FIU Law Review

Volume 10 Number 2 Article 8

Spring 2015

Dronalism: , Remotely Piloted Aircraft, Law and Regulation

David Goldberg

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Online ISSN: 2643-7759

Recommended Citation David Goldberg, Dronalism: Journalism, Remotely Piloted Aircraft, Law and Regulation, 10 FIU L. Rev. 405 (2015). Available at: https://ecollections.law.fiu.edu/lawreview/vol10/iss2/8

This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37333-fiu_10-2 Sheet No. 29 Side A 01/11/2016 08:19:25 .UK O UMAN .C H 1 IRED , W ). OUNCIL ON C L ERVICE ’ S NT 2 , I ORLD W * BSTRACT A NTRODUCTION I David Goldberg David http://www.ichrp.org/files/reports/64/132_report_en.pdf. Dronalism: Journalism, Dronalism: available at available ) 1/7/16 2:39 PM Behind the Mind-Boggling Shots Captured by BBC Drones ELETE D OT (Jun. 2011), N Y O ’ (D “We are not using it as a drone. That is completely the wrong wrong the completely is That drone. a as it using “Wenot are OL Navigating the Dataverse: Privacy Technology, Human Rights Katie Collins, Remotely Piloted Aircraft, Law and Regulation Regulation and Law Aircraft, Piloted Remotely P terminology to use to describe it. We see it as a flying camera.”flying describe a to Weas it. it use see to terminology behavior or moral choices significant risk of to others the society within as a panic” is that simply whole. a moral panic that centers By around societal society fears about extension, a poses “techno- a A moral panic occurs when a segment of society believes that the Newer technologies generate hustle and bustle for policymakers and 1 2 M K IGHTS OLDBERG legislators, who are academics. and activists, NGOs, citizens,” “concerned often driven by techno-panics whipped up by * E-mail: [email protected]; © David Goldberg, Glasgow, Scotland, U.K. U.K. Scotland, Glasgow, Goldberg, David © [email protected]; E-mail: * R this context in pro-privacy lobby. the by advanced those least counterclaims,not principle. Further, this use should trump absolutist evolving from military to increasingly civil, commercial applications. This Article focuses exclusively on using RPAs journalism” for journalism, or a.k.a. “drone “dronalism.” Cheap portable, RPAs can be to moved easily to locations where purchase, reporting needs to light take place, or where production is most desirable. In this in context, RPAs are weight, and simply twenty-first century mainstream flying media and cameras. citizen However, regulatory, legal, as well as so-called “ethical” gaps and issues. alike this The Article is usage being argues by frustrated that by the public’s exercising the rights right involved in to carrying out the receive profession coupled of with reporting, information the concomitant from right journalists to technologies, access including and RPAs to utilize do so, communication should permit the use of RPAs in The use of “drones,” or, technically, “remotely piloted aircraft” (RPAs), is G (Feb. 12, 2014), http://www.wired.co.uk/news/archive/2014-02/12/bbc-drone-journalism/viewgallery/ BBC Unit, Video Global Hannen, Thomas (quoting tZOFW0 ytKr2kd C Y 37333-fiu_10-2 Sheet No. 29 Side A 01/11/2016 08:19:25 A 01/11/2016 29 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 29 Side B 01/11/2016 08:19:25 , M K 6 C Y Ben Ben EPORT http:// R SSUES 4 I RIGINS OF 3 , http://tech SIA O see also A [Vol. 10:405 10:405 [Vol. RONT THE THE F available at ELECTED IMES T :S II & (Aug. 2, 2013), http:// 2013), 2, (Aug. AW AR L TRAIT W Drone Collisions: Hot Air? S IBERATION HE It is technically precise precise technically is It 6 .L HESAURUS , at X (2011), ORLD , T T The Montgolfiers Brothers: Pioneer VIATION ECH :W T AR ISUAL HE W V It also pays homage to a little- a to homage pays also It &EUA Ian Ellis, Ellis, Ian , T 7 L AP ’ see M NT IZARD Timothy M. Ravich, Ravich, M. Timothy ,I W HINK See , unassailable, it can, nevertheless, be used as a political HE , T EBER , T W Letter from Sen. Dianne Feinstein to FAA Adm’r Michael P. P. Michael Adm’r FAA to Feinstein Dianne Sen. from Letter FIU Law Review Law FIU Unmanned Aircraft Systems of an illustration of the drone as the Angel of ., in principle http://www.feinstein.senate.gov/public/index.cfm/files/serve/ ?File_ http://www.feinstein.senate.gov/public/index.cfm/files/serve/ RG UDWIG O see also ., http://todayinsci.com/M/Montgolfier_Brothers/Montgolfier_Brothers . (Dec. 2014), http://droninglawyer.com/2014/12/. IMES Drones Posing Global Security Issues IST T & L & LOG .H ) 1/7/16 2:39 PM VIATION CI available at S A ELETE IEMULLA TRAIT D G IVIL C OT Unmanned Aerial Vehicles .: UAV L. B N ODAY IN L ’ Jonathan Eyal, Eyal, Jonathan O T AW , LMAR L NT (D How “Drone” Got off the Ground See Ongoing Series: Moral Panics/Techno-Panics 5 Widely so-called, the origin of the word “drones” is less well known. It seems that, in 1931 I E , ¶ 1.1, http://www.vectorsite.net/twdrn_01.html (last visited Sept. 16, 2014); In this article, the term “remotely piloted aircraft” (hereafter RPA), a specific contemporary technology (or technological activity) instead medium.or technology that over flowing merelycontent of the For example, the invention of hot-air aerial balloons in the eighteenth The response to the development of non-military applications of 5 6 7 3 4 RONING ADAR OLDBERG century hugely alarmed those who, being under the flight path, feared their for safety, lest the craft come down, overboard. And, or thus, something on April it 23, 1784, was aviation law carrying became fall established when “a French police directive was issued aimed directly and exclusively at the balloons of takeauthorization.” to prior not without were place flights population, the Montgolfier Brothers: in order to protect the D and corresponds to contemporary usage. liberation.com/ongoing-series/ongoing-series-moral-panics-techno-panics/ (last visited Dec. 3, 2014). 3, Dec. visited (last liberation.com/ongoing-series/ongoing-series-moral-panics-techno-panics/ Balloonists (Kluwer L. Int’l 2011). For the Montgolfier brothers, drones is no exception to this “sociological rule.” Also, to account for some of the anxiety concerning suggested that drones one additional, specific, reason so is owing to evident the way images in of drones are certain represented in the media. quarters, These media representations it make them is resemble scary flying creatures from the dinosaur era or tiny insects, thus, playing into fear of dinosaurs (ornithoscelidaphobia) or fear of insects (entomophobia). An Singapore’s interesting S recent twist is the publication in (Oct. 27, global-security-issues-20141027. 2014), http://www.straitstimes.com/the-big-story/asia-report/opinion/story/drones-posing- R 406 G will be used interchangeably for the word “drone.” will be used interchangeably htm (last visited Dec. 3, 2014); id=a26f5de2-b5f6-4f6c-85fc-86414a24c1f2 (proposal to the FAA for USA). Whilst the “safety” restricting issue is, drone usage in the football and statistics may be misrepresented. Huerta (Dec. 3, 2014), www.visualthesaurus.com/cm/wordroutes/how-drone-got-off-the-ground/. Death. “the British developed the Fairey building ‘Queen’ a batch radio-controlled of target three, and from in the 1935 another RC followed-up target, the ‘DH.82B Fairey Queen Bee,’ this derived from the de experiment Havilland Tiger IIIF Moth biplane trainer. by floatplane, producing larger numbers of The name ‘Queen Bee’ is said to have led to the use of the word ‘drone’ for remote-controlled aircraft.” Greg Goebel, Zimmer, 37333-fiu_10-2 Sheet No. 29 Side B 01/11/2016 08:19:25 B 01/11/2016 29 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 30 Side A 01/11/2016 08:19:25 ESLA ESLA T ,http:// , Austin It is a a is It CAP 722: 722: CAP 10 available at ., IKOLA (Oct. 22, 2010), see also UTH A 8 Patents: Method of and (Apr. 26, 2010), http:// 2010), 26, (Apr. , VIATION A OOGLE ELEAUTOMATON , http://www.google.com/ patents/ SSEMBLY IVIL , at 4 (Aug. 10, 2012), , T , A , Mar. 2015, http://www.publications. piloted aircrafts owe their their owe aircrafts piloted 407 407 remotely Dronalism ) 1/7/16 2:39 PM ELETE D OT Unmanned Aircraft Systems (UAS) Frequently Asked Questions N ., O (D Civilian Use of Drones in the EU the in Drones of Use Civilian 9 DMIN A DOCX How Tesla’s 1898 Patent Changed the World N.Y., http://www.teslasociety.com/ (last visited Dec. 3, 2014); N _1.4. VIATION INAL Y OF _F .A ’ ED OC An RPA is an “aircraft” because it falls within the International Civil Aviation Organization , http://www.tesla-museum.org (last visited Dec. 3, 2004); G S Sun Sachs, F Nikola Tesla: Father of Unmanned Vehicle Technology controlled device in the form of a miniature boat. He had two devices one that could be remote controlled above water and another that had a water. under controlled be could and antenna loop hidden On a rainy September day in 1898, Nikola Tesla presented at Madison Square Garden’s first Electrical Exhibition a called new invention a that “teleautomaton.” he The invention was the first even radio Second, from a legal and regulatory perspective, the remotely piloted Further, the phrase highlights two crucial aspects of this type of L OLDBERG ’ 8 9 10 M K EM USEUM known historical fact: present day He patented American of Serbian to the brainchild technology Tesla. Nikola the so-called “teleautomaton,” albeit it was with reference to a boat—thus, underscoring the point that aerial, unmanned, road, remote and sea control vehicles. is Tesla September1898. in Exhibition electrical first Garden’s Square applicable presented his to invention at Madison http://teleautomaton.com/post/1373803033/how-teslas-1898-patent-changed-the-world; Weber, AM). 10:50 2014, 23, July modified (last www.faa.gov/uas/faq/#qn1 Unmanned Aircraft System Operations in UK Airspace—Guidance parliament.uk/pa/ld201415/ldselect/ldeucom/122/12202.htm. parliament.uk/pa/ld201415/ldselect/ldeucom/122/12202.htm. www.assemblymag.com/articles/87689-nikola-tesla-father-of-unmanned-vehicle-technology; T http://www.caa.co.uk/docs/33/cap722.pdf. For an excellent overview of terminology and issues, see the UK House of Lords Report, vehicle is an aircraft. Understanding that RPAs are novel “aircraft” situation when produces deployed a for the purpose of newsgathering. M M Apparatus for Controlling Mechanism of Moving Vessels or Vehicles 2014). 3 Dec. visited (last US613809 associated support equipment, communications and navigation control equipment, etc., necessary station, to operate unmannedaircraft.” the data links, telemetry, www.icao.int/Meetings/UAS/Documents/Circular%20328_en.pdf; C Aircraft System (RPAS). “[T]he unmanned aircraft (UA) [sic] and all of the the of all and [sic] (UA) aircraft unmanned “[T]he (RPAS). System Aircraft 2015] 05 - G definition of an aircraft: “Any machine that can derive support in the atmosphere from the reactions of vehicle. First, it is often imagined that RPAs are “unmanned” because there is no human “unmanned.” There being is a on human operating operator, and board. (hopefully) the controlling/monitoring it, ideally, pilot-in-command, in However, conjunction who is the with an observer too. There might RPA even be another human being involved, is operating the not payload, e.g., video literally camera or data situation, the RPA is sensors. part of a human-machine system, In or Remotely Piloted that typical C Y 37333-fiu_10-2 Sheet No. 30 Side A 01/11/2016 08:19:25 A 01/11/2016 30 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 30 Side B 01/11/2016 08:19:25 M K C Y ., (2012), to be so so be to UTH .(Jan. 2014), 2014), .