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Droning on About Journalism: Remotely Piloted Aircraft and Newsgathering

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Drones and Unmanned Aerial Systems

Abstract

‘Drones’—technically, ‘remotely piloted aircraft’ (RPAs)—are evolving from predominantly military to civilian applications. This chapter focuses exclusively on using RPAs for newsgathering, aka ‘drone journalism’. Cheap, light and portable, RPAs can easily be moved to locations where reporting needs to take place or production is most desirable and safe. In this context, RPAs are simply 21C aerial camera platforms. However, this category of use by mainstream media and citizen journalists is being frustrated by regulatory, legal and so-called ‘ethical’ gaps and challenges. The chapter argues that the public’s right to receive information by journalists exercising the rights involved in carrying out the profession of reporting—and the concomitant right to access communications technologies in order to do so—should permit the use of RPAs in this context in principle and trump counterclaims, not least by the pro-privacy lobby.

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Notes

  1. 1.

    Widely so-called, the origin of the word ‘drones’is less well known. It seems that, in 1931, ‘…the British developed the Fairey “Queen” radio-controlled target from the Fairey IIIF floatplane, building a batch of three, and in 1935 followed up this experiment by producing larger numbers of another RC target, the “DH.82B Queen Bee”, derived from the de Havilland Tiger Moth biplane trainer. Through some convoluted path, the name of “Queen Bee” is said to have led to the use of the term “drone” for remote-controlled aircraft’ (Goebel).

  2. 2.

    See also Weber (2010), Tesla Memorial Society of New York (n.d.) and Nikola Tesla Museum (n.d.). For the patent, method of, and apparatus for controlling mechanism of moving vessels or vehicles, see Tesla (1898).

  3. 3.

    See also, BBC News (2013). A tweak to the phrase ‘drone journalism’ is “sensor journalism”: see Pitt (2014).

  4. 4.

    Colloquially, ‘drone cinematography,’ see http://www.rollingstone.com/movies/news/drones-and-the-future-of-movies-20131028. See also, http://www.npr.org/blogs/alltechconsidered/2014/05/16/312487924/are-filmmakers-using-drones-illegally-looks-like-it; and http://www.iol.co.za/capetimes/film-industry-concerned-about-camera-drone-ban-1.1689174#.U3YcqPldWSp. Speaking for the US film industry, Howard Gantman, Motion Picture Association of America (MPAA) spokesperson, has stated: ‘What we are looking for is line-of-sight things [sic] that can be utilized in innovative ways…These could be used much more safely than going up a tree and much more cheaply than renting a helicopter’; and now, see Federal Aviation Administration (2014a).

    As Timothy Ravich (2014) notes, in the context of movies, ‘In any event, while this is a step in the right direction—rewarding credentialed, safety-conscience “drone” users—this seems out of sorts with the First Amendment guarantee of free speech. Isn’t a movie a form of expression (yes, the Supreme Court of the United States said in 1952)? Will the FAA exempt certain movie studios and not others?’ Ravich is referring to Joseph Burstyn, Inc. v. Wilson (1952).

  5. 5.

    ‘You can take a simple UAV and repurpose imagery for a farmer’s field for cents on the dollar compared to using traditional aircraft. The biggest potential for Unmanned Aerial Vehicles is aerial images and data acquisition’(Green 2013). See also the US Senate Committee on Commerce, Science, and Transportation (2014); Federal Aviation Administration (2014a); Association for Unmanned Vehicle Systems International’s (AUVSI’s) Unmanned Systems Mission Critical (2014); and O’Connell (2014).

  6. 6.

    Potentially problematic was the use of the RPA within a prohibited radius of Reagan National Airport—the ‘Flight Restricted Zone (FRZ), a roughly 10-nautical-mile area centered around Reagan National Airport in Virginia’ (Miller 2014).

  7. 7.

    See Drone Journalism Lab and Professional Society of Drone Journalists.

  8. 8.

    An RPA is an ‘aircraft’ because it falls within the ICAO definition of an aircraft: ‘Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the Earth’s surface’ (UK Civil Aviation Authority 2012).

  9. 9.

    ‘Historically, “responsible journalism” was developed as a defence to defamation in Reynolds v. Times Newspapers Ltd. Despite being crafted in the context of defamation, several of the matters listed by Nicholls LJ are relevant in the context of surveillance. For example, the seriousness of the conduct being investigated by a journalist, the likely strength of the individual under surveillance as a source of information, the likely nature of the information obtained, and the urgency of the matter may be relevant considerations’(Australian Law Reform Commission 2014, Para 14.65).

  10. 10.

    ‘Parrot has added a new model to its line of airborne drones—the Bebop…the lightweight Bebop includes some snappy features, such as built-in image stabilization, a 14-megapixel camera with a fish-eye lens, and support for the Oculus Rift virtual reality headset’ (Mello 2014). See also Stone (2014).

  11. 11.

    ‘The first known aerial photograph was taken in 1858 by French photographer and balloonist, Gaspar Felix Tournachon, known as “Nadar”. In 1855 he had patented the idea of using aerial photographs in mapmaking and surveying, but it took him 3 years of experimenting before he successfully produced the very first aerial photograph’ (PAPA International 2014). PAPA has a webpage about RPAs, asking members to respect local laws and regulations: http://www.papainternational.org/uas.asp. In 2011, The Museum of London held an exhibition of street photography dating from 1860 (see Urban75 2011).

