Not Waiting for the FAA, North Carolina and 9 Other States Enacted Drone Laws in 2014

As discussed in last month’s post, the FAA’s most recent notable effort to regulate Unmanned Aircraft Systems and/or Vehicles (UAS/UAV) is the opening of six test sites, where the FAA will oversee UAS exploratory research and safety developments through February 2017. While regulation of UAS at the federal level has received significant attention, state and local efforts to regulate UAS are not only worthy of examination, but these efforts are arguably more interesting than what is happening at the federal level. This is because the new state drone laws put in sharp relief the concerns of legislators and their constituents. More than half the states have enacted legislation regulating UAS, providing a wealth of information – case studies, really – ripe for exploration in an effort to understand the realities of UAS and UAS regulation.

State legislation of drones has become increasingly popular, especially in the past two years. In light of news that the FAA’s efforts to regulate drones have fallen behind schedule (by as much as two years, according to The Washington Post), states appear reluctant to wait for the FAA. According to the National Conference of State Legislatures, in 2014, 10 states – Alaska, Illinois, Indiana, Iowa, Louisiana, North Carolina, Ohio, Tennessee, Utah, and Wisconsin – enacted UAS laws, while a total of 35 states considered UAS legislation. 2013 saw slightly more legislative activity in the drones space, as 43 states introduced 130 pieces of legislation, 13 states enacted 16 laws, and 11 states adopted resolutions governing UAS.

Criticism and Concerns with State Regulation

Despite the rush to regulate UAS at the state level and the apparent eagerness of state legislators to “fill the void” left by the FAA’s slow pace to regulate UAS, state drone legislation has been criticized. Attorneys and drone scholars Nabiha Syed and Michael Berry, writing in the Volokh Conspiracy blog on The Washington Post‘s website, argued that state legislation thus far has been “misguided” and suffers from overbreadth and vagueness. They pointed to Idaho’s UAS law, enacted in 2013, which contains a provision prohibiting the use of a UAS to “photograph or otherwise record an individual, without such individual’s written consent, for the purpose of publishing or otherwise publicly disseminating such photograph or recording.” The Idaho law makes no distinction between photography and recording in a public place versus a private place. Thus, the law either forgets or ignores – or perhaps both – that there are long-standing legal doctrines that suggest an individual has no expectation of privacy in a public place. For example, in Katz v. United States (1967), the U.S. Supreme Court explained that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” The Katz dicta may speak specifically to Fourth Amendment protection, but there is no indication that one has a greater expectation of privacy when a non-government actor (e.g. a civilian UAS operator) is involved. As Syed and Berry noted, the Idaho law (and others like it) ignore the legal and societal precedents regarding expectations of privacy in public places.

surveillance_dictionary_3

State laws also can be criticized for their failure to define key terms. The North Carolina drone law (which we’ll get to shortly) contains a provision prohibiting UAS operators from “conduct[ing] surveillance” of private property. However, nowhere in the law is “surveillance” defined. Syed and Berry noted that Texas’ and Tennessee’s drone laws also fail to define surveillance. The vagueness of these laws, they argue, “casts a long shadow that threatens to chill newsgathering and other legitimate conduct.” But Stephen Hartzell, an attorney and partner with the Raleigh-based Brooks Pierce law firm, said the absence of a definition of “conduct surveillance” will not be problematic because courts are “capable of working that out on a case-by-base basis.” Hartzell is likely correct that courts will be able to decide what does and does not qualify as surveillance. But that is a question that could have been resolved by the law’s text, creating clearer guidance for drone operators and less need for litigation.

It also has been argued that state laws that attempt to address some of the potential harms posed by UAS are duplicative of already-existing laws. Referred to as laws of “general applicability” (or “pre-existing generic laws”), these laws, which are not specific to UAS, address legal claims that might be brought against a drone operator. For example, a state law that provides a cause of action for drone-based invasion of privacy is probably unnecessary if that state already recognizes the intrusion upon seclusion privacy tort. Similarly, a state law specific to UAS trespass or nuisance is likely duplicative of that state’s already-existing trespass and nuisance laws. When North Carolina debated its drone legislation earlier this year, a member of the state’s Research Division presented the Committee on Unmanned Aircraft Systems with an overview of “Potentially Relevant Current NC Laws.” The review highlighted North Carolina’s prohibitions against secret peeping and interception of oral transmissions, the state’s recognition of the intrusion upon seclusion privacy tort, and regulation of law enforcement surveillance. Nonetheless, the state’s drone law waded into some of these issues.