(Jan. A ORP [Vol. 10:405 10:405 [Vol. have .C VIATION A ROAD .B IVIL USTL , A http://www.nasa.gov/pdf/732725main_ http://www.easa.europa.eu/system/files/dfu/A- See available at It may be used interchangeably with RPA in in RPA with interchangeably used be may It FIU Law Review Law FIU 12 , NASA (2013), Crash Course: Lessons Learned from Accidents Involving Remotely http://www.dronezine.it/wp-content/uploads/2015/ 03/10019_cons_en- http://www.dronezine.it/wp-content/uploads/2015/ Drone Journalism: Newsgathering Applications of Unmanned Aerial Conversely, national aviation regulators will have to to have will regulators aviation national Conversely, 11 ) 1/7/16 2:39 PM available at Int’l Civil Aviation Org., Manual on Remotely Piloted Aircraft Systems (RPAS), (RPAS), Systems Aircraft Piloted Remotely on Manual Org., Aviation Civil Int’l ELETE D see OT Mark Corcoran, Peter W. Merlin, N O See See (D However, in order not to become embroiled in what Mark Corcoran 11 12 OLDBERG because they will be directly legally liable when things go wrong—as they inevitably will do. calls a “definition corresponds to conventional usage) dogfight,” when referring to the use the of RPAs mainstream by media enterprises and termjournalists as well as citizen journalists “drone” in the is pursuit of journalism. acceptable (and Piloted and Autonomous Aircraft crash_course-ebook.pdf. Vehicles (UAVs) in Covering Conflict, Civil Unrest and Disaster http://bit.ly/1yARB6S. the air other than the reactions of the air against the Earth’s surface.” C regulator and air law and rules, whether national, regional, or international. This is set to change. The safety dividend, small size, portability, and low cost of RPAs will mean that the media companies etc. will themselves own and operate the vehicles directly. Such users will not only be more aware of the rules and regulations governing such activities, they will 408 truism that media organizations and media lawyers currently engage with a range of media regulators and laws. For example, there are laws protecting the reputation of subjects of media reporting; states national jealously security by punishing guard disclosure of their official secrets; the revenue of the media is affected by advertising rules; broadcasting is subject to being granted a national regulator’s licence; and community standards are upheld by laws criminalizing obscene speech, etc. However, legal one regime that tends regulatory to be and far removed from the consciousness of media companies, citizen journalists, and their advisers, is the national aviation G has been superseded by the recently published 10019) Manual under on the authorship Remotely of Piloted the Aircraft successor to Systems the (Doc Panel UASSG, (RPASP); the Remotely Piloted Aircraft Systems Doc. 10019 (2015), Secured-1.pdf. On August 3 2015, consultation the European Aviation document Safety Agency for NPA%202015-10.pdf. published its drones legislative regulation. op. cit. Further, as regards the ICAO: In 2007, Group (UASSG), ICAO which set developed up Unmanned the Aircraft Systems Unmanned (UAS) Aircraft (Cir Systems 328 Study AN/190). Now, 328 this article. Unlike deploys military small, applications, meaning, under almost 7kg all remotely-controlled quod—or drone hexa/ journalism the professional media lawyer becomes aviation regulation and law. and becomesregulation media aviation professional lawyer the understand that their decisions—in who, if anyone, to permit this context, to fly and under what conditions—might be met by a challenge using human rights law and jurisprudence nutshell, when media companies, concerning citizen journalists, and content producers freedom of deploy RPAs, expression. the new tool In in the newsgathering a toolbox in particular for 37333-fiu_10-2 Sheet No. 30 Side B 01/11/2016 08:19:25 B 01/11/2016 30 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 31 Side A 01/11/2016 08:19:25 , BBC http:// Fergus Fergus general See see also available at would include include would http://www.tandfonline.com/ http://www.tandfonline.com/ https://reutersinstitute.politics. Without that type of of type that Without (May 2014), 13 http://www.hklaw.com/files/Uploads/ By implication, any any implication, By a fortiori available at 14 Remotely Piloted Aircraft and Journalism available at 409 409 (Oct. 29, 2013), https://www.youtube.com/ 2013), 29, (Oct. OURNALISM J UBE available at LAIM T 1 (2013), (2013), 1 C OU IGITAL (June 2013), AW D , Y EY Dronalism .L ) 1/7/16 2:39 PM K in Support of Respondent Raphael Pirker, Huerta et. al. v. v. al. et. Huerta Pirker, Raphael Respondent of Support in Earlier, the United States Congressional Congressional States United the Earlier, ECH 15 TR FOR T ELETE D C Amici Can Human Rights Law Support Access to Communication OURNALISM NS J ’ OT N OW O , T (D OMMC TUDY OF S DOCX , extremely strong compelling overriding considerations .&C _1.4. NFO INAL FOR THE THE FOR . Brief of Media Media News of Brief _F in casu , 22 I NST See I David Goldberg, Mark Corcoran & Robert Picard, Robin Elizabeth Herr, The key claim of the article is that deploying drones in the context of In the context of the First Amendment, a set of arguments to this effect “Hexacopter” Drone Flying Camera Flying Drone “Hexacopter” , OLDBERG Sensors and Journalism 13 14 15 M K EWS EUTERS octo—‘copter with an on-board camera attached. Technology? Pirker, Docket No. CP-217 (N.T.S.B. May 6, 2014), Documents/CaseBriefs/MediaLaw/Drones.pdf. Pitt, payload (or others) the pointless drone in the is context simply of dronalism, a application. Without or, a payload, “flying indeed, it is, basically any donkey” a toy, other a recreational, and model commercial aircraft. quite ideas and information (as well as the component rights needed to make it a reality), itself an element of the Thus, general the use right of RPAs to by media freedom companies and/or of citizen journalists and, expression. crucially, any restrictions thereon, raises unique concerns because such use engages elements of the right threshold to right freedom is, of expression. technology that arguably, an RPA is in such Actually, situations. the the right to access the communications dronalism engages a fundamental human right, namely, the right to receive N 2015] 05 - G ox.ac.uk/sites/default/files/Remotely%20Piloted%20Aircraft%20and%20Journalism.pdf; doi/full/10.1080/ 13600834.2013.774517. doi/full/10.1080/ least, in the absence of competing carrying interest out an involved, explicit any exercise restriction flawed. procedurally balancing would the be challengeable as has been advanced by and magazine publishers, broadcast and cable television companies, wire services, website operators, and non-profit journalists’ associations in the amici brief written Pirker in (basically, support the of Raphael FAA was appealing Administrative a Law decision made judge). by a NTSB defending and promoting another protected interest, would the right to use an RPA in that specific, fact-limited context be trumped. And, at the very watch?v=ZTWHP80hei0. A tweak to the phrase “drone journalism” is “sensor journalism.” restriction(s) on newsgathering, would amount using to a prima facie infringement of RPAs, Only this right. if, which, towcenter.org/wp-content/uploads/2014/05/Tow-Center-Sensors-and-Journalism.pdf. towcenter.org/wp-content/uploads/2014/05/Tow-Center-Sensors-and-Journalism.pdf. R C Y 37333-fiu_10-2 Sheet No. 31 Side A 01/11/2016 08:19:25 A 01/11/2016 31 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 31 Side B 01/11/2016 08:19:25 M K C Y NTSB (Apr. (Apr. RONES INTO available at D [Vol. 10:405 10:405 [Vol. 17 Having considered considered Having 16 Office of Pub. Affairs, Affairs, Pub. of Office , Nat’l Transp.Safety Bd. (Nov. NTEGRATION OF See ,I U.S. Federal Aviation Administration Integration Integration of Drones into , http://www.hklaw.com/casestudies/Out- ERVICE S , which contains a section entitled Integration of Drones into Domestic Airspace: Jack Nicas, Nicas, Jack The brief argues that using drones for The brief argues that using drones See 19 First Amendment and News Gathering Activities ESEARCH , R SSUES I 18 FIU Law Review Law FIU EGAL L ONGRESSIONAL Out in Front on Drone Litigation C , Congressional Research Service (Apr. 4, 2013), ) 1/7/16 2:39 PM ELECTED :S TATES ELETE S D OT N IRSPACE O NITED A (D Holland & Knight, Op. cit. 6. The FAA has won its appeal, and the matter has been sent back to the judge to U Alissa M. Dolan & Richard M. Thompson II, challenged the fine before an administrative law judge, who ruled that the FAA's unenforceable because stringent the agency appropriate regulation procedures had . . . . In failed the brief . . to of . the coalition argued adopt the that judge’s it commercial ruling through was correct. newsgathering drones They is also contended protected was that, by government should because not consider journalism to the be a commercial use of First Amendment, the technology. Furthermore, they made a case for including the media the federal accompanythat discussions government policy future of in drafting the regulations. UAS-related The case before photographer the who was NTSB fined $10,000 involved for model flying aircraft Raphael a around camera-equipped Pirker, the University an of Virginia. aerial He successfully The amici are of the opinion that the FAA had applied (through ad hoc 18 19 16 17 OMESTIC OLDBERG 2013). D 410 Research Service (CRS) published a Domestic Airspace: Selected report, Legal Issues “First Amendment and Newsgathering Activities.” G unnecessarily overbroad and inadequately based policy restricting the use of unnecessarily overbroad and inadequately unmanned aircraft for improperly, in “business the amicis’ opinion—that purposes” the activities First of Amendment in gathering protected and disseminating which news and information. resulted This it has in “an included— impermissible newsgathering rights of journalists.” chilling effect on the First Amendment administrative actions rather than through properly promulgated rules) an Selected Legal https://www.academia.edu/13298432/CRS_Report_for_Congress_Integration_of_Drones_into_Domesti Issues c_Airspace_Selected_Legal_Issues. determine if the aircraft was being flown carelessly Remands or Administrator v. recklessly.Pirker Case Back to ALJ for Further Review 18, 2014), http://www.ntsb.gov/news/press-releases/Pages/PR20141118.aspx. However, subsequently it has been reported that the parties have reached a settlement: “Raphael Pirker . . . agreed to pay the FAA $1,100 to settle the agency’s $10,000 fine for allegedly flying a drone recklessly to film the University of Virginia in 2011. Under the settlement terms, Mr. Pirker doesn’t admit to guilt and the FAA agreed to drop some of its accusations against Mr. Pirker.” in-Front-on-Drone-Litigation/ (last visited Dec. 8, 2014). 8, Dec. visited (last in-Front-on-Drone-Litigation/ other interests, such as privacy, the CRS advises “the giving proper regard to public’s countervailing ideas.’” of trade ‘free the information feeds inevitably that concern in securing the free flow of 37333-fiu_10-2 Sheet No. 31 Side B 01/11/2016 08:19:25 B 01/11/2016 31 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 32 Side A 01/11/2016 08:19:25 see available at note 15; 15; note supra , Avery E. Holton, see also Thus, any ban must take take must ban any Thus, 21 411 411 , (Routledge Taylor & Francis Group 2014), 20 Dronalism ) 1/7/16 2:39 PM in Support of Respondent Raphael Pirker, Pirker, Raphael Respondent of Support in (Jan. 22, 2015, 6:32 pm), http://www.wsj.com/articles/u-s- pm), 6:32 2015, 22, (Jan. ELETE RACTICE D Amici P Up in the Air: The Free-Speech Problems Raised by Regulating OT N Unmanned Aerial Vehicles: Opportunities, Barriers, and the Future of O (D DOCX OURNALISM , J _1.4. INAL (Nov. 25, 2014), http://www.slate.com/articles/technology/future_tense/2014/11/faa_s_ http://www.slate.com/articles/technology/future_tense/2014/11/faa_s_ 2014), 25, (Nov. Brief of Margot Kaminski, Kaminski, Margot _F LATE See See , S not like other businesses. The government in a myriad of measures has long accommodated the bedrock “without some First protection for Amendment seeking out principle eviscerated.” be could press the news, that freedom of the [t]he FAA’s position is News gathering about journalism. not is a misunderstanding “business untenable as it purpose.” It is a First Amendment right. Indeed, contrary to the FAA’s rests on complete a shutdown of an fundamental entirely new means to gather the news, the remainder of the federal government, adjudication, in has recognized that, in legislation, the eyes of the law, regulation journalism is and a complete ban misunderstands journalism activity as a rather purely than commercial a constitutionally-protected right to gather and In conclusion, what primarily differentiates dronalism from any other OLDBERG 20 21 Branzburg v. Hayes, 408 U.S. 665, 702 (1972). 702 665, U.S. 408 Hayes, v. Branzburg M K also dronalism is not conducting Amendment activity. Regarding the FAA’s general a ban on “business” uses business, that but states it RPAs, by rather a protected First Drones drone application is that it engages the speech, the press, rights and specific elements to thereof. freedom of expression, attempts_to_regulate_drones_could_have_first_amendment_problems.html; Sean Lawson & Cynthia Love, “Drone Journalism” Settles with Videographer Over Drones federal-aviation-administration-settles-with-videographer-over-drones-1421960972. 