WASHINGTON (CN) — Federal rules that just took effect on the use of small drones fail to respect U.S. privacy laws, a digital watchdog told the D.C. Circuit.
The Electronic Privacy Information Center brought the petition last week with regard to a June 28 final rule by the Federal Aviation Administration that just took effect Monday, regarding the operation of small, unmanned aircraft in public airspace.
Discussing the Aug. 22 petition in an interview, EPIC’s national security counsel Jeramie Scott explained that the group is trying to hold the FAA to account for its previous assessments.
“The FAA has in the past has recognized that privacy is an issue with respect to the integration of drones, but they have not moved forward in addressing that issue,” Scott said. “And we are trying to force them to address that issue.”
EPIC has been fighting on this issue since March 2012 when it asked the FAA to consider privacy in a separate rulemaking from its planned small drone regulations. It claimed the FAA Modernization and Reform Act of 2012, which mandated the rulemaking, compelled the FAA to consider privacy when crafting its policy.
Though the agency denied the group’s request to conduct a separate rulemaking process on drone privacy in November 2014, Scott says it told EPIC that the proposed rulemaking on small drones would address privacy issues.
When that proposed rulemaking came out, however, EPIC noticed the FAA had not included a section on privacy.
The watchdog had petitioned the D.C. Circuit last year to review its denied request, and the agency’s silence on drone privacy.
But the court ruled this past May that EPIC had missed the deadline to petition the FAA’s denial. The watchdog took 125 days to file for judicial review of the agency’s decision, more than twice the number of days than the law allows, the court ruled.
In explanation of the lapsed deadline, Scott said EPIC did not immediately petition the court on the denial because the FAA had told EPIC it would consider privacy in its upcoming rulemaking.
It was only after the proposed rulemaking came out that EPIC realized its demand that the FAA consider privacy in its policy had been officially denied. To EPIC, the clock on when the watchdog could petition the court started when the FAA released its proposed rulemaking, not when it denied the group’s initial request, Scott said.
Though not part of its reasoning for denying EPIC’s original petition, the D.C. Circuit also mentioned in its opinion that Congress was “silent” on privacy when it passed the FAA Modernization and Reform Act.
But Scott insisted EPIC would be able to prove during the course of the trial that Congress intended for the FAA to consider privacy in its rulemaking, even if it didn’t outright include the word in the act.
“That act calls for a comprehensive plan to integrate drones into the national airspace,” Scott said. “It doesn’t say that they just need to address privacy, because it would say that otherwise. It says that they need to actually come up with a comprehensive plan to address the issues associated with integration of drones in the national airspace. And the FAA initially recognized this in the comprehensive plan where they cited privacy as one of the issues associated with integrations of drones into the national airspace.”
Scott would not divulge how EPIC would prove this, however, calling such talk “premature.”
As of Tuesday night the FAA had not officially responded to the petition. It did, however, file a notice of appearance for two attorneys on Tuesday.
The agency did not respond to a request for comment on the petition.
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