Saturday, March 16, 2013

Droning on: US Senate, Texas House struggle with regulating unmanned aircraft

This Wednesday at 9:30 a.m. CDT, the US Senate Judiciary Committee will hold a hearing on "The Future of Drones in America: Law Enforcement and Privacy Considerations." See here for details.

Increasingly, as discussed in this post, Grits is convinced that Texas' pending drone privacy bill, HB 912, has First Amendment problems that would get it thrown out in federal court (the filed version bans private-sector photography by drones flying in FAA-approved airspace). However, I'm also convinced those problems can be fixed. On Friday, I went to visit with the bill author's staff and shared with them language that would require a warrant for law enforcement's use of drones for surveillance - as well as placing limits on other government actors - while retaining the rights of private citizens and companies to operate FAA-approved drones including ones that take photographs.

As Ryan Calo, who will testify at the US Senate hearing on Wednesday, recently wrote, we should seek "an end to bad privacy law [rather] than an end to drones." Just as the Fourth Amendment bans unreasonable searches by government, state legislation can legitimately limit government surveillance for enforcement purposes. But it's probably not realistic to ban private photography without running afoul of First Amendment rights to free expression. There has to be a way to distinguish good drones from bad drones. Luckily, there is a potential middle path.

RELATED:  From the Austin Statesman, "Texas all over the map when it comes to drones" (3/16).


doran said...

Grits, just a few comments.

As a starting place for discussion, let me suggest that private photographers using drones as camera platforms should not be allowed to take any photo that they could not take with a hand-held or tripod supported camera from ground level. If a private photographer cannot now legally take a photograph at ground level through the window of a house or office, of the inside of that house or office, then they should not be permitted to take that some photograph with a drone mounted camera.

If a private photographer cannot now set up a step ladder on public property, adjacent to a home-owner's privacy fence, and photograph the goings on in the backyard, then they should not be permitted to take that same photo from a drone.

On the other hand, a photographer probably can now legally take ground based photos of crowds, street scenes and the like, as a person in those scenes most likely has little expectation of privacy. Drone photos should be treated similarly, or ground based photos should be restricted. There appears to me to be little good reason to treat them differently.

But what about those of use who do not have privacy fences? Or who live in rural, pastoral settings with barbed wire fencing which does nothing at all about protecting our privacy? I'm not sure of the current status of the law in such cases, insofar as a private photographer standing in a public road a few hundred yards or a half mile from a private residence, and taking photos of the residence and back yard. I think such photos are invasions of privacy and should not be permitted either by ground or drone based photography.

I suspect that a private photograper could turn over to law enforcement a privately taken photo, from either ground or drone, which reveals illegal activity on private property. And that the photo could be used as probable cause for a search pursuant to a warrant.

Please clarify: Does HB 912 ban ALL private sector drone photography or is it limited to those examples I've mentioned?

I'm not sure your read on First
Amendment rights to free expression is accurate. Publishing a photograph is clearly protected by the First, but taking that photo may not be, if doing so involves breaching someone's right of privacy.

Gritsforbreakfast said...

doran, the bill as drafted would disallow all photography with magnification from more than 6 feet off the ground with several exceptions for fire suppression, use at the border, etc.. Here's the text. In a sense, it's similar to your idea about banning photography from step ladders.

I don't think they can require that "camera platforms should not be allowed to take any photo that they could not take with a hand-held or tripod supported camera from ground level." You may consider it privacy invasive but the media can do it with limits on activities where you may have a reasonable expectation of privacy. E.g., they can photograph you outside the home but not through the bathroom window while in the shower; they can photograph you at the ATM but can't zoom in to capture your PIN number.

Naturally, many of the governing cases involved erosion of privacy to prosecute the drug war. Like it or not, and I agree with you, I don't, SCOTUS has treated flying cameras no differently from those on the ground long before anyone was worried about "drones."

