by David C. Kent
Widespread commercial use of Unmanned Aircraft Systems (UAS)—“drones” in popular parlance—is coming. The FAA is developing regulations for integrating UAS into the national airspace system. Texas A&M-Corpus Christi has been awarded one of six national research and development contracts for this purpose. Stories of new ways businesses plan to use UAS, from Amazon’s delivering orders to customers’ homes to a micro brewery’s plan for delivering six-packs to ice fishermen on the frozen lakes of Minnesota (stopped by the FAA before it could get started), fill headlines daily.
Along with exciting and imaginative ideas for commercialized uses of UAS come concerns about potential infringements on privacy and civil liberties. The very features that make UAS attractive to businesses—their small size and weight, high-resolution imaging systems, remote control and communication capabilities, low altitude flight ranges and relatively low costs—also prompt fears of easy access to New Age Peeping Toms, Big Brother government surveillance and high tech corporate espionage. Indeed, in March, U.S. Senator Dianne Feinstein reported opening her window drapes one morning to find a small helicopter drone unit hovering inches from her window. A local protest group acknowledged the unit may have belonged to one of its members.
Because the FAA is focusing on the technological and safety aspects of integrating UAS into the national airspace, state legislatures have been left to address the way in which UAS may be used. At least 43 state legislatures considered UAS legislation in 2013. Seven states—Texas among them—passed laws limiting the ways UAS can be used. Most of those statutes focused on the uses of UAS by law enforcement agencies, with only limited controls over commercial uses.
Texas entered the fray with HB 912, the “Texas Privacy Act.” 4 Tex. Gov. Code, Ch. 423 (Vernon Supp. 2013). Enacted in last year’s legislative session and effective September 1, 2013, the statute has far-reaching implications.
Unlike other states that require law enforcement agencies to obtain search warrants in order to conduct UAS surveillance, the Texas statute only encourages the use of search warrants. It does make illegally-obtained UAS evidence inadmissible and not subject to discovery (except to prove violations of the statute) in both criminal and civil cases.
The Texas statute is more notable, however, for its criminal and civil penalties. It makes the capture or possession of an image of a person or private property “with the intent to conduct surveillance” a Class C misdemeanor punishable by a fine of up to $500. Publication of an image is a Class B misdemeanor punishable by a fine of up to $2,000 and 180 days in jail. Each improper use of each image constitutes a separate offense.
For unauthorized images of private property or owners or tenants while on their property, the statute creates a civil cause of action by which violators can be subject to injunctive relief and be liable for a civil penalty of $5,000 for capturing images, $10,000 for distributing the images, actual damages if done with malice and mandatory attorneys’ fees and costs. An obvious purpose of the private cause of action is to protect against acts of corporate espionage and invasions of personal privacy.
Unlike some other UAS statutes, the Texas statute does not expressly recognize a First Amendment “free speech” defense or contain a journalism exception. The author of the statute and the House Research Organization claim this is not a problem, because the statute only prohibits “surveillance” activities. Critics respond, however, that the statute does not define “surveillance.” Consequently, some worry the statute may criminalize and have a chilling effect on “drone journalism.”
Perhaps reflective of the compromises necessary to enact legislation, the Texas law went through numerous changes as it wound its way through the legislative process. Beginning as a broadly worded prohibition against UAS surveillance, the bill was engrafted with exception after exception (19 in all) authorizing UAS imaging for various law enforcement, public health and safety, educational and industrial uses. The final product, in the words of one Texas legislator, was a “zebra law,” where the definition of legal and illegal activity changed in “extremely confusing” ways depending on the specific activity involved.
Given the rapidly advancing and ever-changing state of the technology and the ongoing study and development of regulations by the FAA, it is difficult to predict the long-term effects of the Texas statute. These factors, however, make it a prime candidate for legislative “tinkering” in future sessions of the Texas legislature.
David C. Kent is Of Counsel at Sedgwick LLP and can be reached at email@example.com.