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Tyler Brennan v. Stephen Dickson
Citation: Not availableDocket: 21-1087
Court: Court of Appeals for the D.C. Circuit; July 29, 2022; Federal Appellate Court
Original Court Document: View Document
The United States Court of Appeals for the District of Columbia Circuit heard the case of Tyler Brennan and RaceDayQuads LLC against Stephen Dickson and the Federal Aviation Administration (FAA). The petitioners challenged the FAA's Remote Identification (Remote ID) Rule, which was developed in response to congressional mandates aimed at enhancing airspace safety and security. This legislation required the FAA to create standards for identifying operators and owners of drones. The Remote ID Rule mandates that drones in flight emit publicly readable radio signals containing identifying information, akin to a digital license plate. This information includes the drone's serial number, location, and performance data, which can be accessed by smartphones and other devices by the public and relevant authorities. Unlike traditional vehicle license plates, Remote ID is detectable only while the drone is flying and can be received by individuals within range of the radio signals. The FAA possesses nonpublic personally identifiable information from drone owners obtained through registration, which is protected under the Privacy Act. Remote ID data can only be matched with this private information for FAA enforcement purposes and is subject to legal protections. The Rule does not allow access to this personal information by private or public entities nor does it permit the storage of Remote ID data for future searches. Petitioners Tyler Brennan and RaceDayQuads seek to vacate the FAA's Remote ID Rule, claiming it constitutes constant, warrantless surveillance that violates the Fourth Amendment. Brennan argues that the requirement for drones to transmit their location and the operator's identity while airborne infringes on privacy rights. However, the court finds that, since drones are typically flown in public, there is no reasonable expectation of privacy violated by this rule. Brennan further speculates that law enforcement might abuse Remote ID for surveillance, but he fails to demonstrate any actual or imminent harm from such use, precluding a viable as-applied challenge. Brennan also alleges procedural errors in the rule's development, such as ex parte communications that he believes influenced the outcome. The court counters that these communications did not materially affect the rulemaking process, and the FAA adequately provided opportunities for public comment. The Final Rule's provisions for altitude measurement and retrofitting drones logically followed the Proposed Rule, which had already been subject to public feedback. The FAA complied with its statutory obligations by consulting relevant organizations and addressing approximately 53,000 public comments, fulfilling its requirements under the Administrative Procedure Act. Consequently, the petition to vacate the Rule is denied. The Remote ID Rule was established in response to the explosion of drone usage, evidenced by over 865,000 registered drones, with a significant portion for recreational purposes. Drones are increasingly utilized across various sectors, including commercial applications, healthcare logistics, emergency response, and other innovative uses, raising challenges for their integration into U.S. airspace. Congestion in airspace significantly heightens the risk of drone collisions, particularly with low-flying aircraft such as helicopters and agricultural planes, as well as during takeoff and landing at airports and heliports. The U.S. air traffic control system relies on ongoing communication between traffic controllers and pilots, a system that drones cannot participate in due to their lack of onboard operators and inability to connect with FAA control towers. This absence of Remote ID forces pilots to depend on visual observation to avoid drones, leaving manned aircraft without electronic tracking of drones nearby. Drones are capable of flying at night, over populated areas, and beyond the operator’s visual range, which raises concerns about collisions, injuries to people, and unauthorized access to restricted areas. Safety issues are exacerbated when unidentified drones fly over sensitive locations, such as airports and public venues, which can lead to significant disruptions and potential damage. Identifying drones in flight is challenging; past regulations mandated visible registration numbers, but these are often not discernible from a distance, complicating visual identification. This difficulty increases the likelihood of reckless behavior by drone operators, who may exploit anonymity for unsafe operations. In 2019, the FAA received numerous reports of unauthorized drone activities, which highlighted the potential for drones to be used in illegal actions, including drug smuggling, privacy invasions, surveillance, and