A government advisory group has been holding confidential meetings to shape U.S. policy on drones, deliberating privately about who should regulate a burgeoning industry that will affect everything from package delivery to personal privacy.
The federal group includes industry insiders with a financial stake in the outcome and is co-chaired by a lobbyist for DJI, a Chinese drone maker that dominates the U.S. market. In January, the Federal Aviation Administration asked the group to figure out what influence state and local governments should have over drones in their communities.
The closed proceedings are billed as a way to promote thoughtful and unguarded exchanges — and eventual consensus — among government, community and industry interests. Instead, the process has been riven by suspicion and dysfunction, according to internal documents and emails obtained by The Washington Post, and interviews with participants.
One U.S. official, who spoke on the condition of anonymity to discuss the group's inner workings, said he found it "very bizarre" to have a representative of a "multibillion-dollar Chinese drone manufacturer" helping guide such a sensitive U.S. policy exercise — and doing it "out of the public eye."
"I don't think it set a wonderful tone," the official said.
The group — formally known as Task Group 1 of the Drone Advisory Committee — is now teetering. Months of tensions came to a head recently when an FAA contractor that manages the group told members they had to sign a far-reaching confidentiality agreement to keep participating.
After some raised concerns, several groups were blocked from receiving draft documents meant to represent their own "common ground" positions, emails show.
"Please do not distribute this material to other TG1 members," an executive from the FAA contractor wrote in an email.
In response to this and other issues, John Eagerton, chief of Alabama's aeronautics bureau and a co-chair of the group; San Francisco Mayor Edwin M. Lee (D); a representative of the University of Oklahoma; the National League of Cities; the National Association of Counties; and the National Conference of State Legislatures emailed a "statement of dissent" to other group members last month.
"Despite good faith efforts to engage in Task Group 1, many of us have been obstructed from meaningful participation and we all have serious concerns about the recommendations included in the draft reports," they wrote.
Melanie Sloan, a former federal prosecutor and senior adviser for the accountability group American Oversight, said the closed-door approach appears to violate open-meetings provisions of the Federal Advisory Committee Act.
"Americans should be aware of the advice the government is relying on in making decisions that affect us all. That's why the advisory committee rules require transparency, so we are in on the process," she said.
In a statement, the FAA said the act requires that a committee's recommendations, and the meeting where they are presented to the FAA, be public. But it said there is a legal distinction between a "committee" and a subcommittee or task group. Lower-level panels generally "keep their conversations confidential to encourage open discussions and debate among the members," it said.
Since early last century, the federal government has ruled the United States' "navigable airspace." But the proliferation of cheap and powerful drones that can buzz through the air much closer to the ground than a Boeing or a Cessna has spawned a fundamental debate over who should control the airspace at "ultra-low altitude" — under 400 feet.
The policy issue at the heart of the discord is whether Washington should cede localities the power to regulate when, where and under what conditions drones can fly. Cities and states generally are prohibited by federal law from doing so, although there are exceptions, according to the FAA.
The FAA says measures such as altitude restrictions and flight bans are under its control. But local and state governments have long-standing "police powers," so banning voyeurism using drones or requiring police to get a warrant for overhead surveillance are appropriate for a city or state lawmakers, it says.
That leaves a lot of gray.
The Trump administration is preparing to launch "a pilot program designed to let local communities try different regulatory concepts for controlling drone activity," Transportation Secretary Elaine Chao told a drone conference in Fargo, N.D., in May.
Details of the pilot program could be disclosed soon.
Task Group 1 was assigned a difficult and high-pressure job, said Dan Elwell, who advised Chao on aviation and is now FAA deputy administrator.
The FAA "gave them the ocean and said, 'Boil it,' " Elwell said. But it is not the agency's role to manage the inner workings of the advisory group, he said. "We let them do their thing. If we meddle, if we get in there, they're not advising us."
The deliberations have at times been ugly.
"This process feels like a sham, and highlights the fact that this is the full time job for the industry lobbyists, while the rest of us, myself included, have other jobs," wrote James L. Grimsley, director of the Center for Applied Research & Development at the University of Oklahoma, and a member of the task group.
In an April email, Grimsley said drone behemoth DJI — whose lobbyist, Brendan Schulman, co-chairs the task group — has financial and lobbying ties with other group members, essentially creating a voting bloc with shared positions.
He said industry interests were overrepresented and pointed to the role of PrecisionHawk, a DJI partner and drone-technology firm, and Amazon, which is aggressively pursuing airborne package delivery. Amazon declined to comment. (Amazon chief executive Jeffrey P. Bezos owns The Washington Post.)
