Drone Responsibility for news Media Gathering
The birth of the digital age brought with it a rapidly evolving news gathering and distribution process. Instead of relying on the delivery of the local newspaper consumers are constantly connected to an international web of instant news dissemination. Retweeting content and posting ideas on a pubic forum have replaced clipping an article from the paper and writing a letter to the editor. The advancements of media technology produce complex legal issues, challenging precedent before a much more stagnant legal community.
The regulation of media technology requires analysis of both “media” and “technology.” The development of instant news dissemination via the Internet has altered our conception of what defines a journalist, making it to difficult to determine who deserves exclusive press rights or protections. Historical conceptions of newsgathering and journalistic integrity that guided legislation clash with the immediate, diverse, and technological field of modern media, drawing question to the reasonability and applicability of journalist distinction and specialization.
Analyzing who is distributing the news is a problem that is only exacerbated by technological advancements to the newsgathering process. Riddled with controversy, drone use is becoming an increasingly standard tool of modern media. Drones bring with their flight a slew of complex constitutional claims that highlight the complications of protecting modern journalists, but also influence policy and regulatory concerns arising from technological newsgathering techniques. Courts and legislatures must balance the desire to protect newsgathering rights with potential privacy invasions beyond the scope of historical prescriptions.
This article traces the developments of media technology by highlighting the crucial drone controversies. First, it will trace the development of modern journalism and the use of drones in newsgathering. Next, it will discuss the policy and constitutional concerns resulting from the use of media technology in newsgathering and dissemination. Finally, it will analyze the theories of technological regulation, resting on a reformed approach to media technology law and litigation. The current state of affairs necessitates more relevant litigations and more malleable judges in order to progress more steadily into the future.
"We keep asking ourselves: Is this a new ethical problem, or an old ethical problem with new technology?"
- Development of Modern Journalism
- Timeline of Journalism
News gathering and distribution sources have taken on a new, vague form. Popular sources like the Huffington Post emit news solely online, forgoing any paper copies. The Huffington Post has a news staff, but keeps it small, preferring instead to solicit news from third parties. Sites like this obtain and provide content by linking to blogs, amateur sites, or other unpaid, unofficial sources. Accordingly, social media outlets like Twitter and Facebook are becoming increasingly relevant in the world of journalism; the sites themselves are working to become more news oriented. Studies show that more than half of social media users say that these sites serve as a news source for them, and the number has risen substantially in recent years. People are nearly as likely to get news about government and politics from their local news or CNN as they were Facebook. Breaking news stories grow from the immediate dissemination and user involvement that social media encourages.
Journalists, like users, use the immediacy of social media to check for breaking news and recent developments. This form of content research- using social media tools to track developing stories and gather new facts and sources- calls into question the distinctive line of where the amateur poster ends and the journalist begins.
While isolating journalists from the general public may not have been a concern throughout history, it is increasingly imprudent in the modern era. A profession rooted in ethics and integrity, journalism has evolved into a larger but indistinct industry. The modern journalist is difficult to define: in the digital age anyone with a blog or frequently updated site can be considered a “news source.” Personal or amateur blogs may be indistinguishable from professional news sources, and more confusingly news sites may use these blogs and sites as contributors to their own publications. This is problematic because many protections offered to service providers or to journalists, such as state shield laws that protect them from disclosing information, are not available for bloggers. As a result, amateurs who post news stories online are open to a variety of legal consequences that journalists or agencies doing similar work are protected for. 
- The Growth and Regulation of Drone Journalism
- Utilizing Drones: The Modernization Of News Gathering
The value of drone usage is apparent. While some journalists report being weary of drone use, most agree that they would use drones to report on matters of public interest, especially those that would otherwise be unobtainable. Major news conglomerates like CBS have spent considerable money advocating for drones in addition to their traditional lobbying practices in media policy, and even social media platforms like Facebook are investing in drones in preparation for future technologies and growth. The impact of drones on the news is not limited to professionals: recreational drone users can also create news with their finding. One user discovered that a meat processing plant was illegally dumping waste into a creek and contaminating it when using his drone, and went public with the information
Journalistic drone use is so successful that technology and research organizations are partnering with journalists and publishers to incorporate drones into modern journalism education. For example, the University of Missouri initiated a Drone Journalism Program to teach prepare new journalists for the digital age. The program advocates that drones are merely tools for gathering new information, expanding modern journalism. These efforts provide training on drone operation to journalists and journalism students to encourage safe, effective and efficient drone newsgathering, and ensure that drone technology will continue to drive media development.
