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State legislation governing private drone use

This undated image provided by Google shows a Project Wing drone vehicle during delivery. (AP Photo/Google)

With many people, including journalists, photographers and filmmakers, clamoring to fly drones, and in the absence of FAA regulations, states have begun to address the issue. Nearly all states have considered drone legislation over the past few years. More than a dozen states have passed laws substantively regulating drones, with most of these laws addressing the use of drones by government agencies and focusing primarily on law enforcement use.

Several states also have enacted laws regulating private drone use. Theses states have taken varying approaches, have articulated permissible uses, created new causes of action and established new crimes.

Two states have sought to regulate private use of drones by addressing where they can fly. Last year, Oregon enacted a law that allows property owners to sue a drone operator if (1) a drone has flown less than 400 feet above the owner’s property at least once, (2) the property owner has told the drone operator that he/she does not consent to the drone flying over his/her property, and (3) the operator then flies the drone less than 400 feet above the property again. If these three conditions are met, the property owner can seek injunctive relief, “treble damages for any injury to the person or the property,” and attorney fees if the amount of damages is under $10,000.

Tennessee also seeks to restrict drones from flying over private property, but has done so in a different way. It has amended its criminal trespass statute to make it a crime for drones to fly over private property below navigable airspace.

In contrast to these two states’ focus on drone flight, most states that have enacted laws on private drone use have sought to limit who, when and where drones film and photograph.

Texas has enacted the most detailed of these laws. Its drone law — called the Texas Privacy Act— explicitly authorizes drones to capture images in certain circumstances. For instance, it permits owners and operators of pipelines to use drones for inspections and university professors to use them for “scholarly research.” The Texas law also allows drones to capture images of people on “public real property,” of people “on real property that is within 25 miles of the United States border,” and “with the consent of the individual who owns or lawfully occupies the real property captured in the image.”

In addition to these permissible uses, the law prohibits certain conduct — specifically, using a drone to capture images of people or privately owned property “with the intent to conduct surveillance on the individual or property.” The law, however, does not define “surveillance.”

Texas deems this conduct a misdemeanor and provides a defense if the alleged offender destroyed the image as soon as he or she realizes it was captured and has not disclosed it to anyone else. The law also makes it a misdemeanor to possess, disclose, distribute, or otherwise use an image after capturing it in violation of the law.

In addition, Texas law gives owners and tenants of private property the right to file suit to enjoin an “imminent violation” of the criminal provisions and to seek civil penalties and attorney’s fees. The civil penalties include statutory damages of up to $5,000 for “all images captured in a single episode” and up to $10,000 for the disclosure or “use” of “any images captured in a single episode.” An owner and tenant also can recover actual damages if he or she can show that the images were disclosed or distributed with “malice.”

Tennessee has enacted a statute that follows the Texas model. It also has enacted a statute that prohibits the use of drones to conduct surveillance of people hunting or fishing without their consent. Illinois has passed a similar law, making it a crime to use a drone to interfere with hunting and fishing.

Idaho’s law sweeps more broadly. It bars people from using drones “to photograph or otherwise record an individual, without such individual’s written consent, for the purpose of publishing or otherwise publicly disseminating such photograph or recording.” The law, which would undoubtedly face constitutional challenges if enforced, allows a person to file suit and recover either $1,000 in statutory damages or “actual and general damages,” whichever is greater, plus attorney fees and “other litigation costs reasonably incurred.”

North Carolina, likewise, prohibits using a drone to “photograph an individual, without the individual’s consent, for the purpose of publishing or otherwise publicly disseminating the photograph.” But, unlike Idaho, the Tar Heel state provides an exception for “newsgathering, newsworthy events, or events or places to which the general public is invited.”

North Carolina, taking a page from Texas’s statute, also prohibits people from using drones to “conduct surveillance” of people, dwelling, and private property without the person or property owner’s consent.

If any of these provisions are violated, the person or property owner can sue, seeking actual damages, statutory damages ($5,000 per photograph or video disseminated), costs and fees, as well as injunctive relief.

Finally, Wisconsin has passed a criminal law to deal with private drone use. Its law would punish anyone who uses a drone “with the intent to photograph, record, or otherwise observe another individual in a place or location where the person has a reasonable expectation of privacy.” In Wisconsin, that crime is a misdemeanor.

While each of these state statutes might be well-intentioned, they suffer from several significant defects. They also seem unnecessary. We will explain why in another post.