Louisiana’s Senate just passed two bills that would criminalize drone photography, with violators potentially facing jail time.
It’s hard to imagine the Senate Bill 330, the Deterrence of Reconnaissance Over Noncriminal Entities Act (DRONE, get it?) standing up to any sort of Constitutional challenge: The bill, written by state senator Dan Claitor, is by far the most stringent anti-drone law passed in the United States so far, and specifically criminalizes using a drone to “capture an image of an individual or privately owned immovable property with the intent to conduct surveillance on the individual or property captured in the image.”
It would also make it illegal to own any images that were a violation of that provision. People who take the photo can be fined up to $500; people who store the photo can be fined $2,000 and could face up to six months in prison.
It's no surprise the state is concerned about how drones will be used; it's one of many states at least considering legislation regulating UAVs. Most states, however, have focused on restricting law enforcement use of drones. Louisiana joins Idaho and Texas as one of the first states to restrict drone use by private citizens and companies, but its bill is by far the most restrictive and most punitive. In Idaho, for example, taking photos over public land is expressly protected, while Texas amended its law to state that "it is lawful to capture an image using an unmanned aircraft."
There is no such language in Louisiana's bill, though it does line out several different cases in which drones can be used legally, mostly for law enforcement, search and rescue, agriculture, pipeline surveying, filmmaking, and natural disaster surveying. That's problematic for a few reasons: The bill is both overly broad and far too specific.
Yes, drones present a real privacy concern. But the term “surveillance” is pretty broad. Is taking a picture of someone surveillance? It probably is if a person doesn’t like it. But photography, especially on public property, has always been protected by the First Amendment. Then, when you drill down into it, the bill only lays out specific instances in which drones can be used for commercial purposes. The industry is so young right now that it’s impossible to predict what useful purposes drones will have. But if they aren’t covered in Claitor’s bill, they’ll be, by default, illegal.
“Just because you can do it with technology doesn’t mean that it’s right or you should,” Claitor told The Advocate. “If we sit idly by, I believe there are significant Fourth Amendment concerns.”
That may be true—there are certainly some privacy concerns that drones raise that states need to figure out. But time and time again, the courts have ruled that taking photos on (or over) public land is expressly protected by the First Amendment. Beyond that, it's unclear whether states even have the right to restrict drone photography above private property, as the airspace has generally been considered "public" property.
But, back to Louisiana. SB 330 isn’t even the most insane drone legislation the state passed in the last week: SB 356, introduced by Louisiana state senator Bodi White, would make it illegal for drones to photograph gas and oil facilities, water supply treatment systems, telecommunications networks, power plants, highways, mass transit systems, banks, and other critical infrastructure without express permission from the owner of that infrastructure.
Again, this is overly broad, and arguably unconstitutional. Do “telecommunications networks” include telephone lines? What happens when a drone photographer takes a photo and the highway is in the background? The bill is clearly written to somehow prevent terrorists from taking photos of important assets, but, again, the bill likely violates the First Amendment.
Violating SB 356 can land a photographer in jail for six months, do it a second time and a person can be imprisoned for a year “with or without hard labor.”
Brendan Schulman, a drone law expert in New York, explained why this is problematic. “Like many other state laws directed at the creation of photographs using a drone, this bill raises First Amendment issues, particularly for members of the press,” he said. “It seems to discriminate against using a specific technology, namely drones, rather than target the offensive conduct that is of concern, which appears to be the surveillance of private areas.”
Others in the field had harsher words. Peter Sachs, a drone lawyer in Connecticut, has been tweeting about the Louisiana bills all week:
.@BobbyJindal Gonna uphold the Constitution as your oath requires, or sign the unconstitutional drone bill(s) that make photography a crime?— Peter Sachs, Esq. (@TheDroneGuy) April 19, 2014
Both bills still need to pass the state’s House and be signed by Governor Bobby Jindal before becoming law, but even if that happens, don’t expect either to stand if challenged in court. States are certainly right to be concerned about the power of small, flying cameras to infringe on citizens' privacy rights. But a blanket ban on photography, with little regard for the rights of photographers that have already been established in the court systems, isn't the way to go about doing it. Louisiana is tossing aside the First Amendment to protect the Fourth.