Revision: April 29, 2016, midnight\t \t\t
HB 602-FN - AS AMENDED BY THE SENATE
COMMITTEE:\tExecutive Departments and Administration
\tThis bill regulates the use of drones by government agencies and individuals and establishes criminal penalties and civil remedies for violations of the law. This bill also prohibits, with certain exceptions, a person from flying a drone above a state or county correctional facility or a municipal jail.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT\trelative to the use of drones.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t422-D:1 Definitions. In this chapter:
\t\tI. “Airspace” means the space above the ground in New Hampshire.
\t\tII. “Automated surveillance” means surveillance employing a mechanical or electronic device, computer or software, including but not limited to facial recognition technology, that functions continuously without continuous input from a human operator.
\t\tIII. “Commercial purpose” means to exchange for money, goods or services or to exchange with the intention of directly or indirectly benefiting any business or other undertaking intended for profit.
\t\tIV. “Critical infrastructure” means a petroleum or chemical production, transportation, storage or processing facility; a chemical manufacturing facility; a pipeline and any appurtenance thereto; a wastewater treatment facility; a water treatment facility; a power generating station, plant or substation and any appurtenance thereto; a telecommunications central switching office; a flood control, hydroelectric power generation or water supply dam or reservoir; a county, city, or town jail or detention facility, police station or fire station; and any prison, facility, or institution under the control of the department of corrections. The term shall not include any facility or infrastructure of a utility that is located underground.
\t\tV. “Drone” means a powered, aerial vehicle, excluding a geosynchronous satellite, that:
\t\t\t(a) Does not carry a human operator;
\t\t\t(b) Uses aerodynamic forces to provide vehicle lift;
\t\t\t(c) Can fly autonomously or be piloted remotely; and
\t\t\t(d) May be expendable or recoverable.
\t\tVI. “Government” means the federal government, the state government and any political subdivisions thereof, and state and municipal agencies and departments, including employees and agents.
\t\tVII. “Image” means a record, including a photograph, of thermal, infrared, ultraviolet, visible light, or other electromagnetic waves; sound waves; odors; or other physical phenomena which captures conditions existing on or about real property or an individual located on that property.
\t\tVIII. “Imaging device” means a mechanical, digital, or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument, equipment, or format capable of recording, storing, or transmitting an image.
\t\tIX. “Individual” means a living human being.
\t\tX. “Information” means any evidence, images, sounds, or data gathered by a drone.
\t\tXI. “Law enforcement agency” means a lawfully established state, county, or municipal agency that is responsible for the prevention and detection of crime, local government code enforcement, and the enforcement of the criminal laws.
\t\tXII. “Law enforcement officer” means a duly sworn employee of a law enforcement agency who is invested with the power of arrest or the detection of crime.
\t\tXIII. “Person” means individuals, partnerships, limited liability companies, corporations and any other organizations, including for-profit and not-for-profit entities, but excluding government.
\t\tXIV. “Surveillance” means the willful act of tracking or following, while photographing, taking images of, listening to, or making a recording of:
\t\t\t(a) A recognizable individual or a group of individuals, including their movements, activities or communications; or
\t\t\t(b) Motor vehicles identifiable by their license plates.
The term does not include such activities on real estate in which a person has a legal interest.
\t422-D:2 Government Use of Drones Limited; Exceptions.
\t\tI. Except as provided in paragraph II:
\t\t\t(a) No government shall use a drone, or obtain, receive, use, or retain information acquired by or through a drone, to engage in surveillance, to acquire evidence, or to enforce laws;
\t\t\t(b) No government shall use a drone equipped with an imaging device to record an image of an identifiable individual on privately-owned real property in violation of such individual’s reasonable expectation of privacy without his or her consent. For purposes of this subparagraph, an individual is presumed to have a reasonable expectation of privacy on privately-owned real property if he or she:
\t\t\t\t (1) Is within an enclosed structure; or
\t\t\t\t (2) Is not observable by individuals located at ground level in a public place where they have a legal right to be, regardless of whether he or she is observable from the air; and
\t\t\t(c) No government shall operate a drone at a height of less than 250 feet over privately-owned real property unless it has the consent of its owner.
\t\tII.(a) Notwithstanding the provisions of paragraph I, a government may use a drone, or obtain, receive, use or retain information acquired by or through a drone, for law enforcement purposes under the following conditions only:
\t\t\t\t(1) If surveillance is undertaken, with the prior consent of the person who is the subject of surveillance and the owner or lessee of the property which is the subject of the surveillance.
