A coalition of civil liberties and press-freedom organizations is asking a federal appeals court not to let a controversial drone flight restriction quietly disappear from the books. In an amicus brief filed with the U.S. Court of Appeals for the D.C. Circuit, the Electronic Frontier Foundation, the American Civil Liberties Union, the ACLU of D.C., the National Press Photographers Association and Professional Photographers of America argue that the court should formally vacate a Federal Aviation Administration flight restriction that barred unauthorized drones from flying near Department of Homeland Security, Department of Defense and Department of Energy vehicles and facilities — even though the FAA rescinded the restriction months ago.

The case, Levine v. FAA, centers on Notice to Air Missions FDC 6/4375, issued by the FAA on Jan. 16, 2026. The notice prohibited drone flights within 3,000 feet horizontally and 1,000 feet vertically of DHS, DoD and Energy Department vehicles, convoys and escorts, and it carried real teeth: civil and criminal penalties, plus authority for the government to seize or destroy drones that violated the restriction.

The petitioner, Minnesota photojournalist Robert Levine, filed his challenge with the D.C. Circuit in March, represented by the Reporters Committee for Freedom of the Press. His argument is straightforward — the restriction, as written, made it functionally impossible for journalists to use drones for newsgathering anywhere DHS immigration-enforcement agents were operating, in violation of the First Amendment right to record public officials.

What the Restriction Actually Covered

According to EFF senior staff attorney Sophia Cope, writing on the organization's Deeplinks blog on Sept. 21, the restriction's language reached far beyond generic "DHS facilities." It explicitly covered DHS officers — including Immigration and Customs Enforcement and Customs and Border Protection agents — and their "mobile assets," a category that swept in ground vehicle convoys and the escorts protecting them. In practice, Cope wrote, that meant a journalist flying a drone from public property to document an ICE or CBP operation could be committing a federal violation simply by getting a camera near the agents' vehicles, regardless of altitude, distance from any secured facility, or the journalist's own safety-conscious flight path.

That breadth is what drew the amicus coalition into the case. EFF, joined by the ACLU, the ACLU of D.C., the National Press Photographers Association and Professional Photographers of America, filed their brief on Sept. 4, arguing that a restriction targeting the recording of specific government agents in the field — rather than protecting a fixed piece of critical infrastructure — is difficult to square with decades of First Amendment case law establishing a right to record police and other officials performing their public duties.

The FAA's Reversal — and Why It Isn't the End of the Story

The FAA did not wait for a court ruling to back away from the restriction. In April, the agency withdrew FDC 6/4375 and replaced it with a non-binding advisory that dropped both the flight prohibition and the penalty language entirely. On paper, that looks like the government mooting its own case: no more ban, no more prosecutions, nothing left for a court to strike down. Levine and the amicus coalition disagree, and their argument turns on a well-established doctrine in federal litigation: voluntary cessation does not automatically moot a case, especially when the defendant retains the legal authority to reinstate the exact conduct being challenged. The FAA's underlying legal authority to impose facility-based unmanned-aircraft restrictions has not gone anywhere. That authority flows from Section 2209 of the FAA Extension, Safety, and Security Act of 2016, the statute that lets facility operators request FAA-imposed flight restrictions around sensitive sites for reasons including aviation safety, national security and homeland security. The FAA's implementing rulemaking for that framework — which would spell out how those unmanned-aircraft flight restrictions, or UAFRs, are requested, justified and structured — remains a proposed rule, not a final one: the agency published it in the Federal Register on May 6 as a notice of proposed rulemaking, document 2026-08943, and later extended the public comment period into the summer without yet issuing a final rule.

In other words, nothing prevents the FAA from issuing a substantially similar NOTAM again the next time DHS, DoD or Energy Department officials want drone cameras kept away from an operation. Levine's team argues that leaves the underlying legal question — whether a restriction this broadly worded survives First Amendment scrutiny — unresolved and very much alive, and that only a formal vacatur, not an informal withdrawal, forecloses the FAA from reaching for the same tool again.

Why It Matters

The dispute sits at the intersection of two trends that have been building since the start of the year: expanded federal immigration enforcement activity and increasingly routine use of small drones by journalists and members of the public to document law enforcement operations from public airspace. A restriction that specifically named DHS mobile assets — as opposed to a fixed facility perimeter — set a template that press-freedom advocates worry could be replicated by other agencies whenever field operations draw unwanted aerial scrutiny.

There is also a structural stake for how the FAA's Section 2209 authority gets used going forward. The statute, and the implementing rule the FAA proposed this year but has not yet finalized, would give agencies a legitimate mechanism to protect genuinely sensitive fixed sites from drone incursions. Critics of FDC 6/4375 argue the January notice stretched that mechanism past its intended purpose, applying it to mobile government activity in public spaces rather than a stationary facility — the scenario the 2016 law and this year's proposed rulemaking were built around. A D.C. Circuit ruling that vacates the restriction on First Amendment grounds, rather than simply dismissing the case as moot, would put a marker down on how far a facility-protection statute can be stretched to cover officers and their vehicles as they move through public space, with direct implications for photojournalists, First Amendment auditors and anyone flying a drone near an enforcement operation in the future.

If the court instead dismisses the case as moot without ruling on the merits, the FAA would be free to reissue an identical or similar restriction with essentially no additional legal risk — the outcome Levine and the amicus coalition are trying to prevent.

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