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“Texas Privacy Act” overturned after judge rules it is an unconstitutional violation of the First Amendment, reports attorney Omar Ochoa - Texas Privacy Act - Titans of the Texas Legislature

FEATURED: Billy Calzada, a photojournalist and FAA Part 107 drone pilot with the San Antonio Express-News, was making photographs with a drone on July 24, 2018, of the aftermath of a fatal apartment fire when he was approached by ATF agents and the San Marcos police and told to stop the activity because it was illegal. Lawyers for the National Press Photographers Association sued the state of Texas seeking to overturn the law, and won on Monday, March 28, 2022.

Photograph By ADÁN CALZADA

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“Texas Privacy Act” overturned after judge rules it is an unconstitutional violation of the First Amendment, reports attorney Omar Ochoa

By DAVID A. DÍAZ
[email protected]

U.S. District Judge Robert Pitman of Austin on Monday, March 28, 2022, ruled that a state law passed in 2013, which is known as the “Texas Privacy Act”, violates the First Amendment of the U.S. Constitution in part because its unfairly prevents journalists from using drones to take photographs as part of their news gathering efforts, reports attorney Omar Ochoa.

The First Amendment of the U.S. Constitution provides that Congress shall make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the government for a redress of grievances.

https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/

Ochoa, an advocate for transparency in government, provides regular reports to the public on federal, state, and local laws that impact journalism, communications, freedom of speech issues, and transparency in government.

https://www.omarochoalaw.com

The term “drone” usually refers to any unpiloted aircraft. Sometimes referred to as “Unmanned Aerial Vehicles” (UAVs), these crafts can carry out an impressive range of tasks, ranging from military operations to package delivery. Drones can be as large as an aircraft or as small as the palm of one’s hand.

https://builtin.com/drones

Drone technology allows journalists to take footage of news events such as volcanic eruptions, war-torn villages, and natural disasters. Because drones are operated remotely, journalists see it as safer and cost-efficient means of video recording, especially in highly vulnerable coverage.

https://en.wikipedia.org/wiki/Unmanned_aerial_vehicle

“Reactions were swift from national, state, and local advocates for freedom of the press, including from the Texas Association of Broadcasters, which in a news release stated ‘that the state law prohibiting the use of unmanned aerial vehicles known as (drones) for newsgathering is inconsistent with the First Amendment and, therefore, invalid,” Ochoa said.

The ruling was made in a lawsuit brought by the National Press Photographers Association, the Texas Press Association, and a journalist.

The Texas Association of Broadcasters had filed a “friend of the court” brief supporting the plaintiffs which was prepared by attorneys with Jackson Walker, LLP, TAB’s general counsel law firm, and joined by the Reporters Committee for Freedom of the Press.

Friend of the court” is a person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. A fiend of the court if commonly referred to as ‘amicus curiae.’

The court exercises its discretion in determining whether to grant permission to participate as amicus curiae or to request the participation of an individual or group.

https://definitions.uslegal.com/f/friend-of-the-court/

A plaintiff is a person who brings a case against another in a court of law.

Attorney Paul Watler with Jackson Walker offered the following takeaways for journalists:

• Journalists hold a constitutionally protected right to document and disseminate the news;

• It is lawful to use drones for newsgathering activities and to publish their images;

• News organizations may use drone photography and images without looming concerns of liability; and

• The right to fly drones is not absolute. Although the court found this particular Texas law too broad in scope, drone usage continues to be subject to narrower statutes and regulations concerning safety and national security that carry stiff civil and criminal penalties.

The State of Texas has 30 days after entry of judgment to appeal the ruling to the Fifth Circuit Court of Appeals based in New Orleans.

As part of his ruling, Pitman provided background on the dispute, including the following legislative and legal history:

• This case concerns journalists’ right under the First Amendment to operate unmanned aerial vehicles (“UAVs”), otherwise known as drones, and publish the resulting images. Plaintiffs challenge the constitutionality of two sets of provisions of Chapter 423 of the Texas Government Code (“Chapter 423”), passed in 2013 and amended in 2015. (Pls.’ Mot. Summ. J., Dkt. 63, at 15).

