Imagine walking into your backyard for a little sunbathing and seeing a smallish robotic object flying 20 feet overhead and snapping pictures. Feel like your privacy has been invaded?
You are right. You have just entered the twilight drone zone.
If you don’t appreciate spying drones, then you will be happy to know that Texas has a law for you: Government Code Chapter 423. The law was on hold for years because a federal district court had ruled it unconstitutional. It was revived in October 2023 by the Fifth Circuit Court of Appeals in a landmark ruling regarding the press’s right to take a drone pic of you in your pool. The press lost.
What Does the New Drone Law Mean For You?
The law focuses on drones that take recordings, pictures, or video. Unless the perpetrator falls under 1 of the 11 exceptions, it is illegal for him to use a drone to capture an image of private individuals or property. That picture of you in your swimsuit? Capturing the image was a Class C misdemeanor. Disclosing, displaying or distributing the image was a step up to Class B misdemeanor.
Multiple pics? Each image is considered a separate offense.
What if the perp did not realize taking the picture was illegal? The law gives those people an out. If the perp destroys the image or stops displaying it immediately after realizing it was taken illegally, then that is a defense to the criminal case.
There is a hard stop on using pictures taken wrongfully as evidence in court. If the images were captured in violation of the law or were images that were merely a byproduct from lawful drone use, then they cannot be used in a criminal or juvenile proceeding, a civil action, or an administrative procedure.
Drone Law Exceptions
Let’s take a moment to circle back to those 11 exceptions to the law. They include professors doing professional or scholarly research for an institution of higher education, airspace authorized by the FAA, mapping by a satellite, and pictures taken with your consent. Law enforcement officers and the military are allowed to use a drone only for specified purposes.
There is also an exception for public property: you have no protection from a drone taking a picture of you frolicking in a public fountain.
What if your friendly law enforcement agency does not want to enforce the law? You can turn to the civil courts. The statute allows you to file suit for an injunction or recover a penalty: $5,000 for all images captured in a single episode, or $10,000 for the disclosure of the images, or actual damages if they were displayed with malice. As for recovering court costs and reasonable attorney’s fees, the law cuts both ways. The court is required to award them to the “prevailing party.”
Additional Information for New Drone Law
The law also makes it illegal to operate a drone lower than 400 feet from the ground over a piece of critical infrastructure such as an electrical switching station. Drones cannot be used to make contact with any person or object within the facility or to interfere with the facility’s operations. Sports venues also get some protection.
The drone laws are still being sorted out. Both the federal and state government have been busy passing laws and making rules. For more insight about Chapter 423, read the statute and the Fifth Circuit opinion in National Press Photographers Association v. McCraw, 2023 WL 6968750. That should be just the start of your research.
Hammerle Finley Can Help With Your Legal Needs
Attorney Virginia Hammerle, of Hammerle Finley Law Firm, is in her fifth decade of law practice. She is Board Certified in Civil Trial Law and an Accredited Estate Planner. Reach her at email@example.com. This column does not constitute legal advice.