The Federal Aviation Administration got both friendly and tough with journalists who want to use drones to capture video.
The FAA signed an agreement to work with CNN in a test project to come up with ways that journalists can safely use drones. CNN’s official release included these two passages:
“Our hope is that these efforts contribute to the development of a vibrant ecosystem where operators of various types and sizes can safely operate in the US airspace,” said CNN Senior Vice President David Vigilante.
“Unmanned aircraft offer news organizations significant opportunities,” said FAA Administrator Michael Huerta. “We hope this agreement with CNN and the work we are doing with other news organizations and associations will help safely integrate unmanned newsgathering technology and operating procedures into the National Airspace System.”
Here are some questions, and issues, we still face.
Will 2015 be the year journalists fly?
2015 will almost certainly be the year that American journalists will get some Federal Aviation Administration guidance on how they can use drones to capture video and still photos. The FAA received more than 18,000 public comments on its website about how to regulate drones.
But if Congress gets involved, it could be years before journalists will have clear guidelines on how to use remote controlled aerial cameras called unmanned aircraft systems (UAS). While the federal government moves slowly, 20 states have enacted their own laws regulating unmanned aircraft. Most of the UAS state laws enacted in 2014 speak to law enforcement’s use of drones.
The FAA’s website lists the guidelines that all drone operators must currently observe:
Dos
- Do fly a model aircraft/UAS at the local model aircraft club
- Do take lessons and learn to fly safely
- Do contact the airport or control tower when flying within 5 miles of the airport
- Do fly a model aircraft for personal enjoyment
Don’ts
- Don’t fly near manned aircraft
- Don’t fly beyond line of sight of the operator
- Don’t fly an aircraft weighing more than 55 pounds unless it’s certified by an aeromodeling community-based organization
- Don’t fly contrary to your aeromodeling community-based safety guidelines
- Don’t fly model aircraft for payment or commercial purposes
The Association for Unmanned Vehicle Systems International (AUVSI), the Academy of Model Aeronautics (AMA) and the Small UAV Coalition created a website that lays out the state of regulations for recreational users and for business users, like newsrooms.
In short, recreational hobby fliers can fly their aircraft up to 400 feet.
But businesses, such a newsrooms, must have specific permission from the FAA to fly a drone anywhere at any height. That is why CNN sought a specific permit from the FAA. The current rules PROHIBIT:
- Professional real estate or wedding photography
- Professional cinema photography for a film or television production
- Providing contract services for mapping or land surveys
The exceptions are the handful of instances when the FAA issued a permit. The permit is called an FAA airworthiness certificate, called a “section 333” permit. Except for the CNN deal, the FAA has not granted exceptions to journalists or journalism schools. The FAA has told at least two journalism schools to ground their drone fleet over public property. The schools have scaled back their use of drones awaiting FAA permission, but still are making limited use of their aircraft.
Who has gotten exceptions?
An Associated Press story reported that soon, the FAA may respond:
The FAA is expected to propose restricting drones weighing less than 55 pounds to altitudes below 400 feet, forbid nighttime flights and require drones be kept within sight of their operators.
The AP story said some inside the FAA are considering exemptions for very small drones, weighing less than five pounds, as Canada recently allowed.
Matthew Schroyer, Professional Society of Drone Journalists (DroneJournalism.org), says he hoped the FAA would release proposed rules for small aircrafts in December. Now he says, he is not at all certain there will be rules drafted in January either. The PSDJ has about 400 members from 37 countries.
The FAA has granted a handful of exemptions so far. In September, the government gave six film and commercial companies permission to fly drones under specific restrictive circumstances. The “333 exemptions” require specific clearance from property owners, air traffic control and the individuals shown in the video. It can only apply to what is referred to as a “sterile set” which is a specific property zone. And the permits say the operator of the drone must have a commercial pilot’s license. Read that again. To fly an unmanned drone, the FAA is requiring the operator to be a licensed pilot. The permits also forbid night flight.
“For journalists this just doesn’t work,” Schroyer said.
