Tuesday, May 14, 2013

Top Five Things Wrong With Texas' Drone Bill

The road to hell, they say, is paved with good intentions, but apparently airspace will also get you there.

Grits admires the good intentions behind Lance Gooden's HB 912, better known around the capitol as the "drone bill," and I readily grant the version produced by the House is superior to earlier ones. There are significant, valid concerns with the advent of drones, particularly regarding their use by law enforcement and possible invasions of privacy. Idaho recently passed legislation that tracks fairly closely with what Grits has argued for, regulating government use of drones while leaving private use alone, for now. After all, the FAA won't even allow private drones in commercial airspace until 2015, so there's time to flesh out all those details. Texas' bill, though, is much more sweeping.

I regret to say, in the form in which it passed the Texas House, Grits couldn't support the drone bill if I were a Texas senator. Its flaws are fundamental and structural; I don't believe it can be repaired under its current caption, which is "relating to images captured by unmanned vehicles and unmanned aircraft; providing penalties." There should be no "penalties." As Rep. Matt Schaefer unsuccessfully argued on the House floor (with liberal Lon Burnam rebutting him), drone regulation should stay out of the criminal code until the uses of drones are understood much better.

To me, the answer is to bolster fundamental privacy principles, not to ban or restrict use of particular technologies. If someone takes my picture out in public or in my front yard, whether with a hand-held camera, a drone or a manned helicopter, under traditional First Amendment case law I don't have a reasonable expectation of privacy. Increasingly, largely thanks to cases in deference to law enforcement, the US Supreme Court has declared that people have virtually no reasonable expectation of privacy outside of the home including very little, even, in their cars. What's needed is to push back against diminishing privacy in the public sphere, but based on a set of consistent principles. You can't reasonably ban your neighbor with a drone from taking a picture of something your other neighbor could legally shoot from their second-story window.

When approaching aircraft regulation, government basically has three tools in the toolbox: A) creating new crimes, B) creating a new cause of action over which people can sue in civil court, or C) traditional regulation (licensing, rulemaking, etc.), akin to how the Federal Aviation Administration regulates commercial and private aircraft. (I suppose in theory you could also influence drone use via tax policy, but let's leave that aside for the moment.) This bill eschews any semblance of a regulatory approach, nominally criminalizing the supposedly aberrant behavior and establishing civil liability so small no lawyer would ever bother pursuing it. Here's the main new crime, a Class C misdemeanor, created in the bill:
A person commits an offense if the person uses an unmanned vehicle or unmanned aircraft to capture an image of:
(1)  an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image; or
(2)  real property in this state, on which a primary or secondary school or a licensed child-care facility is operated or an individual located on that property, with the intent to conduct surveillance.
As though these images were a weak-tea version of child pornography, the bill also criminalizes anyone who "possesses, discloses, displays, distributes, or otherwise uses that image" not just the drone operator who takes the photo. And it applies a sweeping exclusionary rule to images taken in violation of the statute, forbidding their use in court except for purposes of proving the Class C misdemeanor.

There's a list of seven categories of users to whom the bill does not apply as well as 22 exceptions under the criminal-code portion, of which 2, 3, and 4 address a host of specific concerns by law enforcement. An amendment to give law enforcement a sweeping, all-purpose exemption was happily defeated on a "division vote," but that means unfortunately we can't know the pro and con vote count on that one. Wish somebody'd called for a record vote on that one! It would be a particularly telling breakdown.

The long list of exceptions and exempted classes is essentially an admission that the bill author has not yet identified a set of core principles that apply universally in most situations. We're just not there yet. It was a good start to a longer discussion but I'd be disappointed and a tad dismayed if HB 912 became law in anything like its present form.

Here are Grits' top five reasons for opposing the version of the "drone bill" passed by the Texas House:

1. Overcriminalization: Misdemeanor criminal prosecution is a poor substitute for aircraft regulation. Class C misdemeanors are typically processed by municipal courts or justices of the peace. Have you ever sat through a court session at your local JP or municipal court? If not, do so then tell me whether that's the appropriate venue for regulating airspace.

2. Too much and too little: At a minimum, juries should have flexibility regarding whether or how much may be recovered in civil court. The civil penalties are both too high and too low. Too low for the most serious abuses or when a photographer reaps large profits from an illicit photo. Too high for more typical, mundane causes of action that are likely to make up most of the cases under this section.

3. Surviving the federal courts: The bill criminalizes photography in ways that potentially violate historic US Supreme Court and other federal court precedents, for example, in the 80s when SCOTUS ruled the EPA could use a high-powered camera attached to a low-flying aircraft designed for map making to use in regulatory enforcement vs. Dow Chemical. In an era when "publishing" photos or video is cheaper than ever, traditional protections for freedom of expression that applied to the press will increasingly (IMO rightly) apply to individuals.

4. Regulate this: In the enrolled version of the bill, the Department of Public Safety will create rules for use by law enforcement, but utterly absent is any rulemaking authority for every other drone in the sky. Aircraft regulation requires rule making, licensing and enforcement. Mere criminalization and penny-ante tort litigation won't suffice. When you read the list of exceptions, it's really a list of areas where - if the bill were structured in a more traditional fashion - an agency would be instructed to engage in rulemaking to govern drones' use. Instead it's left up to juries in municipal court. It just makes no sense.

5. Exceptions swallowed the rule: In the Senate Agriculture, Rural Affairs and Homeland Security Committee, Shannon Edmonds from the prosecutors' association argued that violations of the law are "never going to be prosecuted" because the litany of exceptions creates too much confusion about licit vs. illicit uses. That sounds right to me.

Grits supported Rep. Gooden's efforts on the front end, hoping he and his many collaborators could smooth out the rough spots, but I doubt HB 912 can be fixed in the short time the Lege has left. I'd prefer the Lege wait two more years, by which time they'd have the benefit of knowing what federal regulation will look like. It's an important topic. Make it an interim study and do it right.

1 comment:

Force Majeure said...

I agree with your assessment that it is a bad bill: the topic should be left well enough alone for this session.

Your post the other day "Hamstrung House" reminded me of a story from Caro's biography of LBJ: When Gov. Coke Stephenson was in the legislature, he said that he was happy with the House in recess because that way they didn't pass bad bills or do other damage.

Perhaps a return to those days would minimize the irresistable urge to over-criminalize.