Texas drone laws tested in U.S. 5th Circuit Court of Appeals

Background

The U.S. 5th Circuit Court of Appeals recently ruled on a case from a district court in Texas which sought to limit enforcement by the state of certain provisions of Texas drone laws on constitutional grounds. The appeal case was brought before the court by plaintiffs that included a journalist and two associations that represent visual journalists, including news photographers. In its original opinion filed October 23, 2023 and amended opinion filed January 10, 2024 the court upheld the constitutionality of the laws and the state’s right to enforce them.

Plaintiff's claims

The plaintiffs claimed that specific provisions of Texas Government Code Chapter 423 (the Texas drone laws), dubbed the “Surveillance” and “No-Fly” provisions, violate their constitutional rights, and asserted a right to film private individuals and property without consent as “free speech” that is protected under the constitution. They further claimed a right to fly drones at low altitudes over critical infrastructure, also as a “free speech” right protected by the First Amendment.

Surveillance provisions of Texas drone laws

The Surveillance provisions of the law (423.003) make it illegal in Texas to “capture an image” of someone on private property with the intent to surveil the subject, and exposes violators to potential liability in civil suits. The Surveillance provisions state:

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.

While on its surface this case is about capturing images, it should be noted that Texas drone laws define an “image” as:

any capturing of sound waves, thermal, infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions existing on or about real property in this state or an individual located on that property.

No-Fly provisions of Texas drone laws

The No-Fly provisions of the law (423.0045) make it unlawful to operate a drone over critical infrastructure such as petroleum refineries, water or wastewater treatment plants, LNG terminals or storage facilities, ports, rail yards, trucking terminals, and other freight transportation facilities, but only if they are:

completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property, are reasonably likely to come to the attention of intruders, and indicate that entry is forbidden

Exceptions to Texas drone laws

There are twenty-one exceptions identified in section 423.002 of the Texas drone laws wherein the laws do not apply. Among them are exceptions for academic research, law enforcement, and military operations. But there are also exceptions for some commercial operations and, perhaps predictably, when operating with the consent of the individual who owns or lawfully occupies the property captured in the image. Among the exceptions are the following which may be of interest to industrial operators working around or in connection with critical infrastructure. Under these exceptions, it is lawful in Texas to capture an image using an unmanned aircraft:

• at the scene of a spill, or suspected spill, of hazardous materials
• for the purpose of fire suppression
• for the purpose of rescuing a person whose life or well-being is in imminent danger
• if the image is captured by the owner or operator of an oil, gas, water, or other pipeline for the purpose of inspecting, maintaining, or repairing pipelines or other related facilities, and is captured without the intent to conduct surveillance
• in connection with oil pipeline safety
• in connection with port authority surveillance and security
• if the image is captured by a registered professional land surveyor in connection with the practice of professional surveying (provided that no individual is identifiable in the image)
• if the image is captured by a professional licensed engineer in connection with the practice of engineering (provided that no individual is identifiable in the image)
• if the image is captured by an employee of an insurance company or of an affiliate of the company in connection with the underwriting of an insurance policy, or the rating or adjusting of an insurance claim, regarding real property or a structure on real property AND the operator of the UAS is authorized by the FAA to conduct operations within the airspace from which the image is captured.

Findings of the 5th Circuit Court

In its consideration of the facts, the 5th Circuit Court found that the plaintiff’s very broad application of the First Amendment to their claims amounted to claiming “an unqualified First Amendment right to conduct aerial surveillance on non-consenting private individuals on private property, and a First Amendment right to fly drones at low altitudes directly over critical infrastructure.” The court disagreed with such broad interpretation, but emphasized that there may yet be future challenges wherein a particular enforcement of the Texas drone laws could violate free speech or fairness principles.

So, while the district court’s order would have prevented the defendants from enforcing Chapter 423 (the Texas drone laws) on both First Amendment and Due Process grounds, the appellate court instead set aside most of the previous court’s order and instructed the district court to dismiss the Plaintiffs’ First Amendment claims. The 5th Circuit Court also affirmed and upheld the lower court’s dismissal of Plaintiffs’ claims that federal law preempts state laws in matters of aviation safety.

In short, the 5th Circuit Court has ruled that the Texas drone laws do not violate constitutional “free speech” rights, and has upheld the rights of the State of Texas to enforce them.

Disclaimer: The foregoing content is a summary of the case brought before the 5th Circuit Court as offered from the perspective of a drone industry professional. Readers needing legal advice on the foregoing matters are encouraged to seek counsel from qualified legal experts.