AOPA Pilot Magazine - January 2019 - 26

FOR THE RECORD

What's not to 'like'

BY JARED ALLEN

Sharing your flying videos online

JARED ALLEN is

senior staff attorney
for AOPA's Legal
Services Plan. He is
an instrument-rated
private pilot.

26 | AOPA PILOT January 2019

BEFORE YOU OR YOUR AIRCRAFT take on a starring role
in a video that could be shared online, consider whether
you're comfortable having the clip scrutinized by the
FAA. It is increasingly common for FAA investigations
to begin based on a complaint about a video shared on
social media or on sites such as YouTube. These videos are often admissible as evidence against the airman.
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 aviationrelated 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.
AOPA
EMAIL jared.allen@aopa.org

The AOPA Legal Services plan is offered as part of
AOPA's Pilot Protection Services (www.aopa.org/pps).

http://www.aopa.org/pps

AOPA Pilot Magazine - January 2019

Table of Contents for the Digital Edition of AOPA Pilot Magazine - January 2019