Controversial TX Drone Law Re-Instated

[Spartan Drones]

Follow link to Drone life web site for ruling I formation.

Controversial Texas Drone Law Re-Instated, in a Blow for Journalists

 

[mavic3usa]

Fighting for your rights always a battle even for drone pilots and especially for the media. No one is more willing to take away First Amendment rights and control the media more than the government and the public and when you add drones to the mix, makes it even more of a challenge. This country was founded and only exists today because of the free press; no one else in the world has anything like it. Unfortunately it's these kinds of cases that have to be decided by SCOTUS....for everybody, not just Texans.

 

[Vic Moss]

I talked with the NPPA lawyer yesterday. They may appeal. Mickey’s response, “We are considering our options. Stay safe and be well.”

I’ll pass along any more info I get.

 

[AZDave]

The 5th Circuit Court of Appeals covers Louisiana, Mississippi, and Texas. Up hill battle.

 

[clackey]

Per community guidelines, please refrain from adding your political opinions on the topic. We know from experience this rarely ends well...

 

[Reginald E Johnson]

Per community guidelines, please refrain from adding your political opinions on the topic. We know from experience this rarely ends well...

I know this but it seems like some people just have to make it political about everything! No problem!

 

[Chip]

One could argue that the NPPA's position --that flying a drone and gathering images is protected First Amendment speech--was always a stretch. So was its argument that the law was unconstitutional on its face because that requires proof that it cannot be constitutional no matter how its interpreted, applied or enforced which is very high hurdle.

 

[Reginald E Johnson]

Fighting for your rights always a battle even for drone pilots and especially for the media. No one is more willing to take away First Amendment rights and control the media more than the government and the public and when you add drones to the mix, makes it even more of a challenge. This country was founded and only exists today because of the free press; no one else in the world has anything like it. Unfortunately it's these kinds of cases that have to be decided by SCOTUS....for everybody, not just Texans.

I found out that most people are either scared of Drones because they think that they’re spying on them or they’re just fascinated!

One could argue that the NPPA's position --that flying a drone and gathering images is protected First Amendment speech--was always a stretch. So was its argument that the law was unconstitutional on its face because that requires proof that it cannot be constitutional no matter how it’s interpreted, applied or enforced which is very high hurdle.

Most of the people that I’ve encountered when they find out that I fly Drones often ask me if I use it to spy on People! Go figure?

 

[Xitor]

I live in Texas, and wasn't too worried about the law when it was previously on the books because of two items: (1) I had to be flying with the intent of getting surveillance on a person or property, and (2) destruction of the photos / videos is an acceptable defense:

(d) It is a defense to prosecution under this section for the possession of an image that the person destroyed the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.
(e) It is a defense to prosecution under this section for the disclosure, display, distribution, or other use of an image that the person stopped disclosing, displaying, distributing, or otherwise using the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.

 

[mavic3usa]

I live in Texas, and wasn't too worried about the law when it was previously on the books because of two items: (1) I had to be flying with the intent of getting surveillance on a person or property, and (2) destruction of the photos / videos is an acceptable defense:

(d) It is a defense to prosecution under this section for the possession of an image that the person destroyed the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.
(e) It is a defense to prosecution under this section for the disclosure, display, distribution, or other use of an image that the person stopped disclosing, displaying, distributing, or otherwise using the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.

This is exactly what I mean. The law adds a couple of exceptions that appear to soften it up and immediately the targets believe it's ok for the law to exist because you have a possible avenue to being found not guilty after having been arrested, jailed, and then put on trial.

Learn to recognize a veiled attempt to violate your constitutional rights by disguising it as a means to prosecute only those with nefarious intent. Look at the defendants in this case, does it appear they were up to no good when they were charged? The law is not designed to stop bad actors from using drones illegally, the law is designed to punish law-abiding citizens who fly their drones to capture news-worthy events with great public interest and introduce a never before high level of transparency that can only be achieved using drones. This level of freedom is scary and places like Texas are always the first ones to attempt to put a cap on it before it's too late (only to later capitulate and then try to claim they lead the nation in unprecedented levels of freedom). This law seeks to chill the use of drones likely forcing 9 out of 10 potential flyers from even attempting to capture certain pictures and videos because they are afraid of the legal consequences if they cannot precisely navigate all the ridiculous hurdles and "get it right." That's not true freedom.