North Carolina’s Drone Law: An Overview

NC Heading - Bill Excerpt - Regulation of Unmanned Aircraft

In August, North Carolina Governor Pat McCrory signed into law the state’s 2014 budget, which included legislation regulating UAS in the state. Some of the UAS provisions enacted as part of the budget went into effect on Oct. 1, while the remainder went into effect on Dec. 1.

The budget includes two provisions regulating UAS in the state. The first provision, on “Vehicle Management,” mandates approval from the state’s Chief Information Officer before a government agent or agency can purchase or use UAS. But far more significant and interesting is the second component, “Regulation of Unmanned Aircraft Systems,” which addresses civilian UAS use.

Restrictions

The N.C. legislation sets out parameters for drone use in the state, beginning with a prohibition on surveillance of a private home or other private property without consent. Specifically, the law says UAS should not be used to engage in surveillance of “a person or dwelling occupied by a person,” “that dwelling’s curtilage,” or “private real property” without consent. The restrictions on what UAS may be used to record or photograph continue, prohibiting UAS operators from taking a “[p]hotograph [of] an individual, without the individual’s consent, for the purpose of publishing or otherwise publicly disseminating the photograph.”

This ban on photography without consent is one of the most striking parts of the law. The prohibition does make an exception for “newsgathering, newsworthy events, [and] events [and] places to which the general public is invited,” but those exceptions open the door to larger questions, such as what activities are considered “newsgathering” and what events are considered “newsworthy.” It is unclear how the state might distinguish between newsgathering activities and non-newsgathering activities, and, similarly, newsworthy events and non-newsworthy events, since the law does not define those terms. In this “new age of citizen journalism,” our understanding of what is newsworthy is no longer dictated by the agenda-setting of major media outlets; similarly, the individuals engaged in newsgathering are no longer limited to those affiliated with “traditional” news outlets such as the The News & Observer or WRAL-TV. Citizen journalists – or journalists not affiliated with traditional news or mainstream media organizations – are breaking news almost as regularly as the professionals. The use of “newsgathering” and “newsworthy” in the state’s UAS law is vague: both terms are widely open to interpretation, especially in light of this new landscape of journalism. The law’s opaque language of news may make the prohibition unenforceable; at the very least, the provision weakens the law by raising more questions than it answers.

"private property" by Deviant Art user miracledrug http://goo.gl/yRgcz2 [CC licensed]

“private property” by Deviant Art user miracledrug [CC licensed]

Another problem, as Syed and Berry noted, is that the state’s UAS law effectively prohibits documenting private property by drone, although that same documentation takes place on a regular basis and is available to the entire world, thanks to Google Maps cars, which drive on public roadways, capturing images of private dwellings and curtilage.  Imagine that a Google Maps car drives down a residential street and records a scantily clad sunbather in her front lawn. The lawn is private property, but the Google Maps car is on public property (the street), therefore Google has not run afoul of the state’s intrusion upon seclusion tort. The tort states that one who “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”  However, what is visible from a public street, no matter how private, is not likely to considered an “invasion” at all, nor is it likely to be considered “highly offensive.”

Under North Carolina’s drone regulations, if a drone were to fly down the street and capture a photo of the sunbather in her front lawn, that act would appear to run afoul of the the state’s prohibition against use of UAS to “conduct surveillance of” “a person or dwelling occupied by a person and that dwelling’s curtilage” and “private real property” without consent. The new drone law is – or at at least appears to be – a significant change to North Carolina’s privacy law. The drone regulations, by prohibiting surveillance of private property (which is often in public view) restrict the gathering of information in new ways – ways not restricted by the state’s intrusion upon seclusion tort.

Drone Crimes

The law also outlines crimes that might be committed by unmanned aircraft. These crimes include interference with manned aircraft, unlawful possession of UAS, weaponization of UAS, and “unlawful harassment of persons taking wildlife resources.” That provision makes it illegal to intentionally interfere “with the lawful taking of wildlife resources or to drive, harass, or intentionally disturb any wildlife resources for the purpose of disrupting the lawful taking of wildlife resources.” The provision is presumably targeted at activists who might use drones to harass or interfere with hunters. The law goes on to prohibit fishing or hunting by UAS. At first blush, the emphasis on wildlife seems odd because so much of the debate about drones has focused on the privacy. However, as demonstrated by the research focuses at the FAA’s test sites, there has been significant attention given to UAS use in wildlife, agriculture, and conservation efforts nationally, but also in North Carolina. To find evidence of the state’s interest in the intersection of UAS and the great outdoors, look no further than the state’s Legislative Committee on Unmanned Aircraft Systems. This past spring, the committee heard from a representative of Bosh Precision Agriculture, who spoke on use of drones to aid in agricultural work. The representative highlighted how farmers and scientists in the state might use UAS to evaluate crop health, sample soil, and monitor irrigation.

