Drone journalism’s battle for airspace

Josh Haner flies a drone on the Greenland Ice Sheet. Photo: Gavin A. Sundwall, courtesty of The New York Times.

The images, taken by photographer Josh Haner from about 135 feet above the smoldering remains of a subdivision decimated by a wildfire in Santa Rosa, California, are mesmerizing.

In Haner’s video, the camera glides smoothly over the jagged landscape, close enough to make out details—partially burned palm trees, a lone fire truck—but high enough for viewers to get a sense of the scale of the disaster.

And the story was inarguably worth covering: According to The Washington Post, the nearly 9,000 fires that ripped across Northern California in the fall of 2017 burned more than a million acres, destroyed almost 11,000 structures, and killed at least 46 people.

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The story was straightforward, but Haner, a staff photographer and senior editor for photo technology at The New York Times, covered it in an unusual way. With fellow staff photographer Jim Wilson already covering the fires from the ground, Haner and photo editor Crista Chapman decided that he would focus only on aerial photography, using two prosumer drones.

Though it was a breaking-news story, Haner didn’t rush his safety protocol. He verified that the Federal Aviation Administration hadn’t closed the airspace to give preference to firefighting aircraft, and another Times drone pilot in New York monitored for last-minute flight restrictions. On site, Haner coordinated with local law enforcement to find a safe take-off location, and a second drone pilot stood alongside him, continuously watching for any sudden changes in the sky, like fast-moving helicopters.

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These precautions, Haner knew, were not frivolous. A collision with a drone could bring down a manned aircraft. Irresponsible drone operators, authorities later claimed, had slowed firefighting efforts in the area by forcing aircraft to alter their flight paths. One amateur drone pilot was arrested in nearby Petaluma for flying near an airport used by first responders.

“Rushing anything with a drone is in many ways irresponsible,” Haner says.

When flown safely, however, drones can be an ideal tool for journalists, as Haner’s reporting in California convincingly demonstrated. The visceral, immediate feel of Haner’s images would have been impossible with a helicopter because it couldn’t have been flown so low. Also, it would have been hard for the paper to arrange one on such short notice.

The support the Times provided Haner is a model for media organizations seeking to safely use drones in their reporting. And the flight, which followed all FAA requirements for legal drone piloting, showed how far the agency has come in integrating drones into the national airspace: a little more than two years ago, the only people legally permitted to fly drones were pilots licensed for manned aircraft.

In Haner’s case, the meticulous care paid off; still, the drive to incorporate drones into journalism is not without controversy. Determining who has rights to airspace directly above the ground—space that overlooks private homes and property—is a hotly debated topic. The FAA maintains that airspace, starting at the surface of the earth and extending tens of thousands of feet, is public and subject to federal regulations. Meanwhile, property owners—frustrated by loud, low-flying, sometimes recklessly piloted drones—are putting pressure on local and state governments to keep the technology out of their backyards.

In the end, the attempts by regulators and local lawmakers to catch up with this rapidly changing technology and construct a uniform set of regulations could result in restrictive rules that make it harder for journalists to protect the gains they’ve made in the last two years.

 

Two years ago, the FAA introduced a certification process for professional operators of “small unmanned aircraft systems.” The guidelines can be restrictive—you can’t fly over people, at night, or at events too close to airports—but they offer a clear set of rules and a relatively simple mode of entry into a burgeoning industry. More than 100,000 people have become certified as drone pilots, according to the FAA.

Journalists are a small but enthusiastic subset of this group. Journalism schools across the country now teach drone reporting, placing the FAA’s guidelines at the core of their curriculum. In the past two years, the National Press Photographers Association and Poynter have prepared several hundred journalists for certification. McClatchy has 43 licensed drone pilots on staff, and CNN—which boasts nearly 30 drone pilots—launched a new unit, CNN AIR (which stands for “aerial imagery and reporting”), based around drone coverage.

But as the federal government ironed its drone-operation rules, local lawmakers took note of alarming news stories about the perils of drones—Peeping Toms using them to peer in windows, children injured by out-of-control spinning rotors, and even accounts of weaponized drones—and began restricting their use. Many pilots have found these local and state laws to be confusing and, in some cases, in contradiction to the federal rules.

The legal uncertainties add a layer of complexity for those news outlets that would incorporate drones into their reporting. North Carolina, for instance, has its own registration system for drone operators, parallel to the FAA’s requirements, which gave drone journalists covering Hurricane Florence this summer an extra bureaucratic hurdle to clear. And in 2016, Hempstead, a town on Long Island, barred the “possession” of a drone at any town facility, even if the drone isn’t flown.