terrorist attacks. Notable incidents involving drones in violent attacks have been reported, demonstrating their potential for misuse. In response to these challenges, Congress has enacted laws to facilitate a safe transition to the integration of drones into U.S. airspace, defining "unmanned aircraft" as those operated without direct human control onboard and including the necessary communication systems for safe operation. The United States Government holds exclusive sovereignty over its airspace, with the Federal Aviation Administration (FAA) tasked by Congress to develop policies for its use, ensure aircraft safety, and regulate navigable airspace, which includes areas above minimum flight altitudes necessary for safe aircraft operation. The FAA is responsible for creating air traffic regulations to protect aircraft and individuals on the ground, promote efficient airspace use, and prevent collisions. In response to the rising use of drones, Congress mandated the FAA to establish drone test sites in 2011 and regulate small civil drones in 2012, leading to the issuance of regulations for unmanned aircraft in 2016. Initially, model aircraft were exempt from regulation, but increasing drone activity prompted further legislative action. The FAA Extension Act of 2016 required the FAA to develop remote identification capabilities for drones, with a reporting mandate to Congress. The FAA Reauthorization Act of 2018 further narrowed exemptions for hobbyist drones, imposing similar regulatory requirements as those for other unmanned aircraft. In January 2021, the FAA implemented the Remote ID Rule, establishing a requirement for drones to have remote identification capabilities to enhance airspace awareness for regulatory compliance and national security. The FAA aims to enhance safety and security in U.S. airspace amid rising drone usage by implementing the Remote ID Rule, which is designed to differentiate compliant drone operators from those posing risks. This initiative is expected to improve situational awareness for airport operators and nearby aircraft, allowing for safer integration of drone operations with manned flights. The FAA anticipates that near-real-time Remote ID will bolster threat assessments and discourage unsafe drone activities, thereby promoting overall safety for airspace users and individuals on the ground. The Remote ID Rule, resulting from extensive public input (approximately 53,000 comments), mandates that nonmilitary drones over 0.55 pounds, registered with the FAA, must transmit identifying information during flight, effective September 16, 2023. Drones must utilize unlicensed, publicly accessible radio frequencies, and operators are prohibited from disabling Remote ID functions. In case of Remote ID failure, operators must land their drones promptly. The signal must be broadcasted continuously from takeoff to shutdown, except when the drone is entirely indoors or in enclosed spaces. The broadcasts can be received by the FAA and nearby individuals with appropriate equipment, but the FAA does not plan to routinely collect or retain this broadcast information. Drones are categorized based on their Remote ID capabilities: Standard Remote ID drones must emit signals directly during flight; Broadcast Module drones, retrofitted to comply, can only be operated within the pilot's line of sight; and Unidentified drones without Remote ID can only fly within designated FAA-recognized identification areas, which community organizations and educational institutions may apply for. A Standard Remote ID drone must continuously transmit specific information during flight, including its unique identification number, geographic coordinates, altitude, velocity, the location of its control station, a time mark, and any emergency status indicators (such as downed aircraft or low battery). Drones equipped with a Retrofitted Broadcast Module are required to share a similar set of data but only need to identify their takeoff location, without the necessity of providing the control station's location or emergency status. The unique identification number corresponds to the drone's serial number, which must be registered with the FAA alongside the owner's contact details, ensuring accountability. This registration information is not publicly accessible; only authorized FAA personnel and law enforcement acting in official capacities can access it. While the Rule mentions potential future uses of Remote ID data by law enforcement, it does not clarify the conditions under which this access would be granted. Tyler Brennan, an Air Force pilot and owner of RaceDayQuads, challenges the Final Rule, claiming that the location tracking required violates the Fourth Amendment by infringing on privacy rights, constituting a warrantless search. He asserts that the Rule is arbitrary and capricious for four reasons: reliance on ex parte communications not part of the public record, elements of the Final Rule not logically following from the Proposed Rule, failure