The detrimental impact of proposed governmental drone policies on newsgathering
By Mickey H. Osterreicher
October 9, 2020 - As a visual journalist, I have spent the past decade advocating for small drones as a safe and economical newsgathering tool. In that time, I have seen several waves of ill-conceived and sometimes outlandish policy proposals attempting to limit their use under false pretenses of safety and privacy.
First, civilian uses were stymied by the connection of the word “drones” to armed military Reapers and Predators. After those fears were disproved came the hand-wringing that drones were going to spy on everyone’s backyard and through everyone’s window. That was followed by the dread that drones would hit and bring down an airliner.
Putting fear before fact and security pretexts ahead of rational solutions will not only chill newsgathering abilities and irreparably harm all drone operators, but also ground a beneficial technology that is just getting airborne.
The latest apprehension is over “cybersecurity,” fueled by trade disagreements with China. No evidence has been offered regarding a genuine threat from foreign drone technology. Yet over the past year, several proposals have been introduced or implemented to limit the use of Chinese-made drones and components – and in the process, place unacceptable new limits on how journalists gather news.
These policy decisions began in the U.S. military, with internal memos in 2017 that raised security concerns about commercial off-the-shelf drones, followed shortly after by a ban on their use. This was understandable, because those products are not made to meet military security requirements, and because the U.S. military always prefers U.S. products.
But other government drone operations have been grounded with far less pretext. The most prominent example has been the U.S. Department of the Interior canceling important fire-reduction missions as forests in the West burn. In the past few months, at least four bills in Congress have been proposed to ban the purchase or use of foreign-sourced drones by all federal agencies, their contractors, and anyone receiving federal grant funding. All have been justified by citing a risk that drone data may be automatically transferred to China.
Adding to these restrictions, a draft Executive Order (reported by Politico) would bar professional drone work “on or over federally managed lands.” This leads me to believe that the concern is less about sensitive data and more about a pretext to restrict the use of certain makes of drones.
A “right of transit” through airspace has existed since the Air Commerce Act of 1926. Today, anyone has the right to buy a drone, fly it in the national airspace, and take pictures from that vantage point. This freedom of operation in a shared public forum is what drone users value, whether for pleasure, profit or social benefit.
And hundreds of media organizations and individual journalists like me exercise that right daily to gather news and images that inform the public. In fact, journalists supported by my own organization, NPPA, are suing to overturn a statute in Texas that restricts certain kinds of drone photography, on First Amendment grounds. There is also a financial concern at stake -- the current non-China drone supply chain does not have the capacity to make drones affordable or viable for media that have already invested thousands of dollars in equipment.
It’s perplexing why Chinese-made drones are considered such a security risk while phones, laptops, tablets, monitors, or other electronic devices made in China and capable of data collection/transmission are not. The focus on where a drone is made, instead of on cybersecurity protections across technologies used by the government, hurts drone users while doing nothing to address actual vulnerabilities.
Genuine technological cybersecurity concerns are already being addressed by security standards and third-party validations. A recent data security test of products made by Chinese drone manufacturer DJI showed “no evidence of [data] connections to China or to DJI”; another study by a cybersecurity firm found the company employs security best practices. For its part, DJI announced a plan to enable a Local Data Mode (LDM) which will mean that no data can be sent externally from its drones to any third party, including DJI.
Further, China does not have a monopoly on cybersecurity risks. Instead of focusing on DJI and China, we should examine the actual cybersecurity risk by drones and take steps within our own workflows to minimize or eliminate them.
All drone users and those who care about drone innovation, especially the news media, as a leading end-user of drone technology, must better scrutinize these “cybersecurity” concerns. Putting fear before fact and security pretexts ahead of rational solutions will not only chill newsgathering abilities and irreparably harm all drone operators, but also ground a beneficial technology that is just getting airborne.
Mickey H. Osterreicher serves as general counsel for the National Press Photographers Association (NPPA). He has been a strong proponent of the safe use of drones for newsgathering and leads a yearly Drone Journalism Leadership Summit for members of the media, law enforcement, the FAA and other agencies. He has been an NPPA member since 1973. Email Mickey at [email protected].