Tuesday, August 19, 2014

The City of Phoenix is Making War on Camera Drone Pilots!


Will they be able to jail drone pilot Paul Huebl now?  
Phoenix, AZ—Two members of the City Council here are proposing an anti-drone ordinance that will make a criminal out of anyone using a drone within the city.

Let me disclose that I own and operate two camera drones like the one above and plan to use them in pursuit if gathering images and video for news. 
The proposed law requires that “written permission” be obtained in advance from anyone that might be photographed by a drone.  That would for example include some gardener mowing grass who might be photographed whether he is readily identifiable or not.  They are not talking about just close up pictures but any picture.
There is plenty of existing law that protects people’s privacy where people have a reasonable expectation of privacy.  That is inside a home or structure of some type.  That’s why millions of ordinary surveillance cameras are everywhere in America today. 
Singer and entertainer Barbara Streisand sued a photographer that dared to publish a photograph of her Malibu, CA beachfront home he shot from a helicopter for $10 million.  Needless to say despite the best lawyers her case failed and the photographer actually collected from her instead. 

Then there is the U.S. Supreme Court case, Florida v. Riley, 488 U.S. 445 (1989).  
Meaningless exemptions are made in the proposed law for artists and news people but that opens a Pandora’s Box to define what that might mean. 
Many would say I should not qualify for media exemption as a blogger!  Who or what is an artist? What if some cop decides your “art work” sucks and can get a jury to agree that you’re no artist? Sheriff Joe’s Tent City awaits your confinement!
In fairness to the two councilmen behind this mess somehow were under the mistaken impression that existing privacy laws did not cover aerial photography. 
They also need to recognize that any other criminal mischief involving a drone is already covered.  An aide gave me an example where she suggested that a drone could be used as a look out or to case property to be burglarized.  She was dead wrong.
In every state a drone put to such use would be considered a burglary tool bringing forth an additional felony charge in addition to the original burglary complaint.
There are also stalking laws that prevent criminals from using any means to victimize people.  The use of a drone by a stalker would surly bring maximum punishment in any court.
Obviously those doing the same thing with Google Earth, helicopters or fixed wing aircraft can take all the pictures of people they want in Phoenix.  After all these days we love double standard justice in America! 
The draft ordinance is subject to debate and public comment.  I suspect that anything that actually passes may be a lot different than the current proposal. 
Perhaps an E-Mail or phone call to the Mayor or members of the Phoenix City Council might get their needed attention https://www.phoenix.gov/mayorcouncil
Below is the proposed ordinance:
DRAFT Unmanned Aircraft Regulations
Definitions

1.  Unmanned Aircraft System (“UAS”) means an unmanned aircraft vehicle, drone, remotely piloted vehicles, or remotely piloted aircraft that does not carry a human operator.
Offenses:
1.  A person commits an offense if the person uses an unmanned aircraft to photograph, film, audiotape, or otherwise record an individual or individuals acting on private property without the expressed, written consent of the property owner and the individuals included in the recording.
a.  An offense under this section is a Class 1 misdemeanor
b.  It is a defense to prosecution under this section that the person destroyed all photographs, films, audiotapes, and other records:
                                            i.     As soon as the person had knowledge that the image was captured in violation of this section;
                                         ii.     Without disclosing, displaying, or distributing the image to a third party;
                                      iii.     The recordings did not include
1.  Children; or
2.  Sexual acts or nudity.
2.  A person commits an offense if the person makes a recording in violation of Section 1 and discloses, displays, distributes, sells, or otherwise uses that image
a.  An offense under this section is a Class 1 misdemeanor
b.  Each image a person discloses, displays, distributes, or sells under this section is a separate offense
3.  A person commits an offense if he outfits an unmanned aircraft system with a weapon and flies that unmanned aircraft over the private property of another individual or entity without expressed, written permission
a.  An offense under this section is a Class 1 misdemeanor
Nonapplicability
1. It is lawful to use an unmanned aircraft within the City of Phoenix to photograph, film, audiotape, or otherwise record an individual or individuals acting on private property
a. if the recording is captured for the purpose of mapping;
b. if the recording is captured by the City or Phoenix or an individual or entity under contract with the City of Phoenix for the purposes of resource management;
c. if the recording is made for the operation and maintenance of utilities or telecommunication facilities for the purpose of maintaining the reliability and integrity of the utility or telecommunication system or to determine if repairs to the system are necessary;
d. if law enforcement is using the unmanned aircraft system to execute a valid search warrant;
e. if law enforcement is acting under circumstances in which an exception to the warrant requirement is applicable;
f. if law enforcement is using the unmanned aircraft system to document a crime scene where a felony offense has been committed; or
g. if law enforcement is conducting a search for a missing or abducted person.
h. if the recording is made over several private residences for an artistic or journalistic purpose and no individuals captured on the recording are personally identifiable

Will I have to challenge this here?

5 comments:

Anthony Ramos said...

Who do we start talking to?

Anonymous said...

This is just wrong, we need to band together and end this unfair bill and educate the city on the positive aspects of UAV's

Anonymous said...

I sent one of the sponsers on the council the following:

I read about your proposed ordinance governing the use of drones.

I am a drone user myself and would like to provide some input on the proposed ordinance as presented in the Arizona Central.

If you are on private property, and are plainly visible from public property (including the airspace above the property, which is a public right-of-way), you have no "reasonable expectation of privacy" in the legal sense.

There is the possibility that you will be legally photographed, in an identifiable way. It makes no difference if you are alone or not.

The US Supreme Court has already ruled that there is no reasonable expectation of privacy from the air, even in your gated backyard. (See Florida vs Riley)

Prohibiting a drone user from filming someone plainly visible on private property, from public property, infringes on the photographer's Constitutionally protected right to Free Expression (First Amendment).

If you do not want your family members to be seen in your backyard, put a tent over it. Activity in which a drone user attempts to circumnavigate the tent should be, and most probably already is in Az, against the law.

Any ordinance discriminating against the drone user, while allowing anyone willing to rent a full-scale aircraft to fly over a house taking pictures with impunity, will not pass Constitutional muster in court. It will be struck down.

I believe in a robust defense of Privacy Rights, but not at the expense of Free Expression. There must be a balance.

The simplest language required to protect privacy, while leaving the least restrictive environment in place for UAV's would say something like:

"Using a UAV to capture images and/or audio of someone in violation of that person's "reasonable expectation of privacy" is prohibited."

This language gives the court leeway to judge appropriately as different case circumstances present themselves.

The language protects privacy when privacy should be guaranteed. The language will stand up to challenges in court.

I would like to hear your take on my thoughts. Please reply.

Very Respectfully,

Crimefile said...

Florida v. Riley, 488 U.S. 445 (1989) This was a case about a marijuana cultivation and distribution discovered by what police officers saw in plain sight from 400 feet above in a helicopter.

The Supreme Court held that Riley had no reasonable expetation of privacy from the air above. The officers obtained a search warrant for the property based on what they observed from the sky. Evidence was seized and Riley was convicted.

This case really made it clear that obvservation from the air is proper and lawful activity

Anonymous said...

Just now saw this (old) story. What a waste of resources. The FAA has clear jurisdiction over anything in the air. The City would not be able to enforce this.

(That said, everyone operating commercial drones right now are doing so illegally if they do not have an FAA waiver)