• Plaintiffs allege that the civil and criminal penalties within the Chapter 423 provisions restrict the First Amendment right to news gathering and speech and chill Plaintiffs and their members from using UAVs for certain news gathering activities. (Id.).

• Texas Government Code Sections 423.002, 423.003, 423.004, and 423.006 (together “Surveillance Provisions”) impose civil and criminal penalties on UAV image creation. Section 423.003 imposes criminal and civil penalties by declaring it unlawful to use “an unmanned aircraft to capture an image of an individual or privately owned real property . . . with the intent to conduct surveillance on the individual or property captured in the image.” TEX. GOV’T CODE § 423.003(a).

• Under Section 423.006, a landowner or tenant may bring a civil action against a person who violates Section 423.003 or 423.004. TEX. GOV’T CODE § 423.006(a). Section 423.002 exempts certain uses of UAVs from liability under the Surveillance Provisions but does not exempt news gathering. see TEX. GOV’T CODE § 423.002. Exemptions include “professional or scholarly research and development or . . . on behalf of an institution of higher education.”

In his ruling, Judge Pitman prohibited the Texas Department of Public Safety and the Texas Highway Patrol from enforcing Chapter 423 of the Texas Government Code, which became law as a result of the ‘Texas Privacy Act’, according the Alicia Calzada, writing for the National Press Photographers Association,” Ochoa said.

The news release from the National Press Photographers Association, written by Calzada, provided the following additional details:

The National Press Photographers Association brought the lawsuit in 2019 challenging the law after members experienced problems using drones for news gathering in the state. When the law was first proposed in 2013, NPPA urged the legislature to reject the bill which amounted to a broad ban on drone use for a wide range of purposes that included journalism.

Among other incidents, National Press Photographers Association member Brandon Wade, a Dallas area freelancer, was denied permission to fly his drone to document a publicly funded construction project based on the law, and National Press Photographers Association member Billy Calzada, a staff photographer at the San Antonio Express-News, was threatened with arrest after photographing the aftermath of a fatal fire with his drone.

Both incidents were cited as examples of the impact that the law had on journalists.

The National Press Photographers Association was joined in the lawsuit by the Texas Press Association and freelance reporter Joe Pappalardo.

In his opinion, Judge Pitman held that the process of creating photographs and video via a drone “finds just as much protection in the First Amendment as the images themselves do.”

In doing so, he noted that “[a]pplying the Constitution’s protections to new technological contexts is far from a novel exercise.”

Accordingly, the judge found that “as a matter of law, use of drones to document the news by journalists is protected expression and… implicates the First Amendment.”

As content-based restrictions — meaning that the content of the image determines its permissibility — the various provisions in the statute were held to be presumptively unconstitutional, and were analyzed under a process called strict scrutiny.

Applying this standard, the court determined that that the law was not actually necessary, and not narrowly tailored to achieve the purported interests asserted by the state.

The court also held that the statute’s use of the terms “surveillance” and “commercial purposes” — neither of which are defined in the statute — renders the law void for vagueness.

“The National Press Photographers Association is very pleased with the result in this case and we hope that it sends a clear message to other states and municipalities to stop enacting unconstitutionally restrictive drone laws,” said NPPA general counsel, Mickey H. Osterreicher.

David Schulz, Co-Director of the Yale Media Freedom & Information Access (MFIA) Clinic, which also represented NPPA in the case, said “Judge Pittman’s opinion is an important reaffirmation that the First Amendment demands protection for the important work of journalists that is so essential to the health of our democracy.”

“Judge Pitman entered an opinion that carefully considers every issue, exhaustively reviews precedent, and holds decisively that drone photography is fully protected by the First Amendment as an integral tool in 21st-Century journalism,” said Jim Hemphill, local counsel on the case. “The challenged Texas statutes prohibited legitimate news gathering that causes no harm, and unconstitutionally drew distinctions that disallowed journalistic drone photography but allowed the exact same drone photography when done for other favored purposes. Judge Pitman properly found that these distinctions were improper, and that the statutes were so vague as to be unconstitutional.”

The National Press Photographers Association is represented in NPPA v. McCraw, Case no. 1:19-cv-00946-RP, (Tex. W.D.) by Jim Hemphill of Graves, Dougherty, Hearon & Moody, P.C., Leah Nicholls of Public Justice, the Media Freedom & Information Clinic at Yale Law School, and National Press Photographers Association attorneys Mickey H. Osterreicher and Alicia Calzada.