2015] 05 - G technology as a condition precedent for newsgathering without which right the to receive information and ideas is meaningless. Just journalism because is neither drone a military nor state nor recreational use of an RPA, it is simply wrong to claim it is a commercial or “business” use of an RPA. It is a conceptual confusion to purpose conflate them. of Deploying drone an journalism RPA prima freedom for of facie the expression engages and the the constitutional right (human) to particular, right free the speech to right and, to in pursue activities precedent information.and said, ideas been receive has to As right to facilitating peoples’ into account and weigh in the balance this countervailing consideration of principle. This is not, in “speaker’s the right(s),” present but author’s rather, opinion, the audience to receive video or data information. The about core right also engages a right(s) justifying of the reader, threshold right, viewer, namely, and the right to access and use any communication http://www.tandfonline.com/doi/abs/10.1080/17512786.2014.980596#.VIWgjk3KHmg. http://www.tandfonline.com/doi/abs/10.1080/17512786.2014.980596#.VIWgjk3KHmg. C Y 37333-fiu_10-2 Sheet No. 32 Side A 01/11/2016 08:19:25 A 01/11/2016 32 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 32 Side B 01/11/2016 08:19:25 M K 24 C Y [Vol. 10:405 10:405 [Vol. (June 3, 2014), http:// COM . of speech or content, but AWYER L (May 7, 2014), https://knightcenter.utexas. 2014), 7, (May forms RONING LOG , D B 22 23 it is argued here that this support would would support this that here argued is it MERICAS A FIU Law Review Law FIU —FAA to Consider Exemptions for Commercial UAS ., A fortiori (Jun. 2, 2014), http://www.faa.gov/news/press_releases/news_story. 2014), 2, (Jun. DMIN And the Drone Goes . . . . to A ) 1/7/16 2:39 PM U.S. Media Defend Drone Journalism from Federal Government, Arguing OURNALISM IN THE , J Will the FAA exempt certain movie studios and not others? ELETE D VIATION OT .A N O ED (D Diego Cruz, F Timothy Ravich, In like manner, the European Court of Human Rights has been been has Rights Human of Court European the manner, like In The key claim of the chapter requires understanding that, as the CRS with with the First Amendment guarantee of free speech. Isn’t a movie a form of expression (yes, the Supreme Court of the United States said 1952)? in In any event, while this is credentialed, a safety-conscience “drone” step users—this seemsout of in sorts the right direction—rewarding disseminate news, covered in the First Amendment . . . . This broad policy [sic], implementedoverly through a patchwork of regulatory and policy statements and an ad hoc cease-and-desist enforcement process, has an impermissible journalists. of rights newsgathering chilling effect on the First Amendment Further, even if the regulator permits deployment of RPAs for drone Commenting, notes, TimothyRavich 22 23 24 OLDBERG full meaning and substance to those guarantees.’” those to substance meaningand full supportive of activities which newsgathering underpin activities not required only to publication, subsequent publication. obtain but material also on which to base Report notes, what is protected is not only also “conduct that is ‘necessary for, or integrally tied to, acts of expression’ . . . other conduct that is not expressive in itself, but is 'necessary to accord that it was to production companies that have asked for regulatory exemptions that would consider requests from allow the seven film and aerial television industry time. first the for approval FAA photo with to use and unmanned aircraft video systems 412 G expression considerations, e.g., is society” any ban in “necessary coming in to between a the its democratic agency’s decisions? determination? Is there Has from an an agency independent there decision? For appeal example, in process been mid-2014, the FAA announced consistency journalism on an ad hoc, case-by-case decision-making process, authorizing (or otherwise) X to fly an RPA, the question arises: has the public authority explicitly conducted the necessary balancing exercise, weighing freedom of edu//00-15587-us-media-defend-drone-journalism-federal-government-arguing-freedom-press. droninglawyer.com/2014/06/03/and-the-drone-goes-to/ (emphasis added). (emphasis droninglawyer.com/2014/06/03/and-the-drone-goes-to/ Movie and TV cfm?newsId=16294. (Seven Production companies complete.) petition to fly unmanned aircraft before rulemaking is 37333-fiu_10-2 Sheet No. 32 Side B 01/11/2016 08:19:25 B 01/11/2016 32 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 33 Side A 01/11/2016 08:19:25 , Eur. , 26 The The 27 . Telegraaf Media , http://cadmus.eui.eu/ handle/ The case concerned concerned case The 26 . Key has been the Court’s Court’s the been has Key 25 413 413 , Eur. Ct. H.R. (2010), http://hudoc.echr.coe.int/ Dronalism ) 1/7/16 2:39 PM ELETE D OT N O The Right to Freedom of Expression and Information Under the European (D Observer and Guardian v. the United Kingdom DOCX _1.4.  INAL Dirk Voorhoof, Voorhoof, Dirk _F See Case of Telegraaf Media Nederland Landelijke Media B.V. and Others v. Netherlands Case of Sanoma Uitgevers B.V. v. Netherlands may be adversely affected. affected. adversely be may and ideas: the public otherwise, the also press would be has unable to play a its vital watchdog” role right of “public to ( receive them. November 1991, § Were 59, Series A, it no. 216). The right of protect journalists to their sources is part of information the freedom and to ideas “receive and without protected impart by interference Article 10 by of the public Convention important and authorities” safeguards. serves as It one is of a its without cornerstone which sources of may freedom be of deterred informing the the public from on matters of public assisting interest. press, As a result the the vital press in public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information to the public Freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep the bounds impartingof task the have press informationsuch the does only not set, OLDBERG 25 26 27 M K extend to the use of RPAs to do this work. sites/eng/pages/search.aspx?i=001-100448 (last visited Dec. 18, 2014). 18, Dec. visited (last sites/eng/pages/search.aspx?i=001-100448 Ct. H.R. (2012), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114439 (last visited Dec. 2014). 18, Court stated, Court The “leading case,” decided by the Grand Chamber of the Court, is is Court, the of Chamber Grand the by decided case,” “leading jurisprudence regarding protecting the identity of journalists’ sources and material. journalistic of seizures from and protection search the unjustified The Sanoma Uitgevers B.V. v. the Netherlands 2015] 05 - G Human Rights System: Towards a More Transparent Democratic Society 2014). 18, Dec. visited (last 1814/29871 The Court found that the interference with the applicant company’sfreedomapplicant the with interference the that found Court The of expression had not been procedure “prescribed by with law,” there adequate having company been to enable an legal independent assessment no as to whether the interest of safeguards available the criminal investigation overrode to the public interest in the the protection journalistic of sources. applicant The Court reaffirmed its position in Nederland Landelijke Media B.V. and Others v. the Netherlands photographs to be used for an article on illegal car racing, which magazine a Dutch publishing company was investigating compelled another to crime, hand despite the over being journalists’ forced to divulge material capable to of identifying confidential sources. strong police objections to C Y 37333-fiu_10-2 Sheet No. 33 Side A 01/11/2016 08:19:25 A 01/11/2016 33 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 33 Side B 01/11/2016 08:19:25 M K C Y , http:// Given Given 32 Khurshid Jane McGrath, McGrath, Jane [Vol. 10:405 10:405 [Vol. See The RPA is is RPA The 29 (Apr. 18, 2013) http:// 2013) 18, (Apr. supports the adoption of that [sic] [sic] that of adoption the supports , http://increasinghumanpotential.org/ (last visited Dec. 3, Dec. visited (last http://increasinghumanpotential.org/ , PPLICATIONS A FIU Law Review Law FIU ,http://people.howstuffworks.com/electronic-news-gathering.htm ,http://people.howstuffworks.com/electronic-news-gathering.htm OTENTIAL Can Human Rights Law Support Access to Communication P UMAN which records and relays images to a ground receiver/ ground a to images relays and records which H How Sensor Reporting Helps Journalists Find Data Where None Exist ) 1/7/16 2:39 PM 30 31 ELETE D 28 OT NCREASING N (emphasis added). (emphasis I O Id. See (D RPAs are part of what has been called ENG—”electronic news gathering.” Alyssa Mesich, Robin Elizabeth Herr, One last argument: RPAs deployed with payloads such as electro-optic technology without unjustified restriction . . . individuals no matter by what type the of communication technology state used, is or there private exists information. a general right of access to all forms of a potential model to prevent undemocratic communication technology such as Internet interferences and mobile . . . [sic] based of uses of on the case law of the European Court of Human . . . Rights Mustafa and Tarzibachi v. Sweden The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention scrutiny. to special Having regard journalistic to sources the for press importance freedom interference cannot of in be compatible a with the Article 10 democratic of the protection society, Convention unless an of it is justified interest. by an overriding requirement in the public There are already many civilian, commercial, i.e., non-military/non- 28 29 30 31 32 OLDBERG Technology? A Case Study Under Article 10 of the Right to Receive Information added). (emphasis www.tandfonline.com/doi/abs/10.1080/13600834.2013.774517?journalCode=cict20 simply, as noted, the “donkey”/platform facilitating the carriage of a camera (or other sensors) understood as indirectly “communications technologies.” cameras to relay video data to journalists or media organizations should be 2014). station. Robin Elizabeth “[h]uman rights Herr scrutiny is a necessary component has of any effort to argued, ensure used.” and adopted effectively be communicationcan that technology in another situation, identified has Herr that 414 G the focus of this article—on using RPAs in the context of freedom of ijnet.org/blog/how-sensor-reporting-helps-journalists-find-data-where-none-exist (last visited Dec. 18, 2014). What Is Electronic News Gathering? 2014). 18, Dec. visited (last state applications for RPAs, and these are only set to increase. The range future of applications will be limited only by human imagination. 37333-fiu_10-2 Sheet No. 33 Side B 01/11/2016 08:19:25 B 01/11/2016 33 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 34 Side A 01/11/2016 08:19:25 , Aarti Aarti , http:// ee also (May 16, 2014, 2014, 16, (May (May 16, 2014, 8:33 8:33 2014, 16, (May see Section 333 note 33; s 33; note (Feb. 5, 2013) https://www. 2013) 5, (Feb. supra Unsurprisingly, there are are there Unsurprisingly, “[W]hat we are looking for for looking are we “[W]hat 33 35 (Oct. 28, 2013), http://www.rollingstone. 2013), 28, (Oct. 415 415 Gary Susman, See However, companies, such as Flying Flying as such companies, However, Speaking for the US film industry, industry, film US the for Speaking note 33; http://www.npr.org/blogs/alltechconsidered/ 33; note 36 34 In a significant comment on this this on comment significant a In Dronalism ) 1/7/16 2:39 PM supra 38 ELETE D OT N O Are Filmmakers Using Drones Illegally? Looks Like It Hollywood to the FAA: Let Us Use Drones (D Film Industry Concerned About Camera Drone Ban Drones and the Future of Movies , http://flying-cam.com/en/news.php?id=130 (last visited Dec. 3, 2013). 3, Dec. visited (last http://flying-cam.com/en/news.php?id=130 , AM DOCX -C _1.4. (Sept. 25, 2014), http://www.faa.gov/news/press_releases/news_story.cfm?newsId= 2014), 25, (Sept. INAL LYING note 32; Zara Nicholson, Nicholson, Zara 32; note Aarti Shahani, Gary Susman, F Ira Teinowitz, Teinowitz, Ira _F On September25, 2014, after special petitions were lodged, lodged, were petitions special after 2014, September25, On Zara Nicholson, Nicholson, Zara 37 See See See See Six Companies Can Now Fly Small UAS Following FAA-approved Safety Procedures See supra Colloquially, “drone cinematography.” ELEASE See R In any event, while this is credentialed, a safety-conscience “drone” step users—this seemsout of in sorts the right direction—rewarding with the First Amendment guarantee of free speech. Isn’t form a of expression movie (yes, the a Supreme Court of the United States said in 1952)? Will the FAA exempt certain movie studios and not OLDBERG 35 36 37 38 33 34 M K RESS speech and the press—it is worththe recent highlighting development in the USA regarding permissions being granted to deploy drones for a few movie production houses. In commercial uses of drones, efforts the to be legally allowed to use them for this face of purpose the has been FAA’s lobbied general for several ban years. on civil, 3:41 AM), http://www.npr.org/blogs/alltechconsidered/2014/05/16/312487924/are-filmmakers-using- drones-illegally-looks-like-it. com/movies/news/drones-and-the-future-of-movies-20131028. com/movies/news/drones-and-the-future-of-movies-20131028. The same seems to be the case in South Africa. AM), http://www.iol.co.za/capetimes/film-industry-concerned-about-camera-drone-ban-1.1689174#.U3 YcqPldWSp. reports of drones being used illegally, i.e., in the face of the FAA’s general ban on civilian commercial use. MPAA spokesperson Howard Gantman urged, Gantman Howard spokesperson MPAA P 17194&cid= TW251announcement. For the Summary Grants of 2014). 