Drone Law Loophole Leaves out RGV

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WESLACO - If you think your privacy is secure and protected in your backyard, think again. Drones are creating new concerns. The small flying, remote-controlled unmanned aircrafts are often equipped with video cameras.

The cameras can record you anywhere, without your knowledge or consent, even on your own property. They can rise up and float down streets undetected, recording everything.

A remote-controlled drone with a mini video camera is an important tool for private investigator Raul Reyna. He uses a drone that reaches up to approximately 400 feet.

“These are specifically for cheating spouse cases,” he told us.

Reyna can now see places that used to be hidden from his view, such as a gated community.

Cameron County District Attorney Luis Saenz said technology has evolved quicker than the law.

“How far does your property rights go up in the sky... Obviously you and I do not own up in the sky towards infinity,” said Saenz. “There has to be a boundary. What if the drone is above that boundary?”

The Cameron County district attorney said the issue will probably end up before the U.S. Supreme Court.

Reyna said, “Nobody owns the air.”

The private investigator intends to keep using drones to get video of cheating spouses. He added he doesn’t have concerns about using a drone to record someone’s backyard.

“If they have a pool in the backyard and the subjects are out in the backyard, I see no problem with shooting videotapes of them in the backyard or in the pool area,” he told us.

As Reyna's operator flew the drone down a McAllen street recently, it buzzed close to Domingo Arredondo's house.

“I wouldn't like it filming any part of our life,” said the homeowner. “I don't think it's right. It shouldn't be legal. I don't know if it is or not.”

Texas lawmakers passed a law regulating drones in 2013. A law protects people from having drones spy on them, but most Rio Grande Valley residents are excluded from that law.

The law refers to drones as unmanned aircraft. It states it’s illegal “to capture an image of an individual or privately owned real property with the intent to conduct surveillance on the individual or property..."

The law contains a section of what's called “nonapplicability,” which includes several exceptions to the law.

Subsection 14 states it is lawful to capture an image using an unmanned aircraft "of real property or a person on real property that is within 25 miles of the United States border."

That means all the privacy protections of this law don’t apply if you live within 25 miles of the border. That includes most of the Rio Grande Valley.

The history of the bill shows the 25-mile rule was meant to apply to the capturing of images by law enforcement only, not private individuals. The legislature made an error while writing the law.

State Senator Craig Estes of Wichita Falls admitted, "We just missed that."

Lawmakers meant to fix the mistake in another session after the bill passed, but they never did.

CHANNEL 5 NEWS showed the law's border loophole to the Cameron County district attorney. He said the exception would not stop him from prosecuting a case.

“My assertion would be that all the citizens of the United States, of the state of Texas, Cameron County are entitled to legal protection,” Saenz told us. “So you should not be devoid of that protection simply because you live within 25 miles (of the border).”

CHANNEL 5 NEWS also pointed out the loophole to State Representative Armando Martinez of Weslaco.

He said, “I have three children of my own and don't want somebody just flying a drone over my backyard and taking pictures of my children and using them for whatever reason. That is very disturbing.”

The state representative told CHANNEL 5 NEWS he plans to introduce legislation to address the issue in the next legislative session.

“I'm really happy that you brought it up to our attention,” said Martinez. “I think it's something that needs to be changed.”

State lawmakers do not meet again until 2017. That means if you're in the Rio Grande Valley, you have at least two more years of keeping your eyes pointed skyward, watching out for who's watching you.

In the parts of Texas where drone privacy laws do apply, violations are a Class C misdemeanor. That’s the least serious type of offense, similar to a traffic ticket.

The law does provide for civil penalties of up to $10,000 per violation.

The federal government is still working on final regulations for the commercial use of drones.

Link: Federal Aviation Administration: Interpretation of the Special Rule for Model Aircraft

Link: FAA: Unmanned Aircraft Systems—Frequently Asked Questions

Link: FAA: Fact Sheet–Unmanned Aircraft Systems