101 House members endorse bill criminalizing warrantless drone photography

Check out the list of joint and co-authors on HB 912 by sophomore Rep. Lance Gooden  of Terrell restricting surveillance by unmanned drones - four joint authors and 96 co-authors last week joined Gooden to support legislation making it a crime to use or authorize someone to use "an unmanned vehicle or aircraft to capture an image without the express consent of the person who owns or lawfully occupies the real property captured in the image." Extraordinary! That's even more people - and a much more bipartisan list - than have signed onto Rep. David Simpson's TSA anti-groping legislation (HB 80), virtually guaranteeing passage if the drone bill makes it to the House floor. Senate Criminal Justice Committee Chairman John Whitmire has reportedly agreed to sponsor it in the Senate.

The new offense would be a Class C misdemeanor for possessing such photos and a Class B misdemeanor for displaying or distributing them. There are exceptions carving out drone photos taken under the authority of a search warrant, by police in pursuits, for purposes of fire suppression, for drone use within 25 miles of the border, for drone photography without magnification, and for photos taken of people on public property.

While I'm generally not a fan of creating new crimes, Grits is broadly sympathetic to the impetus behind the legislation. Humorously, when I recently told my father about legislation by Rep. Bryan Hughes and Sen. Juan Hinojosa to require a warrant for GPS tracking of your cell phone by law enforcement, he joked that the day was coming when the state may use GPS to locate individuals then send armed drones after them to "rain death from the sky." For now, such concerns may be more applicable in Afghanistan or Pakistan than here, but the joke emphasizes that we're only just beginning to understand how all these newfangled 21st century technologies of control may work together in the future to violate rights in ways that are inconceivable today.

What remains unclear (to me, anyway) is how old court precedents related to photography and the First Amendment may apply to legislation like HB 912. After all, 101 state House members may be trumped by five US Supreme Court Justices, and traditionally courts have held that photographs of private property - even taken with magnification - are allowable if the photographer has a legal right to be in the spot where they snapped the picture. And based on those precedents, it's hard to see the distinction between photos taken by unmanned aircraft vs. a helicopter hovering over one's house with a photographer hanging out the side. For that matter, I'm not sure how the bill would distinguish between drone photography and satellite photos like those used by Google Earth.

At the same time, there are only so many manned helicopters police or news organizations can deploy at any given time, so there's a real limit on how much surveillance anyone can afford to conduct. In a future already visible from here, the number of unmanned drones that could be deployed may be essentially limitless and surveillance could be as easy as turning on your computer. Much like the GPS tracking bill, HB 912 bucks against the trend toward making surveillance ever cheaper and easier. Instead of drones, surveillance without a warrant would still require actual human beings (outside of the above-listed exceptions).

Past court precedents emphasized the First Amendment rights of the photographer over the privacy rights of those being photographed. Because freedom of the press is explicitly protected in the Constitution while privacy rights are at most implied, courts have tended to err on the side of the picture takers. But really, photography was invented decades after the First Amendment was written and the Constitution's framers could not have anticipated how it would be applied, just as judges interpreting the rights of paparazzi or police photographers in the past could not have anticipated the use of unmanned drones. How to balance those competing rights is a question which will be revisited over and over in the coming years. Whether or not this bill passes, it likely represents the beginning of a debate and not its denouement.