Earlier in the case, the Association for Uncrewed Vehicle Systems International (AUVSI) and the Consumer Technology Association (CTA) also filed an amicus brief in support of the National Press Photographers Association’s position.

The National Press Photographers Association would like to acknowledge the work of the following law students and former law students from the MFIA clinic:

• Sam Aber, Timur Akman-Duffy;
• Liza Anderson;
• John Brinkerhoff;
• Joe Burson;
• Elinor Case-Pethica;
• Rachel Cheong;
• Allison Douglas;
• Isabel Fahri;
• Meenu Krishan;
• Román Leal;
• Taylor Morris;
• Wendy Serra;
• David Stanton;
• Tim Tai; and
• Emily Wang.

Alicia Calzada can be reached at [email protected].

House Bill 912 – “Texas Privacy Act”

House Bill 912 is the bill which created the “Texas Privacy Act”, as approved by the Texas Legislature and the governor in 2013, which was ruled unconstitutional on Monday, March 28, 2022 by U.S. District Judge Robert Pitman of Austin.

A bill is a type of legislative measure that requires passage by both the Texas Senate and the Texas House of Representatives and action by the governor in order to become effective. A bill is the primary means used to create and change the laws of the state.

A bill analysis is document prepared for all bills and joint resolutions reported out of committee. A bill analysis may include background information on the measure, a statement of purpose or intent, and an analysis of the content of the measure.

After House Bill 912 became law, the House Research Organization – which is the nonpartisan research arm of the Texas House of Representatives, provided this detailed history of the bill at that time:

House Bill 912 makes it a class C misdemeanor to use an unmanned aircraft to capture or possess an image of an individual or privately owned real property in Texas with the intent to conduct surveillance on the individual or property captured in the image.

It is a class B misdemeanor to disclose, display, distribute, or otherwise use such an image. It is a defense to prosecution if a person destroyed an image or stopped disclosing, displaying, distributing, or otherwise using it as soon as the person had knowledge that it was captured in violation of the bill.

Exceptions

The bill does not apply to the manufacture, assembly, distribution, or sale of unmanned aircraft, and it enumerates several situations in which use of an unmanned aircraft is lawful. The bill makes exceptions for images captured:

• for professional or scholarly research for an institution of higher education;
• for certain federal uses, including use by the Federal Aviation Administration and U. S. military;
• by satellites for purposes of mapping;
• for certain electric or natural gas utility purposes;
• for certain law enforcement purposes;
• with the consent of the individual who owns or lawfully occupies the property captured;
• for certain emergency purposes, including hazardous materials spills, wildfire suppression, and to rescue a person in imminent danger;
• by a licensed real estate broker for business purposes if no individual is identifiable;
• within 25 miles of the U.S. border;
• from a height no more than eight feet above the ground in certain circumstances;
• of public property or a person on that property;
• by the owner or operator of a pipeline for certain purposes; or
• in connection with port authority surveillance and security.

Images captured in violation of the bill or incidentally to the lawful capture of images cannot be used as evidence in legal proceedings, except to prove a violation of the bill.

Such images also are not subject to disclosure under the Public Information Act nor to discovery, subpoena, or any other legal compulsion for their release.

Civil action

A person who was the subject of an image or who owned or legally occupied real property that was the subject of an image captured in violation of the bill may bring a civil action to:

• enjoin a violation or imminent violation of the bill;
• recover a civil penalty; or
• recover actual damages if the image was disclosed, displayed, or distributed with malice by the person who captured it.

The civil penalty is $5,000 for all images captured in a single episode or $10,000 for disclosure, display, distribution, or other use of images captured in a single episode in violation of the bill. Court costs and reasonable fees will be awarded to the prevailing party.

The statute of limitations is two years starting from the date the image was captured or initially disclosed, displayed, distributed, or otherwise used in violation of the bill.

Law enforcement use

The Texas Department of Public Safety (DPS) must adopt rules and guidelines for use of unmanned aircraft by law enforcement in Texas.

Certain law enforcement agencies must submit in each odd-numbered year a written report to the governor, lieutenant governor, and each member of the Legislature if they used unmanned aircraft in the previous 24 months.