3, Dec. visited (last www.faa.gov/uas/legislative_programs/section_333/ Exemption, process. United States Transportation Secretary Anthony Foxx announced that the Federal Aviation Administration had granted regulatory exemptions to six aerial photo and video production companies, the “first step to allowing the film and television industry the use of National unmanned aircraft systems in Airspace the wrote, development,Ravich Timothy System.” 2015] 05 - G could be used much more safely cheaply than than renting a going helicopter.” up a tree and much more is line-of-sight things [sic] that can be utilized in . innovative . . ways These Shahani, 2014/05/16/312487924/are-filmmakers-using-drones-illegally-looks-like-it. yahoo.com/movies/s/hollywood-faa-let-us-drones-201337451.html. Cam-Cam, have already been developing vehicles and utilizing (e.g., remotely piloted copters) for locations outside years of for the United big Sates, budget and movies, winning two particularly Oscars in the C Y 37333-fiu_10-2 Sheet No. 34 Side A 01/11/2016 08:19:25 A 01/11/2016 34 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 34 Side B 01/11/2016 08:19:25 M K C Y , 343 (Mar. (June 3, (Feb. 12, 12, (Feb. Here Are COM . [Vol. 10:405 10:405 [Vol. AWYER Boxes, Not Packages, L (Dec. 2, 2013, 2:36 PM), PM), 2:36 2013, 2, (Dec. Google’s ‘Project Wing’ is RONING , D Joseph Burstyn, Inc. v. Wilson (Dec. 9, 2013), http://www.cbsnews.com/ http://www.cbsnews.com/ 2013), 9, (Dec. UPS Researching Delivery Drones That Could Compete And the Drone Goes . . . to FIU Law Review Law FIU (Aug. 28, 2014, 7:15 pm), http://www.nbcnews.com/tech/ http://www.nbcnews.com/tech/ pm), 7:15 2014, 28, (Aug. note 24. Ravich is referring to to referring is Ravich 24. note , http://matternet.us/ (last visited Dec. 3, 2014); supra DHL Testing Delivery Drones Unmanned Drones May Have Their Greatest Impact on Agriculture on Impact Greatest Their Have May Drones Unmanned In 2014, shocking testimony was given to a U.S. U.S. a to given was testimony shocking 2014, In (Dec. 3, 2013), http://www.theverge.com/2013/12/3/5169878/ups-is- 2013), 3, (Dec. Police, Paps and Privacy: The Challenges of Drone Journalism 42 ) 1/7/16 2:39 PM ATTERNET Timothy Ravich, Ravich, Timothy ELETE , M see D 40 Carrying goods or packages of various types: types: various of packages or goods Carrying Some believe that the biggest sector using drones willdrones be using sector biggest the Somethat believe agribusiness: 39 , http://droninglawyer.com/2014/06/25/boxes-not-packages-people-sheesh/ (last visited OT e.g. N Katie Collins, Collins, Katie Miranda Green, Timothy Ravich, Ravich, Timothy , O ee 41 See See See (D  S  This is tipped to become a stellar application, with major couriers Other major applications are slated to be: be: to slated majorare Other applications A variety of uses are anticipated, e.g., crop inspection, management as others? The present author also is concerned that regulators, in granting and (i) (ii) 42 39 40 41 OLDBERG 2014), http://droninglawyer.com/2014/06/03/and-the-drone-goes-to/343 U.S. 495. U.S. http://droninglawyer.com/2014/06/03/and-the-drone-goes-to/343 2014), eventually deploying large drones to carry (e.g., cargoes over oceans), over and long books, distances, medicines, over shorter distances, and particularly where the terrain other is inhospitable to road consumer products delivery. Frontrunners in R+D include Matternet, Amazon, DHL, UPS, and Google. People! Sheesh Planning & New Business USA) may not Development, have instant “name recognition.” Yamaha But, his testimony before Motor to was, Senate almostjaw-dropping. U.S. the everyone, Corporation, well as surveying. Senate Committee hearing. Henio Arcangeli (Vice President, Corporate 416 G denying specific petitions for permission to fly drones for cinematography or dronalism, are, in effect, acting as indirect, expression constructive censors gatekeepers, determining as who may kind use of flying cameras to facilitate expressive work. And, in terms of due process, are their decisions adequately transparent and challengeable, open to an independent mechanism? review 26, 2013), est-impact-on-agriculture.html (“You can take a simple UAV and repurpose imagery for a farmer’s field http://www.thedailybeast.com/articles/2013/03/26/unmanned-drones-may-have-their-great for cents on the dollar compared to using traditional aircraft. The biggest potential for Unmanned Aerial acquisition.”). data and images aerial is Vehicles U.S. 495 (1952), news/dhl-testing-delivery-drones/; Ben Popper, With Amazon’s Prime researching-its-own-delivery-drones-to-compete-with-amazons; James Eng, Air Testing Delivery Drones in innovation/googles-project-wing-testing-delivery-drones-australia-n191536; Australia Adi Robertson, the Three Things Amazon Needs to Get Its Delivery Drones off the Ground http://www.theverge.com/2013/12/2/5166948/here-are-the-things-amazon-needs-to-get-its-delivery- drones-off-the-ground. Dec. 8, 2014); Danielle Elliot, 2014), http://www.wired.co.uk/news/archive/2014-02/12/drone-journalism-legal-and-privacy. 2014), 37333-fiu_10-2 Sheet No. 34 Side B 01/11/2016 08:19:25 B 01/11/2016 34 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 35 Side A 01/11/2016 08:19:25 , (May (May There There 50 , BBC NEWS (Jan. 15, 2014), 2014), 15, (Jan. ,http://uaviators.org/ (last visited visited (last ,http://uaviators.org/ RANSPORTATION (Apr. 28, 2014), http://sourceable.net/ &T and sports analytics. sports and RMAX, http://rmax.yamaha-motor.com. 49 VIATORS 43 transmission line inspection; inspection; line transmission see 417 417 ,U ; monitoring threats to vulnerable event security; traffic and road road and traffic security; event 48 CIENCE 44 45 search and rescue; post-natural post-natural rescue; and search ,S 46 (May 27, 2014), http://increasinghumanpotential.org/ ETWORK Dronalism OMMERCE ) 1/7/16 2:39 PM C , http://droneadventures.org/ (last visited Dec. 4, 2014). 4, Dec. visited (last http://droneadventures.org/ , UAV N OTENTIAL ELETE P D tree-mapping; OT 47 N Tree-Mapping Drone Start-up Has Sky-high Ambitions UAF Unmanned Aircraft Joins Funny River Firefighting Efforts UMAN O H , http://www.thenational.ae/business/industry-insights/shipping/eye-in-the- (D DVENTURERS OMMITTEE ON A UMANITARIAN C H DOCX HE RONE ATIONAL _1.4. N , T ENATE , D NCREASING S Multifarious other applications: applications: other Multifarious , I HE INAL Diana Campbell, Mark Bosworth, Bosworth, Mark T _F  See Real Estate Agent Using Drones to Sell Property See, e.g. e.g. See, See See See ESPN: Eyes in the Sports Sky: UAS are Coming to a Sports Field Near You, and Not Just The Future of Unmanned Aviation in the U.S. Economy: Safety and Privacy Considerations See TATES S For over 20 years, remotely piloted RMAX have been safely used for precision crop dusting, “spot spraying,” weed and fertilization pest control, and in Japan . . . Korea Over 2,600 remotely-piloted RMAX are in operation and, today, more treating more recently, than 2.4 million Australia acres of farmland . . . . alone each and During year its more in than Japan South two decades of use, the safely RMAX has logged over 1.8 complaint.privacy single a knowledge, million total flight hours without, to our canonizations of popes John Paul II and John the 23rd (now called St. John Paul II and St. John the 23rd). The video images captured by the drone-mounted camera were archdiocese made, mixing soaring classical music and used scenes from an in a YouTube mashup the videotape crowds participating in a procession marking the Wildfire detection and management and detection Wildfire (iii) OLDBERG 45 46 47 48 49 50 43 44 M K NITED real-estate-agent-using-drones-sell-property/#. for Pretty Video will will be quirky uses too, e.g., the Archdiocese of Washington purchased a to deployed was which RPA size” “hubcap accident monitoring; disaster relief; (May 27, 2014, 7:52 pm), http://www.bbc.com/news/technology-27485418. pm), 7:52 2014, 27, (May sky-abu-dhabis-ports-now-protected-by-drones (last visited Dec. 4, 2014). 4, Dec. visited (last sky-abu-dhabis-ports-now-protected-by-drones animals and birds—as well as drone-assisted hunting; pollution monitoring; property selling by local estate agents; storm tracking, tornado & hurricane remote research; airplane aerial safety mapping; checking; 2015] 05 - G espn-eyes-in-the-sports-sky-uas-are-coming-to-a-sports-field-near-you-and-not-just-for-pretty-video/. U http://uafcornerstone.net/acuasi_funnyriver/2014. 2014), 30, infrastructure security monitoring, e.g., ports; disaster services; first responder assistance—e.g., management; pipeline monitoring fire and oil and gas services; security; meteorology— fisheries Dec. 4, 2014). 4, Dec. https://www.hsdl.org/?view&did=748453. For the RMAX, au/. C Y 37333-fiu_10-2 Sheet No. 35 Side A 01/11/2016 08:19:25 A 01/11/2016 35 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 35 Side B 01/11/2016 08:19:25 , M K 55 AW C Y L (Nov. (Nov. . http:// OTENTIAL Mickey Mickey UBE P T OU USTRALIAN [Vol. 10:405 10:405 [Vol. UMAN , Y see also H , A note 40. (Feb. 7, 2014), http:// 2014), 7, (Feb. supra NCREASING I HOTOJOURNALISM ONFERENCE C P CHOOL S ENTURY AW C L , http://www.dronejournalism.org/ (last visited Dec. 4, at ¶ 14.65 (“Historically, ‘responsible journalism’ was was journalism’ ‘responsible (“Historically, 14.65 ¶ at ST , http://paparazzi-reform.org (last visited Dec. 7, 2014). 7, Dec. visited (last http://paparazzi-reform.org , :21 FIU Law Review Law FIU , http://www.dronejournalismlab.org/ (last visited Dec. 4, 2014);  see also id. OURNALISTS AB What You Need to Know About Flying Drones in Washington, DC 54 J NITIATIVE L I OUTHWESTERN , Serious Invasions of Privacy in the Digital Era 51 Drone Journalism: The Future of Newsgathering? ,S RONE  RONALISM D 56 EFORM D R ) 1/7/16 2:39 PM ,http://www.alrc.gov.au/publications/serious-invasions-privacy-digital-era-alrc- OURNALISM NSTITUTE J I Zeke J. Miller, Miller, J. Zeke ELETE —by media companies, journalists, —by and media journalists, any companies, citizen D S AND S OCIETY OF 53 RONE —as —as noted, colloquially called “dronalism” or “drone S APARAZZI OT N Charting the Course for Use of Small Unmanned Aerial Systems in Newsgathering D P 52 see also O OMMISSION RPA C See See Using Drones in the News and Entertainment Industries: The Legal and Regulatory See See Serious Invasions of Privacy in the Digital Era (ALRC Report 123) Washington Archdiocese Takes to the Heavens, With a UAS, (D IEDERMAN FrontlineClubLondon, As noted, this article is concerned with one and only one specific RPA However, to emphasize, the only civilian, commercial application dealt dealt application commercial civilian, only the emphasize, to However, Recently, the Australian Law Reform Commission addressed this this addressed Commission Reform Law Australian the Recently, earlier indoor mass. indoor earlier , B 54 55 56 51 52 53 EFORM OLDBERG ROFESSIONAL with with specifically in this article is using journalism RPAs to gather information for (and activities) by extension other First Amendment protected [offering] significant public benefit,” to in a is matter interest the public where in nature, be journalistic are “not which distinguished from activities trivial, or where the matter is merely gossip.” of purposes of interest to the public or for the “responsible journalism” is characterized as “journalistic activities Issues application, namely, the pursuit the in tool one as RPAs using of journalists, citizen or media news mainstream newsworthy information whether by journalistic toolbox. Admittedly, it “journalism.” is However, the argument here concerns difficult only what has become to differentiate types known as “responsible journalism” and does not extend to “papparazism.” of 20, 2013), https://www.youtube.com/watch?v=gu_0fh2IJms; Katie Collins, Katie https://www.youtube.com/watch?v=gu_0fh2IJms; 2013), 20, engaged in newsgathering. in engaged www.swlaw.edu/academics/entertainmentlaw/instevents/droneconf2014/#schedul; Osterreicher, www.auvsishow.org/auvsi2014/Custom/Handout/Speaker0_Session773_1.pdf (last 2014). visited Dec. 7, 2014). Those who argue that it is difficult to know “where to draw the line” fail to line. the of side either on cases clear impliesare point there that that see distinction. In its Report R (May 20, with-a-uas/; 