Interesting. Can you point me to a link to that please? The law has been on the books for a while, and I agree that the portions of it that control the airspace could be called into question; however much of it regulates the "capture" of information, which is purposely broad and outside of FAA's jurisdiction. I know there are cities that are challenging their inability to create regulations, and they will lose, but I doubt the entire code will be stricken. Texas has a bit more leeway than other states when it comes to challenges to our laws in the federal court system, we joined the Union as a country, and our Constitution is recognized as a sovereign document. If you read the rule and understand how we enforce it, for the most part, if you're 107, you can fly....just be very mindful of your cameras.
US v. Causby (1946) and what altitude can you legally fly at over someone's property
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Thank you, I found it shortly after responding. I'm not worried. It's cute that the press thinks it's all about them, which it's not and never was.
In reference to the mere flying near facilities:
In reference to "capture" and below 400 ft: The FAA agrees that using drones to cover the news poses a safety risk to public safety operations and manned aircraft (e.g., news and police helicopters, police and fire drone operations, communications frequencies, the operator's personal safety - oh wait, the FAA doesn't care about that one). Press credentials are not difficult to obtain nowadays, I got mine back in 2006 when I also became an online ordained minister. Press are not allowed passed police barriers during an active event, why should it be any different in the air? They are allowed to capture if flying in accordance with 107 and with the permission of those they are capturing. I have to follow the same rules. At least two of my local stations and the newspaper use drones, and they do it within the scope of Texas' and Federal laws.
I know how and why it all started (well before 2013), and the press wasn't a concern at all. However the challenge makes it obvious that at least some were thinking about using drones as a loophole, which seems pretty unethical to me. The article you linked to even states some examples of how some people want to skirt around acts that would be considered illegal if on the ground. It's also funny that they haven't discovered the free pass staring them right in the face because it's not explicitly spelled out in the rule. What will ultimately happen is that new rules and definitions will be added to give them exactly what they think they want, until they realize it will ripple across the rest of their activities, and other states then do the same. Slippery slope.
Freedom of speech and the press aren't a problem for me (obviously). Neither are any of the other amendments, especially the 4th, 5th, 6th, 7th, 9th, 10th, 11th, or 2nd. Except maybe the 16th, not a big fan of that one.
LowCountryFlyer
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To this day, there is no specific limit set around just how much air space one has control of which surrounds one’s property or structures on that property. Causby simply noted that, in that particular case and circumstances, an overflight of the petitioner’s property by a large heavy aircraft at 86 ft constituted a violation of the Takings Clause of the Fifth Amendment.
currently air law within the United States of America and other countries remains pretty ambiguous and we’ve yet to have a case which sets solid precedent on this matter. In the case of applying Causby to air law regarding Part 107 sUAS or Part 101 model aircraft operations, there are a number of other legal considerations than just the Takings Clause, including the use of the aircraft for harassment, flights over restricted areas eg wildlife sanctuaries, public infrastructure, prisons, etc. which have to be considered as well. In other words Causby does not set in stone the minimum altitude one can overfly private property in an aircraft for any set of circumstances, just that the Court felt in that case 86ft did appropriate a violation of the Takings Clause.
You don't need any "press credentials" to be considered a journalist. It has already been ruled in courts many times that bloggers, videographers, article writers, etc. are considered "journalists". One such ruling (100s of others):
The latest Judge ruling restricted the scope of NPPA's case. That will likely be challenged. But NPPA (I know their lead council) want to get this case adjudicated first. It's not about "them", nor was it ever. NPPA fights for the rights of all image gatherers. Even the citizen journalists. They're also challenging the 400' aspect of the law. That doesn't have anything to do with press freedoms. That is 100% about federal preemption.
No one needs to have permission to capture images of people who have no "reasonable expectation of privacy". Especially during a news event. Anything visible from a public thoroughfare is considered publicly visible. Flying over someone's house is do different than driving in front of it on the public road.
What loophole are you talking about? Freedom of the press isn't considered a loophole. Interfering is interfering, regardless of if it's in the air or on the ground. No respectable journalist I know would do either.
I'm not seeing that, which examples are you talking about? Seeing something from the air isn't skirting anything. There is no such thing as aerial trespass. It would be no different that if I rented a 75' bucket truck and parked it outside a property line to see over the fence.
It needs to be about intent of use of the imagery, not what camera system and method were used to capture it.
Chip
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My hunch is he means the loophole of calling oneself a journalist involved in First Amendment newsgathering in order to evade state drone surveillance law because as you pointed out, anyone can call themselves a journalist.
"No respectable journalist I know would do either."
How do you define respectable?
Here is one difference. If you put a 75' bucket up, everyone can see you, what you are doing, when and for how long. If they have an issue or a question, they can walk right up and confront you. In fact, they could watch you all day until you left and then follow you home and verify your address. You would also have to either own the property on which the bucket truck sits or have permission to set up and spy from the person who does.
