Texas drone legislation was introduced in 2013. Prior to that no state legislation existed in Texas. The 2013 Texas Drone Privacy Act makes it illegal to capture images of private property. The act was introduced and passed not long after it was discovered that the Columbia Packing Plant in Oak Cliff, Texas was dumping pig blood into the Trinity River.
City records showed that the packing plant was dumping “925,300 gallons of fluid a month into the creek.” They were temporarily shut down and the owners received several indictments which were later dismissed by the Dallas district attorney.
If this Texas drone law had been in effect in 2011, without one of the exceptions, it may have been a crime for the drone operator to capture the pollution images. His recreational drone footage could have been a class B misdemeanor and he might have been liable for a $10,000 civil penalty to the packing plant for distributing the imagery.
A possible exception that may apply to this pig blood scenario is exception number Government Code Chapter 423.002 (10)- filming at the scene of a spill, or a suspected spill, of hazardous materials.
Drone Footage of Private Property Cannot be Used as Evidence
Under the current law, not only can you be arrested, but also the images cannot be used as evidence against a private land owner/renter lawbreaker unless certain exceptions apply. A person in imminent danger qualifies as an exception. But any animal cruelty does not qualify as an exception and can result in the drone operator’s arrest and up to 6 months in jail with a $2,000 fine.
Drone Footage Now Illegal to Use Except to Prosecute Drone Operator
Chapter 423.005 makes it clear that drone footage captured in violation of this statute cannot be used against anyone except the drone operator to prove a violation of this statute.
Images of Animal Cruelty Cannot be Used to Prove Animal Cruelty
The images taken of private property can only be used to prosecute the drone operator. They would not be allowed to be used as evidence of someone who was for instance, committing any cruel acts against animals. There are 21 listed exceptions that make private drone image capturing lawful and nothing covers anything having to do with animals.
Why would a person’s privacy rights supercede identifying and stopping animal cruelty? It is an interesting dilemma and nobody seemed to talk about it during the voting for this bill.
There was no effort to make a narrow exception where a person provides the evidence only to law enforcement. But on the other hand a problem with this might be where to draw the line. What happens if a drone operator spots a marijuana or other drug operation? Do amature detective drone operators become a wave of the future? Apparently proponents of HB 912 were worried about that.
What Constitutes an Illegal Search and Seizure?
Private property rights are an important issue for Americans. The constitution specifically discusses this in the 4th amendment. The 4th amendment is based on government intrusion and unreasonable searches and seizures. Intrusion by private citizens is not mentioned.
Police, or someone instructed by the police, cannot enter property without the owner’s permission. This can result in inadmissible evidence based on fruit of the poisonous tree. Illegal searches and seizures can be about a vehicle stop for an invalid reason to walking into someone’s house without permission or a warrant to be there.
Searches by Private Citizens
A private citizen gathering evidence is not subject to the 4th amendment. There are trespass laws that a private citizen can be charged with, but evidence of a crime gathered by the citizen is still admissible in court. For instance, a person could walk onto another’s property and photograph animal cruelty and it can be used by the police. This is as long as the police did not instruct the person to do this.
The 2013 drone law does not allow conducting a similar act, but instead filming with a drone camera. The only close exception that might apply to this would be Ch 423.002 (14) where a drone is on public property and at a height of no more that 8 feet filming without an amplified “image beyond normal human perception.”
Do I Have to Pay a Fine for a Civil Action?
On top of being arrested and possibly fined up to $2,000 that is not all. A person can also have to also pay a civil penalty of $10,000, court costs and reasonable attorney’s fees. If proven that the images have been disclosed, displayed or distributed with malice, then an actual higher amount of damages may be accessed based on the actual damages.
Attorney’s fees go to the prevailing party. So if the charges are not proven the accused drone operator may receive reasonable attorney’s fees from the accuser.
“Malice” is a specific intent by the defendant to cause substantial injury or harm to the claimant.
Also under Sec. 423.004 there is a $10,000 civil penalty for disclosure, display, distribution, or other use of an image instead of destroying the images. It can be costly because if “malice” is proven, the penalty can be more than $10,000. Theoretically, it could be 6 or 7 digits. Not to mention the judge “shall” award costs and reasonable attorney’s fee to the prevailing party. So for example, if someone captured animal cruelty taking place on private property and that footage caused a public outcry to boycott the claimant’s business, the drone operator would be liable to the loss of business. The damages could be astronomical.
Is it Illegal to Fly a Drone Over an Animal Feedlot?
In Texas it is now illegal to fly a drone over a “concentrated animal feeding operation” by less than 400 feet high. It should be noted that FAA regulations limit a drone flying altitude to a maximum of 400 feet. So flying drone over an animal feedlot will be break a law either way.
