Fighting To Catch Up

15 states have drone privacy laws and more are on the way

By Timothy Kidwell, published in Drone 360

The Federal Aviation Adminis­tration (FAA) as late as No­vember 2014 denied a petition asking it to begin rulemaking to govern unmanned aerial vehicles (UAVs) specifically regarding privacy. The reason (as eluci­dated in a letter to the Electronic Privacy Information Center, one of 100 signatories to the petition): Privacy “is not an imme­diate safety concern.” While this response did not shut the door entirely to rules about privacy, it did signal that the FAA wasn’t as concerned about drones peep­ing in windows as it was about preventing drones from crashing through them.

You might reasonably ask what the U.S. Congress has done, and probably wouldn’t be astonished to learn the answer is not much. The House of Representatives and Senate each introduced a bill to establish privacy rules regarding drones, and murdered both in committees. The plodding federal process can’t keep up with the fast pace of emerg­ing drone technology. However, state legislatures have felt acute pressure from their constituents to do something to curb potential privacy and safety issues, whether from your neighbor’s 16-year-old son crashing a quadcopter into your roof or a sheriff’s deputy flying a 50-pound night-vision-equipped heli to surveil that creepy dude across the street.

As states pass laws governing UAVs, a patchwork of regulations has emerged, ranging from simple moratoriums for use of drones by law enforcement to strict governance for public and private use. This means you might be able to fly a drone and take photos and videos in one state, but can’t do the same activity in another without risking prosecution.

Let’s take a look at the states and what they currently say you can and can’t do with a drone.

According to industry estimates, consumers spent $720 million on drones in 2014, pur­chasing something near 200,000 drones per month worldwide. Privacy concerns, prolifera­tion of tech, unqualified users—what could go wrong? Some states aren’t waiting to find out.

OREGON

In July 2013, Oregon set limits for both public and private drone use. Law enforcement can  use a drone for surveillance if issued a warrant or during emergencies. Public entities cannot employ weaponized drones (unsurprisingly, neither can private citizens) and, by January 2016, must register all drones with the Oregon Department of Aviation.

For private operators, under the new law, if you fly a drone over an owner’s property at less than 400 feet after the owner tells you not to, the owner can sue you for three times the “damages for any injury to … person or property” and attorney fees.

UTAH

Utah’s Government Use of Unmanned Aerial Vehicles Act prohibits law enforcement agencies from obtaining data by a UAV unless they have a warrant, are working with exceptions to warrant requirements, or if data pertaining to a crime or emergency is provided by “a nongovernmental actor.”

It also requires that data not relating to a warrant or other acceptable use cannot be copied or disseminated and must be destroyed “as soon as reasonably possible.” Finally, law enforcement agencies must report the number of drones they own and how often they’re flown.

IDAHO

Idaho employed broad language in a bill to curtail drone use. No “person, entity, or state agency” can use a drone to conduct surveillance unless it has a warrant or is in response to emergencies for “safety, search and rescue, or controlled substance investigations.” Further, people can’t use UAVs 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.” Break the law and you may have to pay $1,000 or “actual and general damages,” whichever is greater, plus attorney fees and litigation costs.

MONTANA

As so many drone laws do, Montana’s focuses on law enforcement. Information obtained from a UAV cannot be used as evidence unless authorized by a warrant or obtained “in accordance to judicially recognized exceptions to the warrant requirement.”

ALASKA

In addition to language allowing law enforcement to use UAVs in accordance with a warrant, operators and crew must be “trained and certified.” Images can be kept for training and as evidence in an investigation. The law also allows the University of Alaska to develop a UAV training program.

ILLINOIS

Illinois’ Freedom from Drone Surveillance Act prohibits state law enforcement agencies from using drones to gather information except when countering a “high risk of terrorist attack,” pursuing a search warrant, possessing probable cause requiring “swift action,” attempting to find a missing person, photographing the scene of a crime or traffic accident, or surveying a disaster or public health emergency. The “information gathered by the drone” must be destroyed within 30 days of its capture, unless it’s evidence of criminal activity or part of an ongoing investigation.

Illinois’ Fish and Aquatic Life Code says you can’t use a drone to interfere with “another person’s lawful taking of wildlife or aquatic life.” So, don’t use your UAV to harass hunters or fishermen just because you think it makes for great video.

INDIANA

Enacted in July 2014, Indiana requires police to obtain a warrant in order to use a UAV, unless a police officer determines the use is specifically required due to circumstances “necessitating a warrantless search,” a “substantial” threat of terrorist attack, a search-and-rescue operation, a natural disaster, or a noncriminal geographical or environmental reason.

IOWA

In Iowa, police can’t use a drone to enforce traffic laws, so don’t expect to see drones hovering around stop signs and crosswalks. But that doesn’t give you the greenlight to push the pedal to the floor!

What’s more, Iowa’s law says information obtained with a UAV without a search warrant is “not admissible as evidence in a criminal or civil proceeding.”

WISCONSIN

In Wisconsin, it’s a misdemeanor to fly a drone “with the intent to photograph, record, or otherwise observe another individual in a place or location where the individual has a reasonable expectation of privacy.”