  12. 12.

    The ACLU does think there is a difference between helicopters and drones (see Stanley 2013).

  13. 13.

    See the Code of Ethics for Drone Journalists on the PSDJ website.

  14. 14.

    CNN actually has a webpage that requests people to submit their drone images saying, ‘We’ll feature the best on CNN.com/Tech’ (http://ireport.cnn.com/topics/1098143). Accessed 22 Sept 2014.

  15. 15.

    For that region generally see Sánchez (2014)..

  16. 16.

    ‘DJI’s No Fly Zone system creates a curious technological and sovereignty precedent. The initiative will effectively give a Chinese company indirect control over the movement of unmanned aircraft in Australian airspace—and in the skies of dozens of other nations. While DJI says its initiative is solely motivated by safety, there are concerns that drone flying restrictions could be easily exploited for political censorship’ (ABC News 2014a).

  17. 17.

    This phrase conveniently ignores the legal fact that there is no ‘right to privacy’ simpliciter in the European Convention on Human Rights (or in the US Constitution).

  18. 18.

    See, United States of America National Transportation Safety Board (2013).

  19. 19.

    The FAA has also licenced BP and AeroVironment to fly an AeroVironment Puma AE for aerial surveys in Alaska—the first time the FAA has authorized a commercial UAS operation over land (Federal Aviation Administration  2014b) rized a commercial UAS operation o.

  20. 20.

    Ravich is referring to Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).

  21. 21.

    RPAs are part of what has been called ENG—‘electronic news gathering’. See McGrath (n.d.).

  22. 22.

    See also Australian House of Representatives, Roundtable on Drones and Privacy (2014). Canadian regulators etc are also exercised by this issue: see, Office of the Privacy Commissioner of Canada (2013); Cavoukian (2012); Gersher (2014); and Block (2013).

  23. 23.

    See, for example, http://www.bing.com/videos/search?q=spies+in+the+sky+drones&qpvt=spies+in+the+sky+drones&FORM=VDRE.

  24. 24.

    Thierer (2013) argues that, ‘If steps must be taken to address these concerns, education and empowerment-based solutions represent superior approaches to dealing with them compared to a precautionary principle approach, which would limit beneficial learning opportunities and retard technological progress.’ See also Thierer (2012) and Cesca (2013).

  25. 25.

    See for example: National Association of Criminal Defense Lawyers (2014) see also, Targeted Lethal Force Transparency Act 2014. https://beta.congress.gov/bill/113th-congress/house-bill/4372.

  26. 26.

    Osterreicher (n.d.) has discussed whether there is a (US) constitutional right to use drones to collect aerial imagery.

  27. 27.

    See, for example, Photography Is Not a Crime: Be the Media.

  28. 28.

    Personal email to the author, 13 February 2013; see the Metropolitan Police website: http://content.met.police.uk/Site/photographyadvice. There are a few UK websites that cover this topic, for example, Digital Camera World (2012). See also Macpherson (2009).

  29. 29.

    Of course, there is the offence of photography contrary to Section 1 of the Official Secrets Act 1911 and the whole matter of ‘prohibited places’, but the offences are for behaviour which is “for any purpose prejudicial to the safety or interests of the State.” See also the Security Industry Authority Guidance (2011) provided to private security guards to ensure that it sufficiently reflects the right of the public to take photographs, British Transport Police (n.d.) With respect to dissenting judgements, see Voorhoof (2014a).

  30. 30.

    One might wish that the right and its scope—even in the USA—were even clearer: ‘The scope of the right to take photos or record video is still ambiguous, so tread carefully. The Supreme Court has never ruled that there is an affirmative right to take photos or video in public places. To be fair, they have never said there isn’t such a right. But the exact scope of any such right has never been defined and federal courts are split on whether such a right exists at all. For example, in Glik v. Cunniffe, the First Circuit found that there was a First Amendment right to take video of police officers arresting someone. However, in Kelly v. Borough of Carlisle, the Third Circuit ruled that a police officer was entitled to qualified immunity on a First Amendment claim because there is no clearly established right to make a video of traffic officers on a traffic stop. Although there is some very good case law supporting such a right, and one may believe there should be such a right, the law is not perfectly clear. In some jurisdictions, those who take photos or videos, even in public places, run the risk of being arrested if they fail to comply with police orders or for violating state wiretap laws. Until the courts make clear there is an affirmative First Amendment right to record and what the scope of that right is, journalists should not be overconfident in their rights’ (AEJMC 2014).

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  1. Glasgow, Scotland

    David Goldberg

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  1. of Law, Institute of Criminology at the Faculty of Law, Ljubljana, Slovenia

    Aleš Završnik

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Goldberg, D. (2016). Droning on About Journalism: Remotely Piloted Aircraft and Newsgathering. In: Završnik, A. (eds) Drones and Unmanned Aerial Systems. Springer, Cham. https://doi.org/10.1007/978-3-319-23760-2_10

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  • DOI: https://doi.org/10.1007/978-3-319-23760-2_10

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