2014), http://increasinghumanpotential.org/washington-archdiocese-takes-to-the-heavens- RPA within a prohibited radius of Virginia”). in Airport National Reagan around Reagan centered area 10-nautical-mile roughly National Airport—the “Flight Restricted Zone (FRZ), a 418 G P report-123 (last visited Dec. 7, 2014); journalism” (May 6, 2014), http://time.com/88772/drones-washington-dc/ (Potentially problematic was the use of the 37333-fiu_10-2 Sheet No. 35 Side B 01/11/2016 08:19:25 B 01/11/2016 35 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 36 Side A 01/11/2016 08:19:25 ISTORY OF ,http://www. ,H . Despite being crafted in the NTERNATIONAL I NTERNATIONAL I PAPA 58 PAPA , http://www.vam.ac.uk/content/articles/ p/ See 419 419 see also USEUM M For example, in 1906, 57 LBERT Dronalism ) 1/7/16 2:39 PM A Reynolds v. Times Ltd ELETE D OT N O ICTORIA AND (D note 39. , V , http://professionalaerialphotographers.com/content.aspx?page_id=22&club_id DOCX supra 59 _1.4. INAL Ravich, _F HOTOGRAPHY See “The first known aerial photograph was taken in 1858 by French photographer and balloonist, P For the purpose of this article, “journalism” is to be understood to Dronalism, as understood, is nothing but the contemporary the devastation of San Francisco after . . . the earthquake and fire was captured by George R. Lawrence, using a camera attached to a string of kites high above camera the had a curved city. film plate His to provide specially panoramic remain images, some which designed of the large-format largest aerial exposures ever taken. which was The large and camera, extremely heavy, took as many as 17 kites to lift it 2,000 feet into the air. Lawrence also used ladders and high towers photographs. “aerial” level lower capture to emerged as a distinctive form of photography in early the 1930s. The late term 1920s denoted and picture making that was spontaneous, topical and rapid. This was facilitated by hand-held cameras such the as the Ermanox and introduction the Leica, which enabled of small, photographers to record fast-moving events and catch unawares. their subjects OLDBERG 57 58 59 M K ERIAL mean mean public and interest reporting and publishing all that it entails and not simply anything and everything that appears in a publication whether that publication is self-described or perceived as a “newspaper” or not. present In the author’s opinion, it is Duchess not of Cambridge’s breast(s) difficult and/or Prince to Harry’s penis fail, assert even if that journalism. responsible as qualify to (con)text surrounding is there images of the photojournalism/ (last visited Dec. 7, 2014). 7, Dec. visited (last photojournalism/ strength of the individual under considerations.”). relevant be may matter the of urgency the and obtained, information surveillance as a of information, the likely nature of the A developed as a defence to in context of defamation, several of the surveillance. For matters example, the seriousness listed of the by conduct being investigated Nicholls by a LJ journalist, the likely are relevant in the context of earliest days: to deploy the latest technologies when perceived benefits to so. doing warrant story the telling 2015] manifestation of the urge that has animated photojournalism since its 05 - G papainternational.org/uas.asp (PAPA has a page about RPAs, asking members to respect local laws and regulations). =808138&module_id=158950 (last visited Dec. 7, 2014); Gaspar Felix Tournachon, known photographs as ‘Nadar.’ in In mapmaking 1855 and he successfully surveying, had produced but the patented it very the took first idea him aerial of 3 photograph.” using years aerial of experimenting before he “Photojournalism,”such, as C Y 37333-fiu_10-2 Sheet No. 36 Side A 01/11/2016 08:19:25 A 01/11/2016 36 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 36 Side B 01/11/2016 08:19:25 M K C Y (Dec. (Dec. aerial IMES We Already T ,L.A.? (Sept. (Sept. ,L.A.? AY [Vol. 10:405 10:405 [Vol. W NGELES A HICH OS Jay Stanley, Stanley, Jay , L See , KCRW W 61 (Mar. 8, 2013, 11:26 am), https://www. (Mar./Apr. 2013), https://alumni.stanford.edu/get/page/ 2013), (Mar./Apr. FIU Law Review Law FIU 62 60 Telecopter Inventor ) 1/7/16 2:39 PM A Short History of the Intrusive Helicopter John D. Silva Dies at 92; Introduced New Helicopter ELETE D OT N O Bob Pool, (D Ryan Eshoff, D.J. Waldie, pursuers on Los Angeles freeways after his former wife and a friend of werehers killed. For one, the standard Keeping the camera project closely guarded, lest competing equipment stations get wind literally weighed of it, Silva designed and a machined lighter equipment using aluminum ton. parts to bring the weight below the added a shock absorbing stabilization system and a helical antenna that 368-pound FAA limit. He also helicopter. the of body the below extended In conformity with the sociological rule described in the Introduction, converted converted a small helicopter into the first airborne studio. The virtual KTLA television “Telecopter,” as it was called by the Los Angeles station where Mr. Silva was the chief engineer, became the basic tool of live television traffic reporting, disaster famous coverage, and glued-to-the-tube that moment most in gawking, the the 1994 broadcast of O. J. modern Simpson leading a motorcade of era of celebrity- Lots of homeowners and a few orchestra conductors (who’ve walked off the Hollywood Bowl company stage of tourist, paparazzo, in news, and police protest) helicopters, their jet are engines roaring and blades thwacking tired the night . . . air The imagery of of the noisy a circling bird is appropriate. When a police helicopter works a crime scene, it follows a tight orbit, generally at three or four for hundred feet better searchlights. observation, The lights, aided the engine noise, at blades and biting into the the air can staccato feel night menacing of to anyone rotor on the ground, not. or law-abiding by million-candlepower Another noteworthy milestone in the development of 60 61 62 OLDBERG magazine/article/?article_id=60245. 7, 2012), http://articles.latimes.com/2012/dec/07/local/la-me-john-silva-20121207. 2012), 7, 18, 2013), http://blogs.kcrw.com/whichwayla/2013/09/a-short-history-of-the-intrusive-helicopter. The ACLU does think there is a difference between helicopters and Have Police Helicopters, drones. So What’s the Big Deal Over Drones? aclu.org/blog/technology-and-liberty-criminal-law-reform/we-already-have-police-helicopters-so-whats- big-deal. RPAs. RPAs. There were numerous technical challenges to overcome. overcome. to challenges numeroustechnical were There social reactions copters to were LA analogous area to the current reaction to 420 G photojournalism is the invention of the “newscopter”. In 1958, journalism,” helicopter of “father the Silva, John American 37333-fiu_10-2 Sheet No. 36 Side B 01/11/2016 08:19:25 B 01/11/2016 36 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 37 Side A 01/11/2016 08:19:25 , , 68 RONE D (Dec. 16, 16, (Dec. with a a with AB L OCIETY OF In November, November, In S IEMAN 63 In another 2011 2011 another In , N 64 at the College of of College the at Costa Concordia commissioned an Italian ROFESSIONAL , http://www.dronejournalism.org (last , P CBS , http://www.missouridronejournalism.com 421 421 OURNALISTS J ROGRAM P  RONE Dronalism 66 ) 1/7/16 2:39 PM (Jan. 4, 2012), http://ijnet.org/stories/story-behind-those- 2012), 4, (Jan. D Drone Journalism Lab , http://www.dronejournalismlab.org/ (last updated Dec. 3, 2014, ELETE D AB OURNALISM The Story Behind Those Russian Drone Protest Images J (Aug. 2, 2011, 3:52 PM), http://www.forbes.com/sites/kashmirhill/ PM), 3:52 2011, 2, (Aug. L ETWORK OT 67 N OCIETY OF The Drone Age is Here, and So Are the Lawyers O ’N S (D ORBES RONE It now boasts more than 300 members in thirty-five thirty-five in members 300 than more boasts now It D 65 , F Flocks of Airborne Camera Drones Will Change Journalism—& Spying Code of Ethics for Drone Journalists FAA Looks Into News Corp’s Daily Drone, Raising Questions About Who Gets DOCX (now defunct) because it used a small RPA to monitor monitor to RPA small a used it because defunct) (now OURNALISM Italy Russia Russia J The Milan leg of the tour Tsunami Beppe Grillo was picked up by over 100 meters high; company to film the wreck of the Russians went to Bolotnaya Square in election Moscow to protest fraud; crowd. the of pictures scale take the to showing Hexacopter AirPano sent up a remote-controlled _1.4. OURNALISTS Matt Waite, Waite, Matt   ISSOURI J (May 23, 2014, 9:12 AM), http://venturebeat.com/2014/05/23/flocks-of-airborne- AM), 9:12 2014, 23, (May • • RONE ROFESSIONAL M INAL P D , http://www.dronejournalism.org/code-of-ethics (last visited Dec. 7, 2014). 7, Dec. visited (last http://www.dronejournalism.org/code-of-ethics , _F EAT HE B See See see also see The Daily T Barry Levine, Nurilda Nurlybayeva, Kashmir Hill, For dronalism, 2011 was a seminal year. It was reported that the U.S. In many countries around the world there are reports of the use of OLDBERG 65 66 67 68 63 64 M K ENTURE OURNALISTS NTERNATIONAL Federal Aviation Authority was “looking into” called a NewsCorp publication storm damage in Alabama and flooding in North Dakota. 2013, 3:35 PM), http://www.niemanlab.org/2013/12/the-drone-age-is-here-and-so-are-the-lawyers/. http://www.niemanlab.org/2013/12/the-drone-age-is-here-and-so-are-the-lawyers/. PM), 3:35 2013, 2:40 PM); russian-drone-protest-images. 2011/08/02/faa-looks-into-news-corps-daily-drone-raising-questions-about-who-gets-to-fly-drones-in- the-u-s/. camera-drones-will-change-journalism-spying. Matt Matt Waite launched the Journalism and Mass Communications, University of Nebraska-Lincoln “as part of a broad and innovation received strategy” and a has $50,000 since grant from the Knight Foundation. RPAs for newsgathering: for RPAs J Matthew Matthew Schroyer. countries. Another major U.S. player Program, is the a Missouri Drone partnership Journalism Journalism, between the University of students Missouri Information Technology at Program, memberKBIA. NPR station and the Missouri School of 2015] 05 - G visited Dec. 7, 2014); V I to Fly Drones in the U.S. development, the Professional Society of Drone Journalists was created by (last visited Dec. 8, 2014). 8, Dec. visited (last C Y 37333-fiu_10-2 Sheet No. 37 Side A 01/11/2016 08:19:25 A 01/11/2016 37 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 37 Side B 01/11/2016 08:19:25 , M K C Y ERA OOM S R , CNN 70 ELLA RESS , ABC (Apr. D [Vol. 10:405 10:405 [Vol. (Nov. 16, 2011), 2011), 16, (Nov. , CNN P 74 ECH (May 18, 2014, 11:28 11:28 2014, 18, (May ORRIERE T 76 , C (Nov. 10, 2012), http:// 2012), 10, (Nov. (June 25, 2013), https://www. 2013), 25, (June EFENSE 72 ELEGRAPH AZEERA UBE T Remote Aerial Photography 75 J , D T L HE OU , A , T , Y , CNN (Feb. 22, 2014, 12:05 PM), http:// 71 FIU Law Review Law FIU Footage From Drone Flying Over Taksim Square www.youtube.com/watch?v=jR6N3Lo1Qs0.  73 69 Police Clash at Taksim Gezi Park CNN Uses Drone Camera for Aerial View of Tacloban Drone Journalism, uno sguardo inedito sugli eventi ) 1/7/16 2:39 PM Drone Covers the Chaos in Ukraine Ukraine Dramatic Drone Footage Captures Battle for Central Kiev Square Civilian UAV Films Polish Riots From Above Poland Argentina Turkey Ukraine Philippines Balkans drone. A civilian-operated RC copter filmed riots in Warsaw in riots filmed copter RC civilian-operated A “Police Clash at Taksim Gezi Park” TaksimGezi at Clash “Police One One group of citizen journalists took matters into their own hands by flying a drone over the crowds to show rally. a of scale the large Dramatic Dramatic drone footage captures square. battle for central Kiev “Drone Covers the Chaos in Ukraine” in Chaos the Covers “Drone Philippines, CNN used an aerial drone to Tacloban. in standing left was what of view get a bird’s-eye Ten days after Super Typhoon Haiyan ripped through the Aerial drone footage shows scale of flooding. of scale shows footage drone Aerial ELETE      D  • • • • • • OT N O (Feb. 20, 2014), https:// Aeriel Drone Footage Shows Scale of Balkan Floods Karl Penhaul, Luigi Caputo, Drone Camera Captures Argentina’s #8N Protests Chris Ariens, (D Drone Journalist, John Reed, Globally C, UBE 74 75 76 69 70 71 72 73 T OU OLDBERG AM), http://www.telegraph.co.uk/news/worldnews/europe/serbia/10839004/Aerial-drone-footage-shows -scale-of-Balkan-floods.html. www.mediabistro.com/tvnewser/drone-covers-the-chaos-in-ukraine_b214311. (Nov. 18, 2013, 3:38 PM), http://cnnpressroom.blogs.cnn.com/2013/11/18/cnn-uses-drone-camera-for- aerial-view-of-tacloban/. CNN actually has a requests webpage people that to submit their drone images, saying, “We’ll feature the best on CNN.com/Tech.” Daphne Sashin, (Mar. 4, 2013), http://piazzadigitale.corriere.it/2013/03/04/drone-journalism-uno-sguardo-inedito-sugli- eventi/. 