Licensing and Certification

"US pilots certificate front" by Wikipedia user Cleared as filed http://goo.gl/E8whm6 [CC licensed]

“US pilots certificate front” by Wikipedia user Cleared as filed [CC licensed]

Finally, the law sets out the certification and licensing requirements for operating unmanned aircraft in the state. Commercial UAS operators must be at least 18 years old, have a valid driver’s license, and have a state-issued UAS license. The state has tasked the Department of Transportation’s Division of Aviation with creating a “knowledge and skills test” that operators must pass to receive their licenses. The test must be developed and implemented by May 31, 2015, but it’s not difficult to imagine a scenario in which the state Division of Aviation is held up waiting for the FAA to finalize its rulemaking because there could be overlap between state and federal UAS licensing schemes. The state’s licensing plan mandates that the Aviation Division establish categories of UAS “based on characteristics determined to be appropriate by the division.” These categories might be used to determine license fees or even the content of the knowledge and skills test. The Aviation Division must also identify a “geographic area” within which a licensee is permitted to operate UAS, provide guidelines pertaining to data collection by licensees, and identify requirements for marking and identification of individual UAS.

Private vs. Commercial Operators

Notably, the state’s drone legislation appears to distinguish between private and commercial drone operators with respect to licensing. For example, § 63-96 is titled “License required for commercial operation of unmanned aircraft systems” (emphasis added). The law does not define “commercial” or “private” operators, but the state may rely on the Code of Federal Register‘s definition of a “commercial operator.” The CFR defines a commercial operator as a “person, who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property.” The FAA further explained, “Any operation not conducted strictly for hobby or recreation purposes could not be operated under the special rule for model aircraft. Clearly, . . . flights that are in furtherance of a business, or incidental to a person’s business, would not be a hobby or recreation flight.” It may be safe to assume that in North Carolina, a commercial operator is one who is operating a drone “for compensation or hire,” not one who is doing it as a hobby or for recreation.

The North Carolina drone law suggests that while commercial UAS operators are required to be licensed, private operators are not. However, the line between the two categories of operators may be difficult to draw in some circumstances. For example, what if the operator is not employed by a news organization but is gathering images on a volunteer basis?  Is the drone operator a private or commercial operator? What if a private operator captures a photograph that initially appears to be insignificant, but later proves to be newsworthy and the operator wants to sell the image? In an effort to safeguard against potential harms caused by UAS, the state has enacted a drone law that offers some promise, but raises nearly as many questions as it provides answers. How state courts will handle questions about commercial vs. private operators and identify newsgathering activities and newsworthy events will not only be interesting to watch, it also will have a significant impact on the state’s news organizations, citizen journalists, and other information gatherers.

What’s Next?

"1950 ... hoppicopter!" by Flickr user James Vaughan [CC licensed]

“1950 … hoppicopter!” by Flickr user James Vaughan [CC licensed]

What’s next for drones in North Carolina and the rest of the nation is largely dependent on the FAA. The FAA had committed to integrating UAS into the nation’s airspace by Sept. 2015. However, the FAA has repeatedly missed deadlines in recent months. On Dec. 10 the agency admitted that it will not have final rules in place until at least 2017.

That same day, the FAA approved five exemptions for four commercial drone operators, permitting the operators to use UAS for the purposes of “aerial surveying, construction site monitoring and oil rig flare stack inspections,” according to Forbes. The exemptions allow the operators to use UAS without first obtaining an airworthiness certificate, typically a requirement for commercial operators. According to the FAA, the exemptions were granted because U.S. Secretary of Transportation Anthony Foxx “found that the UAS in the proposed operations … do not pose a threat to national airspace users or national security.” The four operators join seven video production companies granted exemptions in September.