to consult required entities during the rulemaking process, and neglecting to address significant public comments. Brennan’s petition for review is timely, and jurisdiction for the review is granted under 49 U.S.C. § 46110(a). Congress has empowered the Federal Aviation Administration (FAA) to oversee public airspace in the U.S., ensuring safety and efficiency for government, commercial, and private aviation, including drone operations. The Remote ID Rule, developed at Congress's request, mandates that drone pilots provide information about their location to enhance airspace awareness and accountability, paralleling the responsibilities of traditional pilots. Brennan's challenge to the Remote ID Rule, claiming it violates the Fourth Amendment by infringing on his reasonable expectation of privacy, lacks merit. He argues that flying a drone represents an intrusion similar to law enforcement's electronic searches, referencing Supreme Court cases. Brennan contends the Rule allows for intrusive government tracking without a warrant, undermining privacy rights, particularly regarding the home and surrounding areas where drones may operate discreetly. The FAA counters that the Remote ID Rule does not encroach on reasonable privacy expectations, as aviation is heavily regulated, and the Rule applies exclusively to outdoor drone flights. The FAA asserts that identifying the location of drones and their pilots does not constitute a Fourth Amendment search, maintaining that the visibility of drones in public airspace diminishes any asserted privacy interest. The FAA argues that even if the Remote ID Rule raises constitutional privacy concerns, the searches it allows are exempt from the Fourth Amendment's warrant requirement, referencing case law supporting special and administrative searches. Brennan's challenge to the Rule is a facial validity claim, which requires him to prove that there are no circumstances under which the Rule could be valid. Identifying potential unlawful applications is insufficient; Brennan must demonstrate a complete lack of valid scenarios. The FAA asserts that drone pilots generally do not have a reasonable expectation of privacy regarding the location of their drones during flight, as drones are visible in the sky and outdoor activities typically lack privacy expectations. The Fourth Amendment does not protect activities conducted in open fields or visible from public areas, and the FAA maintains that the Remote ID Rule does not apply to indoor flights or those in private enclosures. The absence of evidence showing that drones are often operated from private spaces not visible to others further supports the FAA's position that the Rule is not facially invalid. Government surveillance of public conduct may sometimes conflict with the Fourth Amendment; however, the Remote ID Rule does not permit such intrusive practices. This is supported by three main points. First, the Rule mandates the installation of Remote ID broadcast modules on drones, rather than monitoring by law enforcement. As of September 2022, existing drone owners must retrofit their equipment, while new commercial drones must include Remote ID. The act of equipping drones with Remote ID does not inherently constitute a Fourth Amendment violation, as it only creates the potential for privacy invasion, not an actual search. The advancements in technology themselves do not implicate the Fourth Amendment; rather, it is their misuse that does. Second, the nature of drone operations under the Rule—brief and local—differs significantly from extensive electronic surveillance. The FAA notes that recreational drone pilots typically fly about seven times a month, averaging 94 minutes of flight time, and the Remote ID communication occurs only from takeoff to shutdown. This limited scope aligns with societal expectations of privacy in public spaces, as short-term monitoring is generally deemed reasonable. Lastly, the Remote ID requirement does not offer detailed insights into a person's life, unlike cell phone tracking, which provides comprehensive data on movements. The Rule’s local and real-time tracking contrasts sharply with the continuous surveillance recognized as invasive in cases like Carpenter and Jones, where the government engaged in prolonged tracking that revealed extensive personal information. The Remote ID system lacks the capacity to provide such detailed surveillance or to connect an individual to specific criminal activities, thereby not infringing on reasonable expectations of privacy. The drone system's real-time location data is neutral regarding the qualitative nature of the location and the operator's connection to it. Brennan does not provide specific evidence that Remote ID messaging could lead to privacy infringements or Fourth Amendment violations, despite expressing general concerns about electronic surveillance. It is unlikely that the FAA or other government entities will exploit the Rule for extensive surveillance, as Remote ID messages