Ask them to include the following and see if they still agree:

1. Drone flyer is exempt if the photos and videos contain images of law enforcement or other government officials in the course of their duties.
2. Anyone who attempts to interfere with a drone pilot while capturing photos or videos of law enforcement or other government officials in the course of their duties is guilty of a third-degree felony.
3. Before anyone is arrested under this law, the pilot must be given the opportunity to destroy the video/photos and if the pilot agrees, authorities are prohibited from further prosecution and/or arrest. Failure to provide the drone pilot with the opportunity to exercise his defense under subsection (d)(e) is a class A misdemeanor.

 

[mavic3usa]

I live in Texas, and wasn't too worried about the law when it was previously on the books because of two items: (1) I had to be flying with the intent of getting surveillance on a person or property, and (2) destruction of the photos / videos is an acceptable defense:

(d) It is a defense to prosecution under this section for the possession of an image that the person destroyed the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.
(e) It is a defense to prosecution under this section for the disclosure, display, distribution, or other use of an image that the person stopped disclosing, displaying, distributing, or otherwise using the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.

How about these sections of the TX law, are they still in effect; are these valid and unchallenged?

Sec. 423.0045. OFFENSE: OPERATION OF UNMANNED AIRCRAFT OVER CRITICAL INFRASTRUCTURE FACILITY
Sec. 423.0046. OFFENSE: OPERATION OF UNMANNED AIRCRAFT OVER SPORTS VENUE
Sec. 423.005. ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE
Sec. 423.006. CIVIL ACTION
thru
Sec. 423.009. REGULATION OF UNMANNED AIRCRAFT BY POLITICAL SUBDIVISION

 

[Xitor]

How about these sections of the TX law, are they still in effect; are these valid and unchallenged?

Sec. 423.0045. OFFENSE: OPERATION OF UNMANNED AIRCRAFT OVER CRITICAL INFRASTRUCTURE FACILITY
Sec. 423.0046. OFFENSE: OPERATION OF UNMANNED AIRCRAFT OVER SPORTS VENUE
Sec. 423.005. ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE
Sec. 423.006. CIVIL ACTION
thru
Sec. 423.009. REGULATION OF UNMANNED AIRCRAFT BY POLITICAL SUBDIVISION

Actually I happen to agree with operation over critical infrastructure and sports venue with one exception.
"Power substation, switching station, control center" because you could fly over one of those in most urban neighborhoods and not realize its there. Also, don't forget that 005, and 006, also point back to 003 which states as one of exceptions:
(B) the operator of the unmanned aircraft is authorized by the Federal Aviation Administration to conduct operations within the airspace from which the image is captured.
- I would consider LAANC authorization by default applicable there. Though that doesn't help anyone in class G.

And for the political subdivision, part of that protects the UAS pilot:

Except as provided by Subsection (c), a political subdivision may not adopt or enforce any ordinance, order, or other similar measure regarding the operation of an unmanned aircraft.

Subsection (c) goes on to say the only way the political subdivision can get restrictions is if it (A) applies for and receives authorization from the Federal Aviation Administration to adopt the regulation (and holds a public hearing) Also, states that any ordinance, or similar measure that did not have these is void and unenforceable.

I do agree this will enable a lot of people to cite the bits that seem to apply them as justification for calling police and seeking action. Which is why I think UAV owners also need to understand all the bits that protect us until if and when its struck down again or updated. It does seem stupid that I can take a picture of property driving down the street, or from a helicopter, but if I'm simply doing it with a UAS, that's a misdemeanor. However, one thing to be taking a sunset picture of a neighborhood from the sky and have someone get upset, and another if you have 50X zoom and can get high quality pictures of people in their house, pool, etc. I'm hoping its just the latter who will be targeted with this law but agree with your point that there is enough ambiguity that people could get detained or arrested, until everything is straightened out.