422 G youtube.com/watch?v=MQcW9gijs_0; http://defensetech.org/2011/11/16/video-civilian-uav-films-polish-riots-from-above/#ixzz2DhTJQx2D. Y stream.aljazeera.com/story/201211100124-0022394. (Feb. 27, 2014), http://ireport.cnn.com/topics/1098143. http://ireport.cnn.com/topics/1098143. 2014), 27, (Feb. 14, 2014, 4:08 AM), http://www.abc.net.au/news/2014-04-14/footage-from-drone-flying-over-taksim- square/5389438. 37333-fiu_10-2 Sheet No. 37 Side B 01/11/2016 08:19:25 B 01/11/2016 37 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 38 Side A 01/11/2016 08:19:25 W. W. 78 it was was it 77 (Sept. 30, 30, (Sept. OTHERBOARD See generally , M denied UARDIAN , G , CNET (Dec. 2, 2013, (May 5, 2014), http://www. 2014), 5, (May OST P , Council on Hemispheric Affairs (Dec. 1, LOBAL 423 423 , G Dronalism ) 1/7/16 2:39 PM ELETE D 80 OT N 79 O (D How Drones Might Save Pakistan’s Embattled News Media Drones Capture Dramatic Views of Bangkok Protests News Drones Over El Salvador DOCX Dramatic Aerial Drone Footage of Hong Kong Protests Thailand Thailand Kong Hong Pakistan network. “Drones capture dramatic views of Bangkok protests” Bangkok of dramatic views capture “Drones protests” Kong Hong of footage drone “Dramatic aerial Geo News, Pakistan’s most popular news channel, is in the process of experimenting with two DJI Phantoms, plans for which call for assisting in gathering footage for the COHA Report: Drones in Latin America _1.4.    • • • INAL _F Tim Hornyak, Nero Chan, Basim Usmani, Jamie Stark, American nations, including Brazil, Mexico outlets and are Peru, deploying the where aircraft in news reporting. Lima’s major daily Comercio dispatched El a to drone cover a December, massive downtown and fire in Mexico’s protests in Grupo Mexico City. Vladimir Reformaflew Lara, chief Salvador’s La Prensa over one of Grafica, said pictures photography taken from at the sky student garner El up to seventy percent more views than traditional photographs on the website. newspaper’s El Salvador newspaper La Prensa Gráfica becameone of the nation’s first outlets to unmanned aerial gather vehicles, a pattern news that other America with news are media following, in according after drones Latin to news purchasing Salvadoran website outlet GlobalPost. uses The three its drones primarily photographs to of shoot big aerial crowds gathered video for or events, long traffic even simply natural and artificial landmarks around the nation’s capital jams, or of San . . . . Salvador This is one of a growing roster of Latin In Latin America, RPAs have been deployed for drone journalism to OLDBERG 77 78 79 80 M K (May 10, 2014, 2:39 PM), http://motherboard.vice.com/blog/how-drones-might-save-p. PM), 2:39 2014, 10, (May 2015] 05 - G 2014), http://www.theguardian.com/world/video/2014/sep/30/dramatic-aerial-drone-footage-hong-kong- protests-video. globalpost.com/dispatch/news/regions/americas/140502/news-drones-over-el-salvador. quite somequite extent. 3:11 PM), http://www.cnet.com/uk/news/drones-capture-dramatic-views-of-bangkok-protests/. PM), 3:11 However, ironically, on one occasion, a gossip news company business. its for RPAs use to planning Alejandro Sánchez, 2014), http://www.coha.org/wp-content/uploads/2014/01/COHA_Sanchez_LATAM_Drones_Final_Jan 122014.pdf (providing a general discussion of drone usage in that region).that in usage drone of discussion general a (providing 122014.pdf C Y 37333-fiu_10-2 Sheet No. 38 Side A 01/11/2016 08:19:25 A 01/11/2016 38 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 38 Side B 01/11/2016 08:19:25 M K 83 C Y on on ESEARCH FOR R [Vol. 10:405 10:405 [Vol. indirectly S (Jan. 2014), http://www. 2014), (Jan. RPA UTONOMY A , (Apr. 4, 2013), http://www.fas. SE OF SE , TMZ (Nov. 27, 2012, 12:59 PM), NIVERSITY U OUNCIL U C Integration of Drones into Domestic ERVICE S 81 LINDERS Perth Airport Near Miss Prompts ATSB Drone 82 EASIBLE ESEARCH and UAVs should not be seen as an , F R F ESEARCH OURNALISM J R (2014); (2014); ATIONAL RONE LIGHT AXIMUM AXIMUM D N F FIU Law Review Law FIU M ONGRESSIONAL FOR RA OF E , C see also see EW N Drone Journalism: of Newsgathering Unmanned applications Aerial Vehicles ) 1/7/16 2:39 PM We’re NOT Keeping Up with the DRONESES ELETE ACILITATING D OWARD A F OT :T N Alissa M. Dolan & Richard M. Thomson II, II, Thomson M. Richard & Dolan M. Alissa O See (D TMZ Staff, Corcoran, Mark VIATION Small drones offer considerable advantages for news staff deployed on high-risk assignments . . . disasters. such Drone as technology . . . gatherers but there are wars, some important qualifications. Journalism is offers civil great potential about people unrest and personal contact for and news- easy natural substitute for the journalist or drone news is team a camera on platform, the a ground. tool to The other be incorporated newsgathering among technology all the and professional . . assignments. hazardous . on uses skills a journalist Finally, it is also worth pointing out that not all arguments made for TMZ is NOT getting in the . . . drone DRONE we don’t want . . . business a . . . drone we we never applied don’t for a . . . drone have a contrary. the to report bogus a despite In the face of significant anti-drone deployment lobbying by the pro- A 81 82 83 IVIL OLDBERG Airspace: Selected Legal Issues happenings in potentially hazardous trouble-spots, without risking, possibly reporter. limbthe and of life the recklessly, or unnecessarily significant benefits in being able to witness and report accelerating accelerating the regulatory conditions favouring the RPAs legal for drone journalism is predicated on freedom of deployment expression grounds. of A wholly different protection argument for concerns enhancing human broadcasting the services’ lives. safety correspondents This and of citizen consideration and journalists is who urged see by news org/sgp/crs/natsec/R42940.pdf; C 424 G http://www.tmz.com/2012/11/27/tmz-drone-faa-bogus-report/. (UAVs) in covering conflict, civil unrest and disaster challenge being to integrate the use of RPAs in the domestic airspace. However, any such use is fully acknowledged to be without prejudice prejudice without be to acknowledged fully is use such any privacy/anti-surveillance groups, this section of scenarios—and the article corresponding sets counterarguments—that out two should drone make journalists most assertively to facilitate journalism. drone for RPAs the maximum feasible use of However, to the duty of the aviation regulator to order the use of the national airspace in the paramount interest of safety, the key normative and operational flinders.edu.au/ehl/ccpr/articles-of-interest.cfm. 37333-fiu_10-2 Sheet No. 38 Side B 01/11/2016 08:19:25 B 01/11/2016 38 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 39 Side A 01/11/2016 08:19:25 in in simpliciter 425 425 Dronalism ) 1/7/16 2:39 PM (May 14, 2014, 5:30 PM), http://www.businessinsider.com/ PM), 5:30 2014, 14, (May A Bizarre Near-Miss Between A Drone And A Passenger Plane ELETE D NSIDER I OT (Apr. 14, 2014, 7:49 am), http://www.abc.net.au/news/2014-04-14/ am), 7:49 2014, 14, (Apr. N O EWS (D (May 27, 2014, 3:46 AM), http://www.abc.net.au/news/2014-05-27/atsb- AM), 3:46 2014, 27, (May N USINESS Armin Rosen, Rosen, Armin EWS DOCX , B See , ABC _1.4. Chinese Manufacturer Programs Phantom Drones With No-Fly Zones to Protect 84 , ABC N INAL 85 _F Mark Corcoran made the following statement: This phrase conveniently ignores the legal fact that there is no “right to privacy” Using RPAs for drone journalism is legal either generally or on an ad The drones will be blocked from operating near 350 the airports around world by creating an manned and betweenaircraft. drones collision of risk the reduce electronic “geo-fence” around airports to follows: as are scenarios two the caveat, that With With With regard to each scenario, “pro-deployment” arguments can be A specific problem with drone journalism using a nano or micro RPA OLDBERG 84 85 M K identified as follows:as identified Actually, a degree of safety may be achieved with a technological fix. In the mayIn safety fix. of technological degree a a with Actually, achieved be context of avoiding manufacturer’s RPAs can certain be programmed with air a so-called spaces, “geo-fence” e.g., around airports, one the-mystery-of-a-near-miss-between-a-drone-and-a-passenger-plane-2014-5#ixzz33ZJ7bVwM. says-drones-pose-risk-to-aviation-following-near-collision/5480156. says-drones-pose-risk-to-aviation-following-near-collision/5480156. However, not every reported “near Scenario One Scenario hoc basis, but is opposed by the claim that infringe to on civil do liberties/human so rights—in will particular, likely someone’s “right seriously to privacy.” Is Shrouded In Mystery because of the smallness of the RPAs and/or other technical capacities, e.g., mobility,endurance. silence, and Safety Warning miss” is as clear-cut. Scenario Two Scenario is alleged to be that the subjects of investigation might not realise that they are being surveilled, or being surveilled in an RPA-specific manner, 2015] software that provides satellite GPS guidance to steer the RPA away from a zone. danger 05 - G DJI’s No Fly Zone system creates a curious technological and sovereignty precedent. The initiative will effectively give a Chinese company Australian airspace—and indirect in the skies of control dozens of other over nations. While DJI the says its initiative is movement motivated solely by of safety, unmanned there aircraft are concerns in censorship. political that drone flying restrictions could be Mark easily exploited Corcoran, for Australian Airports chinese-made-drones-programmed-with-no-fly-zones/5388356. the European Convention on Human Rights or in the U.S. Constitution. U.S. the in or Rights Human on Convention European the C Y 37333-fiu_10-2 Sheet No. 39 Side A 01/11/2016 08:19:25 A 01/11/2016 39 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 39 Side B 01/11/2016 08:19:25 , M K C Y , someone’s [Vol. 10:405 10:405 [Vol. in casu precedence over the other. Secondly, Secondly, other. the over precedence interests. Competing values or interests are FIU Law Review Law FIU 86 as such 87 conflicting Worried About Your Privacy? Wait Until the Drones Start Stalking You ) 1/7/16 2:39 PM or or ELETE D OT N Dronalism O (Feb. 9, 2014), http://www.theguardian.com/technology/2014/feb/09/privacy-concerns- 2014), 9, (Feb. competing (D Because this article focuses on dronalism by civil operators, it will not enter the discussion Jemima Kiss, from a venue, or refused access to under siege from journalists, how long private before a drone is used for high- land, or if a property video? aerial quality is the next privacy scandal in waiting is the story of drones. Not military drones, but increasingly widespread use disaster of areas and drones emergencies, for others. archaeology, among agriculture, management, forestry and property Drones are banned in London and can’t be used below a certain height in residential areas. But how many uses could silent, there be fast, for a small, remote-controlled sunbathing drone? politician is snapped How on holiday? If long the public is before banned the first Even if RPAs are legally permitted to fly for the purpose of drone where the . . . values comparative importance are of the in specific rights individual conflict, case being is necessary. claimed Thirdly, an the in justifications for the interfering intense with or restricting each focus right must be taken on into account. Finally, the the First, . . . neither has Re: Scenario One, Privacy Rights (Actually, Do Not) TrumpNot) Do (Actually, Rights Privacy One, Scenario Re: Using RPAs for drone journalism is legal either generally or on an ad- Yet, at best, the interests asserted by these anti-RPAs lobbies are 86 87 UARDIAN OLDBERG the name of civil liberties, most the usually so-called “right to privacy.” The paradigmatic tone is more often example, than not of the “what if” variety. For journalism—whether on an ad-hoc, case-by-case basis general or sectoral permission—opposition or and challenges are expressed in in virtue of a private and family life on the other. familythe and on private life just that—competing. The U.K. House of Lords (now whenapproach correct the identified compete,Court) rights to right the e.g., the U.K. Supreme gather information to facilitate the public’s right to receive information on the one hand and a right to respect for another right, 426 hoc basis—but is opposed by the claim seriously infringe civil that liberties/human rights—most frequently to stated to be do so is, or is privacy”. someone’sto “right likely to, G simply around the Fourth Amendment, warrant(less) searches, etc., by police and authorities using RPAs. using authorities and police by etc., searches, warrant(less) Amendment, Fourth the around G google-streetview-facebook-drones. 