Electronic Privacy Information v. FAA, et al

Filing

OPINION [1736670] filed (Pages: 12) for the Court by Judge Sentelle. [16-1297]

USCA Case #16-1297

Document #1736670

Filed: 06/19/2018

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2018

Decided June 19, 2018

No. 16-1297
ELECTRONIC PRIVACY INFORMATION CENTER,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION, ET AL.,
RESPONDENTS

On Petition for Review of an Order
of the Federal Aviation Administration

Alan Butler argued the cause for petitioner. With him on
the briefs was Marc Rotenberg.
Abby C. Wright, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief were
Michael S. Raab, Attorney, and Paul M. Geier, Assistant
General Counsel for Litigation and Enforcement, Federal
Aviation Administration.
Before: GARLAND, Chief Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.

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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: In June 2016, the
Federal Aviation Administration (“FAA”) published a final
order, the Operation and Certification of Small Unmanned
Aircraft Systems, 81 Fed. Reg. 42,064 (June 28, 2016). The
FAA promulgated the rule under the FAA Modernization and
Reform Act of 2012 (the “Modernization Act”), Pub. Law.
112-95, 126 Stat. 11, in which Congress directed the Secretary
of Transportation to consider whether certain small unmanned
aircraft systems (“drones”) could be safely integrated into the
national airspace and to establish requirements ensuring their
safe operation, § 333, 126 Stat. at 75-76. 81 Fed. Reg. at
42,067-68.
The Electronic Privacy Information Center
(“EPIC”) now challenges the rule on the grounds that the FAA
did not address privacy issues raised by drone operations.
EPIC argues that the Modernization Act requires the FAA to
consider and protect privacy in regulating drone use. 1 Because
EPIC fails to establish standing, however, we dismiss the
petition for review and do not reach the merits.
I.

Background

The rule at issue creates regulations for certain classes of
nonrecreational small drone operations. 81 Fed. Reg. at
42,074. Small drones can never comply with some of FAA’s
existing manned aircraft regulations, and others would be
inappropriately burdensome. See id. at 42,068-69.
1

This case had been consolidated with Taylor v. FAA, No. 161302, a challenge to a different part of the rule dealing with
exemptions for model aircraft. Because of the lack of substantive
overlap between the challenges brought, we now deconsolidate these
cases.

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Recognizing the need for regulations specific to drone
operations, Congress charged the FAA with planning for and
promulgating a new regulatory framework for drones.
Congress directed the FAA to provide a comprehensive
framework “to safely accelerate the integration of civil
unmanned aircraft systems into the national airspace system.”
Modernization Act § 332(a)(1). Congress further charged the
FAA with determining “which types of unmanned aircraft
systems, if any, as a result of their size, weight, speed,
operational capability, proximity to airports and populated
areas, and operation within visual line of sight do not create a
hazard to users of the national airspace systems or the public or
pose a threat to national security” and so could be integrated
into the national airspace earlier rather than awaiting
comprehensive drone regulations. Id. § 333(a), (b). The small
drone rule at issue was promulgated to meet this accelerated
requirement of Modernization Act § 333. 81 Fed. Reg. at
42,067-68.
The rule was first proposed in 2015. 80 Fed. Reg. 9544
(Feb. 23, 2015). The proposed rulemaking acknowledged
privacy concerns arising from unmanned aircraft and noted
FAA’s involvement in an interagency process to address those
concerns, but concluded that privacy was beyond the scope of
the proposed rule. 80 Fed. Reg. at 9552. Instead, safety
concerns drove the FAA’s efforts in crafting the final rule,
specifically (1) the ability to “see and avoid” other aircraft
without a pilot on board and (2) potential loss of control of the
drone due to failure of the link between the drone and its
operator. 81 Fed. Reg. at 42,068. To address these concerns,
the regulations require the operator to maintain visual line of
sight with the drone, to operate during daylight or twilight only,
and to limit the speed and altitude of small drone operations,
among other requirements. Id. at 42,066-67. As required under

