Texas law regulating drone photography is unconstitutional, judge rules

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. Taking and disseminating images is a form of speech, much the same as taking notes and publishing a news story, and under First Amendment law the state can't choose who is allowed to speak and how. Likewise, Pitman noted, the state is generally barred from picking which content is allowed and which is illegal. The law permitted drone images of public property but not private, which meant law enforcement would be examining images and looking at property lines to decide which speech was allowed and which it would punish. The judge also wrote that the act’s use of the words “surveillance” and “commercial enterprise” were unconstitutionally vague.