Journalists are vulnerable from Texas anti-drone law, NPPA lawyer says

Guy Reynolds of the Dallas Morning News testifies before Texas lawmakers about the effect anti-drone legislation would have on journalists. Photo by Alicia Calzada, NPPA. 

Guy Reynolds of the Dallas Morning News testifies before Texas lawmakers about the effect anti-drone legislation would have on journalists. Photo by Alicia Calzada, NPPA. 

Since Texas' anti-drone laws came into effect the first of this month, there's been renewed attention into what these rules mean for journalists.

HB 912, signed by Governor Rick Perry on June 14 (pdf), made taking a photo of private property "with the intent to conduct surveillance", without the owner's consent, a class C misdemeanor with a maximum fine of $500.

Distributing that photo is now a class B misdemeanor, punishable by up to $2,000 and 180 days in jail. The law also opens the door for civil lawsuits, which could top out at $50,000.

Alicia Wagner Calzada is an attorney and past president for the National Press Photographers Association (NPPA), who spoke against the legislation at the Texas House Committee on Criminal Jurisprudence. In an email to DroneJournalism.org, she said the law doesn't protect journalists from fines or jail time, because it doesn't differentiate between surveillance and journalism.

"I don't believe that the law contains a line that separates 'surveillance' from investigative journalism and that was one of our primary concern with the bill before it was passed," Calzada wrote. "There is no definition of 'surveillance' in the bill. When a bill does not define a term, the ordinary meaning is given."

When laws don't define a term, courts use the ordinary meaning of the word, she wrote. Black's Law Dictionary, for example, says that surveillance is a "close observation or listening of a person or place in the hope of gathering evidence."

"I would submit that a good portion of what photojournalists do is closely observe and carefully watch," Calzada wrote.

Lance Gooden, the Republican state representative who introduced the bill, told the Associated Press that the law wouldn't affect journalists. The House Research Organization also came to the same conclusion, so long as journalists aren't conducting "surveillance."

Guy Reynolds, a photo editor at the Dallas Morning News, who once waited 16 hours to testify against the legislation before the Texas House Committee on Criminal Jurisprudence, pointed out there's no such protection for journalists under the law.

"That's the first I've heard of this so-called shield for journalistic usage of UAVs," he wrote in an email to DroneJournalism.org

The law could have a chilling effect for journalists in Texas who intend to use unmanned aircraft systems, commonly called drone, for reporting and investigative journalism. But whatever that effect may be, seems to be tempered by the learning curve and federal regulations surrounding this technology, which makes it difficult for newsrooms to adopt drones in the first place.

"As far as how it's going to affect us, I can't really say because we still don't even have one," Reynolds wrote, who added that the Dallas Morning News experimented with a small drone, but found it difficult to manage.

For the time being, the newspaper will stick to the practice of renting a helicopter when aerial photos are needed. That might change in the future, especially since the price point of small unmanned systems is attractive for cash-crunched newspapers, which makes the Texas law troublesome for journalists in the long-term.

"My guess is that a drone could be used in certain instances to get the same type of images [that a helicopter can obtain] and that's where the concern with the legislation lies." Reynolds wrote. "It would be considerably less expensive than flying and these days we watch every dime."

Calzada agrees that journalists are not as protected from this law as lawmakers are proclaiming.

"I understand that Gooden was quoted as saying that the law wouldn’t affect journalists because covering news doesn’t meet the definition of surveillance," she wrote. "However, I think that is disingenuous because the term surveillance is not defined in the law, as noted above."

She added that had the option to exempt journalists from the law, but declined to do so. A proposed amendment to HB 912 would exclude images taken "by a radio or television station licensed by the Federal Communications Commission, a newspaper of general circulation published in Texas, or another bona fide news organization."

This amendment would only protect journalists if the image was taken for news-gathering purposes, taken in a place where people do not have a reasonable expectation of privacy.

Interestingly, this amendment also would have required that journalists take steps to make their aircraft visible from the ground, and make the owner or operator identifiable. The law only would have exempted unmanned aircraft "at least 10 feet in length" and would have required the drone be "affixed with lights or reflective markings indicating the aircraft's owner." (pdf, p.17-18)

The amendment was removed before final passage.