FAA, Drone Photojournalism, And The First Amendment Made A Difference At DAPL

— UPDATED: 12/14/16 9:35am
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“Our Native drone pilots are out there showing to the world what we're witnessing - which is the desecration from the Dakota Access Pipeline”
-- Myron Dewey, Digital Smoke Signals

UPDATE: 12/14: Yesterday the FAA lifted this TFR.

Without this drone technology, we wouldn’t be where we’re at with this battle against the Dakota Access pipeline. Drones are very beneficial — they’re our eagle eyes in the sky.”
– Dean Dedman Jr./Dr0ne2bwild

Drone photojournalist. That's a new term describing photojournalists who cover news events using small drones. The potential to cover news events with these amazing new – and affordable – machines has the potential to revolutionize journalism by opening up new avenues for coverage to individuals and organizations that previously did not have the means to either own or hire a helicopter or small plane.

Despite this new potential there is one organization that has the ability to thwart this kind of coverage – the Federal Aviation Administration (FAA). Charged by the federal government to regulate the national airspace for safety and efficiency of shared use, the FAA is the lone authority regulating the national airspace.

With the new so-called Part 107 rules for commercial drone pilots released in August the FAA opened up the skies – with significant restrictions – to drone photojournalists. Licensed Part 107 pilots are not allowed to fly in controlled airspace, cannot exceed a height of 400 feet above ground level (AGL), cannot fly over people, over traffic, at night, or beyond what is called Visual Line of Sight (VLOS). Other rules – such as giving way to manned operations, or not operating in a reckless manner were also understandably instituted. Some of these rules may be obviated under certain conditions with an approved waiver from the FAA.

The TFR over Cannon Ball, ND
The problem for drone photojournalists is that these very sensible rules can be undermined by a tactic that law enforcement is increasing using to prevent aerial coverage of their operations – the Temporary Flight Restriction (TFR). A TFR is a cutout from spaces where drone pilots – and manned air traffic - would otherwise be allowed to fly – ostensibly in the service of air safety. Drone pilots are not allowed to fly in a TFR zone without a waiver from the FAA.


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In October after there were violent interactions between the Water Protectors and law enforcement at the Dakota Access Pipeline (DAPL) site near the Missouri River – interactions that were filmed by drone pilots at the scene – law enforcement requested and received a 4 nautical mile radius (NMR) TFR that covered all the important areas surrounding the protest, including the bridge where the conflict occurred, the pad where drilling would take place to install the pipeline under the Missouri River, and the site where protestors had setup camp. The TFR strictly limited flying rights only to law enforcement operations – and covered areas well beyond any newsworthy sites. Since late October this TFR has been nearly continuously renewed, and is in effect to this very day.

The question is WHY this TFR was granted by the FAA. Law enforcement argued that the TFR was necessary to protect the airspace where they were – and are – conducting nearly continuous air monitoring operations. Law enforcement also argued that drone pilots were operating in an unsafe manner that threatened one of their helicopters, although the drone operators told me that they in no way interfered with the helicopters, and that they gave way to manned operations.

So was this TFR instituted to protect air safety, or was it put in place to prevent news coverage of law enforcement operation? Logic points to the second option – this TFR seems to have been instituted to prevent legitimate news coverage of law enforcement – which is a clear violation of the First Amendment – and if true an abuse of FAA powers granted to ensure the safe use of national airspace.

Existing Part 107 regulations easily cover any unsafe use of airspace, as described above. Furthermore, the area of the TFR covers a virtually uninhabited area just north of Cannon Ball, North Dakota. As to whether drone pilots were operating in a way that threatened law enforcement air operations, none of the operators damaged any property or harmed any persons. The only real threat to safety came from law enforcement itself, which shot down eight drones.

My drone - a DJI Phantom 4

If the FAA is clear about any of its regulations it is that drones are aircraft – period. Shooting at or downing an aircraft is a felony. There is no exception under 18 USC 32 that permits the shooting down of any aircraft by anyone under any circumstances. Ammunition fired in the air at a drone could easily injure a person on the ground, and in the event a drone was disabled in midair it could easily have come down into a crowd, thus injuring people on the ground. The FAA has said it is investigating the drone operators said to have threatened a law enforcement helicopter, but hasn't said whether it is investigating the shooting down of drones by law enforcement.

Forbes aviation writer John Goglia, a former FAA board member, told me the FAA is not supposed to automatically grant law enforcement TFRs just because they ask – but that is what they almost always do.