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Someone with investigative integrity. Something severely lacking in today's media.
I could just as easily set up a truck on a public street. But that's not the point. There is no such thing as aerial trespass, nor should there ever be. Because where would it stop?
When rules about where to fly are adopted, they must be intent in nature, not general. They need to be about specific actions or consequences. Simply throwing a number at a problem will inevitably run into a legitimate issue. And if you have a ton of municipalities throwing different numbers around on every single ordinance or regulation, it will create the dreaded patchwork quilt of regulations.
If that were to happen, it would be virtually impossible to keep up with what laws apply to what areas. If you only ever fly in your own area, it would be simple enough. But for people like me, who travel and fly in multiple states and cities, how could I be expected to reasonably be able to make sure I'm not violating some local ordinance? And what about when I fly from one locale to another?
From my house I can easily from from my city (Lakewood, CO) into the airspace of my county (Jefferson). Who's rules do I follow after I cross that line?
It is imperative for this community and industry (in the U.S.) for the FAA to maintain full control of the NAS. Otherwise it's a mess on steroids.
I would agree. Though if someone is flying low enough over someone's property to have their drone swatted down with a broom or baseball bat, I suspect they deserve it.
She, but yes, and the "loophole" of claiming that airspace is public, therefore it is a protected area for photography.
Actually, it is, but there are two separate issues muddying the water here. Flying across private property to get somewhere else and not taking photographs or surveilling may be highly annoying, but not necessarily illegal unless that activity interferes with the regular use and enjoyment of that property. "Capturing" or surveilling on the other hand....
What you can see from the road 1000' from my house is a whole lot less than me sunbathing in my backyard, behind a solid fence, which is there because I have a reasonable expectation of privacy in my own home and on my own property. There is a commercial flight path and a low-flying military training path above my house, and I know the Air Force can read my wristwatch if they want to, but they adhere to the highest standards to respect my freedom and privacy. Google Earth and streetview do the same. Some creeper or the HOA president with a 107 certificate do not get to justify their violation of my privacy by their mere ability to post long rants about random stuff on Facebook.
And that would also be why the Texas rule states, "It is lawful to capture an image using an unmanned aircraft in this state... 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;"
But the presumption that airspace is public is also incorrect. Many court decisions have held that a public place is one where the public has unrestricted access. In order to legally access the NAS now (with an sUAS), you have to meet the recreational requirements (i.e., TRUST, CBO safety standards), or have a 107 or other type of commercial authorization, and follow the rules set forth by the FAA. Those are restrictions. Owning a tool that others do not which allows you to gain access is a restriction. Humans do not have wings, therefore we are also restricted by our morphology.
And if the courts were to rule that there is no "reasonable expectation of privacy" if a place can be viewed by whatever means, then search warrants and probable cause become relics of the past. What's good for the gander is way better for the goose.
And the Texas rule is unfortunately very specific - it's about the use of capturing devices in one part, and flying near security sensitive areas in another. It also prevents local governments from enacting additional rules and voids any preexisting ones, so you wouldn't have to try to keep track of multiple jurisdictional requirements.
Intent is specifically discussed and integral to the Texas rule and the severity of punishment. If you accidentally or intentionally captured an image, but deleted it when you realized it was in violation, fine, no harm, no foul. If you distribute it and depending on your intention in distributing it, you're going to have a date with a Judge. The Texas rule doesn't speak to specific camera systems or methods, other than "capture" can be from devices other than cameras.
The 400' limitation prevents drones from flying near facilities defined as critical infrastructure, but not manned aircraft, so legitimate news gathering organizations or even those with the money to rent a plane could still get their big scoop. There is just a longer paper trail and less incentive to operate in gray areas for whatever their motivation may be. Respectable journalists should be working with lawmakers to develop and define these rules and take back their industry from those that have tarnished its reputation and caused the industry economic hardship. Wouldn't most news outlets like being able to get permission to operate in an area that isn't accessible to every Tom, ****, and YouTuber? Is it really news if there are 40 drones in the air live streaming it to every free online outlet with no regard for journalistic integrity or FCC rules? What does the world look like when anyone who owns a drone can "patrol" and report as they see fit?
We either have growing pains now trying to create high level regulations that are protective of private and commercial rights, or,
a.) the already overburdened legal system gets clogged up later with local ordinance cases, civil suits, assault issues, false arrests, etc.; or,
b.) the Federal Government steps in and creates even more restrictive and sometimes unrealistic requirements; and,
c.) public opinion of drones and distrust and discontent with the government and the media widen even further.
It doesn't matter. If it's viewable from a publicly accessible area (the NAS is, whether you agree or not), it's fair game. What someone does with the imagery is a different matter. But nothing forbids me from flying over property and taking photos or video. Nothing.
