TL;DR: On September 4, 2026, EFF, the ACLU, ACLU of D.C., the National Press Photographers Association, and the Professional Photographers of America filed an amicus brief in Levine v. FAA, asking the U.S. Court of Appeals for the D.C. Circuit to vacate a January 16, 2026 FAA Temporary Flight Restriction that grounded photojournalist drones anywhere within 3,000 lateral feet and 1,000 vertical feet of Department of Homeland Security officers, vehicles, and "mobile assets." The rule was national in scope and criminalized the routine aerial filming of ICE and CBP officers. The FAA withdrew the rule on April 15, 2026, after the photojournalist Rob Levine, represented by the Reporters Committee for Freedom of the Press, sued. The case is still live because pilots can still be punished for flights made under the now-rescinded rule, and the FAA could reinstate it at any time. EFF's September 21 post on the brief is the public framing of the First Amendment fight [1][2][3].
The Rule: No Drones Within 3,000 Feet of Any DHS Officer or Vehicle
On January 16, 2026, the FAA issued a Temporary Flight Restriction, designated FDC 6/4375, that grounded every drone in the country within 3,000 lateral feet and 1,000 vertical feet of any Department of Homeland Security facility or "mobile asset," including any DHS vehicle [4][2]. The Reporters Committee for Freedom of the Press, which represents photojournalist Rob Levine of Minneapolis in the challenge, describes the practical effect in plain language: because DHS vehicles, including unmarked ICE cars, cannot be located in advance, drone operators nationwide cannot tell whether any given flight would expose them to liability [2].
The penalty was real. Violators faced potential criminal and civil penalties. EFF's April 3, 2026 explainer of the rule called it a "blatant attempt to criminalize filming ICE" [4]. The rule covered not just buildings but DHS officers and vehicles on the move, which turned the entire country into a moving no-fly zone for any pilot who wanted to record federal enforcement activity. EFF's September 21 post on the amicus brief notes that the rule's scope extended to operations even if a drone was over half a mile from the closest officer [1].
The FAA's stated justification was airspace safety. The agency's actual choice of scope, mobile assets, unmarked vehicles, and content targeting immigration enforcement, is the part that drives the First Amendment argument. The rule did not restrict drone flights near airports, military bases, or stadiums. It restricted drone flights near federal immigration enforcement [1][3]. That is the throughline the amicus brief makes the centerpiece of its challenge.
The Case, the FAA's Withdrawal, and Why the Amicus Was Still Necessary
Rob Levine, a Minneapolis-based drone photojournalist, filed a petition for review in the D.C. Circuit on March 16, 2026, represented by attorneys at the Reporters Committee for Freedom of the Press [2]. The petition asks the court to vacate the FAA's restriction on Administrative Procedure Act grounds, on vagueness grounds, and on First Amendment grounds. The petition argues the rule chilled his right to gather news.
On April 15, 2026, the FAA withdrew the nationwide ban on drone flights near DHS vehicles [2]. EFF, in its April 3 explainer and an April 15 update, replaced the original restriction with an advisory, FDC 6/2824, which tells drone operators to avoid flying near Department of War and Department of Energy facilities without a permit [4]. The withdrawal looked like a win.
It was not a complete one, and that is why the September 4 amicus brief was still necessary. As EFF's September 21 post lays out, drone pilots can still be punished for violations that occurred while the original rule was in effect. The FAA can also reinstate the rule at any time, and the rescission did not appear to reflect what EFF calls "a true change of heart" by the agency [1]. The brief asks the D.C. Circuit to evaluate the legality of the rule on the merits so the FAA cannot use a tactical withdrawal to avoid accountability and then quietly reimpose the same restriction.
The amicus brief, filed September 4, 2026, was joined by EFF, the ACLU, ACLU of D.C., the National Press Photographers Association, and the Professional Photographers of America [1][3]. The ACLU press release on the brief, which dates the filing to September 4, 2026, identifies Scarlet Kim of the ACLU's Speech, Privacy, and Technology Project, Arthur Spitzer of ACLU of D.C., and Mickey H. Osterreicher, general counsel of the National Press Photographers Association, as counsel on the brief [3]. Kim's framing: "The FAA's restriction forced journalists reporting on immigration enforcement activity to ground their drones or risk criminal charges." Spitzer's framing: "Under Trump, even the Federal Aviation Administration has become a political censor." Osterreicher: "Drones have become essential, safe, and economical tools for documenting government activity" [3].
