Texans’ Privacy Protected from Drone Surveillance

Drone with camera | Image by Dmitry Kalinovsky

The U.S. Fifth Circuit Court has determined that a Texas law preventing drone photography of private citizens and property is indeed constitutional, overturning an earlier lower court ruling that claimed unlimited aerial surveillance of private citizens on private land was protected by the First Amendment.

Originally filed in 2019, the lawsuit was in reaction to a drone photographer being warned of violating Texas law for using unmanned aerial surveillance on private citizens without their permission in the aftermath of an apartment fire.

Chapter 423 of the Texas Government Code notes that it is illegal to use an “unmanned aircraft” to take pictures “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.” Its addition came via the Texas Privacy Act, which went into effect in 2013 after being introduced by then-Texas Rep. Lance Gooden of Terrell, who is now a U.S. congressman.

However, it is legal to use drone surveillance “with the consent of the individual who owns or lawfully occupies the real property captured in the image.”

Nevertheless, the National Press Photographers Association (NPPA) and others sued Texas over the law, claiming that the consent restrictions for unmanned aerial surveillance on the private property of private citizens infringed on their First Amendment rights.

Far-left U.S. District Judge Robert Pitman sided with the NPPA, holding the Texas law to be unconstitutional in 2022. The Office of Attorney General Ken Paxton appealed the ruling to the Fifth Circuit, which overturned the lower court’s ruling.

Judge Don Willett, a judge on the Fifth Circuit and a former justice on the Texas Supreme Court, explained that the claims made by the media organizations were in error.

“In this case, the plaintiffs claim a sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent,” Willett wrote. “They also assert a constitutional right to fly drones at low altitudes over critical infrastructure facilities like prisons and large sports venues.”

“We disagree,” the Fifth Circuit decision adds. “Accordingly, we REVERSE and REMAND with instructions to enter judgment in the defendants’ favor on the constitutional claims.”

Comparing the Texas drone surveillance laws to laws prohibiting wiretapping, Willett noted that the Texas statutes “regulate not what images can be captured but instead the means by which those images can be captured.”

“They are also similar in that they call for us to balance First Amendment values against third parties’ right to privacy,” he added. “Intermediate scrutiny thus respects the First Amendment values attached to photography while remaining cognizant of the obvious fact that recording from the sky — something the average private person cannot avoid and from where the average photography would not be able to reach — is simply not the same thing as expressing one’s views.”

“The government has a substantial interest in protecting the privacy rights of its citizens,” he asserted. “Though most drone operators harbor no harmful intent, drones have singular potential to help individuals invade the privacy rights of others.”

In response to the decision, the National Press Photographers Association lamented that “the Fifth Circuit Court of Appeals reversed that ruling, and held that the Texas drone law is constitutional.”

“We wholeheartedly disagree with the appellate court and we will be discussing our options with the leadership and the other attorneys on the case,” NPPA continued. “In the meantime, drone journalists in Texas — as well as their employers and clients — will need to reevaluate their use of drones, including considering their tolerance for risk.”

“Going forward, if you decide to continue using drones for journalism in Texas, it’s particularly important that you continue to avoid any activity that could be construed as an invasion of privacy,” the group added.

But advocates of the legislation like U.S. Rep. Gooden (R-TX) celebrated the Fifth Circuit ruling as a major victory.

Gooden told The Dallas Express, “This is a win for Texans’ right to privacy and I’m proud of the law we passed a decade ago with bipartisan support.”

Disclaimer: Monty Bennett, publisher of The Dallas Express, worked closely with Rep. Gooden to pass the Texas Privacy Act in 2013.

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