Feds, state take off in different directions on governing drones

By Coyt Johnston

(The following article was published in the March 22 edition of Texas Lawyer.)

To the growing number of recreational unmanned aerial vehicle owners (estimated at more than one million nationwide), the problem is getting people to understand the technological benefits of drones and appreciate their value in finding lost people, making deliveries, capturing hard-to-get images and an increasing number of legitimate and safe uses.

Non-droners, on the other hand, see drones simply as a nuisance—or worse. They’ve been to a wedding or a sporting event where a drone menaced the crowd. They are swayed by the emergence of drones as military hardware or worry that some reckless enthusiast will guide his toy over an airport and collide with a passenger aircraft.

It is the job of government to reconcile differing concerns with legislation. This job is made more difficult by the rapid development of technologies. Drones are another of the almost daily technological advancements changing our world. Regulations have to play catch-up. But in a state and a culture that nurtures the ability of technology to boost the economy, government must provide the pathway for technological advances.

For decades, this legislative evolution has occurred in a predictable and practical way. Lawmakers have taken existing laws and legal principles and adapted them to apply to new technologies (for example, the principles of mail fraud laws were used to create the legal framework for addressing wire fraud). In most instances, this approach not only is efficient, it results in responsible laws. Legal principles are best tested by being enacted and applied, then refined over time.

In the case of drones, both the federal and state governments have gotten into the act with major rulemaking. Late last year, the Federal Aviation Administration enacted a new set of rules governing drones after an extensive period of evaluation and comment. The new FAA rules govern how and where recreational and commercial drones can be flown. They detail how high the crafts may fly, and what rules to obey when flying within five miles of an airport, stadium or heavily populated area. They require owners to fly only within their line of sight. And they mandate registration with the FAA of all unmanned aircraft between 250 grams and 55 pounds.

Texas law, on the other hand, is aimed at restricting how drones may be used rather than where. In 2013, the Texas Legislature abandoned the time-tested approach to legislation and instead responded to concerns about drone privacy by enacting the Texas Privacy Act.

According to its sponsor, the act’s purpose is to address concerns about privacy and the possibility of private citizens using drones to spy on other citizens’ private property, as well as protect industry from the possibility that an environmentalist could use a drone to keep tabs on livestock, oil pipelines or other industrial concerns. You will rarely find a law friendlier to industry.

The act focuses on protecting the rights to privacy and property. Generally, it prohibits the use of a drone to capture an image of a person or private property with the intent to conduct surveillance. It further prohibits that person from possessing, disclosing, displaying, distributing, or using the improperly captured image. The act has a long list of exceptions mostly focused on giving broad latitude to government, law enforcement, and industry.

The problem is not what the act seeks to do, but how it goes about doing it. There can be no privacy without private information or the expectation of privacy, and there can be no trespass or nuisance without an intrusion. But the act seeks to prohibit drone surveillance as a property right, without any requirement that the drone physically intrude and without any regard to an expectation of privacy. It does not, however, prohibit the same conduct from the same air space if the air-vehicle is manned or land based technology is used.

The protection of privacy rights, of course, is hardly a new concept. The Fourth Amendment protects against unreasonable searches and seizures. Numerous privileges with deep historical roots provide protection for various private communications. The tort of invasion of privacy provides a civil remedy for intrusion upon seclusion or public disclosure of private facts. What all of these laws and doctrines share is a concern with private information covered by some expectation of privacy. Similarly, the legal concepts of trespass and nuisance have long been used as a vehicle for protecting property rights.

Rather than building on existing privacy and property protections, the act intertwines the two and ignores important concepts inherent to each. As a property right, owners can exclude access to their property. As a privacy right, holders can exclude access to their private information. Both rights allow the holder to keep people out—but they do it in very different ways. Property owners get to stop people at the property line, while privacy owners get to stop people from intruding in places where they have an expectation of privacy. That is why property owners get to keep intruders off their front yard, for example, but generally have no privacy protection for information or things that are in full view in that front yard.

By re-inventing the wheel for drone privacy, Texas has created a law that is ineffective, difficult to enforce, and does not provide an easy roadmap for those citizens who want to follow the law. And perhaps most important, the act serves as a mechanism to discourage the development and use of a burgeoning and important technology.

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