are only detectable within approximately a one-mile radius and are not aggregated or stored for law enforcement use. The Final Rule eliminated prior provisions for internet-based logging of Remote ID data. The FAA retains limited access to personally identifiable information, which does not include details like the pilot's or owner's identity, but rather provides a unique drone identification number, location data, and operational status. The Rule allows the FAA to correlate the drone's serial number with registration information solely for safety and security purposes, and it ensures that such personal data is protected under the Privacy Act. Any law enforcement use of Remote ID data is subject to constitutional and legal restrictions, and the Rule does not permit access to personal information without FAA involvement. The FAA clarified that its Rule does not address the use of remote identification data by law enforcement or its correlation with other law enforcement data. Modifications to the recordkeeping system protecting personally identifiable information under the Privacy Act are necessary before law enforcement can access registration information for purposes beyond aviation safety. Any updates to the System of Records must be published for public comment as mandated by the Privacy Act. The Rule does not substantiate claims that it infringes upon drone pilots' privacy rights. Although there is potential for government data collection to violate privacy interests, Brennan has not demonstrated that such collection violates the Fourth Amendment in all scenarios related to drone operation. The court found that Brennan's facial challenge to the Fourth Amendment lacks merit, as the Remote ID Rule does not compel warrantless intrusion into privacy rights. The court refrains from addressing alternative government defenses or the viability of as-applied Fourth Amendment challenges. Brennan has not shown that the feared privacy breaches, such as constant tracking or home invasions, are imminent or have occurred. The Rule only authorizes certain applications, which are speculative and do not meet the standing requirement for a challenge. Declaratory relief is not warranted due to the lack of immediate threat or crystallized facts concerning potential unlawful government actions. The Remote ID Rule does not pose an immediate threat of continuous law enforcement monitoring or privacy intrusions, as Brennan failed to prove that it authorizes warrantless searches that violate Fourth Amendment rights. His constitutional claim is therefore rejected. Brennan also argues that the Rule is arbitrary and capricious, but his challenges do not succeed. He alleges that the FAA engaged in undisclosed ex parte communications while developing the Rule, including consulting an industry group and demonstrating capabilities to observers, which he claims should necessitate a new notice for public comment. However, the APA does not prohibit ex parte communications unless they materially influence the final action taken. Brennan has not demonstrated that any such influence occurred or that he suffered harm as a result. The Cohort's advice was contrary to Brennan's position and did not impact the Final Rule's provisions, which primarily involved internet-based communication for monitoring drone flights. Thus, Brennan's assertions regarding the FAA's process lack substantiation under APA standards for public engagement in rulemaking. The FAA determined that a real-time remote identification system for drones would be adequately supported using local radio bandwidth, leading to the decision to withdraw the requirement for internet-based Remote ID and the FAA's access to information collected by Service Suppliers. Brennan raised concerns about the lack of public record regarding FAA meetings with a Cohort, which he argues hindered public commentary. However, the FAA received extensive public feedback on the internet-based proposal and found no significant impact from the Cohort's input on the Final Rule. The FAA justified its preference for a radio-broadcast system over internet reliance due to challenges such as the necessity of Wi-Fi or cellular coverage, associated costs, and security vulnerabilities, including risks of cyberattacks. The agency concluded that a broadcast-only solution sufficiently meets current regulatory needs for safety and security in U.S. airspace. Brennan's assertion that the Cohort influenced the Final Rule is countered by the FAA’s established ground rules for Cohort meetings, which restricted discussions on the Proposed Rule. While the Final Rule referenced issues identified by the Cohort, the FAA maintained that its conclusions were based on independent evidence and widespread public comments. Brennan's claims of improper ex parte communications are also deemed unfounded. The FAA’s collaboration with NASA on drone traffic control is a separate initiative from the Remote ID Rule, which mandates remote identification for drones and pilots. This