Major broadcast and print news operations and others in the News Media Coalition (NMC) want to make sure the government does not limit their First Amendment rights in its ongoing effort to come up with privacy guidelines for the new wave of unmanned aircraft systems (UAS), more commonly known as drones.
Drones are increasingly becoming a tool for TV and film production and covering events from new and unique angles.
While the FAA works on a system for registering UAS—it has just gotten recommendations from a task force created for that purpose—the National Telecommunications & Information Administration, on a separate track, is holding multistakeholder meetings on drone privacy (one in a series of such meetings on voluntary privacy guidelines). At NTIA's fourth multistakeholder meeting Nov. 20, those stakeholders agreed to try and reconcile draft proposals before reconvening, notably one from privacy advocacy group Center for Democracy and Technology and one from First Amendment advocacy group NMC.
NMC warned in a letter to NTIA outlining its proposals that the approaches of other stakeholders "risk upsetting the careful existing balance our laws and practices recognize between individual privacy interests and the right to gather news without interference by the government."
They suggested that federal privacy bureaucracy or technological mandates don't fit with First Amendment protections for journalists.
A principal difference between the NMC and other proposals, they say, is that those other proposals would make it incumbent on journalists to prove that the best practice guidelines are not reasonable rather than requiring a compelling interest in "narrowly tailoring" journalists' drone use. The presumption should be that journalists' drone use is a constitutional right to get, and the public's right to receive, the news, NMC argues.
The journalists also point out that there are already "robust" state privacy laws that apply to UAS photography as well as other newsgathering and that no new UAS-specific state or federal laws are necessary.
Another argument they make is that images and sounds depicting activity in public places are not private, and that "the personal nature or even offensiveness of the image or footage captured does not minimize the protection afforded to the images and footage." NMC said it was particularly concerned about a privacy framework that restricted a journalist's access to a public place. NMC cites the CDT draft definition of "personal data" as a face or voice recording linked to an identifiable person.
Editorial decisions need to be made by journalists, said the group, indicating that is what separates the U.S. from much of the rest of the world. "While many foreign governments control news reporting, in the United States, journalistic independence is a core value all Americans learn from childhood."
NMC says that even with, as some in the meetings have proposed, an "extraordinary circumstances" exemption for retaining images with sensitive personal information, the government should not be telling journalists, via its endorsed best practices, what content should be retained and for how long.
"A set of privacy best practices cannot treat the collection, use and retention of Pulitzer Prize-winning photography as if it were 'data' that should be purged at regular intervals," they said.
NMC members include NBCU, ABC, the New York Times, Scripps, Sinclair, TEGNA, Cox and Belo.