It is difficult to reconcile the FAA’s apparent desire to allow more commercial UAS operations with the agency’s failure to lay the groundwork for much wider use of UAS in a timely manner. As Michael Toscano, president and CEO of the Association for Unmanned Vehicle Systems International (AUVSI, a global community of UAS users and stakeholders) commented, “[G]ranting exemptions on a case by case basis is not an effective way to regulate the use of UAS in the long term.” Toscano praised the FAA’s decision to grant the exemptions, but also reiterated the urgency with which the FAA needs to act to implement UAS regulation. Similar calls for action and criticism of the FAA’s slow pace have come from major companies interested in UAS, including Amazon.com and Google. Amazon has threatened to move its drone research abroad if the FAA won’t allow the company to test in the United States. Google already has begun UAS testing in Australia, as far as possible from the FAA’s reach.

Considering how slowly the FAA is moving forward with its UAS research and regulation, it’s perhaps no surprise that states like North Carolina are taking the opportunity to regulate UAS in the interim. The potential for commercial UAS success in the United States “depends on regulation,” and currently, the agency charged with crafting that regulation is in no rush to embrace that potential. Thus, state and local legislators are the ones driving efforts to explore both private and commercial UAS.

As of Dec. 1, all of the provisions regulating drones in North Carolina are in effect. The next benchmark in the state’s regulation of UAS is May 31, 2015, the date by which the Division of Aviation must develop and implement its knowledge and skills test. Of course, while the state has crafted its own regulations, any commercial UAS operators in North Carolina are subject to current and forthcoming FAA regulations, a fact reiterated in the state’s law. One of the final provisions of North Carolina’s UAS law notes that “[n]o operation of unmanned aircraft systems for commercial purposes shall be authorized in this State until the FAA has authorized commercial operations.” So we’re back where we started: North Carolina is ready for commercial drones, but will have to wait until the FAA catches up.

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State of the Drone: FAA Test Sites Take Off

In August 2014, a small but noteworthy milestone in the Federal Aviation Administration’s regulation of drones – or “unmanned aerial systems” (UAS), in the agency’s parlance – occurred. On August 13, the FAA announced that the final of six test sites for UAS research had opened. With operations at the FAA’s six test sites underway and some inaugural test flights completed, now is a good a time to survey the landscape of UAS in the nation.

FAA Regulation and UAS Test Sites

Before taking a look at test site operations, here is some background on how the FAA arrived at its current UAS efforts: Beginning in 2012, following the passage of the FAA Modernization and Reform Act, the agency undertook a major effort to prepare the national airspace for the arrival of unmanned aircraft. The FAA first authorized use of UAS in 1990, but its first major regulatory efforts have taken place in the past few years, as interest in UAS has grown. The agency’s most recent step, the opening of six test site/pilot projects, is one of many steps in the plan to integrate UAS into the nation’s airspace. All of the steps were laid out in the FAA Modernization and Reform Act. The act mandated the FAA’s creation of the test site/pilot project program, as well as the publication of a five-year roadmap and a comprehensive plan.

The FAA has moved forward – albeit slowly – with its charge to explore the myriad issues surrounding civilian UAS use, such as operator certification and air traffic congestion, in collaboration with private and public groups. In December 2013, after a “rigorous 10-month selection process,” the agency announced its selection of six test site operators: The University of Alaska, the State of Nevada, Griffiss International Airport (in Rome, NY), the North Dakota Department of Commerce, Texas A&M University, and Virginia Polytechnic Institute and State University (Virginia Tech). All test sites are now open and operational.

Image courtesy of the FAA faa.gov/uas/legislative_programs/test_sites/

Image courtesy of the FAA faa.gov/uas/legislative_programs/test_sites/

Test Site Operations

While the test sites are located in six states, test flights will actually occur in more states – at least 11 – according to FAA press releases and site operators’ websites. For example, the University of Alaska site will operate flights in Hawaii and Oregon as well as Alaska; the Griffiss International Airport site will operate flights in New York and Massachusetts; and the Virginia Tech site will operate flights in New Jersey and Maryland in addition to Virginia. Other flights will take place in Nevada, North Dakota, and Texas.