I don't think they're going to overturn that anytime soon. Law enforcement has relied heavily on the precedents, and there are too many examples of uses that qualify as First Amendment expression - news helicopters, mapmakers, and these days even Google Earth. While you're right about the free expression distinction being for "published" photography, in the age of Youtube, Facebook and Flickr, everyone's a publisher.

doran said...

Grits, your unstated premise seems to be that now that digital technology has outrun concepts of privacy, we might as well go on and allow digital technology to run-over/run-down the actual, day-to-day enjoyment of privacy. Well, we as a society have not allowed other forms of technology to run rampant over amenities, rights and privileges we value. There is no good reason why we should allow drones and the technology of high magnification to do so.

For example, there are long, long stretches of Interstate 10 between Junction and El Paso with little traffic, but we don't allow high tech vehicles which can do 100+ mph to actually do it.

Just about anyone with tech savy can set-up and operate a radio or TeeVee station, and butt right in on channels licensed by the government, but we don't allow that, either.

We cannot use available technology legally to eavesdrop on private conversations.

I'm sure there are other examples, including prohibitions on the use of technology to manufacture one's favorite psychic energizer, or to manufacture fully automatic weapons without government approval. So why should drones and magnification be treated any differently? Because everyone is doing it, seems to be your answer.

In the area of using drones, I recognize a distinction between what law enforement can do with judicial oversight, on the one hand, and civilian use of drones, on the other. So what if Google does it? Maybe we should require Google to give notice of intent to do a flyover picture taking, and the option of a landowner to opt out.

I think I must not have stated clearly the examples I gave in the previous post. I'll try again.

For instance, if "the media" cannot legally photograph you in your shower from ground level through the bathroom window, then "the media" can be similarly prohibited from taking that photo from a drone camera platform.

The right of privacy operates in both the criminal area and in the civil area. In the criminal area, that right should protect us to some extent from law enforcement intrusions made in the course of criminal investigations. In the civil area, a violation of your right of privacy may be a tort and may give you grounds for lawsuit against the tort feasor. There is no good reason to give the civilian operators of drones a pass when they commit the civil tort of invading your privacy by photographing you from miles away, as you lay sunbathing in your backyard behind an 8 foot tall privacy fence. It does not take the overturning of drug war over-kill by SCOTUS to protect our rights of privacy in the civilian area. It just takes an intent to do so and some critical thinking to get it done.

Gritsforbreakfast said...

Doran, we don't essentially disagree, with one exception. I'm not saying that the current state of the law is good from a normative standpoint, only that it exists and 101 Texas House members can't override 5 Supreme Court justices.

And just to mention it, it's not entirely true that "We cannot use available technology legally to eavesdrop on private conversations." Texas has a one-way wiretap law, meaning if you and I talk on the phone, only one of us has to know we're recording the conversation for it to be legally allowable. There are other jurisdictions that require consent from both parties, and if we were one of those states it might be easier to make some of the distinctions you'd like to make.

Perhaps with "some critical thinking" it would be possible to broach the divide you're describing, I just don't think HB 912 as written has achieved that. Government drones are in use right now, whereas private ones won't first be approved until 2015. I'd like for the Lege to regulate what they can right now and not wait for SCOTUS to overturn decades-old precedents before acting. Passing a law just to watch it get thrown out in court accomplishes nothing (witness the state's Voter ID law). That's where we disagree: I recognize that the issues you're raising are valid but am unwilling to allow the perfect to become the enemy of the good.

Anonymous said...

"Government drones are in use right now, whereas private ones won't first be approved until 2015."

That actually makes a difference. I didn't know that but it appears to be correct:

Anonymous said...

"The right of privacy operates in both the criminal area and in the civil area."

It would be better if HB 912 created a new cause of action in tort law for privacy violations but it only creates new criminal offenses. Since cops won't arrest themselves for violating privacy the warrant requirement makes more sense on the criminal side. There should be a civil cause of action too, instead of creating new unenforceable crimes.