37333-fiu_10-2 Sheet No. 39 Side B 01/11/2016 08:19:25 B 01/11/2016 39 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 40 Side A 01/11/2016 08:19:25 a a . This per se 88 (last visited Jan. 15, 2015), http://www. 2015), 15, Jan. visited (last ING 427 427 , B , it may well be justifiable because problematic because it constitutes an an constitutes it because problematic The ALRC has therefore proposed a It is but the beginning of a complex Serious Invasions of Privacy in the Digital Era, Era, Digital the in Privacy of Invasions Serious . in casu Dronalism ) 1/7/16 2:39 PM ELETE 89 essentially D OT or or Spies in the Sky Drones N O (D DOCX (June 30, 2014), http://www.alrc.gov.au/sites/default/files/pdfs/publications/ http://www.alrc.gov.au/sites/default/files/pdfs/publications/ 2014), 30, (June inherently _1.4. , Bing Videos, INAL e.g. EPORT , _F R Australian Law Reform Commission, See In Re S (a child), [2004] UKHL 47; [2005] AC 593, ¶ 17. In the context of pursuing responsible journalism deploying RPAs, RPAs, deploying journalism responsible pursuing of context the In 90 proportionality test must be applied to each. to must applied test be proportionality Thus, in any given fact pattern or situation there may well be an legitimate journalistic activities. “responsible journalism” defence to surveillance device defence laws should be confined to responsible investigation journalismof matters of public concern involving and importance, such the as the corruption. of exposure Some legitimate uses of surveillance devices by journalists may place journalists at risk of committing an offence under existing surveillance device laws. Responsible journalism is an important public interest and should be protected. Journalists and media organisations should not be placed at risk of committing a criminal offence in carrying out OLDBERG 88 89 90 M K UMMARY drone journalism RPAs deployers is the defense, for activities in pursuit of newsgathering. The matter is well set out relevance of the exemption, or in the recent report by the Australian Law Reform The Commission issue is (ALRC). not whether, in the circumstances, someone’s putative right to respect for their privacy may have been infringed. The question is: in those circumstances is it defensible, i.e., does it come within the states, ALRC exemption? The or scope defense of legal exercise weighing competing interests foregrounded in and the standoff values. between pro-privacy restrictionists What and pro- needs to be S conclusive, knockdown argument infringement of X’s privacy. But, the appropriate balancing exercise would give pre-eminence to the right to, e.g., the public interest in freedom some of activity expression. Simply constitutes asserting an that infringement of privacy is not In sum, there are a number of problems with the claim that RPAs RPAs that claim the with problems of number a are there sum, In deployment is 2015] 05 - G bing.com/videos/search?q=spies+in+the+sky+drones&qpvt=spies+in+the+sky+drones&FORM=VDRE. summary_report_whole_pdf (emphasis added). (emphasis summary_report_whole_pdf intrusion on civil liberties, a threat to privacy or generally are “spies in the sky.” protecting regulation could be useful as it will inevitably be overbroad and general, basing regulations on “harms.” Indeed, much of the hypothetical RPAs discourse contesting their deployment or imaginary “threats” or any right to respect for private and family life should give way to the public interest in the public’s right to be informed. In any case, no general privacy C Y 37333-fiu_10-2 Sheet No. 40 Side A 01/11/2016 08:19:25 A 01/11/2016 40 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 40 Side B 01/11/2016 08:19:25 M K C Y or even even or [Vol. 10:405 10:405 [Vol. per se of personal information/data constituting constituting information/data personal of FIU Law Review Law FIU misuse ) 1/7/16 2:39 PM (Dec. 8, 2014), https://firstlook.org/theintercept/2014/12/08/bad-shameful-dirty- 2014), 8, (Dec. ELETE What Bad, Shameful, Dirty Behavior Is U.S. Judge Richard Posner Hiding? Demand D OT N LegitimateSubterfuge O NTERCEPT More seriously, such an obsessional focus loftily ignores the the ignores loftily focus obsessional an such seriously, More (D “Privacy” is itself a notoriously slippery concept and Judge Eric Posner has recently opined at , I 91 Re: Scenario Two,Snooping/SurveillanceScenario Actually Might Re: be A specific problem with drone journalism using, for example, a nano- Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. Privacy is mainly about trying to improve your social and business opportunities notpeople you. other with cause deal would to that want activities to bad of sorts the concealing by 91 OLDBERG intentional, systematic “serious” invasions of privacy. Any accidental, incidental, acquisition or of inadvertent personal data quickly disposed (it would operator’s just system) cannot clutter seriously be up said an to give rise to any intrusion of privacy concern. Finally, prioritizing privacy is a soft and easy concern, and does not in principle raise any issues not human already rights covered law in or general in the and context of manned aircraft. freaked Privacy freaks out get about everything’s potential for infringing “privacy,” not RPAs. just the nature/technical capacity of the payload, but only if there is any secrets-u-s-judge-richard-posner-hiding-demand-know/. 428 is fueled by the so-called precautionary ignores principle. or This discounts those approach who do simply not think RPAs constitute threat. (much One of) might a ask, who is the “we” who objects? There are significant socio-economic discontinuities between the discourse instance, low rental and communities. less well-off communities For welcome the protection that low-flying RPAs could afford to stem the incidence of petty crime and vandalism (widely acknowledged to be of real moment and concern to the victim—often elderly). If there is a “problem” it is not RPAs G allocation, command and control processes, security of data links, liability, insurance. third-party and or micro-RPA, is alleged to be that the subjects of investigation might not realize that they are being surveyed in a RPA-specific manner, owing to the smallness of the RPAs mobility, and and/or endurance. The other issue here technical is the capacities, concern may that not micro-RPAs be e.g., noticed by those who silence, are being surveyed, either because they quiet. extremelyvery are smallare and/or grown-up, serious issues involved in deployment of RPAs, namely, how to safely integrate certification; airworthiness, them pilot into training, sense the and avoid, national spectrum non-segregated airspace; a conference at Georgetown Law that Law Georgetown at conference a Glenn Greenwald, to Know 37333-fiu_10-2 Sheet No. 40 Side B 01/11/2016 08:19:25 B 01/11/2016 40 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 41 Side A 01/11/2016 08:19:25 , UK . ORG , PCC. The report was an an was report The 92 and, therefore, a balancing balancing a therefore, and, 429 429 concerning reports carried in the the putative infringement may well well may infringement putative the Dronalism ) 1/7/16 2:39 PM PCC Report on Subterfuge and Newsgathering ELETE D OT N O (D Bell Pottinger Group . On the one hand, illegitimate “snooping” was definitely DOCX 93 94 _1.4. newspaper. INAL Press Complaints Comm’n, Comm’n, Complaints Press _F at ¶ 10.1. at ¶ 10.2. See Id. Id. However, even if the pro-privacy/anti-surveillance lobbies may lobbies have a However, even if the pro-privacy/anti-surveillance newspaper’s actions were a clear prima breach facie of Clause 10 the Code of [sic] which states that “the press must not seek to obtain or publish material acquired by using listening devices.” hidden The cameras test was or whether clandestine a sufficient public interest A concrete illustration is the recent PCC adjudication regarding the the regarding adjudication PCC recent the is illustration concrete A A number of Bell Pottinger executives had been secretly recorded by journalists from the Bureau of were posing Investigative as “clients” seeking advice Journalism on a public (BIJ) relations strategy who for the Uzbekistan . . government. . The Commission noted that the It is essential that the type of snooping revealed by the phone message tapping incidents at the News of the World is not repeated at any other newspaper or magazine. Such events threaten public confidence in the industry, despite the considerable change in culture and practice that has undoubtedly occurred over the last decade and a half, greater leading to accountability and respect by individuals. the press for the privacy of information through other means. It would not be in the broader public interest for journalists to restrain themselves unnecessarily from using undercover means because of acceptable. a false assumption that it is never [I]t is similarly important that the industry guards against overreaction. There is a legitimate place for the use grounds of in the subterfuge public when interest to there use it are and it is not possible to obtain OLDBERG 92 93 94 M K The classic statement is contained in a report published by the (now (now the by published report a in contained is statement classic situation, specific in this argument weak engage an exercise of legitimate conducted. be to needs exercise subterfuge The defunct) U.K. Press Complaints Commission (PCC). complaint by the Independent inquiry into interception/tapping of phone messages News of the World at the then existing practice. journalistic a as out ruled But, on the other hand, the PCC warned against “overreaction,” stating, stating, “overreaction,” warnedagainst PCC the hand, other the on But, 2015] 05 - G http://www.pcc.org.uk/assets/218/PCC_subterfuge_report.pdf (last visited Dec. 18, 2014). 18, Dec. visited (last http://www.pcc.org.uk/assets/218/PCC_subterfuge_report.pdf C Y 37333-fiu_10-2 Sheet No. 41 Side A 01/11/2016 08:19:25 A 01/11/2016 41 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 41 Side B 01/11/2016 08:19:25 M K C Y 97 [Vol. 10:405 10:405 [Vol. the test is (per, the the (per, is test the , http://www.pcc.org.uk/cases/ UK . in casu ORG 96 , PCC. NDNOTE 95 E FIU Law Review Law FIU Bell Pottinger Group 98 justifiable, albeit “only when there are grounds in the the in grounds are there when “only albeit justifiable, ) 1/7/16 2:39 PM is ELETE D OT N at ¶ 6.1. O Id. Id. Id. (D Press Complaints Comm’n, The desire and, as is asserted in this article, the right of drone firm’s position that no “serious impropriety” had decided been exposed that but the complainants’ methods comment, to “wider scrutiny and particularly at public interest a was time when served the possibility by debated.” being was industry [lobbying] of imposing subjecting greater the regulation on the noted that the journalists had been investigating had various been made claims about the that activities of Bell Pottinger and other firms, rather than hypothesis about Bell Pottinger in particular, but ruled as that “the means a means employed by of the journalists had been appropriately tailored to confirming explore a specific the allegations made by confidential sources about the firm’s activities, which raised issues of significant public interest.” It acknowledged the The PCC therefore did not uphold Bell Pottinger’s complaint. Thus, Thus, complaint. Pottinger’s Bell uphold not did therefore PCC The defense could be established. be could defense Subterfuge But what the privacy/anti-subterfuge lobby need to understand is—it 95 96 97 98 OLDBERG journalists to use RPAs professional as toolkit (just part as of their “regular” photojournalists use “conventional” cameras lenses with capable long-range of extraordinary telephoto and usually unrealized data capture or The Commission Commission The entails that “the means employed by the journalists had been appropriately tailored to explore the allegations made by confidential sources about interest.” public firm’s whichactivities, issuessignificant raised of the using RPAs for drone journalism even in a manner which raises concerns about “surveillance” should acknowledge that, although prima there facie may infringement be of a any ban methods for acquiring nonetheless, information on using clandestine or subterfuge PCC) whether the public interest in exploring suspicions or allegations 430 G adjudicated.html?article=NzkxNQ (July 26, 2012). 26, (July adjudicated.html?article=NzkxNQ public interest for wrongdoing.part exposing is in role It vital a plays and tradition honourable using it. of an open Undercoversociety. But it risks being devalued if its use cannot investigative be justified work interest.” public the in has an can be justifiable. be can 37333-fiu_10-2 Sheet No. 41 Side B 01/11/2016 08:19:25 B 01/11/2016 41 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 42 Side A 01/11/2016 08:19:25 , C. C. see also ); and (3) the 101 The Most Terrifying Drone , Guardian.co.uk, (Mar. 29, ,(Feb. 28, 2012), http://papers. 