In December, the FAA granted four specific exemptions to unmanned vehicle rules, including an exemption that allows oil companies to fly drones around oil rigs and another to allow drone use in monitoring construction sites.
The Association for Unmanned Vehicle Systems International applauded the exemptions as a step forward but said, “The FAA needs to begin the rulemaking process and finalize a rule for the use of UAS as quickly as possible to allow UAS technology to realize its full potential and allow a wide range of industries to reap its benefits.”
FAA asks for police help to track down drones
Even while the FAA works with CNN, on the same day, the FAA sent a signal that it intends to strongly enforce its ban on widespread commercial use of drones. The FAA sent a letter to law enforcement urging local cops to help enforce federal laws banning commercial and reckless drone operations. The FAA is asking police to collect names of operators and urged police to photograph or record proof of drone use. The FAA says it needs police help because drones don’t have markings that clearly identify who owns the craft. The FAA wants police to be especially alert to drones flying near or in forbidden zones like near airports or federal land.
Would new rules require a pilot’s license?
The exemptions, limited as they are, Schroyer says, give a window into what the FAA might require of journalists. Schroyer says there is talk in Congress that would require drone operators who want “333 exemptions” to have an airplane pilot’s license just as the current exemptions do. Could it really be that in the future, all commercial drone pilots, or journalists who want to record video with a drone, you would have to get a pilot’s license? “That is what it looks like, that is what they have required so far and that is all we have to go off at this point. It is expensive, and it does not train an operator to safely use a drone,” Schroyer said.
“These things are not harmless,” Schroyer says. They can fall from the sky, they can strike people if they are flown carelessly. But he said, even if you could fly a plane, it does not qualify you to fly a radio controlled drone. “They are very different skills,” he said.
Schroyer says the United States lags behind many other countries in creating guidelines for drone use in journalism. Canada, he says, allows commercial users, such as a working journalist, to fly at heights up to 400 feet. They can fly in populated areas with permission, Schroyer says.
Australia, he says, allows operators to register for courses, learn how to fly, and you take what amounts to a driver’s course in front of a government official to show you can safely operate a drone. Then, the government grants a commercial operator’s license to drone pilots. Australia wants commercial drone users to have aviation knowledge if they are going to earn money from flying.
The UK requires permits for fliers and restricts where drones may be flown.
What are the repercussions of the ambiguity?
Eric Seals, Detroit Free Press Photojournalist
New FAA rules can’t come soon enough for Detroit Free Press photojournalist Eric Seals, who teaches with me at Poynter’s Backpack journalism seminar. Seals has been experimenting with drones for more than a year. But for all of 2014, he has not been able to use his drone camera for professional purposes. In November of 2013, before the FAA issued new guidelines restricting journalists’ use, Seals used his $1200 quadcopter several times on assignments. He hoped to use the quadcopter to help tell the story of divers looking for shipwrecks in Lake Huron. A quadcopter would have saved thousands of dollars in helicopter costs to get the same shots. “At least 16 or 20 times in 2014 I have said I wish I could use a quadcopter on this.
Seals said this assignment to cover a broken water pipe could have been accomplished with a drone for thousands of dollars less.
There was a water main break in Detroit that covered eight to ten blocks, freezing water and snow and the pipe broke and an entire neighborhood was soaked with water. The assignment desk asked me to get to the helicopter the paper uses… this would have been perfect for my quadcopter.” The cost of flying a helicopter was about the same cost as buying a quadcopter and camera, he said. “Plus I could get closer, I could have done it with less risk to everybody in the air and on the ground and I could have also been capturing the story with my cameras on the ground level, too.”
Schroyer says fighting the FAA can be expensive. “There are people who will not fly because of the ambiguity of the law. News organizations are not buying this equipment because they don’t know if they will be able to use it legally.”
The result, Schroyer says, is “news organizations are turning to amatuers, people recording video for fun, to capture the drone video they want to tell stories.” The PSDJ says allowing professional videographers to operate the aircraft would help insure safer use.
What about privacy concerns?