FAA Test Sites & Flight Locations

The FAA has issued several press releases with details of test site operations and research. The work at each of the test sites centers on what the FAA has identified as the most pressing needs to consider before UAS are fully integrated into the nation’s airspace. The agency’s primary research goals fall into six categories:

  • System Safety & Data Gathering
  • Aircraft Certification
  • Command & Control Link Issues
  • Control Station Layout & Certification
  • Ground & Airborne Sense & Avoid
  • Environmental Impacts

To that end, each test site has been tasked with specific research projects. Across many test sites there is a focus on the potential for drone use in agriculture, ecology, and conservation efforts. The University of Alaska site has a research plan addressing development of safety standards, state monitoring of UAS, and navigation. Because of the site’s close proximity to Fairbanks International Airport – the two are just five miles apart – it offers a prime opportunity for evaluating coordination with air traffic controllers. This site also will conduct aerial surveys of wildlife, with an eye to exploring how UAS might be used to locate and count animals, including “caribou, reindeer, musk ox and bear.” The Nevada site will research air traffic control needs and certification for UAS operators. The Griffiss International Airport site, located in the congested northeast airspace corridor, will consider the implications of UAS on air traffic. This site also will focus on drones equipped with visual and thermal sensors that can monitor and evaluate agriculture. The North Dakota site (the first to open) will research and develop data on UAS airworthiness. This site also will have an agricultural focus, studying UAS used to evaluate soil and crop quality. The Texas A&M site will research safety protocols and explore UAS use for ocean preservation and restoration. Finally, the Virginia Tech site (the last to open) will focus on “failure mode testing,” risk evaluation, and aeronautical surveys of agriculture. All sites will continue testing through February 2017.

Regulatory Approaches

The areas of FAA research at the test sites mirror several “philosophical approaches to regulation” identified by attorneys Nabiha Syed and Michael Berry in their June 2013 Communications Lawyer article, “Journo-drones: a Flight over the Legal Landscape.” Syed and Berry identified six categories of – or approaches to – regulation and suggested that the categories offer an initial framework for understanding the still-emerging regulation of UAS. The six approaches to regulation are: operators, flight, property, devices, behavior, and consent. These regulatory approaches cover a range of drone issues ripe for debate.

For example, an operator-based approach might ask who can fly UAS, or what certification or licenses are required. The FAA already has certification requirements for some UAS operators, but is expected to build on those certifications as it finalizes a plan to integrate UAS into the national airspace. A flight-approach to regulation could consider “when, where, and how drones can be flown,” and whether operators should be required to keep the UAS within their line of sight at all times. One example of the flight-based regulatory approach can be found in a recently-announced FAA exemption permitting six film production companies to fly UAS, but not at night. A property-based approach might consider areas over which drones may fly, how populated those areas are, and whether the property is private or public. Just last week, the FAA announced that operators of UAS or model aircraft could face jail time or a financial penalty for flying within three miles of major sports stadiums, including those used for Major League Baseball and the National Football League. The announcement, which is an reiteration of a previous policy, is an example of a property-based approach to regulation of UAS. Device-based regulation might focus on restricting the capabilities of UAS, including audio and video recording or night-vision capabilities, or maintenance and equipment requirements. Regulating behavior could address what behavior or individuals could be filmed, such as whether it would be permissible to film private or personal activities, celebrities, or other high-profile individuals whose lives often are disrupted by publicity. Finally, a consent-based approach to UAS regulation might consider whether and how UAS operators might be required to get consent or provide notice in advance of filming.

Drones_UAVs

All images CC licensed. Credits: (1) U.S. Customs and Border Protection/Gerald Nino (2) Flickr user VilleHoo (3) U.S. Navy (4) Flickr user gott.maurer (5) Wikipedia user Frankhöffner

Other UAS Flights and Constitutional Questions

The FAA already has implemented some of these regulatory approaches, such as regulation of operators and devices, by mandating certification requirements for commercial and non-commercial UAS operations. Commercial UAS operations are “limited,” according to the FAA. (So limited, in fact, that in a FAQ the agency says that currently “there are no means to obtain an authorization for commercial UAS operations in the [national airspace],” though, as discussed in the next paragraph, that doesn’t actually seem to be the case.) For commercial flights, the FAA requires a certified aircraft in addition to FAA approval; civilian operators must obtain a Special Airworthiness Certificate, and government operators must obtain a Certificate of Waiver or Authorization. The issue of FAA approval and certification for non-commercial aircraft is in flux (more on that below), but according to the agency, flying model aircraft for recreational purposes does not require approval. However, the FAA has challenged a recent NTSB ruling on whether UAS are model aircraft and the extent to which the agency has the authority to regulate model aircraft – and therefore, possibly UAS – under its existing regulations.

