“If there’s somebody harassing them with a drone, then I think there’s other ways that can be dealt with,” he said.
The FAA advisory is also potentially problematic because it still creates a “chilling effect to dissuade people from taking photos and videos, particularly of immigration enforcement agents, from the air,” said Sophia Cope, a senior staff attorney at the Electronic Frontier Foundation.
Like the earlier notice, the new advisory warns that federal agents can seize, damage, or destroy drones “deemed to pose a credible safety or security threat to covered mobile assets.”
Kaleidoscope of Love performance art captured by Rob Levine’s drone.
“The threats that [drones] present to the national security and mission of DHS are evolving, and the approaches to securing the locations and personnel of the Department must also evolve,” the Department of Homeland Security spokesperson said. “We ask that the [drone] user community respect the security of DHS operations, personnel and facilities and refrain from operating in vicinity of known enforcement activities, and all federal facilities.”
The FAA advisory cites three existing laws as giving the federal agencies authority to seize or destroy drone threats.
But those laws first require federal agencies to have performed risk-based assessments to identify specific drone threats to the covered assets. It’s unclear whether agencies have done those assessments, Cope said, and therefore, “they’re just disincentivizing people from engaging in lawful, First Amendment protected activity.”
That chilling effect was very real for Levine while the initial flight restriction was in place. Hesitation cost him the chance to take aerial photos of protestors putting up roadblocks in his neighborhood to stop federal agents’ vehicles toward the end of the US government’s Operation Metro Surge. Even when a friend asked him to help take drone videos and photos of a performance art event on February 28, he had to think hard about the risks.
As he tells it, “I eventually just screwed up my courage, as little as I have, and said ‘OK, I’m gonna do it.’”
