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January 30. 2014 3:55PM

House bill would regulate government, private use of drone photography in NH

CONCORD -- The New Hampshire House's top privacy advocate is back with a second try in two years at regulating the use of aerial drone photography and broadcasts by government agencies and private individuals.

Rep. Neal Kurk, R-Weare, told the House Criminal Justice and Public Safety Committee Thursday drones are becoming increasingly prolific as they become less expensive. Many models available for private use cost as little as $50, he said, and either contain or are equipped to carry photographic or broadcast equipment.

It is time, Kurk said, for a clear statute that allows law enforcement officials to do their jobs and individuals to use drones and drone photography as long as they do not infringe on the privacy rights of Granite Staters.

After a similar bill was tabled last year, Kurk's House Bill 1620 would ban the use of drones by state, local or federal agencies unless:

- they are necessary to counter a "high risk" of a terrorist attack,

- the agency first obtains a search warrant based on probable cause,

- the use is for a "legally-recognized exception" to the search warrant requirement, or

- the government has a "reasonable suspicion" that quick action is needed to "prevent imminent harm to life or serious damage to property.

Drones are also allowable under the bill to prevent either the escape of a suspect or the "destruction of evidence."

Using a drone under those circumstances must be limited to 48 hours, and within 24 hours of the use of a drone, the government agency must report its use to the Attorney General's Office, which must post annual reports on drone use.

Except in those cases, government agencies must obtain prior written consent of the subject of drone surveillance. Private individuals photographing from a drone must receive written consent in all cases.

The bill forbids the use of any drone equipped with a weapon.

Anyone, including government employees or contractors, who violates the bill, should it become law, would be guilty of a class B felony. A government agency in violation would be subject to a civil penalty of up to $10,000.

Kurk clarified that the bill is not aimed at stopping private drone enthusiasts from using them in public places and unintentionally capturing the image of another person on the drone's camera.

His stressed that his bill forbids "surveillance," which is defined in the bill as "intentionally" monitoring or observing an individual or group of people, or "the interior of a building or structure."

He said the bill is also not intended to stop drone photography of public events, such as rallies, or even riots, or events generally considered newsworthy by news organizations.

However, the bill does forbid intentional surveillance even in public places.

Kurk said he has honed the bill to try to balance privacy rights with the First Amendment right of someone to take photograph. He noted that nine states currently have laws regulating the use of drones.

He also said the bill contains a "preemption" provision that recognizes the authority of the federal government to supersede state law in certain areas.

Although the bill regulates the use of drones by government entities, including the federal government, he said it recognizes federal authority, "so if the Federal Aviation Administration acts or Congress passes legislation that allows things to happens that would affect this bill, the federal law or rule would supersede the state law."

Kurk's bill earned the support of the New Hampshire Department of Safety.

"This new technology is no doubt coming," said Assistant Safety Commissioner Earl Sweeney. "We would not favor an outright ban on its use as it could be a valuable tool if used the right way."

Sweeney said that "at first glance, the bill makes enough of an effort to accommodate legitimate, constitutional law enforcement that we would not object to its passage."

Devon Chaffee, executive director of the New Hampshire Civil Liberties Union, called it "a very strong bill," but cited First Amendment problems regarding taking photographs by drone of individuals in public places.

Chaffee said taking photographs in a public place "is a form of expression covered by the First Amendment, and I'm not sure this bill gets at that issue. There are instances in which a person may be purposely taking a photo with a drone at a public vantage point.

"We do not support the bill as written because of First Amendment concerns," Chaffee said.

Jay Francis, a self-described model aircraft enthusiast from Merrimack, said the bill makes no allowance for photographing someone "where no reasonable expectation of privacy exists."

He asked how "intent will be determined" under the bill's definition of surveillance.

Francis said the bill, as written, infringes on his right to fly a model aircraft with cameras in public places. He said the bill is not necessary because existing state privacy laws address many of the issues covered by the bill.

Curtis Barry, lobbyist for the New Hampshire Association of Broadcasters, argued that the bill contains no protection for broadcast photographers doing their jobs in public places.

The committee also held a brief hearing on a separate bill that would regulate the use of drones only by government agencies.

House Bill 1361 would forbid the use of drones by a law enforcement agency without a search warrant or under the same exceptions and conditions outlined in Kurk's bill.

"Americas don't want snooping or spying going on," said the sponsor, Rep. Joe Duarte, R-Candia. "Americans are saying 'no' to drones."


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