Grimsley, an associate vice president at the university, also helped found a drone-technology company. In an interview, he said he regrets that his email, written in frustration, became public, and said that it is "probably not a fair perspective on the entire task group."
University lawyers wrestled with the confidentiality agreement for weeks before finally allowing him to sign, he said. "There is a problem with some state and local governments signing" such agreements, because of open meetings laws in their jurisdictions, he said. "If you don't see the documents, you have a hard time having the conversations."
The materials have since been released to all members, whether or not they signed, according to the FAA consultant. Members are preparing to report to the FAA's broader drone advisory committee at a public meeting Nov. 8, hosted by Amazon in Seattle.
Other task group members have included Facebook, which is developing drones to provide Internet service; American Airlines; and representatives of airports, airport executives, aerospace industries, air traffic control advocates, private pilots, hobbyists and others.
Grimsley was not alone in focusing on Schulman. Margaret Jenny, the president of RTCA, Inc., the contractor that oversees the task group for the FAA, sought unsuccessfully this year to oust Schulman from his role as co-chair. She wrote that her rationale was "to decrease the chance that the final product could be questioned."
In an interview, Jenny said the decision to try to remove Schulman had been made jointly with the FAA and was spurred by a "perception issue." It would be better, they concluded, "if we had somebody who was representing a U.S. firm" and whose "main role" was not that of a lobbyist, she said.
The group voted to keep Schulman in place.
Schulman, in an April email to the group, said Grimsley's missive was "riddled with falsehoods and is frankly offensive."
"It is no secret or sham that my job is to work on drone policy; it is in my title," Schulman, vice president for policy and legal affairs for DJI, wrote. "I think that's why I have useful expertise in trying to solve problems, and am motived to work hard with other stakeholders on consensus solutions."
Schulman declined to answer questions about Task Group 1 but said broadly: "We advocate for responsible regulations around the world and at different levels of government, and if we consider something to be unreasonable we may engage in advocacy. That's true for any company in any industry."
Some cities have jumped into the breach to test federal limits.
Newton, Mass., passed an ordinance last year banning drone flights below 400 feet over private property, and above city property at any altitude, without permission. It is one of hundreds of laws touching on drones around the country.
Given community concerns about drones whirling overhead and the nation's need to facilitate air travel, "where does the right to travel bump up against the city's ability to protect its residents from harm?" said Newton assistant city solicitor Maura O'Keefe.
She got a partial answer last month when a federal judge tossed out the restrictions.
Having a single, clear authority over the nation's airspace has for decades generally been viewed as a good thing, both for commerce and the safety of the flying public. But millions of drones have now been sold, and they look to become more pervasive.
"Really, the crux of this is: How do we allow a fascinating and very useful and worthwhile technology to grow safely and with the proper level of oversight and security?" the FAA's Elwell said. "We have to be very, very careful not to be so burdensome that it stifles the industry and it goes out of our borders to find success — or to be so sort of laissez-faire with it that we end up with unintended consequences."
Some in Congress, including Sen. Dianne Feinstein (D-Calif.), have sought to guarantee that local and state governments have power to impose "reasonable restrictions" on drones below 200 feet, or within 200 feet of a structure.
That could include limits or bans on flights near public or private property and to protect privacy or lessen noise pollution, according to Feinstein's Drone Federalism Act.
Industry advocates say that allowing a "patchwork" of thousands of local regulations would snuff out the promising commercial drone industry. The Association for Unmanned Vehicle Systems International and the Consumer Technology Association, both members of Task Group 1, filed a court brief opposing the law in Newton.
Drone industry representatives, meanwhile, have sought federal legislation further limiting what states are allowed to regulate and have pushed states to enact their own "preemption" laws preventing their cities or counties from regulating drones.
"Rhode Island is a small place. You don't want to shut the door to a new technology," said Stephen Ucci, a state legislator and member of Task Group 1 who supported the state's preemption law so there would be "one uniform standard" for a technology that is both promising and polarizing.
"People either view things as cool or creepy. The 'creepy' people don't want them anywhere around, and the 'cool' people want to see them everywhere," said Ucci, a corporate lawyer. Task Group 1 put "really smart people in a room that know a lot about this topic," and their deliberations "are great for the country and the industry," he added.
Jenny, in a Sept. 22 email circulating among some members, said organizers should "stand down" Task Group 1 and give its materials to a "newly constituted group" with a new mandate.
"I'm not willing to continue down this painful path that cannot lead to a good outcome with an unbalanced group," she wrote.