The report must include certain information and data about how the law enforcement agency used the unmanned aircraft, how often they were used, the type of information acquired, and costs. The report must be available for public viewing.

Supporters said

House Bill 912 would update the law to ensure that privacy was protected as technology improves and the cost of surveillance decreases.

The use of unmanned aerial vehicles, or “drones,” is on the rise in the United States. These vehicles are designed to be small, quiet, and clandestine and are able to take high-resolution photographs and video, as well as record sound and detect infrared or ultraviolet light.

The bill would ensure that rules were established for the use of these vehicles before they became more prevalent and privacy violations became commonplace.

The bill would address photography only by drones.

The difference between drones and helicopters is significant.

Drones can fly low, are quiet, and can be nearly impossible to see unless a person is looking for them.

Helicopters and airplanes are noisy and difficult to miss, so a person over whom a helicopter flies would hear it and be on notice that someone could be surveilling or photographing them.

Speech, press, and legitimate business use

House Bill 912 would uphold the Bill of Rights.

It would ensure the protection of innocent civilians against illegal surveillance and would protect Fourth Amendment rights against illegal searches and the implied right to privacy.

The bill would provide a defense for a person who realized that the photographs taken were illegal and immediately destroyed them or stopped using them illegally.

By establishing prohibitions on the use of these vehicles for surveillance and monitoring, the bill would strike a balance between the right to privacy and the rights to free speech and a free press.

Journalists, filmmakers, photographers, those who use satellites, and others would be criminally or civilly liable under this law only if they were taking photographs for the purpose of surveillance. Other uses would continue to be legal.

Prosecution and law enforcement

The bill would not unduly prevent law enforcement from carrying out its duties.

The law enforcement exceptions are narrowly carved out in order to allow for legitimate law enforcement purposes while protecting the civil rights of the general public.

Opponents said

House Bill 912 could violate the Bill of Rights and impact free speech, free press, law enforcement, prosecutors, and many legitimate businesses.

It would criminalize a certain method of photography, while the kinds of photographs outlawed by this bill still could be taken, more expensively, in a helicopter or aircraft or from the top of a building.

There is no way to tell the difference between a photograph taken by an unmanned aircraft and one taken from a manned aircraft, so the bill needlessly would outlaw a cost-effective tool for taking aerial photographs.

Speech and press

The bill would hinder free speech and a free press.

Drones are becoming an increasingly practical and inexpensive way to take aerial photographs for newsgathering purposes. House Bill 912 would make it illegal for newspapers and media websites to collect these photos and to post or disseminate them.

Currently, when taking aerial photographs from a helicopter, press photographers take hundreds of photos on each helicopter pass. The bill would make each of those images if captured by an unmanned vehicle an individual offense, creating stiff criminal penalties for protected press activities.

Public photography is a protected speech exercise.

Not only would this bill restrict photography, it could effectively criminalize certain photographs based on their content, depending on whether they contained images of certain property or people. Content-based restrictions are constitutional only under the highest level of scrutiny.

This bill would not meet that standard and would infringe on an important First Amendment right.

Legitimate business use

House Bill 912 would hurt businesses.

Several industries use unmanned vehicles for legitimate photography purposes that would be outlawed by this bill.

For example, filmmakers use unmanned vehicles to take aerial video of a city’s skyline or of the crowds at a festival, such as South By Southwest in Austin.

House Bill 912 would have a chilling effect on these activities and discourage businesses, such as the film industry, from operating in Texas. At worst, the bill could criminalize innocent business people using the most efficient means to conduct their business.

Prosecution and law enforcement

Law enforcement employees would be forced to endanger themselves unnecessarily and spend more taxpayer money.

In certain circumstances law enforcement might have to send up manned aircraft to take the same pictures they now may take using an unmanned vehicle. This would be more costly and could place peace officers in harm’s way when an unmanned vehicle could perform the same job and capture the same images more efficiently and cost-effectively.

Other opponents said

House Bill 912 should provide for only civil liability for improper use of unmanned vehicles.

Criminal penalties are too extreme and civil liability would provide sufficient relief to those who had been wronged.

https://hro.house.texas.gov/pdf/focus/major83.pdf

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