Texas Drone Legislation: Court docket Ruling Permits Problem

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By DRONELIFE Staff Writer Jim Magill

A recent ruling by a federal judge will allow a lawsuit challenging the constitutionality of Texas’ drone law to move forward.

On November 30, US District Judge Robert Pitman issued an order denying a motion by lawyers representing the state’s defendants to dismiss the case. The lawsuit, filed by the National Press Photographers Association, the Texas Press Association, and a Texas-based photojournalist, alleges that Texas Drone Act limits journalists’ ability to use photos and videos captured by drones for news-gathering purposes .

The lawsuit names Steven McCraw, director of the Texas Department of Public Security, as the defendant; Ron Joy, Texas Highway Patrol chief; and Wes Mau, the Hays County District Attorney.

The lawsuit challenges the law’s surveillance provisions, which make it unlawful to “capture an image of an individual or privately owned property [Texas] with the intention of conducting surveillance. “Plaintiffs argue that the law is unconstitutional as it does not define what“ surveillance ”means.

In addition, plaintiffs allege that surveillance regulations inappropriately discriminate against UAV-produced photos and videos created through a newsgathering process, while other groups, including students, engineers and insurance company employees, may capture and use images for their own purposes.

The plaintiffs also challenged the provisions of the “Flight Ban” Act, which prohibits the operation of drones over prisons or prisons and critical infrastructure such as oil and gas pipelines, water treatment plants and chemical plants. As in its pleadings against the surveillance rules, the lawsuit alleges that the restrictions are widespread in that they contain exceptions that allow drones to be used for commercial purposes but not for intelligence gathering purposes.

In addition, the lawsuit alleges that the no-fly regulations violate the doctrine of federal preventive law because the Federal Aviation Administration has the exclusive right to regulate all air traffic.

In their motion, the defendants argued that Pitman should dismiss the case because plaintiffs had failed to present valid arguments against the surveillance and no-fly regulations. In its decision, however, the judge upheld the plaintiffs’ arguments regarding the surveillance provisions and the general nature of the no-fly provision as legitimate.

In a partial victory for the defendants, Pitman ruled that plaintiffs failed to present a valid pre-emptive argument against the “no fly” rule and said the case argument must be dismissed. The rest of the case will be allowed to go on, however, he decided.

The plaintiffs’ attorneys welcomed the judge’s decision to keep the case alive.

“We are obviously pleased with the verdict. We believe the judge looked very carefully at the law and the facts as we presented them and concluded that we did indeed set a workable case, ”said Jim Hemphill, attorney for the Texas Press Association. “Some of these drone restrictions are unconstitutional because after the first change, they excessively restrict protected activities.”

He added that he was disappointed with the part of the judge’s decision regarding the issue of prevention, as he believed plaintiffs could demonstrate that the Texas Drone Act gave the FAA the exclusive right to regulate UAV operations trampled on.

“On the other hand, the judge’s rejection of pre-emption claims does not affect our customers’ ability to get the relief they want,” he said.

Mickey Osterreicher, General Counsel of the National Press Photographers Association, agreed.

“It would be nice if the cause was also brought forward for prevention, but with all of that, I think we are in a really good place and we are happy with the judge’s decision,” he said.

Osterreicher said the ruling paved the way for the further process, although the state still retains the right to appeal the decision. Subject to the success of such an appeal, the plaintiffs, in view of the judgment, must now answer the questions that the plaintiffs raised in their complaint.

In addition, each side could request a summary assessment in the case. “Since we prevailed against the application for dismissal, there could be an application for a summary assessment, and if we win with it – provided there is no appeal – no process would be required,” said Osterreicher.

The case is slated to go to trial next October. If the verdict is in favor of the plaintiffs, the state parliament cannot make any changes to the drone law until 2023. The legislature, which only meets every two years, is due to begin its next five-month session in January.

“If these sections of the law are declared unconstitutional, it means the state cannot enforce them. That way, people could have some certainty about what they can and cannot do with drones when collecting messages, ”said Osterreicher.

Miriam McNabb is editor-in-chief of DRONELIFE and CEO of JobForDrones, a marketplace for professional drone services, and a fascinating observer of the emerging drone industry and the regulatory environment for drones. Miriam has authored over 3,000 articles focusing on the commercial drone space and is an international speaker and recognized figure in the industry. Miriam graduated from the University of Chicago and has over 20 years experience in high-tech sales and marketing for new technologies.
For advice or writing on the drone industry, email Miriam.

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