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Friday, April 16, 2021

Want to be a drone vigilante? Better check your state’s drone laws first

As the popularity of drones continues to rise, so too does the desire for regulation. However, drone regulation is a difficult problem to solve.

As a society, we have little experience dealing with small, airborne, data-harvesting machines. And, there is an endless list of complaints about drones ranging from safety concerns to potential abuses by law enforcement. In an effort to deal with those concerns, state and local governments have fashioned a variety of drone laws. Frankly, many of those laws are experimental and some may be unconstitutional.

One law that could be deemed “experimental” is in North Dakota, where law enforcement agencies are empowered to use drones equipped with non-lethal weapons, which would potentially include pepper spray, bean bag guns, tasers and sound-based weapons. Weaponized drones are extremely controversial. It probably will take one test case to determine if North Dakota’s law will stand public scrutiny.

Similarly, North Carolina’s law prohibits operation of a drone for commercial purposes unless the operator has a license issued by the North Carolina Division of Aviation. To get a license, North Carolina requires the operator to be 17 years of age, to pass a knowledge test and to have a valid driver’s license. Pilot training and qualification is traditionally a field of action reserved for the Federal Aviation Administration. Such state action may violate Article 6 of the Constitution, which establishes that “This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Eventually we will see how society, drones and the law mix. We will learn whether current drone laws achieve our goals and/or whether they violate long-standing legal principles. A recent case in Oklahoma provides an opportunity to consider that question.

Prosecutors in Oklahoma filed charges against an alleged prostitute and her client based, in part, on drone video supplied by a local witness. According to affidavit testimony, a witness identified as Brian Bates (also known as the “Original Video Vigilante” and the creator of a website called “johntv.com”) was “monitoring prostitution activity” when he saw a white truck stop and pick up a female who was allegedly a “known prostitute.” The witness followed the truck and saw it park behind “an old tire company.” Suspicious that the pair was engaging in illegal activity, the witness launched a drone and aimed its camera at the windshield. The drone video allegedly confirmed the witness’ suspicions. However, once they saw the drone, the pair allegedly ceased its activities and left the area. The witness ultimately posted the video to his YouTube channel, which is devoted to uncovering the “graphic realities of street prostitution.” He also supplied the video to the Oklahoma City police. The video was used as part of the evidence to support charges filed against the alleged prostitute and her client. The pair has pled not guilty.

The Oklahoma case raises some interesting issues regarding the use of drones for surveillance. There are likely many who celebrate the work of the video vigilante. And, his drone video apparently helped law enforcement officials make their case. But despite the apparent good intentions behind such activism, some states, including Texas, impose significant restrictions on the use of drones for surveillance.

With some exceptions, the Texas drone statute (contained in Chapter 423 of the Texas Government Code) imposes criminal penalties for the use of drones to conduct “surveillance” of persons or property without consent:

Sec. 423.003. OFFENSE: ILLEGAL USE OF UNMANNED AIRCRAFT TO CAPTURE IMAGE. (a) A person commits an offense if the person uses an unmanned aircraft to capture an image of 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.

(b) An offense under this section is a Class C misdemeanor.

It is important to note that the law focuses on intentional “surveillance.” Surveillance, however, is not defined by the statute and it is difficult to know precisely what acts would violate the law. Additionally, a person commits a Class B misdemeanor under the Texas drone law if the person “possesses, discloses, displays, distributes or otherwise uses” images captured in violation of the law. Thus, posting illegally obtained video on YouTube would be a violation. As it relates to law enforcement, images captured in violation of the Texas drone law “may not be used as evidence in any criminal or juvenile proceeding, civil action or administrative proceeding.” (However, such images may be used as evidence to establish a violation of the Texas drone law.)

