Sunday, August 18, 2013

Drones, federalism and the First Amendment

If you've got a spare 18 minutes to spend on the subject, Margot Kaminski has an excellent podcast up at on "Drone Federalism." She succinctly lays out the First Amendment implications of private drone regulation, as opposed to regulating their use by the government, as well as anyone I've seen. She describes five axes of drone use around which lawmakers must craft drone regulation, only one of which (use by law enforcement to monitor the public) lends itself to a clean, obvious solution (a warrant requirement).

Around the 11:30 mark she points out that Texas' new drone law as written would likely criminalize the drone photographer who captured pig blood being dumped into the Trinity River by a meat packing plant in Dallas which has since faced a crackdown from the EPA. Margot, who your correspondent was privileged to meet at a conference on electronic privacy at the Yale Law School earlier this year, is perhaps the sharpest thinker I've run across on the subject of drone regulation. I still wish our friends at the Texas Lege had consulted her and the other experts at before passing Texas' ill-considered "drone bill," HB 912. Given Texas' mess of a statute, I couldn't agree more with Kaminski's point about drone federalism. Prosecutors have said our homegrown bill is unenforceable and the Texas Lege would definitely benefit from allochthonous approaches.

See related Grits posts:


Anonymous said...

Had to look that one up! It's an adjective that means:
"Denoting a sediment or rock that originated at a distance from its present position."
All I can say is that I personally do not want anyone spying on me with a drone, even though I have nothing to hide. It's just creepy! If the USSCourt allows the government to use such as an extension of the plain-view doctrine, then I can see where private parties are going to be able to go around the law as well. The drone issue is going to dominate the judicial system in the months/years to come.

Gritsforbreakfast said...

I was using the term in the general sense of things found in a place other than their origin. Basically I just meant we needed ideas from elsewhere - Texas' present drone law is inadequate.

Soronel Haetir said...

I will be quite amazed if the federal courts tolerate any but the most narrow of limitations on drone use, at least when it comes to private use. States are free, of course, to limit how their agents acquire evidence, but that is a very different matter from what private citizens may do.

I just don't see the facts of their being unmanned and cheap, or even being able to operate from a few hundred feet rather than a few thousand, compared to manned craft being enough to prompt a different result from the courts.

Gritsforbreakfast said...

Soronel, I can actually see private use limited at the state level, though I agree Texas took an approach that the feds may strike down.

The differing facts aren't just "unmanned and cheap" but also their relative silence, the ability to deploy them more and more covertly, etc.. There's an argument for limits on private use, but not nearly to the extent IMO that Texas has done. If our law is ever enforced (which I doubt, except for the warrant requirement) I expect most of it to get thrown out.