If you thought that “drone law” sounded interesting before, it's about to get even more exciting.

The Federal Aviation Administration (FAA) is poised to announce soon—possibly as early as this week—action toward a new rule that would eventually clear the way for drones flying over people and beyond the line-of-sight of their operators.

The forthcoming FAA proposal would require adoption of what is known as “remote ID” technology for drones and is seen by attorneys who follow drone law as a critical first step toward permitting a wider range of business uses for unmanned aircraft.

“The FAA is not going to create future rules for expanded operation of drones until the remote identification framework is in place,” said Brendan Schulman, vice president of policy and legal affairs at DJI, a large drone manufacturer.

But the idea that authorities should be able to identify who is piloting every drone moving through the airspace is not without controversy. Depending on its approach, the FAA could find itself involved in litigation over the scope of its authority over drones—or become embroiled in a wider debate about drone operators' privacy rights.

Some attorneys speculate the FAA could make an announcement about its remote ID proposal at the Unmanned Aircraft Systems (UAS) Symposium kicking off on Tuesday in Baltimore. The event runs through Thursday and features a number of FAA officials, including Earl Lawrence, director of the agency's UAS integration office. If the FAA keep mum this week, it will have another opportunity to make a splash at another major industry conference scheduled in April.

Sara Baxenberg of Wiley Rein said she anticipates the FAA is going to move forward with its formal rule-making process for remote ID in “relatively short order” and that the agency might use the Baltimore symposium to at least shed some light on the approach it wants to take.

An FAA spokesman said he could not comment on whether the agency planned to make any new rule announcements soon.

'Security Concerns'

The FAA's momentum toward requiring drones to be equipped with remote ID technology began in early 2017, not long after the agency began rolling out a regulation that would allow drone flights over people. Current FAA rules prohibit that and allow commercial drone use only on case-by-base basis.

The move drew pushback from law enforcement and national security officials who feared they would not be able to determine who was piloting a drone if it suddenly posed a danger to humans or infrastructure below. In response, the FAA pumped the brakes on the flights-over-people rule and began talking with drone makers, hobbyist groups, companies and authorities about how to implement remote ID technology.

In a speech in March 2017 at the last UAS Symposium, FAA's then-Administrator Michael Huerta publicly acknowledged the fears raised by authorities. “In the coming weeks, we will begin bringing the industry and national security leadership together to address these issues,” he said. “We hope to create a mutual understanding about the government's security concerns and discuss how we can collaborate to address them.”

The agency subsequently formed the Unmanned Aircraft Systems Identification and Tracking Aviation Rulemaking Committee, or ARC, to put forward a set of recommendations for how to identify drones remotely. The resulting report was issued in fall of last year and recommended two options for remote ID technology: having drones broadcast a unique identifier similar to a license plate number locally with a radio signal or having the drone connect to the cellular network and send its ID data to a government database.

There was general agreement among the various industry and law enforcement stakeholders on those points. But the ARC split on the issue of how broadly the rule should apply to noncommercial drones flown by hobbyists.

A number of industry organizations, including the Commercial Drone Alliance and Aerospace Industries Association, filed dissents to the report's recommendation that certain lower-capability aircraft flown by modelers be carved out from the remote ID rules.

“This exemption is a loophole that swallows the rule,” the Commercial Drone Alliance dissent said. “It would permit a huge segment of the UAS community to avoid participating in the UAS ID and Tracking system and complying with the corresponding ID and Tracking regulations.”

Air War?

The tension over hobbyists stems from legislation enacted in 2012 known as Section 336, or the Special Rule for Model Aircraft. The provision generally prohibits FAA from issuing regulations for drones not flown for a business purpose.

The FAA has been sued under the provision before and lost. After it rolled out an emergency rule to require registration of all drones above a certain weight in 2015, a man named John Taylor sued the agency pro se under Section 336, arguing it had overstepped its authority. In a March 2017 ruling, the U.S. Court of Appeals for the District of Columbia Circuit agreed.

In a subsequent defense spending bill, Congress nullified that ruling by giving the FAA express authority for its registration regulation. But it left up in the air whether the agency could announce other rules that would affect hobbyists, raising the question of whether it might again face litigation over the remote ID regulation if it applies to craft flown by hobbyists.

The Academy of Model Aeronautics, an Indiana-based group that represents some 200,000 hobbyist members and participated in the ARC, has indicated it is amenable to remote ID requirements as long as they wouldn't rope in low-capability drones, like toys. “We agree that tracking and remote identification makes sense at some level, depending on the UAS sophistication and capability,” the group said in a statement in December.

The FAA appears to be treading cautiously, though. As attorneys from Jones Day noted in an article in January, the administration has said that the FAA plans to start by issuing an Advance Notice of Proposed Rulemaking on remote ID, rather than just rolling out a fully-baked proposal. That approach indicates the FAA “is still in fact-finding mode and not yet ready to lock into a proposal,” attorneys Dean Griffith and Benjamin Lee wrote.

According to a Department of Transportation document, FAA is currently set to publish its advanced notice on June 28, after it clears the White House Office of Management & Budget.

Drone Privacy

From a technological standpoint, how the FAA chooses to mandate remote ID could also implicate the privacy interests of drone users. Having drones broadcast their location via cellular networks, for example, could allow the government to create a database with historical information of everywhere a drone has ever flown.

That's something the ARC didn't really delve into, said DJI's Schulman, who participated in the advisory committee. “In some ways it was an unbalanced ARC, because it had a narrow objective” to identify ways to ID drones. There was little consideration for balancing those interests against the civil liberties and privacy concerns of operators, he added.

A coalition of news media groups, in a dissent from the ARC report, also highlighted those concerns, saying it “contains insufficient consideration of the constitutional guarantees for journalists to gather, and the public to receive, news and information in the public interest.”

If followed, the recommendations would give officials “unbridled discretion before accessing a database containing personal identifying information or historical tracking information about the operation” of unmanned aircraft,” the coalition added.

Josh Turner of Wiley Rein, whose firm represents the Association for Unmanned Vehicle Systems International, said that drone-makers and businesses are mindful of those interests—as well as the need to adopt a standard that is easy to implement. “I think everyone in the process understands the importance of privacy,” he said.

Correction: An earlier version of this story gave the incorrect projected date for when the FAA is set to publish its advanced notice.