requirement arose from the 2016 FAA Extension Act, which also directed the FAA to continue research on unmanned aircraft system traffic management alongside NASA. The traffic management study's first phase concluded in October 2019, after the Proposed Rule's comment period, while the second phase, mandated by the 2018 FAA Reauthorization Act, tested traffic management systems for drones identified under the Final Rule. Brennan claims that the FAA’s demonstration at the FBI Academy, intended to showcase drone operation detection below 400 feet, exhibited improper ex parte influence, as he contends the public was not given adequate notice or a chance to comment on this demonstration. However, he does not establish how this demonstration affected the Final Rule, which does not authorize data storage or use by non-aviation law enforcement, making his Fourth Amendment concerns unfounded. Brennan further argues that two requirements of the Final Rule are inconsistent with the Proposed Rule, specifically the shift from barometric to GPS measurement of drone control station altitude and the removal of the internet-based “Limited Remote Identification” option. However, the integrity of the notice and comment process was not compromised by the communications Brennan identifies, affirming the validity of the Remote ID Rule under the Administrative Procedure Act (APA). An agency's final rule must logically align with its proposed rule to satisfy the notice-and-comment requirements of the Administrative Procedure Act (APA). This prevents agencies from sidestepping these obligations by adopting unrelated final rules. Agencies must not expect the public to infer their hidden intentions if the final rule deviates significantly from the proposed rule. However, the APA does not mandate that a final rule must be identical to the last proposed rule; rather, it allows for evolution from conception to completion, provided that affected parties could have reasonably anticipated the final rule based on the notice provided. Adequate notice is established if the agency explicitly solicits comments on specific issues or indicates potential changes. In the case of the Remote ID Rule, the FAA initially proposed using barometric pressure for altitude measurement but sought public comment on the inclusion of both barometric and geometric altitude. After considering comments that favored geometric altitude for better compatibility with existing drone technologies, the FAA decided that the final rule would require only geometric altitude measurement. This change was deemed appropriate since many control stations lack barometric sensors and would find compliance with such a requirement difficult and costly. Instead, existing smart devices commonly used for controlling drones are equipped with GPS that measures geometric altitude, which is simpler to integrate. The final rule mandates that the Remote ID signal include the drone's location and its control station's altitude using geometric rather than barometric measurements. Despite objections regarding the clarity of the FAA's request for comments, it remains unclear how requiring only one altitude measurement could be considered prejudicial. The FAA has adopted a geometric altitude accuracy requirement for GPS, aligned with cellular service providers' standards under the E911 mandate, facilitating emergency service location capabilities. Brennan had the opportunity to comment on GPS accuracy during the FAA's call for feedback, which was utilized by other stakeholders. His objections regarding the inclusion of accurate GPS location data in Remote ID messaging are rooted in privacy concerns, similar to a Fourth Amendment claim, and are deemed unfounded. Furthermore, Brennan's assertion that he was unaware of the radio broadcast module option in the Final Rule is also rejected. Owners of drones unable to transmit the required Remote ID message can retrofit their devices with broadcast modules, and the FAA had previously invited public comments on this option, indicating that concerns about potential radio frequency interference could have been raised. The FAA's Final Rule is considered a logical continuation of the Proposed Rule, ensuring that Brennan was adequately informed and had the opportunity to comment. Brennan additionally argues that the FAA did not consult with the Radio Technical Commission for Aeronautics, Inc. (RTCA) and the National Institute of Standards and Technology (NIST) as mandated by Congress. He claims that this oversight undermines the FAA's rulemaking authority. However, the FAA did engage with both organizations in developing the Rule, fulfilling its statutory obligations. The RTCA provides technical guidance on aviation matters, while NIST focuses on advancing measurement standards and technology in collaboration with government and industry. The 2016 FAA Extension Act mandated the FAA Administrator, in collaboration with key stakeholders, to develop consensus standards for the remote