FAA Will No Longer Pursue Charges For Journalists Who Fly Drones Near ICE

The Federal Aviation Administration ended its effort to criminalize people who fly drones near ICE or Border Patrol operations—a victory for Minneapolis photojournalist Rob Levine who sued the FAA.

On January 16, the FAA issued a flight restriction that prohibited all unmanned aircraft from “flying within a stand-off distance of 3,000 feet laterally and 1,000 feet above.” It applied to Department of Homeland Security facilities and “mobile assets, including vessels and ground vehicle convoys, and their associated escorts.”

Any person violating the restriction faced criminal charges or civil penalties, which forced Levine to quit using his drones to report on protests and other Minnesota news.

Two months later, the Reporters Committee for Freedom of the Press (RCFP) filed a legal challenge on behalf of Levine, which alleged that the restriction was unconstitutional because it violated Levine’s right to gather news and exercise under the First Amendment.

The FAA issued an advisory on April 15 that warned against flying drones in “proximity” to Pentagon, Energy Department, or DHS “assets.” It mentioned that U.S. government agencies “may take action” but no longer threatened to prosecute persons who violated the restriction.

“This is a big win,” Levine stated. “It was heartbreaking to have my drones grounded at a time of such importance to my community, but I’m looking forward to getting back up there and getting back to my journalism as soon as possible.”

RCFP attorney Grayson Clary declared, “We’re glad to see the FAA rescind its original order, which was an egregious overreach that had serious consequences for reporters nationwide. But this kind of arbitrary back-and-forth from the FAA is exactly the problem, and we intend to make clear to the D.C. Circuit that this restriction never should have been implemented in the first place.”

The legal challenge also argued that the restriction violated the right to due process because it was too vague.  

The National Press Photographers Association (NPPA) said the withdrawal of the FAA’s “broad and unconstitutional flight restriction means that drone journalists will no longer have to risk their drone license and criminal charges,” though as it acknowledged flying a drone near DHS operations “still carries some risk” because the government may take action. 

A coalition of groups, associations, and media organizations, including RCFP and NPPA, had urged the FAA to halt the “unprecedented” restrictions on drone journalism. They were especially bothered by the fact that the FAA had made no effort to establish a process for reporters to “coordinate lawful flights.” 

As Levine made clear when the lawsuit against the FAA was filed, “Drones have helped photojournalists capture powerful perspectives that a reporter on the ground can’t.”

Reporters who use drones should never have to choose between gathering the news or facing fines, criminal charges, or other penalties that would impact their career.