A recent Pew Research Center survey of hundreds of global leaders on the tech industry showed that many believe “living a public life online as the new default.” Privacy is a shifting and some said eroding notion. And, critics say, allowing drones to fly freely above us will erode privacy rights further.
Even before the FAA and Congress act on regulations that would allow the commercial use of drones, Sen. John D. Rockefeller IV, the outgoing chairman of the Senate Commerce, Science and Transportation Committee, drafted legislation that would speak to concerns about drones invading privacy. Rockefeller explained the Unmanned Aircraft Systems Privacy Act of 2014:
“The proposed legislation would prohibit private companies from conducting surveillance on individuals without their explicit prior consent. In addition, the draft bill directs the Federal Trade Commission (FTC), in consultation with the Department of Transportation (DOT), to promote rules and guidelines on UAS privacy policies, including the legal obligations of model UAS operators who purchase their UAS on the retail market. The bill would be enforced by the FTC and state Attorneys General.”
The legislation would also add a significant layer of regulations that journalists are not used to when it comes to collecting images and video. Rockefeller suggests the The Act, should:
Require civilian operators of UAS to establish a privacy policy to be posted on a public website hosted by the FTC. The policy would include, among other things, information about the circumstances under which the UAS would be operated, the specific purposes for which images, data and other identifying information would be collected, the measures to be taken to anonymize and aggregate such information unless prior express consent of the individual was obtained; and contact information for an individual to revoke their consent or to obtain copies of collected information.
And then there is a separate section of the Act that recommends a way for those who believe their privacy has been invaded by a drone to sue:
Provide a private right of action for persons who suffer physical harm or an invasion of privacy resulting from violation of this Act.
Schroyer said the Rockefeller proposal raises serious First Amendment concerns about how the government seeks to regulate what can be recorded from a public place. Among the issues, he says, is when an airspace above a private property turns from private property to public airspace.
What about the ethics of drone journalism?
“I am very surprised by how many journalists are using drones for journalism despite the FAA’s restrictions. I see it in local news broadcasts, too,” Seals says, but his paper’s lawyers say until the government issues new clearly written rules on what is allowable, he is keeping his copter grounded.
When Seals taught with me at Poynter, he stressed to our class that drone journalism carries a new layer of ethical responsibility for safety and sensitivity.
Seals says it takes “a good month, even two months” to get skilled at operating a drone. “You have to develop a mental checklist to check out the gear, make sure you are below 400 feet and not too close to an airport. You have to know about wind conditions. It is not a toy and people who got them at Christmas have to realize that. A lot of people who got them and started flying them without any practice find the aircraft flies away. If you do not calibrate the aircraft you can lose them in flight and never see them again.”
The Professional Society of Drone Journalists has adopted a code of ethics. The code says drone operators should live up to traditional journalism ethics codes, including the Society of Professional Journalists’ code of ethics. But there are additional ethics involved with drone photography:
Newsworthiness: The investigation must be of sufficient journalistic importance to risk using a potentially harmful aerial vehicle. Do not use a drone if the information can be gathered by other, safer means. Safety: A drone operator must first be adequately trained in the operation of his or her equipment. The equipment itself must be in a condition suitable for safe and controlled flight. Additionally, the drone must not be flown in weather conditions that exceed the limits of the drone’s ability to operate safely, and it must be flown in a manner that ensures the safety of the public. Sanctity of law and public spaces: A drone operator must abide by the regulations that apply to the airspace where the drone is operated whenever possible. An exception to this is provided in instances where journalists are unfairly blocked from using drones to provide critical information in accordance with their duties as members of the fourth estate. The drone must be operated in a manner which is least disruptive to the general population in a public setting. Privacy: The drone must be operated in a fashion that does not needlessly compromise the privacy of non-public figures. If at all possible, record only images of activities in public spaces, and censor or redact images of private individuals in private spaces that occur beyond the scope of the investigation. Traditional ethics: As outlined by professional codes of conduct for journalists.
Seals reminds journalists that while unmanned aircraft are great storytelling tools, they are not the only tool available to tell worthwhile stories. “I want very badly to be able to fly, but we are not out of business without quadcopters. Nothing is more important than a great subject.”
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