“Now you have to check local laws, TFRs [temporary flight restrictions], many things spread across many different platforms.” Haner says. “It makes us jump through some bureaucratic holes.”

Last year, Reuters hired drone pilot Brad Sheneman, through subcontractor DroneBase, to get aerial shots of the home of Stephen Paddock, the gunman in the deadly Las Vegas shooting. Sheneman had his drone confiscated by Nevada police, and was charged with a misdemeanor after officers apparently misinterpreted their own drone laws. (The charge was later dropped.)

“It wasted a lot of my time and money,” Sheneman says. “It just seemed like more of an education for me and for them, too, because they realized what they can and can’t do.”

Even some experts have trouble sorting out the rules. “I’m a lawyer, and I can’t figure out what the laws are in a lot of places,” jokes aviation lawyer and former FAA official Loretta Alkalay. Local laws in conflict with the FAA’s regulations should be changed, argues Alkalay. “The problem is there really haven’t been a lot of people willing to challenge [the laws].”

That began to change when Alkalay helped Dr. Michael Singer, a drone enthusiast in Newton, Massachusetts, fight a local drone law. Singer, a medical doctor, wanted to test the devices’ medical-delivery capabilities. But the town’s ordinance forbade flying at any altitude over private or town property without prior permission.

Last September, a federal judge reversed that part of the Newton law. The ruling, a landmark decision for drone operators, held that federal rules regulating drone operation took precedence over local laws. It slowed the pace of new local laws nationwide and prompted others to be pulled back.

In effect, the decision means that airspace is clear for drone journalists so long as they follow FAA rules. But it isn’t the end of the debate. Many people in the drone community fear that federal authorities will eventually draw a “bright line,” an absolute boundary limiting drones at low altitudes.

Yet many lawmakers and enforcement officers see such a boundary as a matter of common sense. “I understand a helicopter flying a thousand feet over my house, but not a drone flying five feet over my wall,” says Quinn Averett, one of the Nevada police officers involved in Brad Sheneman’s citation. “You shouldn’t have to worry about some guy spying on you through your glass door.”

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But many journalists counter that existing laws satisfy any privacy concerns, and basic journalistic ethics would prevent drone journalists from peering through windows or flying five feet over someone’s yard. A hard boundary could deny journalists access to spaces they might lawfully and responsibly fly into or through.

“There’s no easy answer to any of these things,” admits Greg Agvent, the senior director of CNN AIR. “We really do handle it the way we would any privacy question, on a case-by-case basis.”

Most of the FAA’s aviation rules were written decades ago, and a Boeing 747 is unlikely to come close enough to a home to invoke a discussion of property rights. But there is one Supreme Court case, from 1946, that has provided a legal foundation for today’s discussion about drones.

The Causbys were chicken farmers in North Carolina who lived adjacent to an airport used by military planes. The low-flying airplanes startled the chickens, many of which died. The family sued, arguing that the government had violated their property rights by flying 83 feet above the ground. While the Supreme Court declared that “airspace is public and under federal control”—a passage often cited by drone advocates—the justices agreed that the Causbys had been harmed. “If the landowner is to have full enjoyment of the land,” they wrote, “he must have exclusive control of the immediate reaches of the enveloping atmosphere.”

But the Court failed to define “immediate reaches,” which legislators across the country are now trying to determine.

The FAA is currently studying ways to integrate local and national laws into its Unmanned Aircraft System Integration Pilot Program. Last year, a bipartisan group of senators introduced a bill, which never made it out of committee, that would have taken the first 200 feet of airspace away from the FAA in favor of local control. This summer, the Uniform Law Commission, an association that drafts model laws for states, also drew a line at 200 feet as part of its proposal for an aerial trespass law (which quoted heavily from the Causby case).

The ULC won’t consider the draft until its meeting next summer. If it votes to approve the law, then state legislators would still have to pass it independently. Still, the proposal has drone operators concerned.

“The ULC draft would be extremely disruptive to growing the drone industry,” says Alkalay. While she acknowledges that property owners have an interest in airspace above them, she says 200 feet “seems excessive.”

“We think the existing privacy laws are adequate,” says Mickey Osterreicher, the general counsel for the National Press Photographers Association, who wrote a letter to the ULC in July to oppose its draft law. “What’s the difference if the camera is up in the air or on the ground?”

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Travis Fox is the Director of Visual Journalism at the Craig Newmark Graduate School of Journalism at CUNY, where he teaches drone journalism. His drone photography is on his website or on Instagram.