Additionally (and as previously mentioned), in late September, the FAA granted an exemption to six aerial photo and video production companies allowing them to operate UAS. The exemption is notable because it is the first time the FAA has approved a UAS operator without requiring an FAA certificate of airworthiness. The agency said its review of the production companies’ requests found their flights will not “pose a threat to national airspace users or national security.” While the FAA has imposed limits on the production companies’ UAS flights – including when and where the UAS can fly and a requirement to keep the UAS in line of sight – the exemption prompted criticism. Technology law scholar Margot Kaminski said the exemption suggests that the the FAA might be “playing favorites.” Regulation of UAS capable of recording audio, video, and photography raises First Amendment concerns. By exempting a select group, Kaminski argued, the FAA could have (inadvertently or not) violated a core First Amendment principle: that certain groups (in this case, production companies and filmmakers) are not granted “special rights” not extended to the general public. Kaminski also pointed out that the exemption prompts questions about the consequence of FAA licensing on news- and information-gathering.

A recent amicus brief filed by a coalition of free-press and news organizations similarly criticized the FAA’s regulatory approach to UAS, which has all but grounded civilian drones. This approach, they argued, is “overly broad,” the result of an ad-hoc and patchwork effort to regulate UAS, and has had “an impermissible chilling effect on the First Amendment newsgathering rights of journalists.” The coalition expressed concern that the FAA has not given due consideration to the First Amendment issues raised by UAS. The coalition went on to explain that the FAA has justified its existing regulations and threats of fines for newsgatherers using UAS by classifying these operators as serving a “business purposes,” but the amici disagree with that classification. They argued that the FAA’s stance “rests on a fundamental misunderstanding about journalism. News gathering is not a ‘business purpose': It is a First Amendment right.”

What’s Next for UAS

What’s next for drones in the national airspace? A recent decision from the National Transportation Security Board dealt a blow to the FAA’s efforts to regulate non-commercial model aircraft, a category which the FAA contends includes UAS. In March, an administrative law judge with the NTSB held that the FAA had no valid enforcement measures or rules applicable to model aircraft, which in this case was a drone. The drone belonged to filmmaker Raphael Pirker, who was fined $10,000 by the FAA after he used his UAS to shoot video. The FAA has said it will appeal the decision, leaving open to debate some major questions about the FAA’s current regulatory authority with respect to UAS.

While the FAA appeals the Pirker decision, it also is battling itself. A July 2014 audit from the Inspector General found that the FAA is “significantly behind schedule” for integration of UAS into the national airspace. The audit report – bleakly titled “FAA Faces Significant Barriers to Safely Integrate Unmanned Aircraft Systems into the National Airspace System” – lays out in detail the FAA’s failures to meet deadlines. The audit found that the FAA had completed 9 of 17 provisions set out in the Modernization and Reform Act of 2012, but had missed the statutory deadlines for “most” of the provisions. In addition to already-missed deadlines, it looks like there may be more in the future. The audit found the FAA was behind schedule for implementation of the remaining provisions, and that will almost certainly prevent the agency from meeting the Sept. 30, 2015, deadline for UAS integration set forth in the Modernization and Reform Act. The delays are due to “unresolved technological, regulatory, and privacy issues,” none of which are likely to be settled easily or quickly. Suffice it to say that the FAA seems to have encountered a bit of turbulence on its way to integrating UAS into the national airspace.

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My EPIC Summer

In a humble office above a Dupont Circle bagel shop in Washington, D.C., a very small army of dedicated attorneys fights to protect your digital privacy. They vigilantly watch the watchers, among them the actual U.S. Army with its “surveillance blimps.” They comb through public records to expose secret surveillance. They use their expertise to champion privacy at every level of the courts. They educate the public and government officials about the many threats to privacy and civil liberties created by government and private data collection. They are EPIC. In its twenty years of existence, the Electronic Privacy Information Center (EPIC) has been privacy’s best advocate since Justices Warren and Brandeis defined the right to privacy in 1890. During the summer of 2014, I got to join EPIC as an Internet Public Interest Opportunities Program (IPIOP) Clerk.

During my first week at EPIC, I met Edward Snowden’s parents. They were accepting EPIC’s annual Champions of Freedom award on Snowden’s behalf. During a celebratory dinner, some of the foremost privacy scholars spoke about EPIC’s vital contributions to privacy and civil liberties. I knew I had come to a special place.

