Drone journalists find themselves flying in cloudy legal space

When technology advances, journalism isn’t far behind. Unfortunately, the law usually is far behind.

Four universities — Ball State University, the University of Illinois, the University of Missouri-Columbia and the University of Nebraska-Lincoln — have joined the drone journalism movement and begun long, complicated procedures to get authorization. Once they have that, their drone reporting will be limited, but it will be legal.

A fifth, Syracuse University in New York, has no way to get authorization because it’s a private school. That loophole is just one example of the many legal pitfalls threatening student journalists who navigate the Federal Aviation Administration’s rules for unmanned aircraft systems.

Even a high school is getting in on the tech trend. At Palo Alto High School in California, The Paly Voice’s drone reporting was prompted by adviser Paul Kandell’s stroll through an airport.

“I stopped in a Brookstone shop and I saw a flying remote-controlled drone” for $300, Kandell said. “And it just occurred to me that that was within our budget.”

Kandell’s purchase typifies the drone journalism inductee: the cheapness and availability of drones has resulted in a “rapid global proliferation” over the last few years, according to a 2013 Reuters study.

Sports, agriculture, the environment and even the arts are all viable options for drone reporting, enthusiasts say. Matt Waite, who founded Nebraska’s Drone Journalism Lab, started experimenting in 2011 when Congress was considering updates to drone regulations.

“It was very clear that there was a future where this was going to be possible,” Waite said.

Student journalists have already published videos of parched fields, controlled burns, sports facilities and more. Kandell said The Paly Voice even took a peek into a 150-foot-tall tower that no one had entered for years. They didn’t find anything interesting, he said, but it shows how many ways drones can see what “nobody’s ever seen before.”

“It’s just a matter of getting creative,” he said.

Kandell’s team published a video in September of a gigantic flag being unfurled during a football game. That footage was most likely shot from over 400 feet above ground, Kandell said, meaning it technically violated FAA regulations.

But unlike other drone enthusiasts, The Paly Voice has never heard from the FAA. Instead, Kandell said, they’re just using common sense: staying away from crowds and airspace heights where it might interfere with air traffic.

“We’re pretty darn careful with it,” he said.

Missouri and Nebraska haven’t been so lucky. Both schools got letters from the FAA in August threatening “legal enforcement action” if they didn’t cease their drone activities.

“Based on your university website, you are currently operating a [drone] without proper authorization,” the letter to Missouri stated. “The options available are 1) to cease operations, or 2) to make application for the proper authorization so that the FAA can be assured of the safety of your operation.”

FAA rules categorize drones as either public, civil or hobbyist aircraft, and the teams at Missouri and Nebraska originally thought they qualified as “hobbyists.” But because they are public universities, the two schools’ drones are considered “public aircraft” — and that means they must apply for Certificates of Authorization, or COAs.

“We did follow rules that we believed applied to us,” said Scott Pham, who runs the Missouri Drone Journalism Program in conjunction with local NPR station KBIA. Hobbyists don’t need a permit but are required to fly under 400 feet, within the light of sight of the operator, and away from crowded areas and airports.

Only those who fly unmanned aircraft “solely for recreational purposes” qualify as hobbyists, FAA spokesperson Les Dorr said.

Programs at private schools like Syracuse are stuck — they don’t qualify as public or civil aircraft, but they’re not hobbyists, either.

Dan Pacheco, who heads journalism innovation at Syracuse’s Newhouse School of Public Communications, said that “legal murkiness” has limited students.

“We’re definitely hamstrung by current regulations,” Pacheco said.

Syracuse student Jamison Getman has been flying drones with a friend under the hobbyist guidelines, but he said students at the law school have been advising him to be careful because his work is technically part of an independent study project.

“We’ve really been walking on eggshells,” Getman said. “We’ve really been limited about what we’ve been technically allowed to shoot.”

Projects like Getman’s might not be allowed under hobbyist guidelines. Waite said the FAA has an extremely broad definition of compensation, which includes grades, class credit, wages and even bylines.

“For students, it is a really murky place because the FAA allows hobbyists to fly,” Waite said. “But if you are in any way affiliated with your university, you are not a hobbyist.”

For now, university drone journalism programs are moving forward with their COA applications. So far, the process hasn’t been going well for each university, and none are even close to being done. Brant Houston, who started the Illinois project, said in October that his team had been working on their application for more than a year.

“We’re further down the road than a lot of people in terms of this application, but it is slow and it’s very detailed,” Houston said. “We’re not flying until we have certification.”

Before schools can apply for a COA, they need proof from their state attorney general that their university is indeed a public entity. This one preliminary hurdle has been surprisingly difficult for all of the schools applying currently.

“We’ve almost completed what you might think of as the pre-process to application,” Pham said in Missouri. “It has taken well over a month to get to where are we now.”

Doctoral student Acton Gorton is spearheading the Illinois team’s COA effort. He said the number of questions on the application, and the level of detail they require, is “daunting.”

“It’s been a long process,” he said. “They ask you for every possible thing … that you could imagine, and then some.”

For instance, Gorton said, he had to list the device’s projected ascent rate, cruising altitude, and locations where it might run into other flight paths. He even had to get a medical exam to make sure he would stay healthy at multiple altitudes, even though he’s staying on the ground. Gorton is Illinois’ designated “observer” — someone who takes over from the licensed pilot if the pilot is incapacitated.

“They treat a little hobby drone the same as they would a predator (drone) or a Boeing 747,” he said.