The Texas drone law also provides a list of legal drone operations. In addition to a range of research, commercial and governmental uses, the law allows drone photography of public property or persons on public property and it allows photography of private property with the owner’s consent. It also contains a unique exception that allows drone photography “from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical or other means to amplify the image beyond normal human perception.” It seems as if this exception fails the safety test — the airspace from 0-to-8 feet is generally inhabited by people. And, it is difficult to imagine any modern camera that does not amplify an image beyond normal human perception.

It is difficult to criticize the balance struck by the Texas drone law. Although drones may be useful for many things, including busting potential criminals, there is always a tradeoff. The Texas drone law generally protects individual privacy and most people would probably agree with that goal. However, as drones become more prevalent, it may be necessary to re-evaluate the Texas drone law (and other state and local drone laws) to determine if it still meets the goals of our society and whether there are other ways to preserve privacy and obtain the benefits of drone technology.

Bryan S. David is a partner in the Aviation Section of Cantey Hanger L.L.P. He represents aircraft owners and operators, charter companies, major aircraft manufactures, repair stations, flight schools and training centers in a variety of commercial and tort actions. You can reach him at bdavid@canteyhanger.com .

FAA mandates registration for recreational drones

Approximately half a million drones or “Unmanned Aircraft Systems” were given as gifts during the 2015 holiday season. Just before Christmas, the Federal Aviation Administration announced its “interim final rule” regarding electronic drone registration. The regulations establish a streamlined, electronic registration system meant to enhance safety and education in the drone community.

If you weren’t sure whether you SHOULD register your drone, the FAA’s announcement was blunt — “[i]f you own a drone, you must register it . . . and you are subject to civil and criminal penalties if you do not register.”

The registration requirement does not apply to all drones and it does not apply to all operators. Here are the “who, what, when, where, why, and how” of the new registration rules.

Who: The new rules focus on owners of recreational drones (or “model aircraft” as the rule refers to them). The registered owner must be a person 13 years of age or older. If the owner is younger than 13, someone at least 13 years must register the drone. The registered owner must also be a U.S. citizen or lawfully-admitted resident. A “model aircraft” is defined as “an unmanned aircraft that is (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”

What: The new rules are for drones classified as “model aircraft” that are flown outdoors and weigh more than 0.55 lbs. and less than 55 lbs. (Yes, “outdoors” includes your backyard.) If you do not know the weight of your drone, you can use a postal scale or food scale. When you weigh your drone, make sure that it is outfitted with all equipment that will be attached to the aircraft at the time of takeoff (camera, battery, etc.). Do not rely simply on the weight listed on the package.

When: If you received a new drone after Dec. 21, 2015 and it meets the requirements, you must register before you fly outside. If you operated your recreational drone before December 21, 2015, you have until February 19, 2016 to register.

Where: You can register at “http://www.faa.gov/uas/registration/”. Non-qualifying drones must continue to use the paper method of registration.

Why: The FAA wants a means to locate the owner of a drone in the event of an accident or if the drone is lost or stolen. And, registration will aid the FAA in its drone-education programs. Many drone pilots are unaware that, when they fly their drones outdoors, they are operating in the national airspace system. The lack of understanding regarding the airspace system and a perceived lack of safety culture have been blamed for many of the close encounters between drones and other aircraft. The new registration system is designed, in part, to allow the FAA direct access to drone owners for educational outreach and for legal enforcement.

How/How Much: Once the drone owner logs onto the system, he/she will be required to set up an account and provide basic information such as his/her name, address, e-mail address and “other information as required.” The owner must pay a $5.00 fee to register the owner’s entire fleet of drones. Upon completion of the process, the FAA will deliver a Certificate of Registration by e-mail and the FAA will assign a registration number to the owner. The owner must mark his/her drones with the registration number and must carry a copy of the Certificate of Registration (in either electronic or paper form) at all times while operating the drone.

If you are considering about “forgetting” to register, you might consider the penalties. If one fails to register his/her drone, the FAA may assess significant civil and criminal penalties, which, depending on the situation, could include fines and/or imprisonment. The registration system is designed to be easy and it is not that difficult. So, go register, fly safely and have fun.

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