Goglia questioned the issuance of the TFR over DAPL in Forbes magazine in late November (Flight Restrictions Over Standing Rock: Is The FAA Effectively Taking Sides In Pipeline Dispute?). In a response to Goglia's article, the FAA wrote:

The TFR includes provisions for media to operate aircraft – both traditional and unmanned – inside the TFR, provided that operators comply with the language of the Notice to Airmen. In the case of unmanned aircraft, operators must also comply with the requirements of Part 107 and coordinate beforehand with the FAA. We’ve had no requests from media who meet those requirements.

Given the FAA's statement I decided to try to get a waiver. I first called the FAA in Washington, who referred me to the Fargo Flight Standards District Office (FSDO) who then referred me to the North Dakota Tactical Office, which was in charge at the pipeline scene and apparently the office that had requested the TFR.

The person who answered the phone at North Dakota Tactical on my first try refused to give me his name, but said they would accommodate my request. The next day I called again after no one returned my call, and I spoke to a different person, Rob O. Keller, spokesman for the Morton County Sheriff's Office, who informed me that drone operators would never be given permission to fly in the TFR. I asked for that in writing and received the following response:

Mr. Levin (sic),
Your request for drone operation in the Cannonball TFR is denied based on the bold area below. The Tactical Operations Center has reiterated that no drones will be allowed in the airspace referred below.

You are more than welcome to contact the Fargo FFA (sic) for clarification.

Rob Keller

Now beyond the fact that my name is Levine – not Levin – and that to the best of my knowledge the FFA is the Future Farmers of America – this statement directly conflicted with what the FAA had told Forbes.

The bolded area Keller referred to was the part of the Notam (Notice to Airmen) announcing the TFR that only law enforcement would be allowed to fly in the TFR:

ONLY RESPONSE ACFT IN SUPPORT OF THE LAW ENFORCEMENT ACTIVITY UNDER THE DIRECTION OF THE NORTH DAKOTA TACTICAL OPERATION CENTER AND ACFT APPROVED BY ATC IN COORDINATION WITH THE DOMESTIC EVENTS NETWORK ARE AUTHORIZED IN THE AIRSPACE.

Given ND Tactical's denial to fly I returned again to the FAA, and after a few days was given permission to fly in the TFR within a .5 NMR of a point of my choosing. The TFR itself specified a 4 NMR, so I was given permission to fly in only a very small part of the zone. I had requested permission to fly in the entire TFR zone. Nevertheless, as far as I know this was the first waiver issued to a drone pilot to fly within the TFR to news media (other waivers may have been issued concurrently or subsequently).

The problem was that the areas that are newsworthy in the zone cannot be covered even with a judiciously placed center point for a .5 NMR. I had originally requested permission to fly anywhere in the TFR zone, but was informed by the FAA that the smaller area is all that I would be allowed. With my limited knowledge of the area I chose a point that covered the camp, but not the confliction zone over the Backwater bridge or the drill pad. By imposing such a small waiver area the FAA had effectively prohibited me from covering newsworthy areas.

Map of DAPL area near Missouri River

I subsequently asked the FAA why I had only been given such a small space and they answered that it was necessary to deconflict with manned traffic. This is a less-than-believable response – given that Part 107 rules are more than sufficient for that purpose, and that I was required by the waiver to notify ND Tactical before any flight, and VLOS rules make it impossible to fly more than ¾ of a mile or so anyways. So even if I had been allowed to fly in the entire TFR zone law enforcement would have easily known where I was flying within a relatively confined area.

TFR zone and waiver area

The FAA had earlier been caught granting a TFR to law enforcement with the hidden purpose of preventing news coverage. In 2014 during the protests over the killing of Michael Brown by a police officer in Ferguson Missouri, law enforcement sought and received a TFR that covered 37 square miles of airspace under which protests of the event were occurring. The Associated Press received recordings of phone conversations between law enforcement and the FAA which showed that, according to AP, “...police privately acknowledged the purpose was to keep away news helicopters during violent street protests” (emphasis added) :

The recordings show FAA officials seeking police agreement the next morning to change the designation of the restricted area to allow air traffic into Lambert and then struggling with the wording of the no-fly order in an effort to prevent media from entering of the restricted area..

And from the recordings:

Manager at the FAA's Kansas City Center, one of 22 regional air traffic control facilities across the country: "OK, so they wanna know if we can change (the temporary flight restriction) to an A2 … that still will keep … it allow them to run the aircraft on final there at Saint Louis, it will still keep news people out. … St. Louis has class bravo airspace, so they … the only way people will get in there is if they (air traffic controllers) give them permission (to be) in there anyway so … with the A2, it still keeps all of them out.
St. Louis County police captain: "Yeah … I have no problem with that whatsoever."