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Modernization Act § 333, the FAA determined that operations
conducted in compliance with the rule “pose no hazard to the
public and the [national airspace system].” 81 Fed. Reg. at
42,180.
EPIC, which describes itself as “an organization
established to focus public attention on emerging privacy and
civil liberties issues,” commented on the proposed rule. EPIC
argued that privacy regulations were necessary to ensure drone
operation safety and were required under the Modernization
Act. In the final rule, the FAA determined that privacy
concerns were beyond the scope of the rulemaking and not
obviously within its traditional statutory mandate to ensure the
safe and efficient use of national airspace. 81 Fed. Reg. at
42,190.
Indeed, the FAA had “never extended its
administrative reach to regulate the use of cameras and other
sensors extraneous to the airworthiness or safe operation of the
aircraft in order to protect individual privacy.” Id.
The FAA also responded to EPIC’s contention that the
Modernization Act required the agency to promulgate drone
privacy regulations. The agency explained, “None of the
[drone]-related provisions of [the Modernization Act] directed
the FAA to consider privacy issues.” Id. at 42,191. Rather, to
read the act as implicitly requiring such regulation “would be a
significant expansion beyond the FAA’s long-standing
statutory authority as a safety agency,” and the agency lacked
rulemaking authority to regulate privacy interests between
third parties. Id. at 42,191-92. EPIC timely petitioned this
court for review.
EPIC now challenges the rule on the following grounds:
(1) the FAA’s refusal to address privacy hazards is unlawful
because (a) it is contrary to the Modernization Act, (b) the
FAA’s construction of the statutory term “hazard” is

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impermissibly narrow, and (c) the agency acted arbitrarily and
capriciously; and (2) the FAA unlawfully engaged in piecemeal
regulation when the Modernization Act requires a
comprehensive rulemaking. Before we can address those
questions, we must first determine if we have jurisdiction. This
inquiry requires that we determine whether EPIC has standing.
See Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).
EPIC does not.
II.

Discussion

“[S]tanding is a fundamental prerequisite to any exercise
of our jurisdiction,” and “requires . . . that the litigant has
suffered a concrete and particularized injury that is actual or
imminent, traceable to the challenged act, and redressable by
the court.” Abigail All. for Better Access to Developmental
Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006).
EPIC “must support each element of its claim to standing ‘by
affidavit or other evidence.’” Americans for Safe Access v.
DEA, 706 F.3d 438, 443 (D.C. Cir. 2013); see also D.C. Cir. R.
28(a)(7).
“An organization like [EPIC] can assert standing on its
own behalf, on behalf of its members or both.” Equal Rights
Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011)
(citing Abigail All., 469 F.3d at 132). EPIC asserts both
associational standing on behalf of its members and its own
organizational standing. In reviewing these claims to standing,
we bear in mind that because EPIC and its members are “not
the objects of the [challenged regulation], standing ‘is
ordinarily “substantially more difficult” to establish.’” Sierra
Club v. EPA, 754 F.3d 995, 999 (D.C. Cir. 2014) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992)). We
consider each theory of standing in turn.

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A. Associational Standing
We first consider whether EPIC has established
associational standing. An association must show that “(1) at
least one of [its] members would have standing to sue; (2) the
interests [it] seek[s] to protect are germane to the
organization[’s] purposes; and (3) neither the claim asserted
nor the relief requested requires the participation of individual
members.” Id. (citing Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). Because
EPIC’s members fail to establish a concrete and particularized
injury caused by the small drone rules, we need examine only
that issue.
To establish that its members would have standing, EPIC
offers affidavits from two members of its advisory board. The
first declares the affiant’s knowledge of testing of drone
delivery services and other drone testing in the region of
Florida in which he lives and travels. The second makes
similar declarations concerning testing of delivery and
reconnaissance drones in and around Boston, Massachusetts.
Both voice a “concern[] about an increasing loss of privacy due
to the widespread use [of] small drones for deliveries,
photography, and other persistent monitoring of public and
private spaces.” Both declare a further concern “that my
freedom to travel free of constant monitoring will be disturbed
and my privacy put at risk by the drone operations authorized
by the FAA.” EPIC argues that these declarations establish that
the promulgation of the FAA’s small drone regulations “will
result in the invasion of privacy and collection of sensitive
personal information” that would otherwise have been
protected against by the wished-for FAA privacy regulations.
The FAA’s failure to promulgate such regulations would

