Wish I had thought of this before

hank970 · 2026-01-09T09:23:40-0500

anotherlab said:
That would not be applicable here. The 1709 requirement was for a security audit to be performed by an authorized agency. Failure to have a completed audit would trigger adding the named companies to the Covered List.

IANAL, but...
A challenge to an FCC ban like this would almost certainly be brought under the Administrative Procedure Act (APA) in federal court. The APA is used to perform judicial reviews of actions taken by federal agencies.

Typical claims would be that the FCC action was:

Arbitrary and capricious

Not supported by substantial evidence

Beyond its statutory authority

Taken without required procedures

One can make a good argument that all of that would apply to the FCC's decision. One could also argue that it also applies to the Trump Tariffs. That is before the Supreme Court now.

Under the APA, courts do not conduct a fresh fact-finding inquiry. The court will review the materials that the agency (in this case, the FCC) relied on to make its decision. The rules of discovery that would be used for a civil case would not be available here.

That was never the issue (real or imagined), it was the fear that the images would be transmitted back to China.

Whataboutism is not a useful legal strategy.

In a court of law, whataboutism is called precedent, and it's an indispensable part of legal strategy. As a general rule, affirmed time and again, instrumentalities are not held to be responsible for a violation. Drones don't commit crimes or pose a threat to anything unless animated by a human being. That's also true of other inanimate objects like firearms, knives, automobiles, baseball bats, duct tape, plastic bags, shovels, hammers, computers, pens, ropes, prybars, etc. The list is endless. None of those things have been outlawed because they've been used or could be used in the commission of a crime.

anotherlab · 2026-01-09T11:22:15-0500

hank970 said:
In a court of law, whataboutism is called precedent, and it's an indispensable part of legal strategy. As a general rule, affirmed time and again, instrumentalities are not held to be responsible for a violation. Drones don't commit crimes or pose a threat to anything unless animated by a human being. That's also true of other inanimate objects like firearms, knives, automobiles, baseball bats, duct tape, plastic bags, shovels, hammers, computers, pens, ropes, prybars, etc. The list is endless. None of those things have been outlawed because they've been used or could be used in the commission of a crime.

It's only a precedent when it applies to the case being argued.

You picked cars as an example. There are numerous restrictions and limitations on how cars can be used.

The argument being made by the government is that there is no legal usage for a foreign-made drone. They provide a way out by allowing an appropriate agency to whitelist a drone or drone vendor. I don't think any of us agrees with the validity of that position, but the only way this will change is when enough businesses show the economic damages and enough First Responders show the effects of losing DJI drones.

hank970 · 2026-01-09T12:19:55-0500

anotherlab said:
It's only a precedent when it applies to the case being argued.

You picked cars as an example. There are numerous restrictions and limitations on how cars can be used.

The argument being made by the government is that there is no legal usage for a foreign-made drone. They provide a way out by allowing an appropriate agency to whitelist a drone or drone vendor. I don't think any of us agrees with the validity of that position, but the only way this will change is when enough businesses show the economic damages and enough First Responders show the effects of losing DJI drones.

"You picked cars as an example. There are numerous restrictions and limitations on how cars can be used."

Yes, there are restrictions on the use of automobiles -- speed limits and the like. And any driver who ignores those restrictions, whether willfully or carelessly, might be capable of doing great harm. But has anyone suggested that automobiles of foreign manufacture are more likely to be used nefariously than cars of domestic manufacture? Should we ban the import of Toyotas because there's a potential that some Toyota driver might inadvertently cause an accident or intentionally create mayhem on a busy street?

"I don't think any of us agrees with the validity of that position, but the only way this will change is when enough businesses show the economic damages and enough First Responders show the effects of losing DJI drones."

Yes, when enough businesses, first responders, and other drone users band together to file a class-action lawsuit. The government has asserted that drones of Chinese manufacture pose a threat to the security of the United States. The government should be obliged to prove that assertion in court.

anotherlab · 2026-01-09T16:14:05-0500

hank970 said:
"You picked cars as an example. There are numerous restrictions and limitations on how cars can be used."

Yes, there are restrictions on the use of automobiles -- speed limits and the like. And any driver who ignores those restrictions, whether willfully or carelessly, might be capable of doing great harm. But has anyone suggested that automobiles of foreign manufacture are more likely to be used nefariously than cars of domestic manufacture? Should we ban the import of Toyotas because there's a potential that some Toyota driver might inadvertently cause an accident or intentionally create mayhem on a busy street?

That's the point. It's not applicable.

The quote/unquote reason for blocking foreign drones was over vague and unproven security concerns. No one has ever accused Toyota of sending back data from cars on the road to Japan that could be used against the US.

Huawei was added to the Entity List in 2019 because of national security concerns. That is far more applicable to what is going on with drones than pens, cars, guns, treading cards, etc.