EFF and ACLU Fight to Protect First Amendment Right to Record Law Enforcement via Drones

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The FAA Temporary Flight Restriction Over DHS Assets

On January 16, 2026, the FAA issued a Temporary Flight Restriction designated FDC 6/4375, which grounded drones nationwide within 3,000 lateral feet and 1,000 vertical feet of any Department of Homeland Security facility or mobile asset, including ground vehicle convoys and escorts. The national rule criminalized the routine aerial filming of Immigration and Customs Enforcement and Customs and Border Protection officers, exposing operators to potential civil and criminal penalties even if a drone stayed over half a mile away.

Minneapolis-based photojournalist Rob Levine filed a petition for review in the D.C. Circuit on March 16, 2026, challenging the rule under the Administrative Procedure Act, vagueness doctrines, and the First Amendment. Represented by the Reporters Committee for Freedom of the Press, Levine argued that the nationwide ban severely chilled his constitutional right to gather news. Although the FAA withdrew the flight restriction on April 15, 2026, the legal challenge remains active because pilots can still face punishment for flights conducted while the restriction was active, and the agency retains the power to reinstate the rule at any time.

First Amendment Protections and Newsgathering From Above

The amicus brief filed in support of Levine emphasizes that using drones for photography and videography constitutes vital information-gathering protected by the First Amendment, much like cell phone cameras used at street level. According to the filing, drones provide unique perspectives that ground-based imagery cannot capture, offering a maneuverable, safe, and cost-effective method to document newsworthy public events from the air.

Advocacy groups argue that the FAA issued the restriction specifically to obstruct the recording of immigration agents and limit accountability during intense national backlash against roving patrols. Under First Amendment standards, targeting specific content makes the restriction subject to strict scrutiny as a presumptively unconstitutional limitation on speech. Even under lesser scrutiny, the brief states that the FAA cannot articulate a valid governmental interest broad enough to justify banning all drones near immigration enforcement vehicles.

Implications for Counter-Drone Tech and Public Accountability

Legal advocates warn that resolving the case is urgent as federal and local agencies invest heavily in counter-drone technology that could easily be turned against journalists and independent observers.