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therefore contribute to and increase the risks drones pose to
privacy.
An initial difficulty with EPIC’s argument arises from its
heavy dependence on the testing of drone delivery services.
Such services would appear to be largely excluded from the
operations authorized under these rules and cannot provide a
basis for Article III standing because the injury claimed is not
caused by these rules. The FAA states that “the rule at issue
does not authorize such operations” because “air carrier
operations” are expressly excluded from the rule. FAA Br. 24
(citing 14 C.F.R. § 107.1(b)(1)). EPIC responds that the FAA
fails to offer a definition of “air carrier operations” or show that
the delivery services in question meet any such definition. This
response fails to account for EPIC’s burden to establish
standing. True, the FAA may not have shown that the drone
testing in question is not authorized by the rule at issue. But
EPIC bears the burden to show that those services are
authorized by this rule and cause the alleged injuries, which
would be remedied by vacatur. Cf. Sierra Club, 754 F.3d at
1001 (rejecting claims of injury based on the speculative
reading of an EPA memorandum, where the memorandum
could be interpreted differently and EPA indicated that it did
so).
Moreover, the declarations offered by EPIC specifically
mention United Parcel Service of America, Inc. (“UPS”),
which would seem to qualify as an “air carrier” within the
meaning of 14 CFR § 107.1(b)(1). An “air carrier” is anyone
who “undertakes . . . to engage in air transportation.” 14 C.F.R.
§ 1.1. “Air transportation” includes “interstate . . . air
transportation,” which in turn is defined as “the carriage by
aircraft of persons or property as a common carrier for
compensation or hire . . . [w]hether that commerce moves
wholly by aircraft or partly by aircraft and partly by other forms

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of transportation.” Id. EPIC offers no reason why UPS would
not fall under these definitions. Further, the FAA considered
comments concerning package delivery services in the context
of its omission of authorization for air carrier operations. See
81 Fed. Reg. at 42,074-77.
The FAA does note that some “limited carriage of
property” by small drone may be authorized under the rule, but
that any such operations would have to be undertaken in
compliance with the rule’s other restrictions, including the use
of a trained remote pilot and line-of-sight operation. See id. at
42,076-77. Indeed, these restrictions are so great that the FAA
does not consider “the limited transport of property for
compensation that could occur [under the rule] . . . to constitute
‘interstate air transportation.’” Id. at 42,077. Finally, EPIC
provides no reason to believe that any of the package delivery
services mentioned are authorized under this rule rather than
through some alternative means established by the FAA, such
as a waiver. See id. at 42,065. EPIC’s declarations regarding
UPS and other package delivery services do not carry its
burden.
Similarly, the declarations concerning “autonomous”
drones do not establish that those autonomous drones would
fall within the strict window for autonomous flight permitted
by the small drone rule. See 81 Fed. Reg. at 42,134-35. In
particular, the FAA notes the requirements for line-of-sight
operations and for a single remote pilot who can direct the
drone. See id. at 42,135. EPIC makes no effort to show that
either the “‘HorseFly’ autonomous drone delivery system,” or
the “‘Persistent Aerial Reconnaissance and Communications
(PARC)’ autonomous drone” are in fact authorized to fly under
the small drone regulations challenged rather than various other
mechanisms the FAA has used to “accommodate nonrecreational” drone operations. See id. at 42,065. These

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allegations do not establish an injury caused by the FAA’s
failure to promulgate privacy regulations as part of this
rulemaking.
Outside of these specific statements concerning package
delivery and autonomous drones, EPIC offers only generic
allegations that in light of the new regulations, more drones
will operate in the areas where their members live and travel,
leading ineluctably “to invasions of privacy and the collection
of sensitive personal information.” This injury rests on too
“highly attenuated [a] chain of possibilities” to “satisfy the
requirement that threatened injury must be certainly
impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410
(2013). This chain of causation includes that drone use will
increase in Boston or Tampa because of the new regulation,
that the drones will be equipped with cameras or sensors, that
any such data captured will be recorded, and that the drones
will invade the members’ privacy in a way constituting Article
III injury. This injury is too speculative to support standing.
See Williams v. Lew, 819 F.3d 466, 473 (D.C. Cir. 2016)
(“[A]ny future injury that Williams might suffer follows from
an extended chain of contingencies.”); see also National Ass’n
of Home Builders v. U.S. Fish & Wildlife Serv., 786 F.3d 1050,
1054 (D.C. Cir. 2015) (“‘[I]ndependent action of some third
party not before the court’ is not fairly traceable to challenged
actions by the [agency].” (quoting Lujan, 504 U.S. at 560)).
EPIC argues that it has sufficiently shown an “increase in
an existing risk[] of injury to the particularized interests of the
plaintiff.” Our precedents on probabilistic standing require “at
least both (i) a substantially increased risk of harm and (ii) a
substantial probability of harm with that increase taken into
account.” Public Citizen, Inc. v. Nat’l Highway Traffic Safety
Admin., 489 F.3d 1279, 1295 (D.C. Cir. 2007) (citing Mountain
States Legal Found. v. Glickman, 92 F.3d 1228, 1234-35 (D.C.

