Drone journalists are documenting human rights abuses in North Dakota. A no fly zone enacted by the FAA violates the First Amendment, experts say.
In recent weeks, videos shot by Native American drone pilots have shown percussion grenades launched from an armored vehicle deep into a crowd of people protesting the Dakota Access Pipeline in North Dakota. They have shown people being knocked backward with a constant barrage of water being shot from fire hoses. They've shown a line of body armor-clad cops aiming guns at unarmed water protectors holding their hands high above their heads. Another video, shot at night, shows that construction on the Dakota Access Pipeline continues under the cover of darkness.
In recent weeks, Dakota Access Pipeline protesters have been tear gassed, sprayed with water cannons in freezing temperatures, and shot with rubber bullets by a police force using military-style vehicles and violent riot suppression tactics. Every suppression apparatus the government has at its disposal has been used—even the National Guard has been called in.
These drone-shot videos have been invaluable in recording these abuses. And yet those, too, have been targeted by the government. The Federal Aviation Administration has set up a Temporary Flight Restriction over a four-mile radius surrounding the Standing Rock protests. The TFR applies only to civilians; law enforcement helicopters and aircraft buzz over protesters with impunity.
Experts say the no fly zone is a blatant violation of the First Amendment that has normalized a chilling precedent set by the FAA during the 2014 protests in Ferguson following the police killing of Mike Brown.
By any definition of the word, the drone pilots documenting the Dakota Access Pipeline protests are conducting journalism. The videos, live streamed to Facebook and later posted on YouTube, have shown human rights abuses, caught police in lies, and—in the case of the numerous videos that show their drones being shot at by police—have documented law enforcement committing federal crimes. Many of the videos have thousands of views on YouTube and millions of people have seen them on Facebook.
"This no fly zone is a clear violation of news gathering rights that are protected by the First Amendment," Roy Gutterman, director of the University of Syracuse's Tully Center for Free Speech, told me. "Using drones for news gathering is a viable modern technique, and this looks like it's a government action clearly aimed at limiting access to a public place."
Digital Smoke Signals
Since August, Myron Dewey has been flying drones above Standing Rock. A Native American from Nevada, Dewey went to Standing Rock because he wanted to stand up for indigenous rights after seeing mining destroy native lands near his home.
He brought a drone with him and set up a small media company called "Digital Smoke Signals." He and a person called Dr0ne2bwild have been the main drone journalists documenting the protests and the law enforcement response to it.
"For years, the story has been told for us, not by us. This is our opportunity to tell our story," Dewey told me.
The drone footage has given the public a general sense of the scale and tenor of the protests. The drones have also given many of the water protectors peace of mind during direct actions, according to Rhianna Lakin, who has been a prominent member of the commercial drone community for years and has been been providing on-the-ground support and training for indigenous pilots.
"Drones level the playing field"
"They provide a sense of security to the water protectors to know that they're in the air documenting the truth," Lakin told me. "It provides truthful and accurate documentation of what's happening, so we can take the statements the Morton County Sheriff is putting out and verify it."
Dewey said numerous water protectors who have been arrested have had their charges dropped based on the footage his drones have taken, and thousands of people have watched as law enforcement have used military-style tactics to suppress the protesters.
"The drones provide a visual narrative—we've seen unarmed people praying getting shot with a water cannon," Dewey said. "We show canisters being shot into the middle of a crowd, guns being pointed at people, medics being shot in the back with rubber bullets."
"Drones level the playing field," he added. "They get us out of jail, they have saved us from having to get close to police to document what they're doing and to document that, while these atrocities and abuses of power are happening, work as usual on the pipeline has been happening."
Flying drones in rural North Dakota in November has been difficult. The pilots burn through batteries at an astonishing rate, and spotty 4G signal limits where the pilots can livestream from. Most concerning, videos show that the law enforcement regularly shoot at them, which is a violation of a federal law that prevents anyone from firing on civil aircraft in US airspace. Violating it is a felony.
"I'm pushing the drones to a limit I don't think they've been tested at," Dewey said. "The drone was freezing up because it was sprayed with water—there were icicles on the drone. I've had three shot down—one by sniper fire, one by a canister. A percussion grenade at another. We're on drone number eight. They continue to fly."
