Sweeping Ban on Drone Flights Across Chicago Looks Suspiciously Like an Attempt to Ban Press Coverage

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At the request of DHS and citing “Special Security Reasons,” the FAA has imposed a sweeping, 12-day-long ban on non-governmental drone flights across a vast area around Chicago. The FAA’s “temporary flight restriction” (TFR) comes amid abusive immigration raids in Chicago and President Trump’s authoritarian flooding of the city with National Guard troops and federal law enforcement agents. That raises the sharp suspicion that it is intended not to ensure the safety of government aircraft, but (along with violence, harassment, and claims of “doxing”) is yet another attempt to prevent reporters and citizens from recording the activities of the authorities.

Aviation experts say that the TFR is highly unusual in lasting 12 days and covering a radius of 15 nautical miles, or over 935 square miles. A no fly zone has also been announced over Portland Oregon that, while much smaller, raise many of the same questions. It appears that, as the drone news site DroneXL observed of the Chicago ban, “This is about monopolizing airspace for government surveillance while preventing any civilian documentation of federal activities.”

There is some important history here. In 2014 police in Ferguson, Missouri asked the FAA to establish a TFR over the protests that were happening there at the time. The Ferguson police were aggressively violating freedom of the press by threatening, obstructing, assaulting, and arresting reporters covering the protests and the police response to them. And it turned out that their request to restrict more than 37 square miles of airspace around Ferguson, which the FAA granted, was just another part of their effort to squelch press coverage of law enforcement and its behavior. The Associated Press obtained audio recordings in which the Ferguson authorities explicitly admitted that blocking news aircraft, not safety, was the motivation for their no-fly-zone.

The police “did not care if you ran commercial traffic through this TFR all day long. They didn’t want media in there,” one FAA manager was recorded saying.

These restrictions were a clear violation of the First Amendment. The FAA imposed similar flight bans during the Dakota Access Pipeline protests and during Black Lives Matter protests in Portland, Oregon.

A lack of criteria
The FAA’s Chicago TFR contains an exception for commercial drone operations “with a valid statement of work,” meaning permission from the FAA and relevant security agencies. As one commercial drone operator told Crain’s Chicago Business, “They’re not blocking all drone flights, just adding an extra step to access the airspace. Our team has been able to obtain access to the LA TFRs for commercial drone flights with ease.” The question in Chicago is whether this “extra step” will amount to banning only media drones. The TFR contains no mention of press drones (some media operations might be considered “commercial” but many news outlets are also not-for-profit).

In the past the FAA has allowed operations by media outlets within TFRs; in 2021 the FAA banned aircraft over a large gathering of migrants under a bridge in Texas — but then allowed news organizations to apply for and receive permission to fly there. That seemed to be an improvement over the FAA’s previous deference to law enforcement, but can we depend on the FAA today? At a 2023 drones conference the relevant FAA official assured me that the agency was applying much more scrutiny in approving law enforcement requests for TFRs. I said that was all well and good, but that protections written into law and regulation were needed, not just judgment calls by FAA officials, however well-intentioned some particular officials might be.

Another person later told me that the FAA actually did have non-public written criteria for TFR approvals, so I filed a Freedom of Information Act asking for agency records on “the standards and criteria” for granting TFRs. All I got back was a 4-page document that outlined various procedures but contained no criteria for accepting or rejecting a TFR application. The FAA FOIA office said that document “represents all available data responsive to your request.”

In short, the FAA appears to have no written criteria or procedure by which to judge whether a law enforcement TFR request may risk violating the First Amendment. That just makes it all the more likely that the Trump Administration will unconstitutionally yet characteristically make sure that only the drones that it likes are allowed to fly.

Even without a blatantly unconstitutional anti-media effort such as the one in Ferguson, law enforcement can use its own aerial operations as a stratagem to prevent reporters (including private individuals acting as reporters) from recording newsworthy public gatherings. (I discussed this last year in a white paper on the use of police drones over protests.) As the drones journalist Faine Greenwood has pointed out,

Police drones are a highly effective way for law enforcement to ‘mark’ the aerial territory over news-worthy events. While plenty of journalists and activists use drones to collect their own aerial information, they’re often reluctant to fly when there’s a chance they could be accused of interfering with a drone or a helicopter operated by police.

That isn’t helped by the fact that in 2016 Congress authorized the FAA to fine up to $20,000 any drone operator who “deliberately or recklessly interferes” with law enforcement.

Blocking drone operations by reporters while allowing other non-governmental flights is unconstitutional. And we can’t give government the power to block drone photography of newsworthy events simply by claiming a need to fly their own aircraft in an area or claiming the existence of vague “security threats.” That would render drones useless as a newsgathering tool for many consequential events, including protests where the authorities especially need to be subject to independent scrutiny. Police officers carrying out a raid on a house can block cars from driving next to that house during the operation, but they can’t ban all cars and pedestrians from a two-mile radius around the house for a week. That kind of logic isn’t acceptable in the air either.