EFF joined an amicus brief with ACLU, ACLU of D.C., National Press Photographers Association, and Professional Photographers of America to urge the D.C. Circuit to vacate an FAA drone flight restriction that violated the First Amendment right to record law enforcement. This is an important case—Levine v. FAA—challenging the ability of the government to punish drone pilots who record law enforcement officers engaged in official business.
As we wrote about earlier this year, the FAA issued a flight restriction for drones that had effectively criminalized the recording of Department of Homeland Security officers, including immigration agents from ICE and CBP, and their vehicles (what the FAA called “mobile assets” including “ground vehicle convoys and their associated escorts”) even if the drone was over half a mile away.
A drone operator, represented by the Reporters Committee for Freedom of the Press, sued the FAA in March [PDF]. But in April, the FAA rescinded the flight restriction.
The petitioner argued in his opening brief that the court should evaluate the legality of the flight restriction even though it was withdrawn. Drone pilots could still be punished for violations that occurred when the flight restriction was in effect. And the FAA could reinstate the flight restriction at any time, given that the rescission did not seem to reflect “a true change of heart” but rather an effort by the agency to avoid judicial review.
The amicus brief, filed in support of the petitioner, noted that drones are unique because they provide “perspectives that cannot be captured by ground-based imagery,” and they “are far more maneuverable than ground-level cameras, and they are both much cheaper and much safer than using a chartered plane or helicopter to record newsworthy events from above.” The brief highlighted that drones have captured “bird’s-eye images of protest activity” and “police uses of force against protestors,” and have “allowed journalists to provide the public with up-to-the-minute information about natural disasters without putting themselves in harm’s way.”
The brief argued that using drones to capture images and video is information-gathering activity protected by the First Amendment (similar to using cell phones to record law enforcement). The brief also argued that the FAA’s flight restriction appeared to be issued specifically to ban the recording of immigration agents and thus hinder accountability for their enforcement actions—it surely wasn’t a coincidence that the FAA imposed “no-drone zones around all roving DHS patrols just as those patrols were provoking intense national backlash.” If that’s true, it would make the FAA’s action a content-based restriction on speech that is subject to strict scrutiny—the highest First Amendment standard—and presumptively unconstitutional. And even under less rigorous standards of First Amendment scrutiny, the flight restriction is unconstitutional because the FAA can’t articulate any valid governmental interest justifying such a sweeping restriction on speech.
Resolving this issue to protect First Amendment rights is especially urgent as government agencies continue to sink billions of dollars into technology designed to counter drones—technology that could easily be deployed against journalists and other people hoping to use drones to document government abuse.
We urge the D.C. Circuit to review the petition and to vacate the FAA’s flight restriction, which would send a message that the government can’t avoid accountability by punishing those who exercise their First Amendment rights.
Facts Only
* EFF, ACLU, ACLU of D.C., National Press Photographers Association, and Professional Photographers of America filed an amicus brief.
* The brief supports a petitioner in the case Levine v. FAA.
* The FAA issued a flight restriction for drones regarding Department of Homeland Security officers and "mobile assets," including ground vehicle convoys.
* The restriction applied to drones located over half a mile away.
* A drone operator, represented by the Reporters Committee for Freedom of the Press, sued the FAA in March.
* The FAA rescinded the flight restriction in April.
* The petitioner is asking the D.C. Circuit to vacate the restriction despite its withdrawal.
* The amicus brief argues that drone imagery is protected information-gathering activity under the First Amendment.
* The brief claims the restriction targeted immigration agents to hinder accountability.
* Government agencies are investing billions of dollars in counter-drone technology.
Executive Summary
The legal battle in Levine v. FAA centers on whether the government can restrict drone flights used to record law enforcement officers. The FAA previously implemented a restriction that prohibited drones from filming Department of Homeland Security personnel and their vehicle convoys, even from a distance of half a mile. Although the FAA rescinded this policy in April, a drone operator continues to challenge its legality in the D.C. Circuit.
The petitioner and a coalition of civil liberties and photography organizations argue that the restriction was a content-based violation of the First Amendment. They contend that the policy was specifically designed to shield immigration agents from public accountability and that the rescission was a tactical move to avoid judicial review rather than a policy shift. Conversely, the FAA's specific justifications for the original restriction are not detailed, but the coalition asserts that no valid governmental interest justifies such a broad limitation on speech. The resolution is framed as a critical precedent given the increasing deployment of counter-drone technology by government agencies.
Full Take
The strongest version of this narrative is a defense of transparency: that the right to document state power is a cornerstone of democratic accountability, and that technical regulations (flight restrictions) should not be used as proxies for censorship.
The narrative relies on a specific interpretative frame—that the timing of the FAA's rescission is evidence of a "lack of a true change of heart." This is a psychological attribution used to maintain the urgency of a legal challenge after the primary grievance has been administratively removed. By linking this specific case to the "billions of dollars" spent on counter-drone technology, the argument expands from a narrow regulatory dispute to a systemic warning about the future of surveillance and state control.
Patterns detected: none
This situation reflects the ongoing tension between national security/operational security and the public's right to oversee government conduct. The unstated assumption is that any restriction on recording law enforcement is inherently aimed at hiding abuse, rather than ensuring the safety of officers or protecting sensitive tactical movements.
The implication is a shift in the "battlefield" of the First Amendment. As imagery moves from ground-level to aerial, the state may use aviation law—which carries heavier penalties and more stringent regulations than trespassing or loitering laws—to criminalize journalism. If the court vacates the restriction, it reinforces the drone as a protected tool of the press; if it declines, it may signal that aviation safety can be used as a legal shield for government opacity.
Bridge Questions:
1. How would the legal analysis change if the flight restrictions were applied to all government convoys regardless of agency?
2. What specific "governmental interests" could the FAA potentially cite to justify these zones that would survive First Amendment scrutiny?
3. At what distance does a drone cease to be a tool for accountability and begin to be a threat to operational security?
Counterstrike Scan: A coordinated campaign would likely use "rage-bait" regarding immigration enforcement to overshadow the technical legal questions of FAA jurisdiction. This content remains focused on the legal mechanism of the amicus brief and the First Amendment, avoiding structural alignment with an influence campaign.