FAA’s Remote ID for Drones regulations upheld in court

The United States Court of Appeals for the District of Columbia Circuit has upheld the Federal Aviation Administration's Remote ID for Drones regulations.

Tyler Brennan and RaceDayQuads LLC had taken the FAA to court over the Remote ID for Drones regulations (RID).

Today, we learn that Judge Cornelia Pillard denied the petition and upheld Remote ID for Drones.

In the opinion, the Judge started by acknowledging that the court is aware that:

“Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security. Congress recognizes as much.”

In 2016, Congress passed a law that requires the Federal Aviation Administration (FAA) to “develop[]…consensus standards for remotely identifying operators and owners of unmanned aircraft systems” and to “issue regulations or guidance, as appropriate, based on any standards developed.”

And in 2018, Congress extended the FAA's authority over small recreational drones with the FAA Reauthorization Act of 2018.

In response to this, the FAA created the Remote Identification Rule that had been challenged in court by Tyler Brennan and RaceDayQuads LLC.

Remote ID for Drones explained

Judge Pillard explains Remote ID for Drones as follows:

“Remote ID technology requires drones in flight to emit publicly readable radio signals reflecting certain identifying information, including their serial number, location, and performance information. Those signals can be received, and the Remote ID information read, by smart phones and similar devices using a downloadable application available to the FAA, government entities, and members of the public, including other aircraft operators.”

The FAA likes to compare RID to a “digital license plate.” However, the judge points out that, unlike a license plate, RID only works when the drone is moving, and the ID information can be read even when the unmanned aircraft cannot be seen.

Tyler Brennan and RaceDayQuads tried to have Remote ID for Drones vacated based on several concerns, all of which have been denied by the court.

Remote ID for Drones violates the Fourth Amendment

Brennan argued that RID amounts to “constant, warrantless governmental surveillance in violation of the Fourth Amendment.”

The judge struck this down because “drones are virtually always flown in public. Requiring a drone to show its location and that of its operator while the drone is Aloft in the open air violates no reasonable expectation of privacy.”

RID could be used for continuous surveillance

Brennan argued that RID could be used to continuously surveil drone pilots' locations, which could amount to a constitutionally cognizable search and possibly reveal a drone operator's identity and home location.

Judge Pillard did not agree. According to the judge, Brennan failed to show that “any such uses of Remote ID have either harmed him or imminently will do so, thus he presents no currently justiciable, as-applied challenge.”

Remote ID should be vacated because of procedural missteps

Brennan also claims that the Remote ID Rule should be thrown out because the FAA made procedural mistakes.

However, the judge points out that “none of those asserted flaws affects the validity of the Rule. The communications that Brennan challenges as ex parte did not materially bear on the rulemaking, so their exclusion from the administrative record did not interfere with the requisite opportunity for public comment.”

The FAA also followed the law, which said it had to consult with the Radio Technical Commission for Aeronautics, Inc. (RTCA), the National Institute of Standards and Technology (NIST), and industry stakeholders.

The FAA did not sufficiently respond to public comments

Brennan also argued that the FAA did not adequately respond to the 53,000 comments the agency received to its proposed Remote ID for Drones rules.

The Judge ruled differently and said that the “FAA doesn't have to respond to purely speculative comments, and its duty under the Administrative Procedure Act was fully met when it looked at about 53,000 public comments and gave a detailed explanation of the policy choices in the Final Rule (APA).”

And thus, Judge Pillard denied the petition and upheld the Federal Aviation Administration's Remote ID for Drones regulations.

You can access the original document here: TYLER BRENNAN AND RACEDAYQUADS LLC v FAA.pdf

What legal options are left for Brennan?

At this point, you might be wondering what Legal avenues are left for Brennan. We were wondering the same and checked in with drone policy expert Brendan Schulman and asked him for his personal opinion.

“I don't believe there are further viable legal options,” Schulman says. “As the court wrote, the FAA rule was implemented pursuant to a Congressional directive and was responsive to the tens of thousands of comments the FAA received. The result is a reasonable regulation and everyone should focus on achieving compliance.”

What else stood out in the Court's opinion?

In our conversation with Brendan Schulman, we also asked him what else stood out to him in the Court's opinion.

“I think the court's repeated mention of the localized nature of broadcast remote ID in its Fourth Amendment privacy analysis was very interesting,” Schulman explains. “I and others believed that the FAA's original proposal for network remote ID was very invasive of drone pilot privacy, as well as expensive. The court decision confirms that we ended up with a better Remote ID regulation than originally proposed, thanks to everyone who submitted comments to the FAA and worked within the system to achieve the best outcome in response to the strong government interest in Remote ID.”

Please let us know in the comments below what you think about the judge's ruling in the case of Tyler Brennan and RaceDayQuods versus the FAA. Or, read the following article to learn why we think Remote ID for Drones will be a sh!tstorm.