\t\t\t\t(2) If a government first obtains a search warrant signed by a judge and based on probable cause or the use of a drone is pursuant to a legally-recognized exception to the warrant requirement. A search warrant authorizing the use of a drone shall specify the period for which operation of the drone is authorized, which period shall not exceed 10 days unless subsequently renewed by a judge.
\t\t\t\t(3) If a government possesses reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent harm to life or serious damage to property, or to forestall the imminent escape of a suspect, or the destruction of evidence, or to assist in locating missing, abducted or lost individuals, hunters or hikers, or to rescue persons in natural disasters, injured persons or persons in need of medical assistance.
\t\t\t\t(4) To counter a high risk of a terrorist attack or incident by a specific individual or organization which the United States Department of Homeland Security determines that credible intelligence indicates that there is such a risk.
\t\t\t\t(5) To increase situational awareness in understanding the nature, scale, and scope of an incident which has occurred and for planning and coordinating an effective and legal response, provided the incident is limited geographically and in time.
\t\t\t\t(6) To support the tactical deployment of law enforcement personnel and equipment in emergency situations.
\t\t\t\t(7) To document a specific crime scene, traffic crash scene or other major incident scene, such as a disaster caused by natural or human activity, provided such documentation is conducted in a geographically confined and time-limited manner.
\t\t\t\t(8) For purposes of training law enforcement officers or others in the proper, safe, and legal use of drones.
\t\t\t(b) A government which uses a drone, or obtains, receives, uses, or retains information acquired by or through a drone, pursuant to paragraph II may do so only if:
\t\t\t\t(1) Specifically authorized by the chief law enforcement officer of a law enforcement agency, or a supervisor designated by the chief law enforcement officer;
\t\t\t\t (2) The drone is not operated in an unsafe manner; and
\t\t\t\t (3) The drone is not operated in violation of United States Federal Aviation Administration regulations.
\t\t\t(c) The use of a drone by a government under subparagraphs II(a)(4) shall be limited to a period of 48 hours of its initial use after which a search warrant or other court order signed by a judge shall be required. The use of a drone by a government under subparagraphs II(a)(5)-(8) shall be limited to a period of 48 hours of its initial use after which reauthorization shall be required
\t\t\t(d) Within 5 business days of the initiation of the use of a drone under paragraph II(a), the government shall report in writing the use of a drone to the attorney general who shall annually post such reports on the department of justice website in a searchable format.
\t\tIII. Unless the fact of a violation is being disputed, information obtained by a government in violation of paragraphs I and II shall, within 12 hours after the discovery of the violation, be permanently and irretrievably destroyed, shall not be transferred to another government or person, shall not be admissible in any judicial or administrative proceeding and shall not be used to establish reasonable suspicion or probable cause to believe that an offense has been committed.
\t\tIV. Images of identifiable individuals obtained by a government pursuant to paragraphs I or II shall be blurred, deleted, or otherwise de-identified as soon as practicable but in any case within 30 days after being obtained unless such images may be evidence in a criminal investigation.
\t\tV. No government shall own, use, or exercise control over a drone that is equipped with any kind of lethal or non-lethal weapon.
\t\tVI. A government that owns, uses, or exercises control over a drone that causes injury to a person or a person’s property shall be liable for such injury if caused by the government's negligent or intentionally wrongful use of a drone pursuant to this chapter. Claims against governmental units as defined in RSA 507-B:1, I, and their officials and employees, shall be subject to the provisions of RSA 507-B and any other applicable immunities. Drones shall be considered motor vehicles solely for the purpose of bringing an action under RSA 507-B:2.
\t\tVII. A government that owns, uses, or exercises control over one or more drones shall annually on July 1 submit a written or electronic report to the attorney general containing information on the number of such drones, the number of times each such drone was used during the prior year and, in general terms, the purpose of each such use. The attorney general shall annually post such reports on the department of justice website in a searchable format.
\t422-D:3 Non-government Use of Drones Limited; Exceptions.
\t\tI. No person shall use a drone to engage in automated surveillance.
\t\tII. No person shall use a drone to engage in surveillance for commercial purposes without the prior consent of each affected person and each owner or possessor of affecting buildings or structures or parts thereof. It shall not be a defense to a charge of violating this chapter that the buildings or structures were not marked with a no-trespassing sign or similar notice.
