The FAA Issues New Remote Identification Rules for Unmanned Aircraft

In December 2019, the Federal Aviation Administration (FAA) proposed new rules exploring remote identification (RID) of unmanned or uncrewed aircraft (UA) in the United States (US).  53,000 comments and one year later, the agency issued a final rule requiring what it has called a “digital license plate” for UA.  But don’t be fooled by nomenclature.  The new rules are more pernicious than the license plate you receive when you register your car.  Nevertheless, the RID rules, which will take effect over the next two years, achieve a calculated balance between privacy, safety and security.  Perhaps more important, they afford a welcome opportunity to increase transparency and accountability in the UA industry and thereby continue to build public trust and support for these invaluable platforms.

Safely integrating UA into the United States airspace has proven to be quite challenging.  In addition to the relatively low cost of the UA platform itself, technological innovations including infrared technology and high-definition imaging allow for seemingly endless applications from wedding photography to property surveillance to critical infrastructure safety inspections.  All told, the FAA estimates new entrants into national airspace – once the realm solely of crewed aircraft – at the level of hundreds of thousands.  Since 2015, the FAA has worked to assure the safety and security of national airspace by implementing incremental measures with respect to registration and operational restrictions on UA flights and operations.  The Remote Identification of Unmanned Aircraft rules, published in the Federal Register on January 15, 2021, are indeed, as the FAA describes, “an incremental step” towards enabling expanded operations, like flying over people, or beyond visual line of site, to become routine.

The primary goal of the new rules is to address safety, national security and law enforcement concerns in respect of the integration of UA into US airspace.  The FAA explicitly indicates, in footnote 17, that the rule “has not been promulgated for the purpose of addressing concerned about unmanned aircraft that violate privacy laws.”  Nevertheless, the FAA concedes, the RID “potentially allows for greater ability of law enforcement to locate the person controlling an unmanned aircraft.”  In other words, in promoting safety, certain privacy concerns of the public will be addressed through increased accountability.

Of course, accountability requires a certain level of transparency which erodes the privacy of the UA operator.  Many commenters worried that this erosion would in turn compromise the safety of operators and their customers.

The RID rules offer two paths to compliance.  Standard Remote Identification requires the RID be built into the UA.  The Standard RID must broadcast: a unique identifier to establish the identity of the UA; an indication of the UA latitude, longitude, geometric altitude and velocity; an indication of the control station latitude, longitude and geometric altitude; a time mark; and an emergency status indication.  UA that are equipped with Standard Remote Identification may operation beyond visual line of sight.

Remote Identification Broadcast Modules provide current UA the opportunity to be fitted with a broadcast module, though such drones will not be permitted to be flown beyond visual line of sight.  Required message elements for the Broadcast Modules are: the serial number of the broadcast module assigned by the producer; an indication of the UA latitude, longitude, geometric altitude and velocity; an indication of the latitude, longitude and geometric altitude of the takeoff locations; and a time mark.

The RID rules are linked to registration requirements. Thus compliance, required by September 2023, will involve including the serial or identification number with the registration of each UA.  The FAA stresses that the serial number will not be available to the public, thus thwarting the ability to correlate a broadcast message with an individual.  Even so, operators may also opt for another layer of privacy by utilizing a so-called session ID.  The association between the session ID and the UA serial number will not be made available to the public through the broadcast message.  Instead, it would only be known to the FAA, the UA supplier and made available to law enforcement and other authorities as necessary.

Nevertheless, the broadcast messages will allow both governmental authorities and the general public to track the takeoff, flight and landing of any UA.  This raises some concerns.

The requirement that control station and takeoff locations be revealed fosters operator privacy and security concerns.  Commenters indicated that this information could compromise the safety of UA operators and their property potentially resulting in assault, theft and even home invasion.  Some even argued that this rule could imperil safety of US airspace should a UA operator be distracted by questions or threats from a member of the public.  Many suggested that this information should be encrypted.  The FAA disagreed, finding that the sharing of control station and takeoff location are necessary to promote safety and efficiency.  In response to concerns about operator safety, the FAA rightly noted that these issues were best addressed with community outreach.  Public trust in UAs will not be gained by shrouding them in secrecy.  The industry should take advantage of these new rules to recommit to public education and outreach regarding the benefits UAs bring to society.

Similar concerns were raised in connection with the broadcast of the UAs location with comments ranging from fears that their UA would be shot down to worries that customer information might be compromised.  Again, the FAA found that the accountability, safety and security benefits well-outweighed privacy concerns.  Moreover, it was noted, that the purpose of any flight would not be disclosed, allowing for a certain level of discretion.

The need to monitor airspace traffic is integral to a well-functioning, safe and efficient airspace. Recognizing that the primary goal of the RID rules is to address safety concerns while laying a foundation to enable greater operational capabilities for UAs, the RID rules do an admirable job of balancing operator privacy and accountability.  Importantly, the rules provide better tools to assure compliance and apprehend the UA operators who dangerously flout safety regulations. They offer an opportunity for the industry to build public trust and acceptance as applications for UA use continue to expand.

That said, the authors must end on a word of caution.  In response to significant negative feedback, the FAA postponed the implementation of the network-based RID. This network component would have required the transmission of message elements through an internet connection.  Objections included questions of connectivity, data security, technical cost and capability as well as privacy.  While many commenters argued that these concerns should indicate that a network system should never be implemented, the FAA only agreed to postpone consideration of this step.  As the industry matures, there is no doubt the FAA will consider this tactic again.

In the meantime, the FAA’s digital license plate offers a stable and encouraging step toward both further integration and increased public trust.

Submitted by:

Michelle Hanlon
Co-Director of the Air and Space Law Program at the University of Mississippi School of Law

 

 

Michael Bokeno
2nd year law student at the University of Mississippi School of Law where he is part of the Business Law Concentration and the Air Space Law Society.  Michael devotes his time to the study of Air & Space Law with a specific interest in drone regulation and commercialization.

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