Police officers need to obtain a search warrant before gathering information with a drone from a location where someone has a “reasonable expectation of privacy.” This prohibition does not extend to public places, search-and-rescue operations, or fugitives on the lam.

And, in case you were wondering, unless you’re a member of the U.S. Armed Forces or National Guard and acting in an official capacity, don’t fly a weaponized drone in Wisconsin. It’s a felony.

TEXAS

Texas has put together a fairly nuanced drone law. University professors, staff, and students can use UAVs to capture images for “professional or scholarly research,” so long as they do so at the behest of the institution and within an FAA-authorized area. Utilities can employ drones to inspect facilities. You can take a video of a person or property so long as you have permission. Law enforcement has the broadest powers, including: operations pursuant to a warrant, reasonable suspicion, or probable cause; surveying a crime scene; missing- persons investigations; and conducting high-risk tactical operations.

On the flip side, the law makes capturing images of people or private property “with the intent to conduct surveillance” a misdemeanor. (Black’s Law Dictionary defines surveillance as “observation and collection of data to provide evidence for a purpose.”) Should you find yourself afoul of the law, you can defend yourself from prosecution by destroying the image as soon as you realize it was captured and don’t show or share it. Show or share, be ready to face a range of fines.

Also worth noting: Flying a weaponized drone was never mentioned.

FLORIDA

Passed unanimously by the Florida House and Senate, and signed into law by Gov. Rick Scott in 2013, the Freedom from Unwarranted Surveillance Act prohibits law enforcement agencies from using drones to gather information except in specific circumstances:

The Secretary of Homeland Security indicates a person or organization poses a high threat of terrorist attack; law enforcement obtains a warrant authorizing use of the drone; or law enforcement has probable cause to think “swift action” is required to prevent death, “facilitate the search for a missing person,” prevent a suspect’s escape, or prevent property damage.

NORTH CAROLINA

North Carolina’s law prohibits using a drone to “photograph an individual, without the individual’s consent, for the purpose of publishing or otherwise publicly disseminating the photograph.” This doesn’t apply to “newsgathering, newsworthy events, or events or places to which the general public is invited.”

In general, no one, including state agencies and law enforcement (with exceptions such as counterterrorism, obtaining a warrant, or public gatherings), can “conduct surveillance” of people, dwellings, or private property without first getting permission.

People photographed in violation of the statute can seek damages up to $5,000 for each photograph or video taken.

Getting ready to hunt or fish with your quadcopter? Don’t rig up that shotgun just yet. In North Carolina, operating a drone with a weapon attached to it will get you charged with a felony. Hunting or fishing with a drone will add a misdemeanor.

Finally, North Carolina requires state agents to pass a test before they can fly drones, and those interested in commercially flying drones must be licensed by the state.

TENNESSEE

Tennessee’s drone law almost exactly copies Texas’ nuanced statute. However, Tennessee lawmakers passed an additional law making it illegal for you to use a drone to “conduct surveillance of private citizens who are lawfully hunting or fishing” without first getting their written permission. Who does this?

VIRGINIA

Virginia, the first state to enact statewide restrictions on drones, imposed a moratorium on drone use in April 2013. Police and regulatory agencies can’t use UAVs except for missing-persons and search-and-rescue operations. It also exempts the National Guard for training but not law enforcement.

In addition, the law also bans the use of weaponized unmanned aerial systems.

Virginia’s moratorium expires later this year, on July 1, 2015.

LOUISIANA

According to Louisiana’s drone law, it’s illegal to intentionally “conduct surveillance of, gather evidence or collect information about, or photographically or electronically record a targeted facility” without written permission. If you do, it could mean a $500 fine and up to six months in jail. Do it again, the fine can be up to $2,000 and a year in jail. Something to keep in mind: An “unmanned aerial system” as defined by the law doesn’t pertain to UASs flown by the U.S. federal or state governments, nor local police and fire departments.

HOW HAVE UAV PRIVACY BILLS FARED IN OTHER STATES?

 

ARIZONA, CONNECTICUT, GEORGIA, KANSAS, KENTUCKY, VERMONT, WEST VIRGINIA, WYOMING:

Introduced; legislature adjourned without further action

ALABAMA, HAWAII

Passed Senate; legislature adjourned without further action

CALIFORNIA:

Passed both chambers; vetoed by governor

MARYLAND, MINNESOTA:

Died in committee

MASSACHUSETTS, MICHIGAN, NEW YORK, PENNSYLVANIA

Introduced

MISSOURI, SOUTH CAROLINA: 

Passed House; legislature adjourned without further action

NEBRASKA:

Indefinitely postponed

NEW HAMPSHIRE:

Dead for 2014; referred for interim study

NEW JERSEY:

Governor “pocket vetoed” a 2013 bill at the beginning of 2014. Because the bill was passed within the last 10 days of a two-year legislative session, Gov. Chris Christie didn’t veto the law, “pocketing” it instead, which kept it from a possible override vote in the legislature

OHIO, OKLAHOMA:

Passed committee; legislature adjourned without further action

RHODE ISLAND:

Held for further study

WASHINGTON:

Passed both chambers; vetoed by governor

Originally written By Timothy Kidwell, published in Drone 360