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    A New Hampshire Bill Would Ban Aerial Photography, Unless You're the Government

    Written by

    Derek Mead


    Under the proposed law, a shot like this one I took in Japan would be illegal because it contains man-made objects like houses, rice paddies, and the wing of the plane. 

    Everywhere you look these days, there's someone taking a picture, whether it be some buffoon Instagramming the sidewalk or Google's airplanes. Plus, now we've got these newfangled drone things, which are shockingly good at capturing images from the air, and which are now well within the reach of citizens and governments alike. Neal Kurk, a Republican member of New Hampshire's House of Representatives knows that those drones present a growing privacy concern, and in response has introduced a bill that would ban all aerial photography in the state. That is, unless you're working for the government.

    The bill, HB 619-FN (PDF), is blessedly short, and I suggest reading the whole thing for yourself. But here's the key opening paragraphs, courtesy PetaPixel:

    IV-a. A person is guilty of a class A misdemeanor if such person knowingly creates or assists in creating an image of the exterior of any residential dwelling in this state where such image is created by or with the assistance of a satellite, drone, or any device that is not supported by the ground. This prohibition shall not apply where the image does not reveal forms identifiable as human beings or man-made objects.


    Paragraphs I [and], II and IV-a shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel, nor are [they] intended to limit employees of governmental agencies or other entities, public or private, who, in the course and scope of their employment and supported by articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of conduct to obtain evidence of suspected illegal activity.

    The first paragraph is very poorly worded. The last clause says that taking aerial photos isn't illegal if you don't take pictures of humans or "man-made objects." But "man-made objects" are everywhere, and what purpose protecting them serves is vague. So yeah, aerial nature photography would be legal, unless a rancher or a telephone pole gets in the shot. Then it's illegal.

    In New Hampshire, a Class A misdemeanor can come with jail time (as opposed to a Class B), which seems fair if Kurk was trying to prevent drone users (or blimp enthusiasts) from spying on people. But the inclusion of the "man-made objects" phrase makes the entire clause unnecessarily broad, to the point that pretty much any aerial photography–including photos from planes and helicopters, as well as Google Maps and the like–would be illegal. Such broad legislation is terrible.

    The second paragraph is even more laughable. Sure, private citizens can't take pictures of anything when they're in the air, but any old government official can! Oh, wait, so can private citizens, as long as they have "articulable suspicion" of suspected illegal activity. If aerial photography is effectively illegal, then requiring little more than "articulable suspicion" to allow it for authorities flies in the face of the Fourth Amendment and other privacy laws.

    In other words, Kurk is trying to argue that citizens have a reasonable expectation of privacy from aerial photography–hence why he's making it illegal–but if they do, officials should require a warrant to conduct such surveillance, not just poorly-described levels of suspicion. If something is illegal, the government needs a court order to break that law; if the government (let alone a private citizen–holy shit does that addendum make for a big loophole) doesn't need a warrant to do something, then no citizen should.

    What to do with drone technology, especially from a surveillance angle, is a huge legal issue that will have to be sorted out, and I do applaud Kurk for at least being ahead of the game when it comes to dealing with it. But to write a law that basically bans hobbyist aerial photography while allowing wide-open usage for authorities (as well as private surveillance firms and god knows how many other people with "articulable suspicions") misses the mark badly. But hey, it's just a bill, and it's good that it's still open for discussion. Let's just hope it doesn't set precedent.