Regulations on Images Captured by Drones

by Sydney P. Sadler

In 2013, the Texas Legislature enacted Chapter 423 of the Texas Government Code, which governs the operation of unmanned aerial vehicles—drones—in Texas’s airspace (the “Drone Laws”). Tex. Gov’t Code § 423.001, et. seq. After enactment, the Drone Laws were challenged in federal court, and the district court found that they violated the First Amendment, placing the validity and enforcement of the law in question for several years. However, the Fifth Circuit resolved the question this past October, finding that the law does not violate the First Amendment and is enforceable. Nat’l Press Photographers Ass’n v. McCraw, 84 F.4th 632 (5th Cir. 2023). LG clients should be aware and cautious of the various rules, exceptions, and ramifications that apply to the capture of private property images via drone under the Drone Laws.

Under Section 423.003(a), a person commits an offense if the person uses a drone 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). A person also commits an offense if they not only capture an image via drone, but also if they possess, disclose, display, distribute, or use that image. Tex. Gov’t Code § 423.004.

In practice, the Drone Laws cover an incredibly broad range of actions related to drone images. For instance, even incidental capture of private property via a drone image violates the Drone Laws. Tex. Gov’t Code § 423.005(a). Furthermore, the Drone Laws prohibit capturing an image via drone “with the intent to conduct surveillance.” Id. at § 423.003(a).

Neither the Drone Laws nor case law define the parameters of what actions constitute “surveillance.” In a district court opinion that has since been reversed on other grounds, the court acknowledged that the term “surveillance” was unconstitutionally vague. Nat’l Press Photographers Ass’n v. McCraw, 594 F. Supp. 3d 789, 810 (W.D. Tex. 2022), rev’d and remanded, 84 F.4th 632 (5th Cir. 2023) (“But without knowing what constitutes surveillance it is impossible to know whether one’s intention constitutes that prohibited activity.”). The Fifth Circuit declined to offer any clarification, instead finding that the vagueness concern was “a mere hypothetical dispute.” McCraw, 84 F.4th at 644. Without a specific definition of “surveillance,” clients should be wary of capturing or using drone images that do not fall within one of the statutory exceptions.

In light of the broad range of actions that may constitute a violation of the Drone Laws, the ramifications for a violation are specific and could jeopardize clients’ business and proceedings in three ways. First, a violation of the Drone Laws is treated as a Class B or Class C misdemeanor, although prosecution of such violations appears to be rare. Tex. Gov’t Code § 423.004(b); see McCraw, 84 F.4th at 642 (stating that the Hays County district attorney’s office had initiated just one prosecution for a Drone Laws violation in which a private individual surreptitiously photographed his neighbor). Second, in a civil action, a private real property owner may obtain the following from a party who violates the Drone Laws: (1) an injunction; (2) $5,000 for all images captured in a single episode or $10,000 if those images are disclosed, displayed, distributed or used; (3) actual damages; and (4) court costs and reasonable attorney’s fees. Tex. Gov’t Code 423.006. Third, illegally obtained images from a drone may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding. Tex. Gov’t Code § 423.005. Such images are also not subject to disclosure, inspection, or copying under Chapter 552 of the Texas Government Code (public information), and are not subject to discovery, subpoena, or other means of legal compulsion for their release. Id.

On the positive side, there are over twenty exceptions to the Drone Laws that insulate many common-sense and important uses of drone images from the above-mentioned ramifications. See Tex. Gov’t Code 423.002(a), et seq. Below are a few exceptions that are most relevant to LG’s clients.

First, there is no violation of the Drone Laws if the person taking the drone images receives consent to do so from the private property owner. Id. at § 423.002(a)(6). Other permitted actions include capturing drone images of public real property or a person on that property or from no more than eight feet above ground level in a public place. Id. at § 423.002(a)(14–15).

Electric or natural gas utilities or telecommunications providers may capture and use drone images for: (a) operating and maintenance of facilities for system reliability and integrity; (b) inspecting facilities for repair, maintenance, or replacement needs during and after construction of such facilities; (c) assessing vegetation growth for the purpose of maintaining clearances or easements; and (d) facility routing and siting for the purpose of providing the respective service. Id. at § 423.002(a)(5). Drone images may be taken at the scene of a spill, or a suspected spill, of hazardous materials. Id. at § 423.002(a)(10).

Registered professional land surveyors and licensed professional engineers may capture drone images in connection with their practice provided that no individual is identifiable. Id. at § 423.002(a)(19–20).

Law enforcement is allowed to conduct aerial surveillance using drones in a variety of situations relevant to public safety. Id. at § 423.002(a)(8–9).

In a world that is exceedingly geared toward using innovative technologies, navigating whether drone images may violate the Drone Laws can be daunting—especially in light of the statutory damages permitted to aggrieved private landowners. Before capturing images via a drone, clients should review the exceptions found in Section 423.002 of the Drone Laws. Clients are likewise welcome to reach out to the Litigation Practice Group for further clarification on the Drone Laws and the potential applicability and risks in any particular situation in which capturing drone images may be useful.

Sydney Sadler is an Associate in the Firm’s Litigation Practice Group. If you have any questions or would like additional information related to this article or other matters, please contact Sydney at 512.322.5856 or ssadler@lglawfirm.com.