A Gun, a Drone, and Questions About FAA Jurisdiction
Does the FAA Have the Power to Regulate Hobbyists’ Modification of Drones?
Part 1: Austin's Trouble with the Law
How Drone Modification Landed a Connecticut College Student in Trouble
Austin Haughwout was a 19-year-old student at Central Connecticut State University when he began releasing controversial videos on his popular YouTube channel “Hogwit.” Over the years, Austin has posted many videos of various mechanical projects, incidents where locals and police violated his civil liberties, and other videos exposing illegal behavior of locals. On July 10, 2015, Austin Haughwout uploaded his most popular video called “Flying Gun” of a shotgun-equipped drone shooting in his backyard. The video went viral and was viewed almost 4 million times.
On December 7, 2015, he uploaded another video of a modified drone, this time equipped with a flamethrower. The video showed the drone “roasting” a holiday turkey in Austin’s backyard and was viewed almost 700,000 times. In each of the videos, the drone flew in accordance with FAA regulations, approximately at shoulder height on the Haughwouts’ personal property.
Less talked-about is his video where Austin used a water-ejecting drone to put out a small fire in his backyard. This example of positive innovation suggests that Austin’s intentions were not to be destructive but to innovate.
The Federal Aviation Administration (FAA) issued subpoenas in November and December of 2015 to Austin and his father, who assisted in the drone modification, requiring more information about the incident. Included in the FAA’s subpoena was a request for documents proving legal purchase of the drone and its modification parts, information about revenue received from the videos, and video recorded from the drone. Austin and his father, Bret, refused to comply with the subpoena for 11 months, claiming the FAA had no regulatory power in the incident. So, the FAA brought the Haughwouts to court.
The Haughwouts argued that the drone does not qualify as aircraft and is thus not under the jurisdiction of the FAA. The FAA defines aircraft as “any contrivance invented, used, or designed to navigate, or fly in, the air.” The Haughwouts argued that this definition of aircraft is improper. They questioned whether the FAA have regulatory over baseballs, pizza dough, and children’s propeller-driven toys? The court called this defense “creative” but ruled that the FAA does not need to properly define the limits of their power before enforcing their regulatory power over unmanned aerial vehicles.
The court ruled that Austin and his father were liable to comply with the FAA’s subpoena because it is plausible that the drone falls within the FAA’s jurisdiction as aircraft. The court enforced the subpoena in July 2016, and since then, Austin has gotten in other legal trouble, but there has been no news of further action by the FAA.
However, Austin’s legal confrontations are far from over. Late one June night in 2015, Austin was using the public library’s free WiFi from his car. As he pulled out, the authorities pulled Austin over, and he immediately demanded to know if they suspect him of a crime. When they were unable to give a satisfactory answer, Austin denounced the detainment, saying he did not consent to being stopped. Austin drove away, believing the stop to be illegal, and he received a summons to the police station later that week.
At the police station, Austin got into a shoving match with local police and was charged with assault and interfering with a police officer. Austin claims that he did not assault the police but that he was assaulted by them “until I vomited and passed out” and woke up “45 minutes later stripped naked in the hospital.” Austin claims that he is being harassed by the police because of his controversial drone hobby.
Austin recorded the alleged assault incident on his phone, resulting in its seizure. This seizure revealed the 19-year-old’s sexual relationship with a local 14-year-old girl. He has now been charged with possession of child pornography and sexual assault.
Austin is also involved in a legal battle concerning alleged threats against students at Central Connecticut State University, which he claims is “really... about the drone videos.” Austin claims that he received assistance from a university professor in his drone modification, but the professor claims he attempted to dissuade Austin from weaponizing a drone.
Even locals have had problems with Austin’s activities. In one video, Austin legally takes large-scale aerial images of a public beach, only to be attacked by a local woman who mistook him for a “pervert.”
Is Austin the victim of persecution as a technological innovator, or does he provoke those around him to evoke these situations? Is his standing up for his rights, or is he just a belligerent teenager? Austin’s legal troubles may shed a negative light on his claims of innocence in other situations, or they may reinforce his narrative of harassment by the local police and persecution for his technological innovation.
In the next section, we will discuss the legal and ethical implications of drone modification, but if Austin’s story of local harassment is true, there are other rights to consider, such as the encouragement of a community of innovation and an intellectual openness that rejects persecution. Then again, if Austin is a belligerent, reckless pedophile, this too has implications: we need to protect society from these people. The complexity of the narrative sheds light on the implications of how we treat those involved in technological innovation, especially that which is questionable.