\t\tIII. No person shall use a drone equipped with an imaging device to record an image of an identifiable individual on privately-owned real property in which the person does not have a legally-recognized interest in violation of such individual’s reasonable expectation of privacy without his or her consent. For purposes of this subparagraph, an individual is presumed to have a reasonable expectation of privacy on privately-owned real property if he or she:
\t\t\t (a) Is within an enclosed structure; or
\t\t\t(b) Is not observable by individuals located at ground level in a public place where they have a legal right to be, regardless of whether he or she is observable from the air.
\t\tIV. No person shall:
\t\t\t(a) Operate a drone or use a drone to photograph or electronically record critical infrastructure within a horizontal distance of 1,000 feet or a vertical distance of 400 feet from such critical infrastructure without the written consent of the owner of the critical infrastructure;
\t\t\t(b) Allow a drone to make contact with critical infrastructure facility, including any individual or object on the premises of or within the critical infrastructure; or
\t\t\t(c) Allow a drone to come within a distance of a critical infrastructure facility that is close enough to interfere with the operations of or cause a disturbance to the facility or its occupants.
\t\tV. No person shall own, use, or exercise control over a drone that is equipped with any kind of lethal or non-lethal weapon. This prohibition shall not apply to a person who is a federal government military contractor using or exercising control over a drone which is equipped with a non-lethal weapon and which is flying over real property in which the person has a legal interest.
\t\tVI. Any person that owns, uses, or exercises control over a drone in this state that causes injury to a person or a person’s property shall be liable for the injury.
\t\tVII. No person shall use a drone to harass or stalk another person.
\t\tVIII. No person shall operate a drone at a height of less than 250 feet over privately-owned real property unless the person has the consent of its owner.
\t\tIX. This chapter shall not apply to a business entity doing business lawfully in this state, using drones for legitimate business purposes, and operating the drone in a manner consistent with applicable Federal Aviation Administration rules, licenses, or exceptions.
\t422-D:4 Airport Prohibition. No government or person shall operate a drone within 5 miles of any airport in this state in a manner that does not comply with relevant federal law and Federal Aviation Administration regulations and guidelines in effect at the time.
\t422-D:5 Identification. Each owner of a drone shall identify the drone with the owner’s name, address and telephone number in permanent ink and otherwise in a manner consistent with applicable Federal Aviation Administration rules, licenses, and exceptions.
\t422-D:6 General Prohibition. Except as otherwise provided in this chapter, no government shall use an imaging device to record an image of an identifiable individual on privately-owned real property in violation of such individual’s reasonable expectation of privacy without his or her consent, nor shall any person use an imaging device to record an image of an identifiable individual on privately-owned real property in which the person does not have a legally-recognized interest in violation of such individual’s reasonable expectation of privacy without his or her consent. For purposes of this subparagraph, an individual is presumed to have a reasonable expectation of privacy on privately-owned real property if he or she:
\t\t I. Is within an enclosed structure; or
\t\tII. Is not observable by individuals located at ground level in a public place where they have a legal right to be, regardless of whether he or she is observable from the air.
\t422-D:7 Federal Preemption. If federal law preempts any provision of this chapter, that provision shall not apply.
\t422-D:8 Applicability. The provisions of this chapter shall not apply to the New Hampshire national guard in the conduct of its official duties.
\t422-D:9 Construction. This chapter shall be construed to provide the greatest possible protection of the privacy of the people of this state. Nothing in this chapter shall be construed to impose liability in connection with news gathering activity.
\t\tI. A government employee or agent who knowingly violates RSA 422-D:2, other than the reporting requirements in 422-D:2, II(c) and 422-D:2, VII, shall be guilty of a misdemeanor. A government employee or agent who violates the reporting requirements in RSA 422-D:2, II(c) or 422-D:2, VII shall be guilty of a violation for a first offense and a misdemeanor for any subsequent offense.
\t\tII. A government which violates RSA 422-D:2 may be subject to a civil penalty of up to $10,000 which shall be deposited in the general fund of the state.
\t\tIII. A person who suffers damages or injury caused by a government’s negligent or intentionally wrongful use of a drone pursuant to this chapter may bring a civil action to recover actual damages which shall be limited to medical expenses, treatment, and rehabilitation, property damage, permanent physical impairment, court costs, and reasonable attorney’s fees from the government. No claim for pain and suffering, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services, or consortium, or other non-pecuniary losses shall be compensable under this chapter. This paragraph shall not be construed as a waiver of the sovereign immunity of the state. Claims against governmental units, as defined in RSA 507-B:1, I, and their officials and employees, shall be subject to the provisions of RSA 507-B and any other applicable immunities. Drones shall be considered motor vehicles solely for the purpose of bringing an action under RSA 507-B:2.