- Drone Regulations
The first FMRA efforts of drone regulations were announced in Fall 2015, and became active in December 2015. Beginning in December, all UAS devices weighing more than .55 pounds must be registered with the FAA. Registration is not a complex process: it can be done online by anyone over thirteen years of age, costs only $5, and is good for three years. The registry isn’t public, but proposed plans will eventually be made available to law enforcement agencies. Users must provider the make and model of their aircraft, but the registration form does not ask for any information on whether a camera has been attached to the device.Within two weeks of the new FAA registration program being implemented nearly two hundred thousand small drones were registered. This number will only continue to grow: it is estimated that over one million drones that require FAA registration are expected to be sold in the United States this year.
New regulations categorize private drone use as recreational or commercial. Recreational flight is drone use for the pilot’s personal interest or enjoyment. FAA guidelines specify that flight is beyond the scope of recreational if it is non-hobby, such as if the user sells the photos that the drone takes. A commercial use is any that is in connection with business, such as professional photography for real estate, weddings or cinema. The distinction between recreational and commercial use is crucial because each has it’s own flight requirements.
Recreational use is only requires the user register with the new online FAA system.Comparatively, drones in flight for commercial use face more stringent regulations. If the drone use falls outside the scope of recreational use than the user must obtain FAA authorization for commercial use of a drone. Registration alone is not enough for commercial use; commercial users must also obtain a Certificate of Waiver or Authorization (“COA”) or a “Special Airworthiness certificate by the FAA. Commercial exemptions are determined by the FAA on a case-by-case basis, and, unlike recreational registration, the approval and pending requests are publically available on the FAA website.
The FAA has authorized over 3,200 COAs for commercial drones, including one for Amazon, which is testing drones use for the Amazon Prime delivery service. Some of these grants even allow major corporations special right rights. Disney World, for example, has requested permission to operate drones outside of the confines of laws that would otherwise ground them.
The FAA places additional prohibitions and limitations on the use of drones based on geographic location and cultural significance.
No Drone Zones are in place around the United States and strictly prohibit or restrict any drone flight within their parameters, such as Washington D.C., for security and safety reasons. Event specific limitations are imposed by Temporary Flight Restrictions, where flight is restricted due to weather conditions or special events, such as the Super Bowl. Organizations can bypass these restrictions, however, if they are granted an explicit exemption by the FAA.
Despite recent administrative progress, the FAA has failed to fully comply with the Congressional mandate to integrate drones into navigable airspace. The FAA’s drone regulation task has only just begun. Operationally, drones remain largely unregulated. The FAA promotes many procedures for safe drone use, such as refraining from flight while intoxicated and remaining 25 feet away from individuals and valuable property.
These are only suggested guidelines, however, and do not bind drone operators as other restrictions do. Proposed regulations incorporate many of these ideals, such as prohibiting users from flying over persons not involved in the operation, but firm FAA regulations aren’t expected until summer. In the meantime there is growing public concern about drone use and regulation from both those who want more stringent restrictions and those who want less. 
This dissonance bleeds into the courtroom, highlighting the inefficient and inconsistent judicial approach to modern technology.
- The Legal Consequences Of Modern Journalism
- Protecting “Journalists”
Many judicial complications arise from the blurred line between journalists and amateurs that have resulted from the expansion of technology. For example, shield laws are generally consistent across states, courts disagree, sometimes even within the same jurisdiction, on how to best apply these laws to nontraditional news sites, like blogs.