2012), 28, ,(Feb. COM Ethics of Security and Surveillance Welcome to the APPG on Drones Bob Cesca, Cesca, Bob 103 .SSRN. (June 1, 2014, 10:00 AM), http://www. AM), 10:00 2014, 1, (June and that a not inconsiderable inconsiderable not a that and 431 431 COM see also . APERS The Foreign Policy Essay: What Pakistanis Think Technopanics, Threat Inflation, and the Danger of Technopanics, Threat Inflation, and the Danger , P LOG in toto B (Mar. 13, 2013), http://thedailybanter.com/2013/03/the- 2013), 13, (Mar. Dronalism ) 1/7/16 2:39 PM ). Indeed, having the temerity to oppose the AWFARE COM . ELETE 102 , L D 99 OT N ANTER (May 20, 2014), http://www.slideshare.net/karlossvoboda16/ethics-of- 2014), 20, (May O B ) to conduct wide-ranging and intense surveillance Domestic Drones and Their Unique Dangers (D NET . AILY ); (2) the perceived threat to individual privacy (see, e.g., D DOCX , http://appgondrones.wordpress.com/ (last visited Dec. 18, 2014); HE 100 UK _1.4. . payload , T LIDESHARE INAL ORG . All Party Parliamentary Grp. on Drones, Drones, on Grp. Parliamentary (George Party 1983 2014, All Mar. 17 Representatives, of House Debates, Techs., New and Parliamentary Sci. in CTH, Ethics on Grp. Eur. The _F , S See See See Glenn Greenwald, “If steps must be taken to address these concerns, education and empowerment-based , 14 Minn. J.L. Sci. & Tech. 309, 311 (2013); Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary RONES As is well known, the resistance functions around three main axes: axes: main three around functions resistance the known, well is As U.S. U.S. political leaders capabilities. drone current over ignorance [sic] and state power generally) but also are being impeded by those who mock the idea that domestic drones pose unique dangers (often the same people who mock concern over their usage on foreign soil). This dismissive posture is only grounded in soft authoritarianism not (a religious-type faith in the Goodness of OLDBERG 101 102 103 99 100 M K media organizations media deploy manned organizations which helicopters can capture detailed images from 1 kilometer) is currently experiencing robust pushback resistance by and counter-lobbies, concerns, fears, downright anxieties, hostility opposition, towards and RPAs proportion of this is of the “what if” variety, more formally known principle.” “precautionary as the APPGD Christine Fair, Karl Kaltenthaler & William J. Miller, About U.S. Drone Strikes and Why solutions represent superior approaches to dealing with approach, them which would limit compared beneficial learning opportunities to and retard technological a process.” Adam precautionary principle Thierer, Principle Ever! Run Away! ssrn.com/sol3/papers.cfm?abstract_id=2012494. most-terrifying-drone-ever-run-away/; Adam Thierer, Adam most-terrifying-drone-ever-run-away/; an Information Technology Precautionary Principle the Australian House of Representatives Policy Standing and Legal Affairs, round table on drones and privacy Committee on Social technical capacity of the new-generation of RPAs (actually, not the RPA so much as the lawfareblog.com/2014/06/the-foreign-policy-essay-what-pakistanis-think-about-u-s-drone-strikes-and- why/#more-35099. DroneWars DroneWars UK (1) military and weaponized use of RPAs, in particular when civilian deaths ensue (see, e.g., the U.K. All Party Parliamentary Group on Drones and 2015] 05 - G Robert Christensen, Deputy Whip)Deputy Christensen, Robert (Austl.). Technologies 2013, 10:48 AM), http://www.guardian.co.uk/commentisfree/2013/mar/29/domestic-drones-unique- security-surveillance-technologies-opinion-28. self-proclaimed “anti-drone consensus” meets the deploymentRPAs counter riposte that efforts to (see, e.g., the EGE Opinion C Y 37333-fiu_10-2 Sheet No. 42 Side A 01/11/2016 08:19:25 A 01/11/2016 42 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 42 Side B 01/11/2016 08:19:25 , M K C Y 105 As such, such, As 106 [Vol. 10:405 10:405 [Vol. On the other hand, hand, other the On 104 , http://droneu.org/mickey-osterreicher Domestic Drone Information Center ORG U. , http://www.bbc.co.uk/news/uk-14045952 (last RONE COM , D , BBC. FIU Law Review Law FIU Mickey Osterreicher Discusses Whether There Is a Constitutional Phone Hacking ) 1/7/16 2:39 PM ELETE AUVSI Statement on the FAA Granting Five Section 333 Exemptions for the Use of D OT Nat’l Ass’n of Criminal Defense Lawyers, Lawyers, Defense Criminal of Ass’n Nat’l Osterreicher, Mickey News, BBC N 107 O See See See Apart from, additionally, the permissions granted to the six video companies in September, (D What What is argued though in this article is that a general measure(s) Against Against any carte-blanche opposition is the claim made in this article Such concerns have led, at least in the USA, to an anti-drone lawfare 105 106 107 104 , AUVSI.org (Dec. 11, 2014, 8:43 AM), http://www.auvsi.org/blogs/auvsi-membership/ 2014/12/ OLDBERG strategy, i.e., introducing and/or adopting state-level curtail the legislation use of RPAs or to to delay their introduction. either NACDL.org, http://www.nacdl.org/domesticdrones/ (last visited Dec. 18, 2014). 18, Dec. visited (last http://www.nacdl.org/domesticdrones/ NACDL.org, restricting RPA use and a fortiori by the media would only be justifiable in specific circumstances when it was, Rights would as put the it, (1) European prescribed Court by necessary in a democratic society, law, and (4) of proportionate. The damage to the (2) Human for a legitimate aim, public’s (3) right to receive information and ideas that any would such entail means that a such a restriction restriction would be highly exceptional and visited Dec. 18, 2014). 18, Dec. visited (last visited Dec. 18, 2014). 18, Dec. visited (last that dronalism engages a significant human right and/or constitutionally or legally protected value instrumentality or of the interest, European functionally equivalent whether regime, Convention e.g., the U.S. First Amendment. on established Human Rights through or the any already mentioned, the FAA granted licenses in December aerial 2014 surveying, construction to site monitoring “four and oil companies rig flare to stack inspections.” fly Ass’n for UAS Unmanned for Vehicle Sys. Int’l., UAS dangers. 432 G times to more than 150 different limitedand organizations commercialcivil universities, endeavors.” government agencies, first responders, in the USA, the FAA is licensing RPA applications where the stereotypical grounds of holding opposition to discussions with various sectors about using them, (e.g., intrusion into include, namely: precision agriculture; personal film-making on closed sets; pipeline privacy), hardly apply. These and power-line inspection; and oil-and-gas flue stack inspection industries. The FAA, as of the summer of 2014, had “granted approval 500 different Right to Use Drones to Collect Aerial Imagery hacking scandal, computer misuse . . . . and not all means pursued.” justify the end RPAs deployment cannot, it is asserted, prima facie be generally prohibited. Of course, not every drone journalism protected, use of any RPAs more will than be is absolutely techniques. the It current is use of journalists sanguine other have to technologies been and remember arrested in that connection in with the the so-called UK, “phone nearly 100 11/auvsi-statement-on-the-faa-granting-five-section-333-exemptions-for-the-use-of-uas. 37333-fiu_10-2 Sheet No. 42 Side B 01/11/2016 08:19:25 B 01/11/2016 42 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 43 Side A 01/11/2016 08:19:25 , ORG , RCFP. (last visited Dec. Dec. visited (last COM . RIME C OTA N As such, what points can be be can points what such, As 108 433 433 HOTOGRAPHYIS . There are no legal restrictions on , P Dronalism ) 1/7/16 2:39 PM ELETE Ferguson and the Right to Photograph the Police D OT N O (D , the taking of photographs in a public place is not DOCX 109 Photography Is Not a Crime Kimberly Chow, Chow, Kimberly _1.4. , 110 INAL _F see also See, e.g. Michael Pritchard, Personal email to the author, Feb. 13, 2013 (emphasis added). Lord Bassam, Photography: Public Places, 2008, H.L. (U.K.) (July 16, 2008), http://www. Equally, where there is no general permission, but only a case-by-case Echoing the point made by supra, Tom“[w]e see it Hannen, as a flying individuals in a public place. There are no current plans to review this policy. In 2008, the U.K. Government was asked to state “what plans they My Lords, the freedom of the press and media is one of the bedrocks of democracy in this discretion to country. ask people not Although to take police photographs for security public officers safety reasons or have the subject to any rules or photography statute in a public place and no presumption of privacy for a police officer except where it is done to support the commissioning terrorism.of [T]he [U.K.] law is photography in very public places. The Terrorism clear Acts do not really affect in that this . . general . Sometimes. principle defining what public is and what there is no is restriction private space can be problematic and on there are a few spaces such as the Royal parks and Trafalgar Square which have . . . . There photography are bylaws some restrictions on photographing certain restricting designated buildings, e.g., military bases, which predate the Terrorism Acts. Such buildings would be signed. It is not unlawful to photograph OLDBERG 108 109 110 M K evolution of photography in public places. could only be justified in the mostthe in extreme justified situations. be only could decision on the part of an aviation regulator flight(s) to to take allow place (a a la FAA), drone these should journalism be subject to strict scrutiny and possible judicial review in circumstances where the requisite weighing of the public’s right to receive information had not been done explicitly or improperly.done been having as challenged be could camera,” dronalism should simply be understood as a technological 18, 2014); have for reviewing the rules stated, Brighton BassamGovernment,of Lord on street photography.” Replying for the publications.parliament.uk/pa/ld200708/ldhansrd/text/80716-0001.htm (emphasis added). (emphasis publications.parliament.uk/pa/ld200708/ldhansrd/text/80716-0001.htm 2015] 05 - G deployed by media lawyers to counter anti-RPAs lawfare? In the U.K., for example, according to Dr. Michael Pritchard, Director-General, The Royal stated, Society, Photographic http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-fall-2014/ 2014). 18, Dec. visited (last ferguson-and-right-photograph C Y 37333-fiu_10-2 Sheet No. 43 Side A 01/11/2016 08:19:25 A 01/11/2016 43 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 43 Side B 01/11/2016 08:19:25 M K C Y must must [Vol. 10:405 10:405 [Vol. exercising the means to realize it FIU Law Review Law FIU ) 1/7/16 2:39 PM freedom of expression. regulator should The not overstep measures mandate in the interests of ordering of the the national airspace aviation in airworthiness.certification, the interests of safety, Aviation Aviation regulators will have concerns, rights and principles advanced by media to lawyers take account and the right(s) of bundled within the the rubric of the right of It engages the right to access communications technologies for the above purpose and thus is an extension of the rights and arguments for general newsgathering; of context photojournalism used in the It engages the public’s right ideas to receive and information and hence press; the and speech expression, is part of the right to freedom of ELETE    D • • • OT N O (D In conclusion: using RPAs for newsgathering, aka dronalism, raises raises dronalism, aka newsgathering, for RPAs using conclusion: In It is suggested here that the core demands of freedom of expression in OLDBERG unique normative concerns as compared with other RPAs applications: comparedapplications: as normativeRPAs concerns unique other with 434 a democratic society information, and means that the in default position warrants particular the use “flying cameras” in the pursuit of of dronalism and that any restriction(s) must the RPAs as public’s right be to for a receive proper, precisely legitimate crafted aim exception. pursued Such is through the responsible a press fundamental very in role a narrowly of democratic a society and that free publishing any information and but challenge also to not only to high—andovercome very tested—threshold.necessarily a judicially G 37333-fiu_10-2 Sheet No. 43 Side B 01/11/2016 08:19:25 B 01/11/2016 43 Side Sheet No. 37333-fiu_10-2