A panel of the D.C. Circuit recently dismissed a constitutional challenge to a Federal Aviation Administration rule requiring small drones to be remotely identifiable and locatable by the agency (Remote Identification of Unmanned Aircraft, or "Remote ID rule"), holding that the rule does not violate the Fourth Amendment's right to a reasonable expectation of privacy and not to be subjected to an unreasonable search.

The Remote ID rule went into effect in April 2021 and generally requires drones weighing more than 0.55 pounds to broadcast identification and location information between takeoff and shut-down, which is trackable on smart phones via a downloadable application. Plaintiff is a drone enthusiast and retailer. In challenging the Remote ID rule, he argued the Remote ID rule permitted the government to engage in constant, warrantless surveillance of drone operators.

In siding with the FAA, the D.C. Circuit affirmed the district court and reasoned that the Remote ID rule does not constitute an unreasonable Fourth Amendment search. The Court's reasoning is nicely encapsulated in this excerpt: "It is hard to see what could be private about flying a drone in the open air." Thus, there could be no reasonable expectation of privacy, the threshold prerequisite for a finding of
a Fourth Amendment violation.

The regulatory framework through which drones fit into the national airspace continues to be fine-tuned for both individual/recreational and commercial applications. Accordingly, it is important to stay abreast of current regulations.1

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


1 The Aviation Group reported on this decision more in depth in our August 2022 client alert: "FAA's Remote Identification of Unmanned Aircraft Rule and Requirements Survives Constitutional Challenge."

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