 

[mavic3usa]

No legal advice here, all opinions.

Comments?

I would have handled the situation much differently.

Not my video; you be the judge:

 

[Chip]

It does seem stupid that I can take a picture of property driving down the street, or from a helicopter, but if I'm simply doing it with a UAS, that's a misdemeanor. However, one thing to be taking a sunset picture of a neighborhood from the sky and have someone get upset, and another if you have 50X zoom and can get high quality pictures of people in their house, pool, etc. I'm hoping its just the latter who will be targeted with this law but agree with your point that there is enough ambiguity that people could get detained or arrested, until everything is straightened out.

The court did strengthen the right of a private property owner to sue someone who is flying a drone over their property and recording images and the right of state government to decide what it considers to be critical infrastructure to protect. But here is the irony. I believe the law was pushed to protect agricultural interests which did not appreciate getting caught red handed by drones while engaged in illegal environmental practices like dumping pig blood into a local river.

Drone plane spots a river of blood flowing from the back of a Dallas meat packing plant​

Drone plane spots a river of blood flowing from the back of a Dallas meat packing plant

A Texan man got pictures using a personal drone plane of a bright red creek just behind an old meat packing plant that was funnelling pigs blood into a nearby river.

www.dailymail.co.uk

 

[Chip]

Related Prior Discussion:

Drone Lawsuits and Litigation Database - Interesting read

Thought some of you would be interested in this article. https://jrupprechtlaw.com/drone-lawsuits-litigation

mavicpilots.com

 

[mavic3usa]

Of course they are Chip. This is my opinion. It's been going on this way for years, all over the country. And the FAA does nothing about it. When the state and local law enforcement interferes and steps on your rights, they know they can tie you up in court for years and most drone pilots will cave it and not bother to mount a challenge. And to this day, we still have very little to no power left to put up an effective defense. Not implying we are currently under attack but should we come under fire, this hobby will fall faster than we can lower our expectations from the FAA.

Not my video:

 

[Echo4Thirty]

The part that gets me on all of this is putting up a few lbs of drone to capture this is being contested, but I could go rent a helicopter and capture the literal exact same footage and somehow thats okie dokie.

These people making these laws are something else.

 

[Chip]

The part that gets me on all of this is putting up a few lbs of drone to capture this is being contested, but I could go rent a helicopter and capture the literal exact same footage and somehow thats okie dokie.

These people making these laws are something else.

In Florida v. Riley, 488 U.S. 445 (1989), the US Supreme Court ruled that a helicopter hovering 400 feet over a house and taking photographs of a few pot plants did not violate the homeowners reasonable expectation of privacy under the Fourth Amendment. The case has been used to argue that no one has any reasonable expectation of privacy over anything that could be observed from the air. So, now the Texas court says but wait, the state legislature has the authority to distinguish between a little drone and a 5,000 pound helicopter conducting aerial surveillance. The 5,000 pound helicopter is way, way louder, and creates far more disturbance to anyone below. So, how can it be that the helicopter is ok but not the drone? I believe the argument is that, if the police hover a helicopter over your property at 400 feet, you will almost certainly see and hear it. Its a massive clue you are being targeted. This is very different from a little drone which can conduct secret surveillance missions with no problem. The bottom line is that states generally have the right to enact their own property rights and privacy laws with no need to ask the FAA or the federal government for their permission or blessing.

 

[Chip]

The FAA argues that forcing drone pilots to broadcast their location via RID is legal because no one has a right to fly an "aircraft" secretly or anonymously anywhere in the public airspace even one inch off the ground in their own private, fenced backyard. Its ironic that a state court rules okay but then don't fly a drone over private property to conduct surveillance at or below 400 feet, fly a helicopter so everyone knows where and who you are at all times.