Again, this is about intent. SCOTUS is very clear on the subject of "reasonable expectation of privacy", and anything visible from the air isn't considered private.
100% BS law. And unconstitutional via the First Amendment. See above. There is a reason this hasn't been used much. No DA wants to be in the history books as the DA who lost a case that should have never been brought.
SCOTUS vehemently disagrees. Riley v. FL. Ciraolo v. CA.
Necessary credentialing isn't part of the equation. It's still freely accessible. FAA doesn't control privacy.
Search warrants circle back to intent. And the Fourth Amendment.
And again, Federally preempted. Congress has tasked the FAA with full and exclusive control of the NAS. No other agency or political subdivision (with certain DOD exceptions) may control any aspect of access to the NAS.
First Amendment again. TX can certainly charge someone, but they'll lose.
First Amendment. Again.
We have the rules we need now. Issues only arise when states attempt to do something that any 2nd year law student understand is outside their purview. This is why we have not only the Constitution of The United States, but the Supreme Court to back it up.
The Texas law is hot garbage and needs to be abolished.
Prismatic
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Having perused the document, I'd be interested to hear why you think TX will lose. Specifically, would you expect the law to be tossed in its entirety, or just in part (and which part)?
You dismiss me so easily without knowing who I am or what I know that you don't.
My points were factual. I corrected your assumptions and outright misinformation regarding the text of the Texas law (and some tangent you were running off into). It is not my fault that fear prevents you from looking at a thing without prejudice and attempting to fully understand the "big picture"; a term that anyone who's been around the lawmaking process for more than five minutes has heard repeated ad nauseum for at least four of them. It's not a coincidence that Florida, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, and Virginia all have similar, if not partially verbatim, regulations that were passed at the same time or after the Texas Privacy Act. Neither the FAA nor Congress has challenged those states on the basis of preemption or otherwise. The FAA's own guidance to Law Enforcement outlines other state and local laws that may be used to enforce unauthorized drone activity in addition to how to gather evidence and report the operator to the FAA, so that they may also prosecute. It's also not a coincidence that FAA's rules, information, and guidance are increasingly aligned with the States' rules. The GAO study mandated by the FAA Reauthorization Act goes into great detail about how State, Local, Tribal, and Federal governments are all in agreement of the basic premise of those privacy rules (including some additional operational and safety restrictions) and the ability to mandate and enforce them at the State/Tribal level. The only thing they don't agree on is whether FAA can delegate its existing authority (or if they really want to), or instead write a new set of Federal rules which builds in delegation, and guess how those rules will read? I have never seen the Feds, States, and industry in more agreement, I wasn't even certain that was possible.
Lawsuits just prove certain industries' unwillingness to sit down at the table with the FAA and States to try to come up with something agreeable for everyone. The solution? Remote ID. It saves all the legislators and regulatory agencies a lot of money and manpower if the community is threatened into regulating itself. Welcome tothe Thunderdome personal responsibility.
My points were factual. I corrected your assumptions and outright misinformation regarding the text of the Texas law (and some tangent you were running off into). It is not my fault that fear prevents you from looking at a thing without prejudice and attempting to fully understand the "big picture"; a term that anyone who's been around the lawmaking process for more than five minutes has heard repeated ad nauseum for at least four of them. It's not a coincidence that Florida, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, and Virginia all have similar, if not partially verbatim, regulations that were passed at the same time or after the Texas Privacy Act. Neither the FAA nor Congress has challenged those states on the basis of preemption or otherwise. The FAA's own guidance to Law Enforcement outlines other state and local laws that may be used to enforce unauthorized drone activity in addition to how to gather evidence and report the operator to the FAA, so that they may also prosecute. It's also not a coincidence that FAA's rules, information, and guidance are increasingly aligned with the States' rules. The GAO study mandated by the FAA Reauthorization Act goes into great detail about how State, Local, Tribal, and Federal governments are all in agreement of the basic premise of those privacy rules (including some additional operational and safety restrictions) and the ability to mandate and enforce them at the State/Tribal level. The only thing they don't agree on is whether FAA can delegate its existing authority (or if they really want to), or instead write a new set of Federal rules which builds in delegation, and guess how those rules will read? I have never seen the Feds, States, and industry in more agreement, I wasn't even certain that was possible.
Lawsuits just prove certain industries' unwillingness to sit down at the table with the FAA and States to try to come up with something agreeable for everyone. The solution? Remote ID. It saves all the legislators and regulatory agencies a lot of money and manpower if the community is threatened into regulating itself. Welcome to
Is the debate here just about this specific clause, or a broader disagreement?
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.
So introduce yourself. I'm an open book.
It doesn't matter what TX law says. It's preempted by the FAA's Congressionally mandated control of the NAS. And until it's challenged, it will stand. Federal courts say so.
