In addition to facing potential civil liability for invasion of privacy or trespassing, drone operators who record images and/or use drones in certain places in Texas also risk facing criminal charges.
The applicable Texas statute very broadly provides that “[a] person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.” Tex. Gov’t Code § 423.003(a). The statute, unhelpfully, fails to define “surveillance” or otherwise explain the nature of this “capture an image” criminal offense. Furthermore, whereas the “capture an image” crime is a Class C misdemeanor, the Texas legislature, emphasizing the serious of the issue in Texas, also made “use of an image” a separate Class B misdemeanor for each image a person uses. Tex. Gov’t Code § 423.004(b), (c). It is worth noting that drone operators may assert a defense to these offenses if they immediately destroy the image(s) and cease use upon becoming aware it/they were obtained in violation of the statute.
Separate and apart from recording images, drone operators in Texas must also be aware of geography and, in particular, the facilities over which they operate. The Texas legislature has made it a crime, too, to “operate[] an unmanned aircraft over a correctional facility, detention facility, or critical infrastructure facility and the unmanned aircraft is not higher than 400 feet above ground level.” Tex. Gov’t Code § 423.0045(b)(1). Importantly, “critical infrastructure facility” include things like refineries, electric power generating facilities, chemical manufacturing facility, water plants, telecommunications switching office, port, railroad switching yards, and truck terminals. Similarly, unless the drone operator meets specific exceptions, it is a criminal offense to operate a drone over a sports venue at less than 400 feet above ground level. Tex. Gov’t Code § 423.0046(b).
And, in addition to setting forth criminal penalties, the Texas legislature also specifically outlined a civil cause of action with statutory penalties relating to improper drone use. More specifically, a drone operator who has improperly acquired images of a person or property may be subject to a civil penalty of $5,000 for images captured during a single episode, $10,000 for use of such images, actual damages, and attorneys’ fees. This statutory liability, of course, is in addition to common law tort-based recovery under theories including invasion of privacy, nuisance, trespass, and the like. Tex. Gov’t Code § 423.006(a).
A number of open questions remain with respect to the precise parameters of these provisions, as well as how vigorously the criminal provisions will be enforced. Nonetheless, it is clear that Texas takes privacy and property rights seriously and, unlike many other states, is legislating proactively to protect those rights concomitantly with the increase personal and commercial use of drones. Those messages should inform drone operators’ decision-making, especially as it relates to potential liability exposure.