The FCC’s sweeping ban on foreign-made drones made headlines as a decisive victory for American drone manufacturers and China hawks. But before anyone starts celebrating — or panicking — it’s worth asking a basic question: Will this FCC drone ban actually survive U.S. legal challenges?
Many will push back against the ban, from small business owners to taxpayer-funded law enforcement agencies who use drones for public safety. Expect heavy lobbying from law enforcement agencies that depend on DJI drones and can’t afford alternatives, commercial industries (agriculture, construction, energy) facing dramatically higher costs, and emergency services that need proven, reliable technology.
And then there’s DJI itself, which has deep pockets, strong legal arguments and everything to lose. With foreign drone companies including DJI kicked out of the American market, expect these companies not just to sit back, but to lawyer up.
Legal arguments against the FCC’s foreign drone ban
There are multiple grounds on which this ban could face U.S. legal challenges. Here are a few of them, and what potential arguments they have.
1. Due Process
DJI has been begging for a rigorous security audit for years. Adam Welsh, DJI’s head of global policy, wrote to Defense Secretary Pete Hegseth earlier this month offering to “be open and transparent, and provide you with the necessary information to complete a thorough review.”
Instead of conducting that review, the government issued a National Security Determination based on existing information rather than a new technical audit or an examination of DJI’s current products. Instead, we got a broad conclusion that all foreign drones pose “unacceptable risks.”
In administrative law, agencies typically need to provide a reasoned explanation for their decisions, consider relevant factors and give affected parties notice and opportunity to respond. Companies like DJI will argue that this never happened, even if they were ready to submit to scrutiny (yet the government declined to actually scrutinize them).
However, national security determinations typically receive substantial deference from courts. The government doesn’t have to prove its case beyond a reasonable doubt or even provide all its evidence publicly. Courts are generally reluctant to second-guess executive branch security assessments.
But — and this is important — the government does need to follow its own procedures. If the Secure Networks Act or FCC regulations require specific processes for adding equipment to the Covered List, and those weren’t followed, that’s a potential opening for challenge.
2. Constitutional challenges
Depending on how the ban is enforced, there could be constitutional issues.
For example, if the government tries to retroactively ban operation of existing drones (which they’ve said they won’t do, but could change their mind), that might constitute a taking of property without just compensation.
More interesting is the equal protection angle. Why can Americans who bought DJI drones approved before December 22, 2025, continue to use them indefinitely, but Americans who want to buy new models of drones that come out in future years cannot? What’s the constitutional basis for that distinction if the security threat is real?
If DJI drones actually pose the catastrophic security risks the government claims — enabling persistent surveillance, data exfiltration, remote attacks — why aren’t existing drones banned? The government knows that banning existing drones would cause massive backlash from law enforcement, emergency services, and half a million drone owners.
But that creates a weird legal situation where the government is essentially saying: “These drones are too dangerous for anyone to buy starting now, but not dangerous enough to stop anyone from using them if they already own them.”
3. WTO violations
China has already signaled it will challenge this at the World Trade Organization. Liu Pengyu, the Chinese Embassy spokesperson, accused the U.S. of “overstretching the concept of national security” and disrupting “normal economic and trade exchanges.”
Under WTO rules, countries can restrict imports for national security reasons, but those restrictions can’t be arbitrary, discriminatory, or disguised protectionism. If China can demonstrate that the U.S. ban isn’t actually about security but about protecting American manufacturers from competition, that’s potentially a WTO violation.
However, WTO cases take years and the U.S. has a history of ignoring adverse WTO rulings. But an adverse ruling would give China legal cover to retaliate and would weaken the U.S. position in other trade disputes.
What to expect going forward
If DJI decides to fight (and I’d be shocked if they don’t), here’s roughly how the legal challenge would unfold:
In the next few months, I anticipate that DJI will file a lawsuit, seeking preliminary injunction blocking enforcement of the ban. However, I’m guessing the court likely will deny such a preliminary injunction, as national security deference is strong.
In the next couple years, expect this to go to court. A district court ruling will likely uphold the ban, but you may see appeals in Circuit Court. And in the long term — if there’s a circuit split — this could even go to the Supreme Court.
But that this point, the political landscape may have changed entirely anyway.
For DJI or other non-American drone companies to win in court, they would need to:
- Find a procedural violation in how the FCC implemented the ban
- Demonstrate the national security rationale is pretextual
- Show actual harm to their due process rights
- Get a judge willing to second-guess a national security determination
- Survive appeals where national security deference is even stronger
Here’s what I think is more likely to actually change this policy:
Administration change: If a different administration takes office with different views on China policy or trade protectionism, they could reverse course. The ban was implemented via executive branch determination, and it could be undone the same way.
Congressional backlash: If the lack of affordable domestic alternatives creates enough pain for constituents — farmers who can’t afford to survey their fields, construction companies unable to do site inspections, small businesses losing their drone service revenue — Congress could modify the law or pressure the administration to create broad exemptions.
Negotiated settlement: The U.S. and China could negotiate a deal where DJI submits to ongoing security audits, implements specific security measures (like data storage in U.S. facilities, open-source code review, etc.), and in exchange gets exempted from the ban or a new category is created for “security-validated foreign drones.” If things went that route, the U.S. government would get to claim victory on national security, DJI would get market access back with some restrictions, American manufacturers would get a few years of protected market to develop (or fail to develop) competitive products, and everyone would save face.
I also expect to see:
- Broad exemptions granted by DoD or DHS for specific drone models
- Creative interpretations of what counts as “foreign-made” (assembled in U.S. with foreign components?)
- Special carve-outs for public safety and critical infrastructure
Why the FCC’s drone ban may not last
As I’ve been detailing over the past few days, American manufacturers can’t deliver competitive alternatives. That means:
- Businesses including farmers, construction companies and inspectors will pay double, triple (or even more!) for inferior equipment — or just stop using cutting-edge tech entirely.
- Small drone service businesses will go under
- Critical services like police and fire departments will make do with outdated equipment
Meanwhile, the benefits will mostly go to a handful of politically connected manufacturers who may or may not actually deliver better products.
For what it’s worth, the Trump administration has shown willingness to reverse course on policies quickly based on what’s politically advantageous. If the ban becomes unpopular or economically painful, and if Trump sees an opportunity to make a “great deal” with China that includes drone market access, the policy could flip overnight.
And the other key? Politicians love being able to blame courts for changing policies they’re uncomfortable defending. “We tried to ban Chinese drones, but the courts said we had to allow them with security measures” is a politically acceptable outcome that lets everyone save face.
How American drone pilots and companies should think about their fleet going forward
If you’re trying to make decisions based on whether this ban will stick, here’s my assessment:
The ban will probably remain in some form for at least 2-3 years. Courts move slowly and will likely defer to national security claims. That’s long enough to create real disruption.
But expect significant modifications. Broad exemptions, security validation programs, negotiated settlements — the strict version of this ban as written is probably not sustainable.
Don’t bet your business on either outcome. If you’re a commercial drone operator, plan for both scenarios:
- Have a path to expensive American equipment if the ban holds
- Maintain your existing DJI fleet assuming it remains legal to operate
- Watch for exemption opportunities from DoD/DHS
For American manufacturers: You’ve got a window of protection, but it may not last forever. Use this time to actually develop competitive products rather than relying on regulatory protection. Because if the ban gets overturned or modified in 3-4 years, and you haven’t delivered competitive alternatives, you’re in deep trouble.
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