Brennan v. Dickson

• Decision Date: 29 July 2022
• Docket Number: 21-1087
• Citation: 45 F.4th 48
• Parties: Tyler BRENNAN and RaceDayQuads LLC, Petitioners v. Stephen DICKSON, Administrator and Federal Aviation Administration, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

45 F.4th 48

Tyler BRENNAN and RaceDayQuads LLC, Petitioners

v.Stephen DICKSON, Administrator and Federal Aviation Administration, Respondents

No. 21-1087

United States Court of Appeals, District of Columbia Circuit.

Argued December 15, 2021

Decided July 29, 2022

Jonathan Rupprecht argued the cause for petitioners. With him on the briefs were Elizabeth Candelario and Kathleen Yodice.

Casen B. Ross, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, Michael S. Raab, Attorney, John E. Putnam, Acting General Counsel, U.S. Department of Transportation, Paul M. Geier, Assistant General Counsel, and Charles E. Enloe, Trial Attorney.

Joshua S. Turner and Sara M. Baxenberg were on the brief for amicus curiae the Association for Unmanned Vehicle Systems International in support of respondents.

Before: Pillard, Wilkins and Walker, Circuit Judges.

Pillard, Circuit Judge:

Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security. Congress recognizes as much. It passed a law in 2016 requiring the Federal Aviation Administration (FAA) to "develop[ ] ... consensus standards for remotely identifying operators and owners of unmanned aircraft systems" and to "issue regulations or guidance, as appropriate, based on any standards developed." FAA Extension, Safety, and Security Act of 2016 (FAA Extension Act), Pub. L. No. 114-190, § 2202(a), (d), 130 Stat. 615, 629 (2016). And in 2018, Congress extended the FAA's authority over small recreational drones. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, § 349(f)(3), 132 Stat. 3186, 3299 (2018). In response to Congress's call to prioritize the development of capacities to increase airspace awareness and promptly mitigate threats as a means to protect the safety and security of U.S. airspace, the FAA promulgated the Remote Identification (Remote ID) Rule challenged here.

Remote ID technology requires drones in flight to emit publicly readable radio signals reflecting certain identifying information, including their serial number, location, and performance information. Those signals can be received, and the Remote ID information read, by smart phones and similar devices using a downloadable application available to the FAA, government entities, and members of the public, including other aircraft operators. The FAA likens Remote ID to a "digital license plate." Remote Identification of Unmanned Aircraft (Final Rule or Remote ID Rule), 86 Fed. Reg. 4390, 4396 (Jan. 15, 2021) ; FAA Br. at 17. Like a license plate, Remote ID acts as a basic building block of regulatory compliance by attaching a unique, visible, yet generally anonymous identifier to each device in public circulation. Unlike a license plate on the back of a car, however, Remote ID is detectible in real time only when the drone is moving. Also unlike a vehicle's license plate, which can only be read by the naked eye from a few yards away, a Remote ID message can be "read" by people within range of local radio signals yet not near enough even to see the drone itself.

The FAA separately obtains certain nonpublic personally identifying information from drone owners as a requisite of their unmanned aircraft registrations, and that information is protected by the Privacy Act, 5 U.S.C. § 552a. A Remote ID message may only be matched to that nonpublic information and used by the FAA or disclosed to law enforcement outside of the FAA "when necessary and relevant to a[n] FAA enforcement activity," Privacy Act of 1974; System of Records Notice, 81 Fed. Reg. 54,187, 54,189 (Aug. 15, 2016), and even then it is subject to "all due process and other legal and constitutional requirements," Final Rule, 86 Fed. Reg. at 4433. The Rule does not otherwise authorize private or public actors access to drone owners' or pilots' nonpublic personally identifying information, id. at 4433-34, nor does it permit or contemplate storage of Remote ID data for subsequent record searches.

Petitioners Tyler Brennan, a drone user, and RaceDayQuads, the drone retailer Brennan owns (referred to jointly as Brennan), want the Rule vacated. Brennan asserts that the Rule's Remote ID requirement amounts to constant, warrantless governmental surveillance in violation of the Fourth Amendment. His request for vacatur of the Rule, amounting to a facial challenge, must fail because drones are virtually always flown in public. Requiring a drone to show its location and that of its operator while the drone is aloft in the open air violates no reasonable expectation of privacy. Brennan hypothesizes that law enforcement authorities could use Remote ID to carry out continuous surveillance of drone pilots' public locations amounting to a constitutionally cognizable search, or that the Rule could be applied in ways that would reveal an operator's identity and location at a home or in an otherwise private place. But he has not shown that any such uses of Remote ID have either harmed him or imminently will do so, thus he presents no currently justiciable, as-applied challenge.

