EPIC.org: Challenging FAA’s Tone-Deafness on UAS ‘Privacy’

On December 2nd, Gizmodo.com posted an article, Why the FAA Isn’t Worried About Drones Invading Your Privacy Right Now. This article was triggered by a post the day before at EPIC.org, FAA Grounds Drone Privacy Safeguards. Here’s the background…

EPIC.org is the Electronic Privacy Information Center, an independent non-profit research center based in Washington, DC. According to their website ‘about EPIC page’, EPIC is all about fundamental democratic values. EPIC works to protect privacy, freedom of expression, and to promote the Public Voice in decisions concerning the future of the Internet. EPIC maintains two of the most popular privacy web sites in the world – epic.org and privacy.org.

Aviation activities are rapidly transitioning from manned vehicles (fixed-wing and helicopters) to unmanned aircraft systems (aka UAS, or ‘drones’). This transition can provide great benefits, such as reduced energy use and reduced air and noise pollution. But, this transition also has the potential to lead us to a new world where the skies become crowded with silent drones monitoring all our activities, and even being used to ‘take out’ arbitrarily defined threats. EPIC.org is one of the leading NGO’s working to ensure that the needs of the larger Public are being properly considered, during the development of these new technologies and regulations.

In early 2012, the U.S. Congress passed the FAA Modernization and Reform Act of 2012 (FMRA). This legislation was a big package, covering airport projects, expansion of NextGen technologies, etc. It also directed FAA to “develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system,” providing for this integration “as soon as practicable, but not later than September 30, 2015.”

In the weeks following President Obama’s signing of FMRA, a petition was filed with FAA, asking the agency to “”conduct a notice and comment rulemaking on the impact of privacy and civil liberties related to the use of drones in the United States.” EPIC was joined by over 100 other organizations, experts, and members of the public in presenting the petition.

FAA already had a Notice of Proposed Rulemaking in the works, and it was published in the Federal Register on March 9, 2012. Given the short notice, it was reasonable that FAA did not include the privacy issues in this NPRM. Instead, FAA added a solicitation for privacy-issue comments to a later NPRM, published in February 2013. Consequently, the entire issue of drone privacy impacts has been inadequately addressed by FAA. So, a full 31-months after the February 2012 petition, FAA finally got around to sending a weak ‘reply’ letter to EPIC.org.

How can we do Better?

All of this suggests we would be far better served, if FAA would relinquish regulatory authority over the low-altitude airspace. A more flexible – and more responsive – authority should be handling low-altitude drone regulations … perhaps even local or state officials. And, their regulations should be required to conform with reasonable (and legislated) privacy protections.

Here is a chronology with links to the documents:

2/24/12 EPIC.org’s Petition, filed with FAA
 3/8/12 FAA’s NPRM, requesting comments for the UAS Test Sites
5/8/12 EPIC.org comments, filed with FAA’s NPRM
 2/22/13  FAA’s NPRM, presenting the process by which FAA will select UAS Test Sites, and also soliciting comments about UAS Test Site privacy concerns
 4/23/13  EPIC.org comments submitted to NPRM
 11/14/13  FAA’s final draft of Privacy Requirements for UAS Test Site Program
 11/26/14  FAA’s letter to EPIC.org, responding to the Petition (31-months later! … and signed by Lirio Liu, recently promoted to Director, Office of Rulemaking)

See also:

Aviation vs. Railroads: Why is FAA so much slower than FRA to address personal electronics distractions?

Last week, FAA posted in the Federal Register their Final Rule, Prohibition on Personal Use of Electronic Devices on the Flight Deck. Essentially, the new rule declares the obvious … that texting (or computer games or sharing pictures of your cute kids or porn files or whatever) is dangerous, distracting, and must cease immediately …or at least once the rule goes into effect on 4/14/14.

A discussion then developed at FlightAware.com. While most of the discussion participants were pilots and all had a keen interest in aviation, some of the participants were U.S. railroad professionals. They made a very interesting point: specifically, that very similar accident histories have produced very different outcomes by the Federal Railroad Administration (FRA) vs. the Federal Aviation Administration (FAA).

In short, here is the comparison:

Rescue workers in front of the Metrolink locomotive lying on its side after penetrating the lead passenger car (left). (photo from Wiki)

FRA: On 9/12/08, a head-on collision at Chatsworth, CA killed 25, injured 135, and caused $7.1 Million in damages. The NTSB investigation revealed the locomotive engineer was texting and missed a safety signal. Twenty months later, on 5/18/10, FRA issued an NPRM rule proposal via the Federal Register. Fifteen comments were received. The Final Rule was posted to the Federal Register on 9/27/10, and went into effect on 3/27/11.

Thus, for an FRA rail safety failure related to a major accident, it took thirty months from accident to effective rule change.

FAA: On 8/27/06, Comair Flight 5191 took off from the wrong runway at Lexington, KY, then crashed, killing 49. The tower controller had failed to specify the runway and the pilots, evidently fatigued from a short night’s sleep, failed to notice they were on the wrong runway. The controller had nearly a full minute to look out the window and see the problem and ‘save’ the situation with a timely radio transmission. The tower controller failed and the accident happened. Seventy-seven months later (!!), on 1/15/13, FAA issued an NPRM rule proposal via the Federal Register. Sixty-three comments were received. The Final Rule was posted to the Federal Register on 2/12/14, and will go into effect on 4/14/14.

Thus, for an FAA aviation safety failure related to a major accident, it took ninety-two months from accident to effective rule change. Ninety-two months; yes, nearly eight years!

So, in summary, a railroad safety rule by FRA takes 30-months, while an essentially identical aviation safety rule by FAA takes 92-months.

Why does it take FAA so much longer to pass the new safety rules? Most likely, the delay is directly related to FAA (and industry) efforts to protect their financial bottom line: mistakes happen, people die, and those who might have saved the tragedy feel compelled to obscure their culpability, to protect their own interests. So, they maneuver to maximize distance from any risk/liability exposure. In other words, a conscious effort is made by aviation professionals — including some very highly paid FAA officials — to guarantee no accountability for system failures.