A California court offered shield law protections to online journalists who leaked data about Apple’s future releases, but a New Jersey court refused to grant a blogger similar protections. The New Jersey court, upon rejecting the shield law protection, did theorize that a newsperson with direct ties to traditional news media would be entitled to this protection, but does not define a traditional news source, leaving this precedent open to interpretation, to the detriment of bloggers. In the digital era, where so much communication occurs online, this precedent raises more questions about what constitutes a new source than it answers. In light of these questions, there is interest in some state legislatures in updating Shield Laws to address modern concerns, but in the meantime the protections remain at the mercy of the court.
FAA regulations mirror the judicial uncertainty in structuring modern media. While courts try to afford rigid labels to journalists the FAA applies similar categories to drone registration. The FAA doesn’t use media classifications- but commercial and recreational. In doing so they ignore amateur journalists that qualify as “recreational” users because they did not directly earn an income from the flight. But, many blogs and web-platforms allow the writer to derive income from their personal sites, such as through advertisements.
In these circumstances FAA regulations have the opposite effect that many other media laws have: instead of burdening the amateur with an uneven playing field, they provide them with the gift of freedom by allowing easier drone registration. By categorizing users this way the FAA is perpetuating antiquated standards of media regulations.
The impractical categorization of journalists and civilians also creates constitutional concerns. Courts have refused to grant investigative journalists exemptions from the law, and have held them accountable to any civil or criminal laws they may break while reporting.
As a result, it is generally accepted that the press does not have any special constitutional protections that the generally public does not benefit from. Despite this, recent drone regulations treat reporters and lay persons are treated differently. Notably, the FAA has different regulations for individuals and reporters, granting “restricted” commercial use that allows certified reporters into otherwise drone free zones.
Opening up drone rights for journalistic purposes may not be a “speech” issue under the First Amendment but could potentially turn it into a “press” issue, despite years of precedent disavowing the division of press and civilian rights.
- First Amendment “Speech:” The Right to Record
The right to gather news is a constitutionally protected function under the first amendment. Courts have held that the right to news dissemination is a right of the freedom of speech, and reasoned that the ability to gather the news is an essential element of this act. Consequently, protection must be afforded to newsgathering in order to respect the right to news dissemination. The protections and constitutional analysis of speech regulation becomes increasingly challenging in technology-induced litigation.
The “right to record,” or the right to take photos and videos, is a recently recognized right that is relatively underdeveloped. Circuit courts have consistently recognized the right to record, such as by allowing individuals to record police conduct that is a matter of public interest. Similar first amendment claims have resulted from the police prohibiting private citizens from filming the aftermath of a car accident. The Seventh Circuit has elaborated that the American people had the right to observe their government. In ACLU v. Alvarez they held that a law prohibiting the recording of police officers in public spaces was a restriction on the use of expressive media that was a violation of speech and press dissemination rights.
Navigable airspace has only recently become a First Amendment issue. This right to record has historically been applied to the recording from securely on the ground. However, similar first amendment concerns arose in August 2014 when the FAA created a no-fly zone over Ferguson, Missouri during the Michael Brown protests, prohibiting newsgathering agencies from obtaining footage. Theories and opinions on determining the constitutional protection of newsgathering drone issues vary and apply precedent differently.
First amendment protections are applied to the “expression” of someone’s speech. In analyzing constitutional issues courts may have to determine if there is sufficient “expression” in an action to benefit from first amendment protections. The right to record rests on the concept that process of producing speech is what is protected by the first amendment. “Purely recreational” photography, as opposed to professional or artistic photography, is not inherently expressive, and thus is only provided expression when courts find a “communicative purpose.” Drones prose a problem for this standard. While flight is intentional, the actual recordation of photos or video may not be. For some courts, the actual recordation of an event is the “expression” that the first amendment protects because the act of recording is essential to their “speech.”Just as you cannot protect expression in art without tangentially protecting the paint and brushes, the documenting of an action, such as police conduct, requires the protection of the recording process.Similarly, some have argued that using video recording devices to capture and communicate facts or ideas is much the same as recording it with the written word, which would be afforded protection as “speech.” Other courts have doubted drone protections under the right to record, claiming that the recordings do not contain sufficient “expression” to qualify as speech. This concrete approach faces a number of its own challenges, such as that there are often reasons for taking less artistic shots, or it can be difficult, if not impossible, to determine what exactly “expression” is to the individual. Most significantly, in deducing that drones are not protected these courts fail to differentiate drone footage from protectable cell phone video, exhibiting the confusion and inconsistencies that result from technology in the courtroom.
