Texas drone laws reinstated – Port Isabel-South Padre Press

Special to the PRESS

The Texas Government Code (Chapter 423) violated the First Amendment rights of photojournalists. The decision of the federal court restores the state’s controversial drone codes, which violates the rights of Texas journalists who use pilotless drones in their reporting.

In a clash between freedom of expression versus national security, a federal court of appeals recently reversed a lower appellate court’s ruling from March 2022, that the state’s restrictive drone law was unconstitutional, according to an online DroneLIFE article.

Chapter 423 lists 21 restrictions and exemptions about police work, scientific research, and government activities. The most notable specific omission is journalists. The use or sharing of the image(s) in question is a particular focus of Section 423.004. Another section tackles pilotless surveillance of critical infrastructure facilities like ports, railway switching yards, dams, concentrated animal feeding operations, liquid natural gas (LNG) terminals, or storage facilities, among other things.

The International Traffic in Arms Regulations (ITAR) is the United States’ regulation over defense and space-related products and services as defined in the United States Munitions List (USML), according to the U.S. Department of State Directorate of Defense Trade Controls website. ITAR oversees rocket launchers, torpedoes, and other military hardware. ITAR also restricts the plans, diagrams, photos, and other documentation used to build these items, labeled “technical data,” to protect federal-level state secrets.

Though privately owned, SpaceX rocketry falls under ITAR’s strict regulations under ‘Category 9.’
In March 2022, U.S. District Judge Robert Pitman agreed that the plaintiffs had “a sweeping First Amendment right to use unmanned aerial drones to film private individuals and property without their consent.” October’s federal appeals court panel, led by Circuit Judge Don Willett, disagreed but left provisions for journalists to challenge the application of the law on a narrow case-by-case basis.
These restrictions affected drone pilots, helicopters, and other lower Rio Grande Valley pilots. For instance, according to Jax Redline, owner of Redline Helicopter Tours, they used to be restricted from flying within two miles of SpaceX. Still, after recent concerning incidences at Starbase, it has now been extended to a three-mile buffer zone.

“This hasn’t affected us too much,” said Redline. “We worked with the Federal Aviation Administration [FAA] to modify our flight paths to stay compliant, and now we have permission to fly right over the stacks during non-launch days, which is amazing.”

Plaintiffs in the case include a freelance photojournalist, the National Press Photographers Association (NPPA), the Texas Press Association (representing about 400 member newspapers), and two individual NPPA members. The three individual plaintiffs were FAA-certified drone pilots.

The crux of the lawsuit was the claims that Chapter 423 interfered with photojournalists’ jobs by restricting the use of drones in reporting the news, putting them at risk of criminal penalties and being charged in a civil lawsuit” by doing their jobs, according to the appeals court ruling. It appeared as if collecting drone footage violated state law and that publishing them would violate another provision in the law for two separate charges.

Chapter 423 prohibits using drones to photograph private property because of invasion of privacy issues. The entity could hire a photojournalist to take pictures of their property. Still, they would own the copyright to the footage, preventing the journalist from using it to profit from it further, eliminating potential additional income that could generally come from that assignment.

The case challenged the Surveillance and “No-Fly” provisions of the drone law. The Surveillance provision prohibits using a drone “to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance.” The No-Fly provisions prohibit flying drones above sites, including critical infrastructure facilities and large sports venues, among other sensitive sites listed.
The plaintiffs had argued that because the law made exceptions, but specifically not for newsgathering, Chapter 423 suppressed the free speech rights of drone pilot photojournalists.

However, the appeals court panel opined that the Surveillance provisions appear to have only an incidental effect on free speech but should be better classified as “conduct regulations (aerial surveillance), not regulations of expression,” according to the decision. The panel also found that No-Fly provisions have nothing to do with free speech, so they do not involve the First Amendment.

The Supreme Court has ruled that the First Amendment “does not guarantee the press a constitutional right of special access to information not available to the public generally,” according to the ruling. So, if something is fenced off or walled in, it blocks the average citizen’s view. Drone pilots cannot be the workaround that violates that expectation of privacy.

In a statement to its membership, the NPPA stressed its commitment to ethical photojournalism standards, warning drone photojournalists in Texas to “continue to avoid any activity that could be construed as an invasion of privacy.”

As of April 21, 2021, it mandated remote ID retrofitting of all drones, according to the faa.gov website. Drones are changing the face of aviation, and rules and regulations are catching up to their implications. Remote ID provides identification and location information for a flying drone, which other parties receive for safety and security purposes.

It also helps the FAA, law enforcement, and other agencies locate the control station when a drone flies unsafely or where it is not supposed to be. The higher court’s decision takes national security and public safety in the highest regard over concerns of how it affects the constitutional right of freedom of expression.

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