacy advocates as the FAA’s overall drone regulation process moves forward as mandated under the FAA Modernization and Reform Act of 2012. 

Reporter, Stephen Abreu, San Francisco, CA, +1 415 318 1219, sabreu@kslaw.com.