I've been around the lawmaking process for much longer than 5 minutes. None of my comments have stooped to insults. Unfortunately, you cannot say the same. Fear has nothing to do with anything. Big picture or not, we have full and free access to the NAS as drone owners. With certain FAA mandated exceptions. DOD as well of course.
I've read some of those states statutes. And have used them in my own writings. Some make sense, some don't. The Florida one is especially egregious. And also has yet to be used in a serious manner by an DA.
The FAA won't challenge them, and neither will Congress. It's not their job. It's up to people the laws affect (NPPA for example) to challenge them. Just like Dr. Singer did in MA.
The FAA doesn't prosecute. That is up to the FBI, DOJ, and/or DOT OIG. I'm dealing with the FBI on two different incidents at the moment. But yes, the FAA does tell the locals what they can and cannot do when it comes to training. I use that very information in my own FAA training I do for Police Departments. That way, they don't cross the line when called out on a drone sighting.
Please show where the FAA rules align with state's rules. If anything, it's the other way around. And in many cases (as you demonstrated above), the states have pushed beyond their allowable jurisdiction. That's where we as drone owners come into the play. We need to challenge (or prevent) those very rules.
I have not seen that report, please provide a link. Section 373 of PL 115-245 did give the Comptroller 180 days to come up with recommendations. I've yet to see that. If you have a link, I'd love to read it.
It's not up to the FAA to delegate anything. They answer to Congress. If Congress wanted them to delegate any authority, they'd tell them to. Congress would actually have to mandate it. And then we'd start another NPRM process.
I am publicly on the record as pro-RID. But in its current iteration, there are parts that are unworkable. The most likely aspect that will render RID impotent will be its requirement that the general public be able to find the location of the pilot or operator in the Standard RID category. Even the Module RID will be an issue.
Shielded operations are another. And one that we've brought up on the DAC.
I'm a Constitutionalist. That is the supreme document that draws the line between state's rights and federal jurisdiction. When it comes to NAS control, it's a federal issue. If the states want that power, they need to petition Congress. That's the proper way. State Legislators writing a bunch of laws based on ignorance and fear isn't the way to do it.
All that does is erode our right to fly our drones.
dirkclod
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Sigh. Thankfully as a woman this isn't the first time I've had to deal with a man who thinks he's always right and there is no other possible reality in which my opinion or observations based on decades of experience have any merit. Even though your treatment of me should be based on common respect instead of predicated on whether I've listed all of my qualifications like badges with a catchy purple phrase and an exclamation point in my signature. You can stop talking down to me, I'm quite familiar with how the federal government's prosecutory and investigative agencies work, as an investigator myself, I often need to work with them when cases exceed my jurisdiction. As an industry liaison and rule committee member, I helped to fix federal rules that were drafted by people who'd never stepped foot in a business related to those industries. I'm quite proud of a Federal Register notice that quotes me directly in multiple response to comments, although it was a team effort, and our work benefited not only state and federal enforcement authorities, but also the industry that we were regulating (and no other states stepped up at all). As an incident commander and disaster responder, I've seen personally the safety issues that unauthorized drone activity can cause, like the grounding of emergency evacuation aircraft leaving hundreds of people helpless, clinging to their rooftops. I've also seen my team members' lives saved by drones identifying serious hazards ahead of them. I'm the person that's actually been there, in the thick of it, fighting for not only what's right and fair, but speaking up when rules overreach, a few times nearly ending my career because I disagreed with the wrong person or spoke the truth that no one would admit to. I didn't get a Covid vacation. I've been threatened, stalked, physically assaulted, nearly kidnapped, and screamed at for doing my job. I've also more often been hugged, thanked, and physically defended by people that I've enforced on. I am a public servant, I punish the bad guys and try to help the good ones, and I fight for everyone's rights, including the government when necessary. I've seen this all before, I know how the checks and balances must be maintained; and none of the States' rules will be stricken in their entirety, nor will this be a fight to the death over the first amendment. You're distracted where they want you to be, where you can do the least amount of harm, and you probably recognize that on some subconscious level.
I heard the anxiety in your voice when you brought up RID to the chairman and he pulled you back, I saw you move your mic out of the way in frustration. If you weren't fearful, you would have been much more willing to listen instead of dismissing my every word and deflecting the conversation. Goodnight Vic, here's the report you asked about: https://www.gao.gov/assets/B330570_Appendices.pdf
I heard the anxiety in your voice when you brought up RID to the chairman and he pulled you back, I saw you move your mic out of the way in frustration. If you weren't fearful, you would have been much more willing to listen instead of dismissing my every word and deflecting the conversation. Goodnight Vic, here's the report you asked about: https://www.gao.gov/assets/B330570_Appendices.pdf
The original argument was that Texas will lose in court because "First Amendment", and "The Texas law is hot garbage and needs to be abolished."
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