A path forward for state-level drone regulation

I listened today to the Texas House Criminal Jurisprudence Committee's surprisingly lively hearing in the middle of the night sometime Wednesday morning. That's when HB 912 by Lance Gooden criminalizing photography by drones finally came up. I'd already gone to bed after the debate on the cell-phone location tracking bill ended around 1:35 a.m., so thank heavens they webcast and archive these things. Go here to watch the hearing (it begins at the 6:46:18 mark) which started sometime just shy of three a.m. before an increasingly groggy but still engaged committee. I've also obtained a copy of the committee substitute language. It's not yet available on the capitol website so I uploaded a version here.

Sophisticated surveillance drone.

There's a civil section to the bill, explained Rep. Gooden, saying you can't take photos from a drone over someone's private property, with a penalty of up to $1,000 per picture. That's the piece which brought professional photographers out of the woodwork. For videographers, that per picture liability may be multiplied by 24 frames per second. Similarly, news photographers may take hundreds of photos on a shoot. The bill also creates criminal penalties, Class Cs and Bs, for drone photography of private property. Police officers who've obtained warrants are one exception to the criminal prohibition, including for pursuits, border security, when someone's life is in danger. Gooden said the Legislature had an obligation to regulate new technology, adding that, "If Bryan Hughes would have told you five years ago he'd be filing his GPS bill you'd have thought he was crazy. Some people think I am."

Grits increasingly likes Rep. Matt Schaefer the more I see of him - not just because he says things I agree with and asks good questions, but also because he's a home-town boy, representing the district I grew up in and where my father still resides in Tyler. He laid out parameters that also reflect my preferences: Stay out of the criminal statutes and cap damages on the civil side until we really understand all the stakeholders and everything that's going on.

Rep. Burnam interjected to say that Gooden had worked diligently with committee members and stakeholders, but that didn't mitigate the wave of often legitimate criticism that dominated most of the rest of the hearing. There was a consensus among speakers that a warrant standard for police was a good thing but there needed to be protections for filmmakers, hobbyists and press.

Alicia Calzada, an attorney with the National Press Photographers Association, nervously spoke against the bill. Her group opposes bills in general that criminalize or impose civil penalties on press photography, she said, and this bill does both. Drones are cheaper than helicopters and safer for operaters, she said. Aerial photography is powerful media tool. She complained the bill is content based, with the crime or civil penalty based on what's in the picture. Regulating content, she said, "requires a compelling state interest" that's not present as the bill's currently drafted.

There was a poignant moment when Rep. Schaefer asked a fellow from Texans for Lawsuit Reform, "do you agree we have some privacy issues?" Yes, the TLR lobbyist muttered. "Would you prefer we deal with those in civil court or criminal court?" "Criminal court," was the reply, as the audience twittered with laughter. Said Schaefer: "Why is that not surprising?" If you ever wonder why Texas too often uses criminal law in lieu of regulation or civil courts, that legislative moment sums it up. TLR has been and is a powerful voice under the pink dome.

Rep. Steve Toth from Montgomery County, where the local Sheriff bought a drone with grant funds and promptly crashed it into a SWAT vehicle, asked, "Should you be able to fly over my property and see my wife sunbathing?" Calzada meekly replied that it depends.  Toth asked, "Should you be able to fly over a wedding to see who is there?' Calzada answered only with a long silence, followed by mumbling. Toth continued, "How about a little kids' camp?" Taking a deep breath and regaining her composure, Calzada responded, "Well, can you see it from a helicopter? Can you see it from a 20-story building?"

She continued to point out that "This bill doesn't differentiate between when you do and don't have a reasonable expectation of privacy." Content based restrictions require a compelling state interest, she said, and  more narrowly crafted exemptions than were in the committee substitute. The bill needed to contain explicit exceptions for "serious literary, artistic, political or scientific expression," she said. Grits would have gone so far as to add that not just serious but "light-hearted, silly or fanciful" expression also deserved protection.

Brent Byler, of drone maker DGI Innovations described more positive uses of the technology: "Movie and television filming, agriculture, disaster management, thermal and infrared powerline surveys, aerial imaging and mapping, news coverage, environmental monitoring, oil and gas exploration, and real estate." He added, "Drones don't spy on people, people spy on people. He cited F1 races and SXSW as examples where drones were used because they're safer to use these than helicopters. But in a large crowd setting like that you can't get permission from everybody. Drones make high-quality media cheaper, he said, costing little to operate compared to helicopters which cost $15,000 per day. It's "not in the spirit of Texas to run off businesses," said Byler. Rep. Moody asked, if there is a way to "carve out  incidental image capture"? Byler replied probably.