Problems like the ones Gorton encountered are part of the reason Congress mandated an update to drone regulations last year. The FAA Modernization and Reform Act of 2012 ordered the FAA to incorporate drones into the national airspace by the end of 2015, although some reports suggest the FAA is already falling behind.

“It is always the case that the law lags a bit behind technology,” said Nabhia Syed, a media lawyer who co-founded DroneU.org, which explores “social, political and legal implications of drone technology.” (Syed also serves on the Student Press Law Center’s board of directors.) The hobbyist guidelines that Getman is using date back to 1981.

A couple years ago, though, the FAA started cracking down on civilians flying drones. Hobbyists who received payment for photos, for example, started receiving cease and desist letters. The Daily, a now-defunct news service run by News Corp., received such a letter in 2011 for publishing footage of massive flooding in Alabama and North Dakota.

Gorton said these threats were the main reason his team at Illinois decided to wait for authorization before they even launch their first drone into the air.

“(The FAA agent) was giving me examples of people they were cracking down on,” he said. “I kinda knew at that point that I better take this stuff pretty seriously.”

Pham temporarily stopped using drones in Missouri when he got his letter. But he said even the COA itself would be “a huge detriment to the journalism we can do.” The worst part, he said, was that applicants have to declare a single contiguous airspace to fly in.

“Once we fill out that COA, we have locked ourselves into a box of literal airspace that we cannot fly out of,” Pham said.

Plus, the wait time for another COA axes any hopes journalists might have of breaking news outside that box, Pham said. An August blog post by the Drone Journalism Lab called the COA requirements “antithetical to journalism.”

In addition to the FAA regulations, the proliferation of drones has prompted many groups to consider the impact on people’s privacy. Almost every state is looking at enacting its own drone legislation, and four already have laws in place, according to a 2013 report by the Reporters Committee for Freedom of the Press.

G.S. Hans, a researcher with the Center for Democracy and Technology, said a lot of this wariness comes from the media’s depiction of drones as militarized killing machines.

“There’s obviously a lot of concern about the weaponization of drones,” he said. Half a dozen bills making their way through Congress aim to restrict the use of drones for harm or data collection in U.S. airspace.

Drone enthusiasts are trying to overcome this stigma and show that drones can be used responsibly in ways that benefit society.

Waite and his team are sharing their COA application online to help fill the “information vacuum” that has contributed to fears of drones, he said.

“I get that people are not unreasonably uncomfortable about the idea of flying robots with cameras,” Waite said. “So the more I can do to demystify these, the better.”

Airborne journalism itself is nothing new. Reporters have drifted above Civil War battles in hot air balloons, caught rides on Air Force One and surveyed traffic from helicopters. But unlike those aircraft, drones are operated by journalists themselves. This opens up a lot of legal risks like liability and licensing, the Reuters study found.

“Most media lawyers have been blissfully unaware of the field of aviation law: it has not impinged on their clients’ activities,” the study said. “But … this field of regulation will become a new area of expertise.”

The Electronic Frontier Foundation sued the FAA last year for records of COA recipients, citing privacy concerns. The American Civil Liberties Union published recommendations in 2011 for keeping drone privacy infringements in check.

“All the pieces appear to be lining up for the eventual introduction of routine aerial surveillance in American life,” the report threatened. “The prospect of cheap, small, portable flying video surveillance machines threatens to eliminate the privacy Americans have traditionally enjoyed in their movements and activities.”

The Constitution does not list privacy as an explicit right. But in its 1964 ruling in Griswold v. Connecticut, the Supreme Court decided there is a “zone of privacy created by several fundamental constitutional guarantees.”

Hans, with the Center for Technology and Democracy, said this “right to privacy” has been attacked over the years for being overly broad and vague. “This is a somewhat controversial area,” he said.

On the other hand, Syed said a person’s “reasonable expectation of privacy” would come into play in a court case involving the government use of drones. And in this day and age, people’s expectation of privacy isn’t what it used to be.

The Congressional Research Service released a report last April on whether drones could step into the “unreasonable searches and seizures” territory outlawed by the Fourth Amendment.

“As technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people’s expectations of privacy evolve,” the report states.

Then again, privacy restrictions might run afoul of reporters’ First Amendment rights to record in public places. The National Press Photographers Association unsuccessfully tried to stop a Texas bill from becoming law last year because it criminalized some drone photography. (The Texas law does include an exemption for professors and students at public institutions.)

Privacy and safety are the biggest concerns, but journalists face any number of potential legal pitfalls. Flying over private property, for instance, might constitute aerial trespass or warrant a nuisance complaint. On the other hand, if the FAA refuses permission based on content reasons, that could constitute prior restraint.

“There’s substantial legal questions out there that drones bring up,” Waite said.

The Missouri class that kickstarted that school’s drone experimentation was not continued this fall, and Pham said he doesn’t expect to have a COA in hand for the spring semester. Ball State instructor Tim Pollard said the same goes for his school, where students will train with simulators and indoor flights in the meantime.

Though many colleges are experimenting with drones, only a handful are using them for journalism. Drone U, the website Syed co-founded, found dozens of college programs experimenting with drone technology.

She said a lot of programs are waiting to see where the laws and regulations settle before they jump into what she called “an uncertain landscape.”

“No one wants to get in trouble, everyone wants to experiment,” Syed said. “A lot of folks are just waiting to see how this shakes out.”

By Samantha Sunne, SPLC staff writer.