Protecting drone footage under the first amendment would potentially effect both reporters and recreational drone users. The extent to which drone images and videos are protected under the first amendment is important for non-journalists because many news stories break from the videos and photos captured by the average citizen, requiring that users have the right to gather the news so that they can disseminate it. A comprehensive approach that treats all news-gatherers the same under the first amendment would address some of the discrepancies resulting from modern journalism practices.
- Privacy In Digital Journalism
- How Fourth Amendment Concerns Will Effect the Media
In terms of surveillance, First Amendment limitations that bind private parties will dictate the rules of police conduct. As a result, “wide-scale use of drones by private actors would make it harder to argue that the police- and only the police- should have to overcome specific hurdles” when using the technology. The relationship between the First and Fourth amendment make it pertinent to analyze privacy law for media drone use under the lens of government restrictions.
The Supreme Court has found “flyover” surveillance of individuals to be Constitutional. In fact, many surveillance techniques have not been harshly scrutinized. It is constitutional for police to use a hidden radio transmitter to track a car when there are visually surveying it, but it is not constitutional to merely attach a GPS device to a suspect’s car for a month for general surveillance. The difference in these cases is whether the police where actively involved, or whether the technology was replacing the officer, a question that likewise arises from recording images and pictures with drones.
The First Amendment effect on privacy precedent is problematic in terms of newsgathering. While many citizens may be ok with news sources using drones for newsgathering, they may fear the government having the same access. Privacy fears of government involvement will dictate or rely on the first amendment restraints of the media’s newsgathering right. If news broadcasters and government agencies are going to be treated the same, there may be a greater desire to more closely regulate media’s use, even if benign.
- The Third Party Doctrine
The Third Party Doctrine is criticized for application to technologically based cases, and has been called into question by Justice Sotomayor. When applied to drones, if the government obtains drone recordings the Third Party Doctrine could prevent any fourth amendment claims even if the individual did not know they were being recorded. Accordingly, an anonymous drone user posting photos online is providing the government with an investigatory tool, and subjecting the unknowing, non-consenting person being recorded, to a forfeiture of fourth amendment protections. There is no reasonable expectation of privacy for content posted publically online. This includes not only news sites, but blogs, social media, and other tools for modern news consumption. A drone user posting online makes his content susceptible to government searches, affecting the rights of anyone they secretly record. The drone user’s First Amendment rights thus directly implicate privacy concerns of private third parties.
- Property and Safety Concerns
- Modern Regulations For Technological Innovation
- Theories of Regulation
Regulating technology and the interconnectivity of the Internet poses a number of considerations and complications. There are a number of theories proposing methods of control or restraint varying in intensity and focus. On one end of the spectrum, the concept of “Technology Governance” relies on “the idea of technology as a neutral and general tool to solve the problems of information in the age of global communications.” Under this concept, technology, as it grows and faces legislation around the world, will develop it’s own solution for regulation, instead of forcing legislation to mold it. Notably, the FAA subscribes to this approach, arguing that drone privacy concerns are not in their realm of regulation, and going so far as requesting privacy complaints against them be dismissed. The agency asserts that privacy issues will be addressed in an ongoing process that collaborates within the government and with third party stakeholders.
Other government agencies disagree with this approach, such as the National Telecommunications and Information Administration (“NTIA”), which believes more focus should be placed on potential public safety and public privacy concerns. NITA is attempting to draft its own drone guidelines that would be non-binding, but “best practice,” although there is considerable disagreement about what the guidelines should entail. Some state governments follow this approach and have adopted their own drone security laws to supplement the sparse federal regulations.