\t\tIV. A person who violates RSA 422-D:3, I-VII shall be guilty of a misdemeanor.
\t\tV. Any person who suffers injury caused by a drone operated in violation of this chapter shall be entitled to damages from the person who committed the violation of not less than $1,000 and an award of reasonable attorney fees.
\t\tVI. In addition to any other remedies allowed by law, a person who willfully gains unauthorized control over a drone shall be liable to the owner of the drone in an amount of not less than $1,000 and an award of reasonable attorney fees.
\t642:7-a Flying a Drone Over a Correctional Facility.
\t\tI. Except as otherwise provided in this section, no person shall fly a drone in the airspace above a state or county correctional facility, unless such person is acting on behalf of a business entity doing business lawfully in this state, using drones for legitimate business purposes, and operating the drone in a manner consistent with applicable Federal Aviation Administration rules, licenses, or exceptions.
\t\tII.(a) Any state or county correctional authority may fly a drone above a correctional facility over which it has control for security purposes.
\t\t\t(b) A state or county correctional authority may authorize a request by a person to fly a drone above a correctional facility over which they have control, provided the person:
\t\t\t\t(1) Requests permission from the appropriate correctional authority;
\t\t\t\t(2) Is authorized by the Federal Aviation Administration to operate a drone for commercial purposes; and
\t\t\t\t(3) Operates the drone in a manner that complies with the authorization.
\t\tIII. Any person who violates this section shall be guilty of a class A misdemeanor.
\t\tIV. In this section:
\t\t\t(a) "Airspace" means the space above the ground on which a state or county correctional facility or municipal jail is sited.
\t\t\t(b) "Drone" means a powered, aerial vehicle, excluding a geosynchronous satellite, that:
\t\t\t\t(1) Does not carry a human operator;
\t\t\t\t(2) Uses aerodynamic forces to provide vehicle lift;
\t\t\t\t(3) Can fly autonomously or be piloted remotely; and
\t\t\t\t(4) May be expendable or recoverable.
\t\t\t(c) "Person" means an individual, corporation, organization, and for-profit or not-for-profit entities.
HB 602-FN FISCAL NOTE
AN ACT\trelative to the use of drones.
The Judicial Branch and Department of Justice state this bill, as introduced, may increase state expenditures by an indeterminable amount in FY 2016 and each year thereafter. There will be no fiscal impact on local expenditures or state, county, and local revenue.
The Judicial Branch states this bill regulates the use of drones. One of the limited circumstances in which the government may use a drone is if it obtains a search warrant pursuant to RSA 644-A:2, I (a)(1). The penalty section of this bill provides for the potential of class A and class B misdemeanors, civil penalties up to $10,000 and civil damages of not less than $1,000 and an award of attorney fees. Additionally if evidence is illegally obtained by a government entity through the use of a drone it is not admissible in a judicial proceeding. The Judicial Branch has no information to determine how many warrants (cost to process is equal to a class A misdemeanor) will be sought, the number of additional class A misdemeanors or class B misdemeanors will be processed, or how many civil penalty actions or civil actions for damages (treated as average complex civil case) will be brought to determine the fiscal impact. The Branch is able to provide the average cost of processing each case type (see table below). The barring of evidence collected illegally by the government does not increase the Branch’s caseload it may result in additional trial time where the issue is raised and could potentially lead to an appeal to the Supreme Court.
Class B Misdemeanor
Class A Misdemeanor
Complex Civil Case
*It should be noted average case cost estimates for FY 2016 and FY 2017 are based on data that is more than nine years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types.
The Department of Justice states this bill requires any governmental entity or law enforcement agency that uses a drone to file an annual report with the Department. The Department would be required to post the report on its website. The Department anticipates it could post the reports with no additional cost. The Department states most of the misdemeanor offenses created by this bill would be prosecuted by local and county prosecutors. The Department does investigate and prosecute criminal conduct by certain government officials. The Department is not able to estimate how many such cases might result because of this bill to determine a fiscal impact. Additionally, the Department assumes it would be the agency responsible for enforcing civil penalties against any governmental unit that violates the law. The Department has no basis to estimate the number of enforcement actions that might result but estimates an enforcement action may consume 70 to 100 hours of an attorney’s time.
The Judicial Council states this bill will have no fiscal impact on the indigent defense delivery system.
The New Hampshire Association of Counties states that this bill does not appear to have any fiscal impact on counties.