Photojournalist Fights FAA's No Fly Zones For ICE Operations

A photojournalist from Minneapolis has urged a federal court to rule that the United States government’s criminalization of drone flights near ICE or Border Patrol operations is unconstitutional.

The Federal Aviation Administration (FAA) issued a flight restriction on January 16 that prohibits all unmanned aircraft from “flying within a stand-off distance of 3,000 feet laterally and 1,000 feet above.”

According to the notice, the restriction applies to Department of Homeland Security facilities and “mobile assets, including vessels and ground vehicle convoys, and their associated escorts,” such as Coast Guard-operated “vessels.” 

Any person violating the restriction could be subject to criminal charges or civil penalties. The notice also indicates, “Mitigation may result in the interference, interception, seizure, damaging, or destruction of unmanned aircraft deemed to be pose a credible safety or security threat to protected personnel, facilities, or assets.” 

The restriction even applies to certain facilities and assets that belong to the Department of Defense or Department of Energy.

Reporters Committee for Freedom of the Press filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit. It was submitted on behalf of journalist Rob Levine and argues that the restriction violates the rights of photojournalists to gather news and exercise their First Amendment rights.

It also asserts that the restriction is “arbitrary and capricious” and violates due process because it is too vague. 

“Because there is no means of verifying in advance whether DHS vehicles—such as unmarked cars driven by Immigration and Customs Enforcement agents—are operating in a given location, the practical consequence is that drone pilots nationwide cannot know whether a flight will expose them to liability,” according to the petition [PDF] from RCFP staff attorney Grayson Clary. 

Clary adds, “The predictable result has been to burden and discourage all drone flights, along with a grave chilling effect on the use of drones for newsgathering in particular.”

“Drones have helped photojournalists capture powerful perspectives that a reporter on the ground can’t,” Levine said in an RCFP press release on the petition. “But these restrictions force drone pilots to choose between not gathering the news and risking criminal charges, massive fines, or a career-ending revocation of their right to fly. That’s unacceptable.”

A news media coalition that included the National Press Photographers Association (NPPA) sent a letter [PDF] to the FAA in January that opposed the restriction. It emphasized “nearly every federal court of appeals has recognized the First Amendment right to film law enforcement performing their duties” and accused the FAA of clearly violating the First Amendment.  

While President Donald Trump’s administration has demonized and endangered journalists covering ICE or Border Patrol operations, it’s not the first time that the press has had to contend with the FAA restricting drone journalism.

In 2021, after drone footage of immigrants at an international bridge between Del Rio and Ciudad Acuña, Mexico, was shared by Fox News, the Border Patrol requested a flight restriction “due to drones interfering with law enforcement flights on the border.” News media organizations, including Fox News, were able to seek waivers.

It is likely more difficult for independent or freelance photojournalists to apply for FAA waivers than prestige media organizations.

NPPA general counsel Mickey Osterreicher concluded, “The risk that lawful newsgathering could become criminal without notice or even awareness that covered federal vehicles are nearby puts journalists in an impossible situation.”

"[A] journalist could be flying lawfully over their own property or on a routine assignment and unknowingly violate the restriction simply because a federal vehicle passes through the area," Osterreicher added. "That is not how aviation safety rules are supposed to operate, and it raises serious due process and First Amendment concerns."