IPIOP is designed to educate and train law students in the practice of public interest privacy law. Aside from working on exciting cases, we had weekly training sessions on aspects of privacy advocacy: amicus briefs, comments on agency rulemakings, the Freedom of Information Act (FOIA), etc. This combination of work and training not only deepened my knowledge of privacy law but also gave me insight into how to use litigation, FOIA, administrative remedies, and other tools to protect privacy and civil liberties in the digital world. Different privacy problems call for different remedies, and throughout the summer I learned to identify those channels for relief. For example, the Federal Trade Commission’s authority to prevent unfair and deceptive trade practices has become a relatively promising (if sometimes disappointing) avenue for protecting consumers’ privacy against commercial data collection. When we learned that Facebook had disclosed users’ data for psychological research, I helped EPIC file an FTC complaint claiming that the practice was unfair and deceptive.

I also learned how to use FOIA to uncover hidden details about government surveillance and data collection. I filed (and appealed) a FOIA request to find out more information about the FBI’s Next Generation Identification (NGI) program, which is currently being implemented by state and local law enforcement agencies. The program outfits law enforcement with facial recognition, iris scanning, and other technologies to identify individuals using a large biometric database compiled by the FBI. I asked for information about the use of mobile biometric applications—cell phone apps that officers can use in the field to identify individuals based on their faces, irises, fingerprints, etc.—in connection with NGI.

Of course, the courts are an important forum for privacy law. EPIC uses its privacy expertise to file amicus briefs in cases that can use its help. I was able to propose and help draft EPIC’s amicus brief in Smith v. Obama, a Ninth Circuit appeal challenging the NSA’s collection of phone records. This was a fun extension of my work at the Electronic Frontier Foundation, where I also worked on a phone records collection case.

When it comes to digital data, individuals cannot fully protect their own privacy, in part because data collection practices are not transparent. Advocacy organizations like EPIC perform the necessary functions of uncovering and pushing back against these surreptitious, overreaching, and often illegal practices. My IPIOP clerkship was a unique opportunity to learn not only the substantive law of privacy but also the processes through which public interest groups accomplish their goals.

Natasha Duarte is a dual-degree student and Roy H. Park Fellow in the J.D./M.A. program in the Schools of Law and Journalism. Her areas of interest are technology law and digital civil liberties, particularly privacy and free speech issues.

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A UNC Student’s Summer Experience at the Reporters Committee for Freedom of the Press

reporterlogoThis summer, I worked as a legal intern at the Reporters Committee for Freedom of the Press, a leading organization that advocates on behalf of journalists’ First Amendment rights. My experience there was, to say the least, outstanding.

I had the opportunity to work on a wide range of First Amendment issues. I helped craft amicus briefs; performed legal research on important issues like net neutrality, freedom of information laws, and the issuance of subpoenas to journalists; and wrote stories for the Reporters Committee’s website and news magazine. Most importantly, the internship enabled me to apply the knowledge I learned in the classroom to real-life settings. My experiences at the Reporters Committee will make me a better law student and, when I begin practicing, lawyer.

In addition to my legal work, the Reporters Committee arranged for me to visit numerous historic sites in Washington, D.C. I visited the White House, Supreme Court, and Capitol Building.

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I also had the opportunity to tour the Washington Post and visit the garage where Bob Woodward met with Deep Throat, the source Woodward received confidential information from regarding the Watergate investigation.

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The Reporters Committee for Freedom of the Press has been in existence for more than 40 years. And for all those years, the Reporters Committee has played an instrumental role in protecting journalists’ First Amendment rights. I am proud to have been part of the organization. I would strongly recommend the internship to any Carolina law student interested in media law.

Kevin Delaney is a 3L at the University of North Carolina School of Law and a third-year master’s student at the UNC School of Journalism and Mass Communication. Continue Reading →

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UNC Celebrated Its Sixth Annual First Amendment Day Event

The University of North Carolina at Chapel Hill celebrated its sixth annual First Amendment Day on Tuesday, Sept. 23, 2014. This campus-wide, daylong event celebrated the First Amendment and explored its role in the lives of Carolina students.

University community members read from banned books, a cappella groups sung controversial music, and many people participated in panels to discuss the importance of the First Amendment.

Click on the story ‘First Amendment and First Freedoms’ to read more about the different events that students enjoyed on First Amendment Day or visit the webpage.
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First Amendment Day is organized by the UNC Center for Media Law and Policy. The UNC Center for Media Law and Policy is a collaboration between the School of Journalism and Mass Communication and the School of Law.

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