For the Record: What’s not to ‘like’

Getting caught on camera flying low over a crowded shoreline has made more than one pilot the subject of an investigation concerning compliance with FAR 91.119: Minimum Safe Altitudes, and FAR 91.13: Careless or Reckless Operation. Video taken by unmanned aircraft has been used to investigate compliance with the small UAS rules in Part 107 or the model aircraft rules, especially possible airspace incursions.

Videos filmed by those onboard the aircraft have set off investigations into more unusual issues. In one instance, video of a pilot talking to a camera during a critical phase of flight raised questions as to whether the pilot was part of an air carrier operation, acting contrary to the sterile cockpit rules of Parts 121 or 135. In-flight video of passengers smoking an unidentified substance called into question compliance with the prohibition on knowingly carrying drugs as addressed in FAR 91.19.

In 2015, the FAA announced guidance for its inspectors regarding actions to be taken considering the “escalating number of videos and other electronic media posted to the internet, which depict aviation-related activities.” It instructed inspectors that a video on the internet “is only one form of evidence that may be used to support an enforcement action and it must be authenticated” and that it is “ordinarily not sufficient evidence alone to determine that an operation is not in compliance” with the FARs. “However, electronic media may serve as evidence of possible violations and may be retained for future enforcement action.”

Videos shared online often make other aspects of an investigation easier. The video may be tied to an account with names or pictures that easily identify the pilot in command, who otherwise may have remained anonymous. Audio of a radio call or a glimpse of a placard on the panel may reveal the aircraft’s N number, making quick work of determining the registered owner of the aircraft or researching the aircraft using flight trackers.

Just because a video is investigated doesn’t mean a violation occurred or enforcement action is appropriate. Sometimes an edited clip makes it appear that a violation occurred, but the unedited video clarifies the situation. If a video captures a violation that turns out to be a simple mistake, then, as with most other unintentional acts, it may be resolved with counseling, education, or training through the FAA’s compliance program. However, videos portraying conduct such as intentional violations or reckless acts are likely to be met with enforcement action.

If an FAA enforcement action is taken and the pilot appeals for a hearing before an NTSB law judge, then the video will likely be admissible as a key piece of evidence in the FAA’s case. Before the judge can consider an item as “evidence,” it can be opposed using the same rules that govern the introduction of evidence in most federal courts—but don’t expect an argument that the video was “private” or only shared to certain people to carry any weight. A person who voluntarily posts content online generally waives any reasonable expectation of privacy he or she may have for that information.

Videos admitted into evidence at these hearings have had a significant impact. Look no further than a 2009 case where an online video led to the FAA’s revocation of a commercial pilot’s certificate for reckless operation of a helicopter over a populated area. At the hearing, the FAA submitted into evidence a video that depicted the pilot engaging in a “sexual encounter” with the passenger while he operated the aircraft.

The video was not just admitted into evidence; an expert witness in helicopter operations used it to explain how what was depicted made the flight “reckless.” He testified that given what was in the video, the pilot could not have manipulated the controls in an emergency event, such as an autorotation, without interference from clothing or the unsecured passenger. Without seat belts, either could have been thrown against the controls resulting in immediate loss of controlled flight over what the video showed to be a populated area.

Be careful about what you share online and—since you never know what the camera-phone-carrying public will record and post online—always fly safely. If a video reaches the internet, it may be out there forever for everyone to see, including the FAA, future employers, and maybe someone who is looking for any reason to file a complaint.

Email [email protected]
The AOPA Legal Services plan is offered as part of AOPA’s Pilot Protection Services.