Was the court right - does the FAA have jurisdiction over Austin's actions?
According to the case against the Haughwouts, “Congress has authorized the FAA to conduct an investigation on its own initiative either if a ‘reasonable ground appears’ to believe that a person is ‘violating’ the Federal Aviation Act (or one of the FAA’s regulations) or if a ‘reasonable ground appears’ about ‘any question that may arise’ under the Act or the FAA’s regulations.”
So, is there reasonable ground to believe a person is violating the FAA’s regulations? Is there reasonable ground about any question under the Act or FAA regulations? Here are a few factors to consider:
1. The FAA has not published specific regulations about modifying drones.
The FAA has no explicit regulations in place about weaponizing or otherwise modifying drones. Because drones are an emerging technology, it may be simply that regulations are still in the development process. In fact, in one memo, the FAA published considerations for future research in developing standards for maintaining, modifying, repairing, inspecting, training, and certifying drone operators.
FAA regulations for drone use usually pertain to flight location, drone weight, and procedure for yielding to pedestrians.Although they may one day extend their regulatory power into the modification of aircraft, there are currently no regulations from the FAA against weaponizing drones.
However, according to the case, Austin may have violated one general statute, that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” It is up to the court’s discretion as to whether this modification is reckless and endangers the lives of others. The court wrote, "There can be no dispute that the weaponized devices shown on the YouTube videos at least give rise to questions about possible danger to life or property." It was certainly questionable to use a flamethrower in a wooded area, and any use of weapons can give rise to questions about the safety of life and property. I think it is subjective as to whether his drone use was reckless or endangering; I, personally, would like to be lenient and say that he was careful with the weapons, but it is hard to know for sure without more information. The FAA needs to more specifically define what is and is not appropriate in the use of small drones, as this general stipulation leaves too much to subjective opinion of safety.
2. The Haughwouts claim that a drone is not “aircraft.”
The Haughwouts’ main argument against the subpoena was not that they upheld the regulations but that the FAA has no jurisdiction to regulate drones. The father and son argue that the FAA’s definition of aircraft is sweepingly broad, as its definition is “any contrivance invented, used, or designed to navigate, or fly in, the air.”
The court ruled that “Even if a good faith argument might be made that the devices at issue here could fall outside the definitional scope of the term ‘aircraft,’ the FAA has a legitimate purpose at the least to acquire more information by means of investigation in order to assess in the first instance whether the devices are within the scope of its authority to regulate.” I agree with the court. It is clear that the FAA has not developed mature limits and definitions concerning small drone use. This does not negate their authority to investigate matters of concern. Drones are unmanned aircraft, even if they are smaller than traditional aircraft, and I believe Austin's drone falls within the realm of flying technology that needs regulation.
Even so, the FAA’s lack of definition is problematic. While it may not be relevant to the outcome of this case, further maturity in their regulations is necessary to prevent the FAA from harnessing unregulated power.
3. Because the video was sponsored by HobbyKing.com, there is a question as to whether Austin’s drone use was recreational or commercial.
Though this is not a part of the discussion in the case, the FAA requests information from the Haughwouts about payment received for their videos. If the FAA pursues further action against the Haughwouts, it will be important to determine how payment has shaped the Haughwouts' activity.
The FAA does not explicitly define the demarcation between recreational and commercial use, only the rules for each type of drone flight. For recreational drone use, the FAA has more relaxed rules for pilots; for commercial use, pilots must be licensed and follow many guidelines and regulations. If Austin is considered a recreational pilot, the FAA has less ground to accuse him of violating their regulations. For a commercial pilot, they might have grounds to revoke his right to fly or accuse him of violating his duty to safety. Although the regulations do not specifically prohibit drone modification, the FAA could make an argument that (1) he was flying commercially without a license to do so, and (2) that the guidelines for drone operation clearly prioritize and imply a duty to pilot the drone with safety at the highest priority.
Whether Austin was flying the drone recreational or commercial purposes is certainly a gray area. In favor of Austin being a recreational pilot, we must consider that he did not receive money in exchange for providing a service. Rather, he received money as an additional bonus to his hobby. Austin likely would have have made the videos regardless of sponsorship. Consider other examples of sponsorship. If a company sponsors sports team, it does not make the team professional - it can still be a “rec team.”