Beyond this scale of regulation severity, other, use-specific policies have been suggested. Many in the media have advocated for journalist-only access, allowing a wider range of drone use for professional media outlets. The rationale to this approach is that professional journalists abide by a strict code of ethics that would prevent them from misusing the privilege. This standard, however, is nearly unobtainable in an era where “journalist” cannot be clearly defined.  The Professional Society of Drone Journalists (“PSDJ”) was founded in 2014 in order to aggregate tech-savvy journalists who hold themselves to rigorous professional standards, requiring that members use drones only when necessary. Members are award winning journalists, and consultants, free lancers, and hobby journalists alike.  The establishment of the PSDJ itself exemplifies why a journalist-only approach is impractical: anyone and everyone can be a journalist, leaving it only for the FAA to decide who is worthy of journalism credentials.
Others debate whether drones should be applicable to only reporting on government activities, but this could potentially prevent the gathering of content that is otherwise exceedingly useful. Proponents of this approach believe that the general public may be more accepting of drone use if it is used to monitor the government, the opposite of many common fears.
However, this standard may incentivize the government to more stringently impose regulations on drones in order to prevent excessive regulations of their own activities.  This standard also assumes that the content can only be useful or newsworthy if it is of government or political interest, which is untrue. This highly specific content-based use policy would result in more restrictive results than societal surveillance fears.
While each theory of regulation and policy focuses in a different direction, they each recognize a crucial fact of modern technology: it’s going to have drastic impacts on legal culture. With such an inevitable change approaching media technology the theories preferring minimal regulations falter. With an ever-changing field, ground breaking technologies and constitutional concerns we cannot merely hope the conflicts will self-regulate.
- Moving Towards A Comprehensive Solution
The first step in modernizing the regulation of media technology is to address who is the “media” that is using the technology. The complex web of privacy concerns and interrelated first amendment concerns that are confused by changes to journalism and newsgathering practices cannot merely be ignored. There must be a greater recognition for changes in media regulations. Our laws and practices must reflect the reality that we can no longer afford principles or protections to a journalist class. Whether these protections are positive or negative is largely irrelevant as their greatest injustice derives from the seemingly random, case-by-case basis in which they are utilized. As courts often claim that there are no constitutional protections that they offer exclusively to journalists, standardizing treatment relies on state legislatures amending their laws and on government agencies like the FAA assuring equal treatment. This regularity would relieve one of many layers of inconsistency in media technology.
Next, reform in needed in the regulation of technology use. The first amendment constraints on newsgathering and inconsistent protection across the district courts will further poison privacy rights by forcing privacy regulation in fear of potential government surveillance. Action needs to be taken before media regulations falter and constitutional rights are infringed.
Legislative reform would provide consistent treatment of technology use. Revised regulations would have to take into account both the positive and negative effects of drone use, and find a way to protect both privacy and first amendment rights. Other nations have attempted to achieve this balance. The UK has passed privacy-focused laws that make strict restrictions on drone use, such as prohibiting the use of drones with cameras within 50 meters (roughly 164 feet) of people, cars, buildings and crowded places. Because the FAA has no interest in protecting privacy rights, regulations currently more heavily favor first amendment protections. New regulations would need to lean more heavily on privacy rights to protect not only personal privacy, but to protect first amendment restraints that result from fourth amendment concerns.
While legislative and regulatory action will be necessary to prevent the imminent destruction of Constitutional rights, it would be impossible to draft legislation dictating categorically precise media processes. As media technology evolves the legislation will have to be interpreted for the modern facts of the case. Thus, although new regulations are needed, their effectiveness relies heavily on the modernization of the judiciary. The frustration in the current standards expressed by Justices Sotomayor and Alito indicate that the new regulations would be eagerly applied in the courtroom. Constitutional focused legislation, analyzed by modern, forward thinking judges, considers both present and future needs.
ConclusionThe irregular regulation of media technology will become increasingly problematic if not addressed. The media and broadcast industry is wholly unrecognizable compared to it’s state just a few decades ago. The drastic changes resulting from technological innovation require comprehensive reform. Addressing regulation of just the concept of the “media” or only technological complications will further complicate precedent. The efficiency of media technology regulation and judicial treatment is reliant on reforming both of the interconnected concepts.
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