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?

Professional Quadcopter Pilot/Photographers Dealing with the FAA Regulations and Local Authorities.

The FAA has arbitrarily ruled that “commercial” use of drones or unmanned aircraft vehicles (UAV’s) is prohibited.  The use of these amazing devices by hobbyists of course is perfectly legal until a UAV pilot earns a single dime.  Then the FAA will investigate and fine the offending party $10,000.00.  Of course the accused pilot has a right to a court hearing on the matter and evidence must be presented.  The pilot can then properly challenge whatever evidence the FAA offers up.

So far the FAA’s only known case against a UAV photographer/pilot ever to see a courtroom failed.  On or about October 17, 2011 Raphael Pirker of Zurich, Switzerland was commercially operating his UAV over the University of Virginia. He was paid to gather video by a communications company.

Pirker was also accused of flying the UAV at extremely low altitudes.  The FAA claimed he operated his drone recklessly.  Accordingly the FAA issued a civil penalty of $10,000.00 against Pirker.  In court however, the judge’s ruling held that the FAA did not follow the law when they promulgated the UAV regulations.

In Denver, CO on March 6th 2014 Federal Judge Patrick G. Geraghty reversed the FAA’s action against Pirker and that nasty fine.  The judge also ruled that the FAA has no authority over small, unmanned aircraft. 

At this stage the FAA has appealed the ruling and won a stay of the Judge Geraghty’s order pending further review in the U.S. Court of Appeals.   That means the FAA can continue their reign of regulatory terror against commercial drone users until the outcome of that appeal.   If you are fined by the FAA chances are that the fine could be reversed later.

As a UAV pilot you need to understand your rights.  If you do the FAA will have a very difficult time going after you.  First and foremost the FAA does not have the resources or manpower needed to chase thousands of UAV pilots.  They can barely take care of their real business.   They simply don’t have the funds to regulate the UAV pilots.

If a UAV pilot causes injury or significant property damage the FAA will definitely get involved if they are notified.  If the FAA for any reason contacts a suspected UAV pilot you need to know your rights and just how to respond.   You can actually shut down their investigative efforts simply by shutting your own mouth.

This is still America and there is still a Fifth Amendment against self-incrimination and all you have to do is use it!  When ANY government official asks you questions about a UAV you may or may not be involved with you simply tell that agent or cop, “I want a lawyer”.   Do not answer questions.  Do not make excuses and do not tell lies.  SAY NOTHING AT ALL!

Local police may be involved initially and the same holds true for them.  “I want a lawyer”, should never be too difficult to remember.  Should they try to invite you into an interview or interrogation room simply refuse restating you’re not talking to anyone without a lawyer present.  The FAA would love to have a police video recording of you telling them who hired you and that you were the actual paid UAV pilot.

The FAA has to prove that you were using that UAV for a commercial purpose.  They have to positively know who hired you.  They have to also prove that you were paid or expected payment by way of an offer or actual payment.   Of course you could help the FAA by admitting whom you contracted with and for how much.  That will seal your fate and get you ready to write the FAA a big check.

If your client is a news organization they can be counted upon to instantly shut down any inquiry involving a news source.  If you have provided them with aerial video, that automatically makes you their news source.  They will fight any and all subpoenas and the various shield laws probably will protect you from exposure.

If the FAA somehow becomes aware you made a video for a paying client they will begin by asking that client who made it and how much was paid.  If it’s not a news organization they will rat you out in a second.  But that information is really not enough to withstand a court hearing.  That’s mostly hearsay evidence that we ban in our courtrooms.

They absolutely will need a witness/s that will testify that they saw you, contract with the client and actually pilot the UAV. 

As for the FAA chasing the little guys shooting video for news organizations, real estate outfits, entertainment projects or weddings.  Each investigation by the FAA will cost them more to conduct each investigation than any fine they’d ever hope to collect.  It’s just not practical unless of course you help the FAA make the case against you by blabbing to them.  

If you’re trying to pay your rent or grocery bill with your camera armed UAV, go ahead and do it.   Always fly safely.   Practicing first in wide-open and uninhabited spaces is an absolute must before you can learn to make a watchable video anyway.  You should have a minimum of 25 or 30 failure free flights behind you before you consider yourself ready to take on paying video assignments. 

The current terrific cameras like the $400.00 GoPro must stay somewhat close to the ground for the best-detailed images.  The FAA’s current 400 Foot limit is more than enough altitude for you to work with.   Helicopter news crews operate above 400 feet but they are using special lenses on their cameras that cost well into tens of thousands of dollars. 

As for the future the FAA has put UAV regulation on the fast track and will have some rules out soon.   I fully expect they will be far more reasonable than the current commercial use ban.  

State and local government lawmakers will quickly get involved now too.  UAV operators will quickly need to hire professional lobbyists to appear before lawmakers to oppose bans and other severe restrictions.  We always seem to elect really ignorant people to or legislatures and city councils.   They run government by knee jerk.