Documentary film producer John Downer testified against the bill. Something must be done to protect privacy, he agreed, but under the bill as drafted he can't do the shots he needs so they would probably just go to California or shoot somewhere else. When a filmmaker flies a camera-laden drone down the street then pauses, hovering on a house where they're shooting, right now they get permission and pay for use of the one house. But it's not economically feasible, he said, also to pay every homeowner and bystander captured as they fly down the street. Directors who wanted such shots would have to  film somewhere else. At 24 images per second, at $1,000 per image the penaltie would quickly get out of hand. Mark Easterbrook, National Press Photography Association, called the legislation "just dumb," imploring the committee, "Don't be that state."

Other media reps tried to make clear that there are nearly unlimited uses for drones - which are much cheaper than photography from a helicopter at $300 per hour - for everything from sports and traffic coverage to an array of other uses that have traditionally been held to be constitutionally protected. A hobbyist came down from Fort Worth and, testifying at about four in the morning, told the committee he didn't want them to make something illegal that didn't hurt anybody and that he really loved to do. "I just want to fly my planes," he told the committee. A couple of speakers suggested there should be some sort of mens rea, or "ill intent" required before criminal or civil penalties kicked in.

Anyway, you get the gist. Quite an animated discussion considering how late it occurred.

A Path Forward
To me, the drone debate is the culmination of an increasingly bad policy trend that's infected the Texas penal code for at least two decades - using criminal laws as commentary on social trends and a substitute for meaningful civil-side regulations, which is how you get seven, or 11, or 16 oyster-related felonies, depending on who's counting. With all due respect to Rep. Gooden, trying to engage in aircraft regulation primarily through the use of misdemeanor criminal penalties is just a wrong-headed approach.

Here's my preferred solution: The FAA won't begin to license private sector use of drones until 2015, meaning for now the main users that need regulation are all in the government. So implement a warrant requirement for law enforcement to use drones on a particular investigative target (perhaps with exemptions for traffic monitoring and emergency response), and limit regulatory uses, but for now, leave private-sector use alone. The model language I took Rep. Gooden's staff from the ACLU's national model drone privacy bill included a warrant requirement for police and the following restriction on non-police UAVs (ignore, if you can, the annoying double negative in the first sentence):

Exception for non-law enforcement operations - It shall not be unlawful under this chapter for an agent of the state or any political subdivision thereof to operate an unmanned aerial vehicle and for information from such operation to be disclosed if no part of any information and no evidence derived from such operation may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the [State] or a political subdivision thereof, or for any intelligence purpose.

Under that language, the government could use drones for constructive purposes but not for "gotcha" type investigations. A pipeline company or one supposes, the state, might use drones to monitor for leaks, for example, but TCEQ couldn't use a drone for regulatory enforcement. Moreover, even with a warrant or under other exceptions, according to that model language, "Neither facial recognition nor other biometric matching technology may be used on non-target data collected by an unmanned aerial vehicle." We know that much is legal. The state can limit the activity of state and local law enforcement, state agencies, and their agents. Let's start there.

Grits would rather Texas actually pass a meaningful drone privacy bill limited to restricting government instead of one that's overbroad, violates First Amendment precedents, and is destined to get thrown out in federal court. Regrettably, I'm not sure this bill is fixable without rethinking its approach from first principles. In part because of its inappropriate use of criminal law to address a regulatory question, Gooden's current language governing legitimate government uses IMO both goes too far and not far enough. Limiting its scope to government - and getting rid of the criminal penalties entirely - would avoid First Amendment court challenges and allow some version of the above language to address the main non-law enforcement uses of unmanned aircraft.

As for private drones, the Texas Legislature will meet again in 2015 before the first private drones are licensed by the FAA that September. By that time, other states will have taken a stab at these thorny issues and the federal government will likely have passed more legislation on the topic. In the meantime, why not restrict drone use by the government, which is already being licensed to use this technology?

See prior, related Grits posts:

• Arlington PD embraces drones, gets FAA clearance; what limits will Lege impose?
• Debating drones: Final Panel from Yale Law School conference
• Droning on: US Senate, Texas House struggle with regulating unmanned aircraft
• Fourth Amendment and Privacy Roudup: Good drone, bad drone
• 101 House members endorse criminalizing warrantless drone photography
• Houston hearing hones in on use of drones by law enforcement
• Texas Congressman pushing restrictions on law enforcement's use of drones without a warrant
• Montgomery Sheriff crashes drone into SWAT vehicle
• The newest toys in the box: Police deploy cell-phone trackers, drones