Gifting a Drone this Holiday Season? Read Regulations and Read them Twice
It’s the holiday season, and as we all begin to work through our wish lists a drone for that child (or child at heart) may be the perfect gift. Many recipients of a drone as a gift are eager to learn to successfully fly it in order to capture landscapes and dramatic images to share with friends and family. However, drone operators and the general public should be aware of certain statutory rules governing drones before taking flight. Additionally, many subdivisions have increased concern about the use of drones by homeowners to spy on their neighbors’ activities or their maintenance, and/or improvements of their homes.
In December 2015, the Federal Aviation Administration (FAA) issued rules regarding the operation and certification of model aircraft or small unmanned aircrafts including drones. Drones weighing less than 55 pounds and more than 0.55 pounds (250 grams) that are operated outdoors in the national airspace must register with the FAA prior to operation. To register, an individual must be 13 years old or older and register their drone as a model aircraft (recreational or hobby use only) or as a small unmanned aircraft system (UAS) (recreational or commercial use permitted). Drones can be registered online for $5 per registration and a certificate of registration will be provided by the FAA which must be renewed every three years. The aircraft must display its unique FAA-issued registration number as an identifier, or the drone operator may also use the serial number as identification. The FAA cautions owners to keep drones at or below 400 feet and within your line of sight, and additionally cautions drone operators to respect privacy. The FAA registration can be found at https://www.faa.gov/uas/getting_started/registration/. Failure to register drones that meet the above requirements (which due to the low weight threshold – means most drones need to be registered) could subject the drone operator to certain civil and criminal penalties.
In order to ensure that drone operators respect the privacy of their neighbors and fellow community members, the State of Texas has enacted laws restricting the use of drones (See Texas Government Code, Section 423.001, et seq. at https://statutes.capitol.texas.gov/Docs/GV/pdf/GV.423.pdf). Under this statute, it is lawful to capture an image using a drone in the State of Texas only for the following limited purposes:
- Professional or scholarly research or for another academic purpose on behalf of an institution of higher education;
- In an airspace specifically designated by the FAA as a test site or range for drones;
- With consent of the person who owns the real property captured in an image;
- Pursuant to a valid search or arrest warrant;
- For a real estate broker in connection with marketing, sale or finance of real property;
- To capture an image from a height no more than eight feet (8’) above ground level to amplify such image;
- To capture image of public property or a person on public real property; and
- For other permitted professional purposes permitted under the terms of the statute, including surveying, maintenance and inspection of utility and transmission lines, insurance purposes, military purposes, satellite mapping, law enforcement and criminal investigations by law enforcement agencies, and for purposes of documenting the scene of a hazardous material spill, fire suppression, or rescue of a person.
The statute specifically provides that it is a Class C misdemeanor for a drone operator to capture an image of an individual or privately owned real property in Texas with intent to conduct surveillance on the individual or property captured in the image. The offense is committed when the image is captured, AND the person that captured the image possesses, discloses, displays, distributes or otherwise uses such image. It is worth noting that mere possession of a captured image is an offense, but a person that inadvertently captures an image in violation of the law can, immediately upon realizing such image was captured, destroy the image as a defense against the violation provided that the image was not disclosed, displayed or distributed to any other party. It is also a defense to prosecution for the possession of an image in violation of the statute if the person possessing the image destroys the image as soon as the person had knowledge that the image was captured in violation of the law.
An owner or tenant of privately owned real property may bring an action against a person in violation of the statute (i) to enjoin a violation or imminent violation, (ii) recover a civil penalty of $5,000 for all images captured in a single episode, (iii) $10,000 for disclosure, display or distribution or other use of such images captured in a single episode, or (iv) recover actual damages if the person who captured the image in isolation did so with malice. The complaining owner or tenant has two (2) years after an image was taken or such image was disclosed, displayed, distributed or otherwise unused in violation of the statute to bring an action against the drone operator that captured the image.
All drone operators should be aware of registration requirements that their aircraft may be subject to under FFA rules. Also, given the potential penalties involved and two (2) year exposure to liability, drone operators should be aware of the potential liabilities under Texas law regarding their use of drones and capturing of images of private property and people on private property before they take to the skies. Additionally, residents of subdivisions should be aware of the rights they may have to take action against nosy neighbors, and property management companies should advise residents of the Texas laws restricting taking of images by drones to encourage compliance.
So if you are thinking about buying a drone for someone or already purchased one on Black Friday, be sure to send them the link to this regulation list. You don’t want to put them on the Government’s naughty list next year.