This is a still from the December 2015 flamethrower drone video.Hogwit
The outcome of new drone lawsuit out of Connecticut turns on what seems to be a simple question: does the Federal Aviation Administration have the authority to regulate consumer drones? More specifically, can the FAA come after a student who rigged up a gun to a drone and fired it in his backyard, with no one else around?
The FAA clearly thinks that it does and can.
But some drone enthusiasts disagree, and believe that the FAA has exceeded its regulatory power—at least for now.
On July 6, FAA lawyers will face off in a New Haven courtroom against attorneys representing a Connecticut student who produced two provocative drone-related videos, one involving a handgun mounted on a drone, and another with a flamethrower.
“At the time the FAA organic statute was created, drones were the stuff of science fiction,” Mario Cerame, of the Randazza Legal Group, wrote in his recent opening brief defending the student, Austin Haughwout, and his father, Bret Haughwout.
“The statute did not contemplate their existence. Rather, the statute was directed at airplanes, helicopters, and blimps, and the resources on the ground to support them.”
Haughtwout is also involved in a related lawsuit in local court trying to get him reinstated at Central Connecticut State University, which expelled him in the wake of his videos.
Just a fun home movie
The first of the two videos, entitled simply “Flying Gun,” depicts a drone armed with some type of handgun that then fires a few shots into what appears to be a forested area over 15 seconds.
By early November 2015, the Federal Aviation Administration sent the two Haughwouts an administrative subpoena seeking a substantial amount of records, including purchase records and an accounting of what monies, if any, were gained from the “Flying Gun” YouTube video.
The elder Haughwout declined the government’s efforts, telling the FAA in an e-mail that because the agency had not alleged a particular violation, then he was under no obligation to comply.
The FAA has not accused either man of a crime, but merely seeks to acquire further information about their drone-related activities.
Within weeks, Austin Haughwout published his second video, dubbed “Roasting the Holiday Turkey.” It shows a drone with a flamethrower attached, firing at a turkey roasting on a spit.
At the time, the videos got a lot of attention—a combined 4 million views on YouTube—and a great deal of coverage in international media.
The FAA again served thee Haughwouts, and the Haughwouts again did not respond.
Finally, on February 11, 2016, the FAA took them to court, asking a federal judge to enforce the subpoena. Within weeks, US District Judge Jeffrey A. Meyer asked for further briefing in Huerta v. Haughwout—so the government and the Haughwouts faced off.
As John W. Larson, an Assistant United States Attorney, wrote:
The respondents’ use of a UAS falls within the scope of the FAA’s authority as set forth in the plain language of the above statutory and regulatory scheme.
Specifically, the UAS shown in the respondents’ videos is an “aircraft” because, even though it is unmanned, it is a contrivance/device that is invented, used, or designed to fly in the air.
But Haughwout attorney Cerame fired back in his own response.
The present case is one of first impression—no Article III Court has had occasion to examine the scope of the term “aircraft” as used in the FAA organic statute or 14 C.F.R. § 1.1.
The statutory definition of aircraft is ambiguous, and the FAA’s construction is patently absurd.
Sure, §40102(a)(6) and 14 C.F.R. §1.1 looks simple enough.
A thing, any thing, that flies.
The verb fly, as in “fly in the air,” is not so plain, though.
There is fly in the sense of airborne locomotion, like how birds fly from one place to another.
But . . . flags also fly, when attached to a pole, don’t they? We also say that plastic bags or bits of paper carried on the air fly about—isn’t that a motif in American Beauty? And don’t we say that bullets or knives or any airborn dangerous object—don’t they fly through the air too, especially when there are lots of them? Baseballs can go pretty high—we call it a “fly ball.” Okay.
For the sake of the argument, let’s imagine the “airborne locomotion” definition is the only one.
That leaves . . .
Clay pigeons. Paper airplanes.
A pole for pole vaulting.
A good pair of basketball sneakers.
A rubber band.
A birthday balloon. Hand tossed pizza dough.
Ceramic plates during a lovers’ spat.
Genetically engineered fruit flies, bacteria, pollen.
Case law on this point is thin, but seemingly definitive, at least for now.
The FAA did prevail in a 2014 decision (Huerta v. Pirker) by the National Transportation Safety Board (NTSB), finding that drones meet the legal definition of aircraft.
But as Cerame noted in his court filings, no actual court has ruled definitively on the issue.
Cerame declined comment to Ars.
An aircraft is an aircraft is an aircraft?
However, the drone law experts that Ars spoke with felt that Cerame’s argument was a bit of a stretch.
“Technology has moved forward quickly, and policy is still trying to catch up,” Lisa Ellman, a lawyer at Hogan Lovells, told Ars by e-mail.
“There is a clear argument to be made that drones are so new and technologically different from traditional manned aircraft that they should be regulated differently.
But, right now that’s not the case and legally [unmanned aerial systems] have been deemed to fall under the definition of ‘aircraft.’ The NTSB ruled that way in the Pirker case.
So I would be surprised if the respondent prevails on this point.”
Similarly, a lawyer who represents a pilot whose drone was shot down over Kentucky noted that this case is still in the early phases—after all, neither Haughwout has been charged with a crime.
“I think the court will say that it’s not beyond the realm of possibility that this is an aircraft, so answer the subpoena so we can figure this out,” James Mackler, of Frost Brown Todd, told Ars. “The court needs to determine that these are aircraft and they need to be treated as aircraft and governed as aircraft.”
Indeed, Gregory McNeal, a law professor at Pepperdine University, also pointed out that this case is still in the “investigatory phase,” which means it is hard for a respondent to resist a subpoena.
“The FAA is merely trying to find out how the drone was used so it can determine if there was a violation of the law,” he e-mailed, noting that he believed the government would prevail.
Either way, Ellman also noted that even though the law may not specifically forbid an armed drone, it’s probably still illegal to arm one.
“On the broader question of the legality of arming a drone, the law prohibits recklessly endangering the public when flying an aircraft,” she added. “Regulations also prohibit dropping an object from an aircraft in a manner that creates a hazard to person or property.
There may be no federal law that explicitly says, ‘it is unlawful to arm a UAS and shoot bullets from it.’ But there’s a strong argument that shooting bullets from a UAS would be considered illegal under one or more existing provisions that are designed to ensure safety.”