Manager: "I was talking to Jim, the FLM (front-line manager) in the tower, and I was talking to Chris at St. Louis County Police. The commander at St. Louis County wanted 3 (nautical) miles and 8,000 feet and I talked him down to 3 and 5. They finally admitted it really was to keep the media out … but they were a little concerned of, obviously, anything else that could be going on."

Manager, later in the same conversation: "I'd like you to talk to the tower and get the coordination going again with the police department. They did not care if you ran commercial traffic through this TFR (temporary flight restriction) all day long. They didn't want media in there. … There's no option for a TFR that says, you know, 'OK, everybody but the media is OK.'"

FAA employee: "Right, right … And that's how we're interpreting this. We, we know what the intent is, but the way the thing comes out, it doesn't read like that at all."

Writing at the Drone Law Journal, Peter Sachs, a drone activist, thinks the TFR over Cannon Ball, North Dakota is clearly intended to also prevent media coverage:

It does not take a degree in rocket science to realize the effect of the TFR is that it blocks any documentation of the protest from the sky. Whether that is also the reason it was requested and granted is a matter of opinion, of course. In this writer’s opinion that is unquestionably the reason.

And that it is law enforcement – not drone pilots – who are the real hazard at Standing Rock:

… law enforcement is shooting drones out of the sky — eight of them as of this writing. Aside from being a federal felony, shooting drones (which are “aircraft”), from the sky most certainly presents a hazard to persons or property on the surface because of a universally-recognized law — gravity. However, that particular hazard, created solely by law enforcement, could be easily eliminated if they simply stopped shooting down drones. Law enforcement at Standing Rock is also flying aircraft, (displaying altered registration numbers in violation of federal criminal law), at extremely low and unsafe altitudes over those protesting against the pipeline, arguably in violation of FAR 91.13, which prohibits careless and reckless flight.

Then there is a final, seldom discussed issue at play at Standing Rock: Native American tribes in the US have claimed sovereignty over airspace that sits above their lands. The FAA does not agree with this analysis, although it's never really been litigated in a courtroom. Domestic property rights already apply to airspace over privately owned US land, although that right is generally limited to restrictions on airspace activity that diminishes the right of a property owner to exercise rights relative to their land itself.

For example, if your neighbor builds an airstrip next to your property and you are inundated with low flying aircraft over your land that limits your ability to use that land you may have a case before the law, although the precedents to you exercising that right are mixed.

Nevertheless Native drone pilots at the DAPL protest site insisted they had tribal rights to fly there. As Myron Dewey, proprietor at Digital Smoke Signals, a Native American media company, and one of the prime drone pilots at the site told me, “We do not recognize the FAA's right to regulate our flights here.” Whether the FAA intends to challenge that assertion is an open question. To date it has taken no actions against Dewey or his fellow pilots. The FAA's assertions aside, issues about tribal sovereignty over their airspace are anything but settled.

No one disputes that the FAA has done a good job of making US airspace some of the safest in the world – and they should be congratulated for that. No one is suggesting that it open up airspace to drones in a way that would change that reality. The new Part 107 rules for drones are a good start for allowing sensible shared used of that airspace between manned and unmanned systems.

But it must be said that no air operations are ever 100% safe – things go wrong and accidents do happen. The real question is where those lines are drawn. There are competing interests in the use of airspace, and it appears that unfortunately the FAA has drawn lines that go beyond just safety and into the world of preventing journalists from covering legitimate news, as noted above. And the more the FAA appears to be catering to the interests of law enforcement – and hiding that service behind a chimera of “safety” - the less people will be willing to trust the agency when it really is safety at stake.

Beyond that there is a real public interest in journalism, especially when it is covering the use of violence under the color of law. That is one of the reasons we have a First Amendment. The case of the FAA collaborating with law enforcement at Ferguson in a way specifically designed to prevent news coverage is egregious, and it would be illogical to think of this as a one-off, especially since the agency still denies this was the case, despite the recorded evidence.

In this context granting Temporary Flight Restrictions to the Morton County Sheriff's Office in North Dakota seems ill advised. Morton County law enforcement claiming they were threatened by a three and half pound drone when they are armed to the teeth would be comical if not for the real-world consequences. The facts that no one has been injured or even close to being injured by a drone at the site while law enforcement illegally and dangerously shoots them down shows just how off base this TFR is. Safe airspace is a high value, but so is journalism. If the FAA is to place restrictions on drones as requested by law enforcement they should have to prove that those restrictions are necessary for safety reasons, not to prevent news coverage.

Either way the FAA has now set a precedent by allowing at least one journalist to fly within a law enforcement requested TFR, and it will be difficult if not impossible in the future to bar either mainstream media or freelance journalists from doing drone journalism within a newsworthy TFR. And that's a good thing.

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