Why the First Amendment Filing Matters for Surveillance Coverage
The brief's core argument is content-based targeting. EFF's September 21 post describes the rule as a content-based restriction subject to strict scrutiny, the highest First Amendment standard, and presumptively unconstitutional [1]. The ACLU brief makes the same point in operational terms: the rule "made it functionally impossible for journalists to use drones to gather news" near immigration enforcement activity, and "the unpredictability of where a DHS vehicle may be located creates a chilling effect on drone journalism broadly" [3].
The surveillance stakes are direct. Aerial footage has become a primary documentary record for federal enforcement encounters, the same way bystander cell-phone footage became the primary record for street encounters after 2020. The EFF amicus brief highlights drone capability the existing right-to-record framework does not yet capture: drones provide "perspectives that cannot be captured by ground-based imagery" and are "both much cheaper and much safer than using a chartered plane or helicopter" [1]. The brief cites bird's-eye images of protest activity and police uses of force against protestors as examples of footage a ground camera cannot capture.
The site has tracked the broader First Amendment recording fight on a parallel track. EFF's July 31 one-pager lays out the federal right to record ICE and CBP at ground level, the warrant rule under Riley v. California for searching the recorder's phone, and the audio wiretap wrinkle [5]. The D.C. Circuit drone case is the airborne version of the same fight, and the question it puts in front of the court is whether the FAA can use an airspace rule as a back door to suppress the recording of federal agents. If the D.C. Circuit vacates the rule on First Amendment grounds, the FAA loses the tool. If it does not, the agency has the template for the next round.
The federal government's parallel investment in counter-drone technology, including billion-dollar DHS counter-UAS contracts, is the next layer of the same problem. The same drones a photojournalist uses to record an enforcement action are the drones a federal counter-measures program is designed to disable, redirect, or shoot down. The right-to-record case is the civil-liberties half of the counter-drone fight [1].
What to Watch
D.C. Circuit scheduling in Levine v. FAA. The court has not yet set oral argument or issued an opinion. Watch the docket for the court's next step; the FAA's tactical withdrawal gives the court a vehicle to dismiss the case as moot, and the amicus brief is structured to argue against that outcome [1][2].
FAA enforcement of the remaining advisory. The FAA replaced the original TFR with the narrower advisory FDC 6/2824 on April 15, 2026. The advisory covers Department of War and Department of Energy facilities, not DHS vehicles. Watch whether the FAA uses the advisory as a foundation for a future, narrower TFR aimed at immigration enforcement filming [4].
Counter-drone procurement decisions. DHS and other federal agencies are spending on counter-UAS systems. The amicus brief frames the FAA rule as part of a broader federal effort to push journalists out of the airspace around federal operations. A D.C. Circuit ruling on the First Amendment would either narrow or expand the room the federal government has to keep doing that [1][3].
The next circuit to weigh in on aerial recording. The federal appellate right-to-record case law covers ground-level bystander footage. The D.C. Circuit will be the first federal appellate court to rule on whether that body of law extends to drone newsgathering. The answer will set the precedent for every other circuit [1][3].
Sources
- EFF Deeplinks, Sophia Cope: “D.C. Circuit Must Vacate a Drone Flight Restriction That Criminalized Recording Immigration [Enforcement]” (September 21, 2026)
- Reporters Committee for Freedom of the Press: “Levine v. Federal Aviation Administration” case page (updated 2026)
- ACLU Press Release: “ACLU, ACLU of D.C., and National Press Photographers Association Tell Court That Blocking Drone Photography of DHS Operations Violates First Amendment” (September 4, 2026)
- EFF Deeplinks, Sophia Cope and Raj Gambhir: “The FAA's ‘Temporary’ Flight Restriction for Drones is a Blatant Attempt to Criminalize Filming ICE” (April 3, 2026; updated April 15, 2026)
- State of Surveillance: EFF Guide, Yes, You Can Record ICE and CBP (August 3, 2026)