I love coming across a story like this and then realizing it’s an update to something I had blogged about a couple of years ago.
A Texas law that limits the use of remotely piloted drones to capture images is unconstitutional, a federal judge in Austin ruled Monday.
The National Press Photographers Association, the Texas Press Association and former Dallas Observer editor Joseph Pappalardo challenged the so-called “Texas Privacy Act,” which threatened criminal charges and punishing civil lawsuits against anyone taking images “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.”
Well, almost anyone. Academics, law enforcement, Realtors, surveyors, utility companies, gas and oil drillers, pipeline companies and others with a “commercial purpose” were exempt under the law, provided that commercial purpose wasn’t reporting the news.
“Professors, students, employees of insurance companies, and real estate brokers all appear on this list; journalists do not,” U.S. District Judge Robert Pitman wrote in his decision declaring the law unconstitutional and enjoining the state from enforcing it. “As Plaintiffs note, the same drone image taken legally by a professor would constitute a misdemeanor if captured by a journalist.”
The law also banned drone images of “critical infrastructure,” which to Texas lawmakers included things like gas wells and pipelines. So, hypothetically, under Texas law, a pipeline company could use drones to take pictures of its own lines and use those photos in its marketing materials to investors. If that same pipeline leaked and began spewing oil over the countryside, any news photographer who dared to use a drone to take a picture of the leak could face criminal charges and be sued by the pipeline company.
Oddly, the law applied only to drones, which are relatively cheap and readily available. Pictures taken from helicopters, airplanes, hot air balloons, stepladders or tall trees were all OK.
This didn’t square with the U.S. Constitution, Pitman ruled.
The defendants in the case are Steven McCraw, the director of Texas Department of Public Safety; Dwight Mathis, chief of the Texas Highway Patrol; and Hays County District Attorney Wes Mau. In their own motion for summary judgment, they argued that since none of the plaintiffs had been charged with violating the law, they had no standing to sue.
The chilling effect from the threat of criminal charges and civil lawsuits was enough to allow the case to go ahead, the judge ruled.
Chapter 423, which the Legislature passed in 2013 and amended in 2015, had two sets of provisions.
The first imposed civil and criminal penalties on people who use drones to create images of an individual or privately owned property with the “intent to conduct surveillance.” Lawmakers claimed the law would protect Texans’ privacy.
While that portion of the law included exemptions for certain purposes — such as scholarly research — it didn’t exempt news gathering.
The second set of provisions imposed criminal penalties for flying a drone over a correctional facility, detention facility or sports venue at less than 400 feet. That set of provisions also included a set of exemptions — including those for “commercial purposes” — but not for journalism.
In its lawsuit, the plaintiffs — which also included the Texas Press Association and Joseph Pappalardo, an independent journalist based in Texas — alleged that the provisions were “unconstitutionally vague and overbroad” because the terms “surveillance” and “commercial purpose” were not defined.
They also alleged that the second set of provisions effectively prohibited the use of drones at those locations, because Federal Aviation Administration regulations require drones to fly below 400 feet.
The law “unconstitutionally drew distinctions that disallowed journalistic drone photography but allowed the exact same drone photography when done for other favored purposes,” Hemphill said.
Brandon Wade, a news photographer and a member of National Press Photographers Association, said in a deposition in support of the lawsuit that the provisions affected his work several times.
At one point, Wade said, he was prohibited from using his drone to take photographs for a newspaper of the Texas Rangers ballpark — even though the Rangers used the same type of photography for the team’s commercial purposes.
That story was in the Thursday print edition of the Chron. I thought the lawsuit had merit at the time, and I think this is the right ruling. I don’t see any indication in either story about an appeal, so we’ll have to wait and see if this is the final word.