On the other hand, Austin did receive payment from HobbyKing.com. Continuing with the sports analogy, a sponsorship is considered a “mutually beneficial relationship between sponsor and recipient,” so it is not a donation. We also do not know whether HobbyKing.com instigated Austin’s drone modification by commissioning him to do it, or whether they saw Austin’s videos and thought it would be a good opportunity for future advertisement.
Although there is a viable argument for Austin’s flight as commercial, Austin makes many YouTube videos on his channel Hogwit, most of which are not sponsored. Therefore, I believe that his monetary compensation is incidental and does not qualify his drone use as commercial. However, a subpoena still may be appropriate to find further information about the commercialization of Austin’s videos to determine jurisdiction over this case.
The Final Call
I do not think that the FAA is the most appropriate governmental organization to investigate Austin’s drone modification; perhaps the Department of Homeland Security or the FBI would have more appropriate concern about the creation of destructive weapons. Like the regulations on bombs and machine guns, so other governmental organizations may have rightful concern over the way a weapon’s range expands with flight. Even though I do not believe the FAA is the best organization to investigate Austin’s drone use, there is enough uncertainty in the situation that the FAA does at least have the right to gather information with a subpoena.
“When seeking a court order to enforce an administrative subpoena, an agency need only show: (1) that the investigation is conducted pursuant to a legitimate purpose, (2) that the information requested under the subpoena is relevant to that purpose, (3) that the agency does not already have the information it is seeking [*7] with the subpoena, and (4) that the agency has followed the necessary administrative steps in issuing the subpoena.” It is clear that the FAA falls within these bounds and is within its rights to request a subpoena. The court wrote, “At the subpoena enforcement stage, courts need not determine whether the subpoenaed party is within the agency’s jurisdiction or covered by the statute it administers; rather the coverage determination should wait until an enforcement action is brought against the subpoenaed party.” Thus, whether the FAA has jurisdiction or not, they have the right to information about this incident.
What does this mean for us?
What does this case say about personal freedoms?
Yes, the FAA may have regulatory power over personal drone use. They may even have the power to demand information in events where they do not have jurisdiction. It all seems somewhat invasive. We need organizations like the FAA to impose order and keep us safe, but how much should they be able to regulate what we do on our own property with technology we are allowed to operate?
FAA’s ability to subpoena information, when they may not have jurisdiction, seems to violate our personal right to privacy. If the FAA is allowed to regulate how we innovate, that can stunt our growth as a society. Their regulation of actions that do not hurt anyone on one’s own property, to many, is objectionable.
On the other hand, we must forfeit a certain level of personal freedom for protection of other rights - like a right to safety. The FAA’s inquiries are made in good faith to protect society, but the Haughwouts’ concern that their personal rights are being infringed is well-received. This tension reflects a larger tension between small-government republicans who want less regulation and large-government democrats who think it is the government’s duty to protect its citizens with regulation.
Weapons in the sky are certainly cause for alarm. While this case does raise questions about personal liberties, the government is right to regulate drone use for citizen protection. Even so, I would encourage the government not to fear new technologies to the point that they discourage innovation. With fuller definition of regulations, perhaps potential innovators like Austin Haughwout can continue their innovation through the use of permits and protections to ensure safety.
How does this challenge society’s view of technological innovation?
Those who work with drones are ambassadors to the public, impacting the country’s impression of the technology. The more recklessly we use this technology, the more we will associate drones with bombs, deaths, and unethical surveillance.
Austin Haughwout experienced first-hand the vehement anger caused by society’s fear of drone technology. From the attack he suffered at the beach to his claims of persecution from local authorities, Austin’s drone modification has upset society. The impact of his actions is the slowing of progress for other drone operators, as the entire drone pilot community must suffer the public repercussions of his actions.
Young innovators like Austin should have an appropriate outlet for their ideas. Austin’s videos were popular with teenage boys and other citizens. This passion should be funneled to propel society forward in the creation of new technologies. However, even young, excited inventors like Austin have an ethical responsibility to society. Austin’s innovation may have inspired some, but it also encouraged the public fear of drone technology.
Interested in how we can innovate for good with drones? Click here to read about James Madison University’s effort to solve social and environmental problems using drones.