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Cir. 1996)). “In applying the ‘substantial’ standard, we are
mindful, of course that the constitutional requirement of
imminence . . . necessarily compels a very strict understanding
of what increases in risk and overall risk levels can count as
substantial.” Id. at 1296.
Assuming risk-based standing can be applied to risks to
privacy rather than to public health or the environment, see
NRDC v. EPA, 464 F.3d 1, 6 (D.C. Cir. 2006); Mountain States,
92 F.3d at 1234-35, the highly attenuated chain of causation
presented by EPIC dooms any attempt to establish probabilistic
standing. The speculative nature of the injury alleged means
that EPIC has failed to show that these rules caused either a
substantially increased risk of harm or a substantial probability
of harm in light of that increased risk. Accordingly, because
EPIC cannot meet its burden to show that at least one of its
members suffers the requisite injury for standing, its claim of
associational standing fails.
B. Organizational Standing
Having rejected EPIC’s claim to associational standing,
we turn to its attempt to establish organizational standing based
on alleged impediments to its activities as a result of the FAA’s
refusal to promulgate drone privacy regulations. To establish
organizational standing, a party must show that it suffers “a
‘concrete and demonstrable injury to [its] activities,’” distinct
from “a mere setback to [the organization’s] abstract social
interests.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir.
2015). Additionally, the organization must show “the presence
of a direct conflict between the defendant’s conduct and the
organization’s mission.” National Treasury Emps. Union v.
United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996).
Impediments to “pure issue-advocacy” cannot establish
standing. See PETA, 797 F.3d at 1094 (quoting Center for Law

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& Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C. Cir.
2005)).
Our inquiry into EPIC’s organizational standing is
straightforward because EPIC failed to identify record
evidence or submit evidence establishing its organizational
standing. We reminded EPIC in our briefing order of this
requirement. EPIC v. FAA, No. 16-1297 (D.C. Cir. Jan. 4,
2017). Both our precedents and local rules establish that where
standing is not clear from the administrative record, a petitioner
must submit affidavits or other evidence. D.C. Cir. R. 28(a)(7);
Americans for Safe Access, 706 F.3d at 443. EPIC submitted
no affidavits in support of its standing as an organization.
Instead it presented only vague assertions in its brief that sound
in pure issue advocacy, as well as a reference to the About page
of its website.
EPIC attempts to liken its case to PETA v. USDA, 797 F.3d
1087 (D.C. Cir. 2015). In that case, we held that PETA had
standing to sue the USDA for failure to issue regulations
implementing the Animal Welfare Act as to birds. See id. at
1094-97. We did so because the USDA’s inaction deprived
PETA of both Animal Welfare Act information relating to
birds (USDA inspection reports) and an avenue for filing
USDA complaints against research facilities using birds or
exhibitors of birds. Id. at 1094-95. PETA, unlike EPIC, filed
declarations supporting its assertions as to its organizational
activities. Id. at 1094-96. These included statements
concerning its preexisting filing of USDA complaints as to
other types of animals under the Animal Welfare Act, attempts
to file complaints as to birds, and its increased expenditures in
response to USDA’s inaction. See id.
The FAA has not impaired or injured EPIC’s activities.
EPIC identifies neither “denial of access to an avenue for

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redress” of illegality or “restrict[ion of] the flow of information
[EPIC] uses to educate its members.” Food & Water Watch,
808 F.3d at 920-21. Accordingly, EPIC fails to establish
organizational standing.
III.

Conclusion

For the foregoing reasons, we dismiss EPIC’s petition for
review.
So ordered.

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