United States: FAA's Remote Identification Of Unmanned Aircraft Rule And Requirements Survives Constitutional Challenge

The United States Court of Appeals for the District of Columbia unanimously denied a petition to vacate the FAA's Remote Identification of Unmanned Aircraft rule ("Remote ID Rule") holding that the Remote ID Rule does not constitute an unreasonable governmental search that would violate the Fourth Amendment.

FAA's Remote Identification Rule

In 2016, Congress passed a law requiring the FAA to develop standards, issue regulations, and provide guidance for the remote identification of owners and operators of unmanned aircraft systems ("UAS"). ¹ In 2018, Congress extended the FAA's authority over small recreational UAS. ² In compliance with this Congressional mandate, the FAA promulgated the Remote ID Rule.

The FAA published its Notice of Proposed Rulemaking on Remote Identification of Unmanned Aircraft Systems on December 31, 2019, and received more than 53,000 comments during the 60-day comment period. The FAA considered those comments and published its Final Rule on January 15, 2021. Effective April 21, 2021, the Remote ID Rule requires the remote identification of UAS in order to address "safety, national security, and law enforcement concerns" regarding expanded UAS operations. ³

The FAA equates remote identification ("remote ID") to a "digital license plate" with multiple options for compliance. First is to operate a "Standard Remote ID UAS" that broadcasts identification and location information about the UAS and its control station. A Standard Remote ID UAS has built-in remote ID broadcast capability. The Standard Remote ID UAS must broadcast the following information from takeoff to shut down: (1) an identifier unique to the UAS; (2) latitude, longitude, geometric altitude, and velocity; (3) control station latitude, longitude, and geometric altitude; (4) the time; and (5) any emergency status.

The second option is to operate a UAS with a remote ID broadcast module. A broadcast module is a device that broadcasts identification and location information about the UAS, and its takeoff location. The remote ID broadcast module must broadcast, from takeoff to shut down: (1) the serial number of the broadcast module; (2) latitude, longitude, geometric altitude, and velocity of the UAS; (3) latitude, longitude, and geometric altitude of the UAS takeoff location; and (4) the time. Owners of UAS manufactured without built-in remote ID capabilities must retrofit their UAS with a remote ID broadcast module, which can be a separate device attached to the UAS or a built-in module. However, operation of a UAS with a remote ID broadcast module is limited to visual line of sight.

Both options broadcast via radio frequency, e.g. Wi-Fi and Bluetooth. Smart phones and similar devices can receive signals and read the remote ID information via a downloadable application available to the FAA, government entities, and members of the public.

The FAA does not require remote ID (any remote identification transmission from the UAS) if operated at a specific FAA-Recognized Identification Area (FRIA) and within visual line of sight. Moreover, the Remote ID Rule does not apply to UAS that weigh less than 0.55 pounds (250 grams) on takeoff, including everything that is on board or otherwise attached to the UAS.

Petitioner's Arguments

Petitioner, a UAS operator and owner of a UAS retailer, sought to vacate the Remote ID Rule on constitutional grounds, asserting that the remote ID requirements amount to constant, warrantless governmental surveillance in violation of the Fourth Amendment.⁴ Petitioner argued that the Remote ID Rule does not protect airspace safety, which he recognized as important, but instead enabled the government to conduct "intrusive tracking of everyone, everywhere, all the time, with extremely low costs and ease of accessibility for law enforcement without judicial safeguards." In support of his arguments, Petitioner relied on the Supreme Court's Fourth Amendment precedent on electronic searches by law enforcement.

Petitioner further argued that the Remote ID Rule should be vacated on procedural grounds because: (1) the FAA relied on ex parte communications during the rule making that were not available for public comment; (2) aspects of the rule were not logical outgrowths of the proposed rule; (3) the FAA did not consult with specified entities in formulating standards; and (4) the FAA failed to address material comments.

FAA's Response

The FAA responded that the Remote ID Rule does not invade any reasonable expectation of privacy for two reasons: (1) because aviation is heavily regulated; and (2) because the rule only applies to UAS flights outdoors. As such, using remote ID broadcasts to track the location of an operator and the UAS invades no constitutionally recognized privacy interest.

The FAA further argued that even if the Remote ID Rule did implicate constitutional privacy, the "searches" it contemplates are exempt from the Fourth Amendment's warrant requirement, similar to an administrative search of a "closely regulated" business.

Court's Denial of the Facial Challenge

The Court denied Petitioner's facial challenge. The Court opened with, "It is hard to see what could be private about flying a drone in the open air." Similar to cars traveling on public streets and highways or a helicopter taking off, UAS that fly in the skies "ordinarily make themselves visible to onlookers." Since UAS "are virtually always flown in public," the requirement that a UAS emit its location, as well as the location of its operator, while the UAS is in open air "violates no reasonable expectation of privacy." Indeed, "drone pilots generally lack any reasonable expectation of privacy in the location of their drone systems during flight."

Petitioner hypothesized that law enforcement authorities could use the remote ID data to continuously surveil UAS operators. Since the Petitioner did not demonstrate that any uses of the remote ID data have harmed him or will imminently harm him, however, the Court found that he did not present any justiciable challenge to the rule.

The Court next held that none of the asserted procedural challenges to the FAA's promulgation of the Remote ID Rule affected the validity of the rule. First, the challenged ex parte communications did not materially affect the rulemaking so the fact that the FAA did not include them in the record did not impede the opportunity for public comment. Second, the final rule provisions were logical outgrowths of the proposed rule that was available for public comment. Third, the FAA fulfilled its statutory requirement to consult with numerous groups and industry stakeholders. Fourth, the FAA did not need to respond to purely speculative comments and its representation that it considered all of the comments was sufficient.

However, while Petitioner's facial challenge to the Remote ID Rule failed, the Court explained that it was not ruling out the possibility of an as-applied challenge. Specifically, the Court noted that its opinion did not "foreclose the possibility of a declaratory judgment or injunctive action by a party establishing that application of the Remote ID Rule to its own specifically delineated drones would subject it to an unconstitutional privacy deprivation." Similarly, the Court noted it was not deciding the viability of Fourth Amendment objections that targets of enforcement actions might raise.

What Does This Decision Mean?

The FAA's Remote ID Rule, and its remote ID requirements, remain in effect and will continue to aid in the expansion of commercial UAS operations. As numerous industries increase their reliance on UAS for operations and advancements, the FAA's Remote ID Rule will continue to require, and preserve, a level of organized and secure commercial operations. Because the Remote ID Rule remains intact, manufacturers should continue to factor in its requirements to new product lines, mindful of the options for compliance such as a built-in broadcast or the ability to attach an add-on broadcast module. Of note, UAS manufacturers have until September 16, 2022 to comply with the final requirements of the Remote ID Rule (remote ID functionality in production and design). The deadline for UAS operators for transmitting remote ID signals during flight is September 16, 2023. Given the quickly evolving landscape of UAS regulations, manufacturers and operators should ensure they keep abreast of, and in compliance with, current regulations.

Footnotes

1. FAA Extension, Safety, and Security Act of 2016 Pub. L. No. 114-190, §2202(a), (d), 130 Stat. 615, 629 (2016).

2. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, §349(f)(3), 132 Stat. 3186, 3299 (2018).

3. 86 Fed. Reg. 4390 (Jan. 15, 2021).

4. Brennan v. Dickson, 2022 U.S. App. LEXIS 20973 (D.C. Cir. July 29, 2022).

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