Brennan also claims that the Remote ID Rule must be vacated due to various procedural missteps he believes the FAA made in promulgating it. But none of those asserted flaws affects the validity of the Rule. The communications that Brennan challenges as ex parte did not materially bear on the rulemaking, so their exclusion from the administrative record did not interfere with the requisite opportunity for public comment. The Final Rule's provisions for altitude measurement using geometric pressure and retrofitting of existing unmanned aircraft equipment are logical outgrowths of the Proposed Rule on which the public was able to—and did—comment. The FAA also fulfilled the statutory directive that it consult with the Radio Technical Commission for Aeronautics, Inc. (RTCA), the National Institute of Standards and Technology (NIST), and industry stakeholders. Finally, Brennan faults the FAA for not adequately addressing certain comments, but the FAA need not respond to purely speculative comments, and its consideration of about 53,000 public comments and detailed explanation of the policy choices in the Final Rule fully met its obligation under the Administrative Procedure Act (APA).

We accordingly deny the petition.

BACKGROUND

I. Factual context of the Final Rule

The Remote ID Rule responds to the development of sophisticated yet inexpensive drone equipment, which "has allowed for hundreds of thousands of new operators to enter the aviation community." Final Rule, 86 Fed. Reg. at 4395. Drones' growing accessibility has unlocked a large recreational market for both factory- and home-made models: Of the 865,505 drones registered with the FAA by mid-2022, 538,172 were for recreational use. See Drones by the Numbers , FAA (May 31, 2022), https://www.faa.gov/uas/resources/by_the_numbers/. Meanwhile, rapidly accelerating commercial uses and planned uses of drones include infrastructure inspection, real estate photography, and agriculture management. Universities use them for research activities. The healthcare industry uses drones to deliver medical supplies, whether to quickly traverse high-congestion cities or to reach remote areas lacking other viable transport. Governments at every level increasingly rely on drones' distinctive capabilities for tasks ranging from search-and-rescue missions to border patrol. Public and private emergency responders alike use drones to observe hard-to-reach accident sites, monitor natural disasters, and assist in rescue and recovery. See Amicus Br. of the Ass'n for Unmanned Vehicle Sys. Int'l at 5. And plans are afoot for major expansions of other, routine drone uses such as express package shipping and delivery. E.g. , Final Rule, 86 Fed. Reg. at 4481.

All the while, increasing drone usage creates more air traffic. And the features that make drones so popular present novel and complex challenges to a smooth integration of drones into the 29 million square miles of U.S. airspace that tens of thousands of commercial and private aircraft share each day. Congestion increases risks of drone collisions with other aircraft, especially helicopters or agricultural aircraft flying at low altitudes, and aircraft taking off or landing at airports, landing strips, or heliports. The established U.S. air traffic control system depends on constant lines of communication between traffic controllers and pilots in flight to avert risks to aircraft and to people and property on the ground. But drones have no operator on board to receive or transmit air-traffic communications, nor do they communicate with a centralized FAA tower to coordinate with nearby aircraft. Without Remote ID, pilots must rely solely on visual inspection of the sky to avoid collisions with drones, and manned aircraft are likewise left without electronic data on the locations of any drones flying in their vicinity. Drones' technical capability of flying at night, over people, and beyond their operators' lines of sight pose additional risks associated with a lack of situational awareness, including collision with other aircraft or objects, falling on and injuring people, and straying into private or sensitive areas. Safety concerns pertaining to national security and law enforcement are intensified when unidentified drones of unknown origin and intent fly over airports, public facilities, energy production infrastructure, sports stadiums, or other open-air venues where the concentration of people is high or the ability to damage things and disrupt daily life is significant. See, e.g. , Remote Identification of Unmanned Aircraft Systems (Proposed Rule), 84 Fed. Reg. 72,438, 72,455 & nn.22, 26 (proposed Dec. 31, 2019).¹

Drones in flight are also difficult to identify...