identification of unmanned aircraft systems (UAS) and their operators. This involved assessing remote identification requirements for various UAS classifications and the potential establishment of a publicly accessible database of unmanned aircraft and their operators. The FAA was required to report to Congress within a year on the developed standards and to formulate regulations or guidance within the subsequent year. The FAA convened an Aviation Rulemaking Committee (ARC) composed of industry stakeholders, including RTCA and NIST, to provide recommendations, which were subsequently reported to Congress. Brennan argued that the ARC did not consider the idea of an "ID Area" for Remote ID compliance; however, the Act did not mandate that RTCA or NIST provide input on every aspect of the proposed rule. Under the Final Rule, unmanned aircraft without remote identification capability can only operate in designated FAA-recognized identification areas. Brennan suggested that homeowners and local parks should be allowed to apply for ID Area status, but the FAA ultimately limited eligibility to community-based organizations and educational institutions, which it justified after reviewing numerous comments on the matter. Brennan also criticized the FAA for not adequately addressing significant comments, asserting that this oversight necessitated a rule change. He pointed out deficiencies in the FAA's legal rationale, regulatory cost calculations, and consideration of drone hobbyists' concerns. The APA requires agencies to adequately consider and respond to major substantive comments, and failure to do so may lead to remand for further proceedings, ensuring fair treatment of those affected by agency rules. An effective exchange of views and information is required between interested parties and the agency, focusing on major policy issues rather than exhausting every comment. The FAA must articulate its rationale for decisions but is not obligated to respond to every comment, particularly those deemed baseless or speculative. Brennan contends that the FAA neglected to address criticisms regarding the Proposed Rule's overreach of its statutory authority relating to drone operations, claiming it extends beyond the navigable airspace regulated by the FAA. He also argues that the Rule exceeds Congress's authority under the Commerce Clause, infringes on due process rights by limiting hobbyists' access to public airspace, and violates the First Amendment by requiring association with sponsoring organizations for access to ID Areas. Additionally, he raises Fourth Amendment concerns about potential privacy intrusions. The FAA maintains that its statutory authority is clearly outlined in both the Proposed and Final Rules, asserting that Brennan's constitutional objections are largely unfounded or pertain to hypothetical future applications rather than the Rule's validity. The agency is not required to respond to comments that do not impact the final rule. The FAA addressed Brennan's Fourth Amendment concerns in its response. Regarding regulatory costs, Brennan argues that the FAA's calculations are understated by not considering higher estimates for the time and labor required for ID Area designation and drone retrofit costs. However, the FAA has responded to these cost issues, and the overall financial impact, estimated between $214 to $246 million, renders Brennan's higher estimates relatively minor. Brennan also criticizes the FAA's response to suggestions for accommodating drone hobbyists seeking more flying locations and reduced regulatory burdens. The FAA addressed the Academy of Model Aeronautics’ request to exempt model aircraft from regulatory requirements by allowing home-built drones for educational or recreational use to be exempt from design and production standards but not from operational requirements. The FAA considered comments about allowing homeowners and local governments to establish ID Areas, stating that most unmanned aircraft systems will be identifiable remotely, and operations without Remote ID in those areas would be limited to those unable to use standard identification methods. The FAA justified granting ID Area applications to educational and community organizations as sufficient for student model flyers while avoiding excessive expansion that could compromise the effectiveness of remote identification. Brennan argues that the FAA inadequately justified the safety rationale for the Rule, noting that recreational drones have caused few documented harms and suggesting that Remote ID may create new safety risks for pilots. However, the Rule outlines the benefits of Remote ID in addressing various safety and security concerns. Brennan acknowledges the FAA's response to concerns about the risks of identifying drone pilots during flight but expresses dissatisfaction with the reliance on operator precautions and existing law enforcement measures. Ultimately, the court denies the petition for review, upholding the FAA's decisions and reasoning.