Can I Fly Over a Sports Stadium or Game?
The FAA Unmanned Aircraft Systems website is somewhat conflicting. It says that it is not permitted to fly a drone after one hour before or until one hour after the following-
-Major League Baseball
-National Football League
-NCAA Division One Football
-NASCAR Sprint Cup, Indy Car, and Champ Series races
But later on the site mentions that a drone should not be flown within 3 nautical miles of a stadium or venue.
Another regulation, CFR 107.39, states that a drone cannot be flown over a human being unless they are in a covered building or vehicle. This is to protect them from the drone from falling on them.
Can I Shoot a Drone Flying Over My Property?
No you cannot. It is not illegal to fly a drone over someone’s property. Filming is a different issue. If the drone is low flying, possibly creating a safety risk than that may be a different situation. Shooting a drone can open a person up to a civil lawsuit and getting arrested for a federal offense.
A California small claims case took place in 2014 where a neighbor shot a homemade drone with a shotgun over the drone operators property. The judge ruled in the drone operators favor and awarded monetary damages for the cost of the drone.
It is also a federal crime, AIRCRAFT SABOTAGE (18 U.S.C. 32), to shoot down a drone.
Can I Fly a Drone Near a Cell Phone Tower?
A drone cannot be flown less than 400 feet over a critical infrastructure facility. In 2017 the drone statute expanded the definition of “critical infrastructure facility” to include a cell phone tower. The drone also cannot make contact with the cell tower or interfere with the operations. Keep in mind that FAA regulations limit a drone to a maximum of 400 feet.
Can the Police Use a Drone to Search My Property?
If the police can fit into certain exceptions, they can capture images by drone over private property. They must have a valid search or arrest warrant. They also can also video record in the immediate pursuit of someone with probable cause or reasonable suspicion that a person committed a felony. They can also document a felony crime scene.
The following is a further list including what the police can choose to record without the owners permission:
- A human fatality
- A motor vehicle with death or serious bodily injury or accident on state highway or federal highway
- Searching for a missing person
- For a high risk tactical operation posing a threat to human life
- Border security within 25 miles of the U.S. border
- Surveying to determine a state of emergency declaration
- Public safety, protecting property, surveying damage during a state of emergency
- Air quality sampling and monitoring by local or state law
- At scene of a spill or suspected spill of hazardous materials
- Fire suppression or rescuing a life in imminent danger
Do I have to Have a License to Fly My Drone?
Not by Texas state law, but you do under the FAA regulations. A pilot must be 16 years old and speak, read and write english. There is an exam that each pilot needs to pass in order to get their drone pilots license. Every 2 years a pilot needs to pass a recurrent test to maintain licensing.
Is This an Ag-Gag Law?
The timing of this law and the fact that it has an exception for humans in imminent danger, but does not mention animal cruelty, looks a lot like ag-gag.
Animal feedlots and packing houses stand to lose a lot of revenue if they are shut down for any period of time due to violations. Drones coming along and filming violations can be a real problem for business.
The bill was advertised to help the privacy of private property owners and renters. By emphasizing that side of the issue, the proponents avoided questions about who really stands to benefit from this bill. Big business is a big winner. Maybe marijuana plant growers are helped as well.
Animals in Imminent Danger Exception to Drone Filming
Perhaps there should have been an exception for filming with animals in imminent danger. There could be animal torture taking place and a drone would have been the only way to identify that it is taking place. Or a beloved pet may have run off and a drone would be a good way to search a large rural area.
These exceptions are not included and there is a good chance that they will not be until animals gain more status in our society.
Possible FAA 107 Rule Changes in 2019
There will be some possible changes coming to the FAA rules. One will be allowing drones to be flown over people under certain circumstances. Also there have been several requests for waivers to fly at night. A new proposed change would allow drones to fly as night.
Drones Finding Poachers in Africa
Drones are now being used to catch poachers in Africa. Most of the poaching happens at night, so the drones are using infrared camera equipment. Some estimate that the illegal poaching brings in $10 billion dollars. Some of this money goes to other illegal activity such as terrorism. This makes drone use in capturing poachers such a valuable tool. To stop criminals and for the African animals future survival as well.
It seems that drones are here to stay. But so are the government regulations of drones. The Texas laws governing them have become very strict starting in 2013. How the laws are shaped going forward will be interesting. With the restrictions that drones have now, there are not many places a drone operator cannot fly and film. The FAA and state law can be immensely complicated, but maybe regulations will loosen up with public demand on their legislative representatives.
It is not hard to draw a line from bills introduced in congress to the preservation of big business. The question is: How much should our natural resources suffer to profit the bottom line?
Contact myself, Eric Torberson, for any questions about legal services.