The No Fly Zone
On October 23, the Morton County Sheriff's Department announced it had shot down a drone after it had approached a police helicopter "in a threatening manner." Soon after, it petitioned the FAA for the TFR, which extends until at least Friday (in the past, TFRs have been immediately renewed after they expire).
Dewey told me he "follows the laws."
"When their planes are flying, we document them 100 or 50 feet off the ground. In that case, the helicopter followed me. It was probably a half mile away from the helicopter," he said. The Morton County Sheriff's Department did not respond to a voicemail or text message I left its public information officer. I made four phone calls to two phone numbers given to me by a secretary in the department's main office, none were answered.
The TFR says "no pilots may operate an aircraft in the areas covered by this Notice to Airmen," however it carves out an exception for "response aircraft in support of law enforcement aircraft," meaning that police aircraft continue to monitor the protesters' camps.
"In essence, a 'giant tarp' has been laid over the site, allowing law enforcement to act with impunity and without any witnesses," Peter Sachs, a drone law attorney in Connecticut, wrote on his blog earlier this week.
Gutterman of Syracuse University told me the TFR has "the effect of prior restraint," an established First Amendment violation in which the government places a restriction on expression before it can take place.
The FAA has been placed in an odd position for an agency whose primary job has been making sure planes don't crash into each other. Rather than attempt to find a balance between the First Amendment and safety, it has repeatedly erred on the side of censorship.
Transcripts obtained by the Associated Press show that a TFR placed over Ferguson in 2014 was done primarily to restrict media access to the protests, which Gutterman said was "clearly intended to manipulate news gathering." In the past, FAA officials have ordered drone pilots to take videos off of YouTube and have received legal challenges from a coalition of news organizations including the Washington Post, New York Times, and Associated Press that called the use of drones for news gathering a "constitutionally protected activity."
"As far as the government imposing limitations on technology in public places, I can't think of anything like this. Law enforcement or first responders have a legitimate government interest in preserving safety in a disaster scene by cordoning off an area, but this is a little different," Gutterman said. "You're putting a bubble over a whole zone without any real legitimate government interest."
The FAA told me in an emailed statement that it is "investigating several incidents in which protestors have allegedly flown their drones in violation of the provisions of the TFR."
The agency said that it is willing to give exceptions to the TFR for news media who meet a series of requirements, including the new commercial drone regulations called "Part 107," that require a certification and restrict flying at night and over people.
"The Ferguson protests are long gone, but this issue isn't going anywhere in the near future"
"In the case of unmanned aircraft, operators must also comply with the requirements of Part 107 and coordinate beforehand with the FAA," the agency said. "We've had no requests from media who meet those requirements."
The agency added that it's "aware of anecdotal reports of drones being shot down," but noted that it has only received one "official report."
Gutterman says that, in general, there's no need to get an "exception" to exercise First Amendment rights, and the United States does not and has never had a method of "registering" journalists.
"There's no governing body that says who is a journalist and who isn't a journalist," he said. In theory, it shouldn't matter whether the journalist is part of the protest or is part of a traditional mainstream media company. "Traditional journalistic ethics aside, there's nothing in law that says a journalist can't have an agenda."
While the fate of the TFR and the Standing Rock drone journalists is important in the short term, there's a larger, more important societal question here: Will the FAA be allowed to continue rubber stamping no fly zones for law enforcement whenever there is a protest?
"It's scary they can put these no fly zones up during actions, whether it's Ferguson or Standing Rock or the next place it happens," Lakin said. "They can suppress media by putting up no fly zones."
Gutterman says in order to challenge the no fly zone, journalists would have to sue the FAA in federal court to have the TFR lifted as an emergency maneuver. To start, they would file a temporary restraining order seeking to stay the TFR, and then there would be a court proceeding.
"I think this might be an opportunity to test the application of a TFR under the First Amendment," he said. "The Ferguson protests are long gone, but this issue isn't going anywhere in the near future."
Dewey says it's simply unfeasible to get FAA approval for flights documenting abuses. The drones will continue to fly.
"We're witnessing people being shot, maced, water cannoned. People being abused by beanbags and rubber bullets," he said. "We're documenting what happens. We've called the FAA and said it's very important we get an exception. They have told us their hands are tied. Do we continue to fly and document the atrocities? Yes we do. Because it's our right. The FAA has not justified what they're doing."