Pilots are concerned about the FAA’s increasing reliance on ADS-B data to investigate and in some instances bust pilots for alleged deviations that never would have been spotted back when primary radar, which has both spotty coverage and data associated with a return, was the best tool at the investigator’s disposal.
Today, with ADS-B, investigators can find not only where aircraft are going right now but where they’ve been since the day their plane’s ADS-B gear got hooked up. And based on reports from pilots who are arguably most at risk for what they would claim are needless and potentially certificate-threatening investigations, such enforcement actions seem to be happening at an increasing rate.
The issue got a lot of attention recently when Martha Lunken, a high-profile aviation writer, had her certificates revoked by the FAA for turning off her ADS-B before flying under a bridge. Lunken admits the bridge flight but not the switching off of the ADS-B transmitter but surrendered her certificate because, she said, the cost of the legal fight against the FAA was too great. But how did the FAA even know that Lunken’s ADS-B transmitter was turned off? One presumes that it’s because they went straight to the ADS-B as surely as a football announcer goes to the instant replay every time there’s a penalty. It’s to confirm the initial suspicion and then to prove it.
Back in the early part of this century, when the FAA floated the idea of a connected web of GPS-enabled position self-reporting transmitters installed in every plane (or just about every one), pilots were concerned about the potential privacy ramifications. Just on paper, they had everything to be concerned about. In an airspace in which we could always do what we do without Big Brother looking over our shoulder, or at least with just a little snooping, which we could largely control, by flying in places far from big airports and populated places, which I’d argue are great places to fly anyways.
Not anymore. Not only will the FAA be able to track you if you have your ADS-B turned on whether you’re in New York City or the South Dakota Badlands, but you are required by regulation to have your ADS-B turned on. So if you decide to hide a little off grid flying from the feds by switching off your ADS-B, they can not only still bust you for what they think you probably did but they can revoke your certificate for turning off your data transmitter (though there is an exception to that rule, for now anyway, for some ADS-B transponders when the pilot is flying in airspace in which the equipment is not required.).
In a Facebook group message thread, a number of pilots related actions taken against them by the FAA and by other governmental organizations for their flying activity as either allegedly discovered by and/or verified by ADS-B. So it’s not just the FAA who can access the data and use it against pilots in enforcement action. There are reports of ADS-B data used by state agencies for actions against pilots who land in areas that are out of bounds to aircraft, and reports of at least one state agency using ADS-B data to track aircraft for the purpose of taxing their out-of-state owners
One pilot posted a letter he received from the United States Department of the Interior in which the facility had tracked what it said was a plane that flew too low, under 2,000 feet agl, it claimed as a ceiling, and threatened legal action against the pilot if they failed to comply with the letter, which we took to mean, flew that low over the site again. To support its claim, the Department referenced an FAA advisory circular (91-36d) that called out a 2,000-foot ceiling over certain protected areas. And for the record, there’s a big difference between a regulation and an advisory.
But, as pilots have long known, when it comes to fighting the FAA, the field is far from a balanced one. The investigators pushing the claim have lawyers already on their team, but the pilots who are accused have to pay dearly for legal representation. For many pilots, in practical terms, an accusation is the same as a suspension or revocation.
Is there anything that can be done about it? And should anything be done about it? Backcountry pilots are especially concerned, because much of what they do for sport takes place far from other people and/or structures. They are, they claim, not hurting anyone and not risky anyone’s safety, except their own, and they should have the right to do that, a claim with which I strongly agree, by the way. I also believe, as do most backcountry flying proponents, that we need to take care of our wilderness. And we also know that aircraft have a negligible impact on the backcountry, far less than any other kind of transportation, including foot traffic, it could be argued. That doesn’t mean that protected areas should be free rein for pilots, for whom much of the world is a runway. Like everyone else, pilots need to obey those restrictions, even though it can at times be difficult or impossible to know for sure what land is what.
And in a world in which the government is watching your every turn and bank, the risks have gotten greater for pilots and the already great power of the FAA has expanded in a chilling new way.
If you’re concerned about this, let your member organization know about it. The FAA seems to be using ADS-B as a tool for strict, and some would say, unfair enforcement. That being the case, maybe it’s time to consider regulations that take that tool away from the FAA and return the world of sport flying to a safer and better place than it seems to be becoming.