Government paranoia about “critical infrastructure” will now be extended to drone photography, if New Jersey’s proposed legislation is any indication. While law enforcement agencies are still weighing the Fourth Amendment implications of surveillance drones, some local governments are moving ahead with plans to shortchange the First Amendment.

This new legislation makes it a criminal offense to use a drone to take a photograph of “critical infrastructure.” And what is “critical infrastructure”? Any “asset” whose incapacity—even partial incapacity—would have an impact on the physical or economic security, or public health or safety, of the state. This specifically includes highways, waste treatment facilities, bridges, tunnels, and more.

This proposal would codify something many public employees (especially those in law enforcement/security agencies) already mistakenly believe: that photography of public structures is illegal and probably has something to do with terrorism. Even if the structure is already completely viewable with the naked eye, can be viewed via satellite photography and has been the subject of multiple official photo releases, people with cameras around certain structures are considered inherently suspicious. Now, this misguided “security” concern is being extended to eyes in the sky, something the government seems to believe should be in the possession of government agencies only.

The proposed penalties for violations are fairly severe.

Specifically, this bill makes it a fourth degree crime for a person to use a civilian unmanned aerial vehicle, commonly referred to as a drone, to conduct surveillance of, gather evidence or collect information or data about, or photographically or electronically record any critical infrastructure without the prior written consent of the entity that owns or operates the critical infrastructure. A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both.

On top of that, the legislation would help the state build a list of “usual suspects.”

The bill also prohibits a person from operating a civilian drone unless it is registered with the Division of Aeronautics in the Department of Transportation. In addition, a person is prohibited from operating a civilian drone unless the person maintains liability insurance coverage to insure against loss resulting from liability for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of the drone. The required minimum coverage is to be in an amount determined by the Commissioner of Banking and Insurance in consultation with the Commissioner of Transportation.

A person who operates a civilian drone without the required registration or insurance is subject to a civil penalty of not less than $1,000 for a first offense and not less than $5,000 for a second or subsequent offense. In addition, for a second or subsequent offense, a person’s civilian drone registration is to be revoked for a period of two years.

So, while law enforcement agencies argue that aerial surveillance has minimal Fourth Amendment impact because public places have a lowered expectation of privacy, they’re also supporting legislation that would grant public structures more protection than a member of the public’s fenced-in backyard. Of course, the Fourth Amendment only deals with privacy. This legislative push concerns security — something that tends to receive higher priority than Constitutional rights.

Then there’s the inherent stupidity of carving out a drone-specific ban. People with regular cameras (or cell phones) will still be able to photograph these structures, as will aerial photographers in planes and helicopters. It’s a very specific paranoia — one limited solely to new tech that’s currently subject to very little government control.

And that’s really what this is all about. Lawmakers have (civilian) drone fever and the only cure is more cowbell legislation. Those pesky men (and women) and their flying machines are harming the nation’s security somehow with their democratization of aerial photography. These legislators obviously feel the only entity that should have full access to the skies and everything below is the government. And if the First Amendment has to suffer some cutbacks, so be it.


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