Flying a drone commercially may be a legally sticky area, but posting pictures on a website is a First Amendment right.
Right now, flying a drone commercially in the US still falls into a bit of a legal grey area. One thing that is absolutely legal, however, is operating a website. So why did the Federal Aviation Administration recently ask that a drone pilot take his down?
A new FAA rules interpretation issued last fall probably gives the agency wide latitude to prohibit certain drone flights (it has not yet been tested or challenged in court), but that interpretation does not give the agency the ability to demand people take their photos off the internet. Yet that's allegedly what happened last week to a pilot in Portland, Maine.
Steve Girard said he'd only been flying his drone since September, which is why he didn't set out to become a commercial pilot. Instead, he took photos of the surroundings near his home and posted them on his website, called Xtreme Aerial View. He said people enjoyed the photos, so he started selling them, for a couple bucks a pop.
"I was just doing some sunrise and sunset pictures, getting some really great stuff. So people said I should sell them as backgrounds for computer desktops," Girard told me. "I was selling them for $2 each. It was pocket change and I only sold a couple."
Girard said he hasn't done any drone-for-hire flights, which is something that the FAA has tried to crack down on in the past. His website still has less than 500 views. Still, someone claiming to be Bobby Reed, manager of the FAA's Portland Flight Standards District Office, called him.
"We're looking at your website and an investigator will be in touch with you regarding the limitations which you may be exceeding with regard to advertising drones and aerial footage that puts you outside the limitations of a hobby," Reed said. "They'll be looking for you to pull down the website. You can operate as a hobby, but there are serious implications, and there are fines and penalties associated with [commercial] activity."
The FAA calling up or otherwise threatening commercial operators with cease-and-desist notices is nothing new, but the pull-down-your-website deal is.
"Mr. Girard communicated using a website, which is his unfettered right"
Girard posted a recording of the voicemail on a drone legal news Facebook group I visit. I contacted the Portland office of the FAA (I confirmed a man named Bobby Reed is, indeed, manager there) and did not receive a response. I also was in close contact with FAA headquarters in Washington, DC. Representatives there said they were looking into the incident, but haven't gotten back to me after multiple email exchanges.
Peter Sachs, a drone advocate and lawyer in Connecticut who has recently specialized in unmanned aircraft regulatory issues, told me that a government agency asking a person to remove a website is a blatant free speech violation.
"Mr. Girard communicated using a website, which is his unfettered right," Sachs said. "The FAA, and all of government for that matter is forbidden from infringing upon that right, which our First Amendment guarantees."
Girard says he has since modified his website—he's not selling the photos anymore, but said he's not going to take it down.
"I've been waiting to hear from them, I tried calling them and sat on hold for 40 minutes," he told me. "I sent an email asking for laws or rules, a PDF, and never heard back."
The FAA does indeed have documents that relate to commercial drone use, but they're not all that easy to find, and the agency has generally done a poor job of making clear what is and is not legally binding.
It's unclear why, exactly, the FAA is targeting Girard. In recent months, the agency has loosened its stance on commercial drone operations, and its proposed commercial drone rules sound outright reasonable. In the past, when one of its offices has demanded that a pilot stop operating commercially, the agency has never followed through with any of its threats.
It has yet to try to prosecute a person for flying a drone commercially, although it's widely believed that was the impetus for a long legal battle that was recently settled between the agency and Swiss drone pilot Raphael Pirker. In the end, however, the FAA fined Pirker for "reckless flying," not commercial operation.
This also isn't the first time the FAA has been accused of stymying free speech. Last year, a coalition of news organizations said that the agency's stance on the use of drones for journalism (namely, don't do it), was a First Amendment violation. I'll update this story if and when I hear back from the FAA.