HB 1759-FN - AS INTRODUCED
HOUSE BILL 1759-FN
AN ACT regulating the use of drones.
SPONSORS: Rep. Kurk, Hills. 2
COMMITTEE: Executive Departments and Administration
This bill regulates the use of drones by government agencies and individuals. This bill establishes criminal penalties and civil remedies for violations of the law.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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 Eighteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
422-D:1 Definitions. In this chapter:
I. “Airspace” means the space above the ground in New Hampshire.
II. “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.
III.(a) “Critical infrastructure” means a county, city, or town jail or detention facility, police station or fire station; any prison, facility, or institution under the control of the department of corrections; and any additional structure designated by the Federal Aviation Administration as critical infrastructure.
(b) The department of transportation, bureau of aeronautics, shall apply to the Federal Aviation Administration to request the structures specified in subparagraph (a) to be designated as critical infrastructures.
IV. “Drone” means a powered, aerial vehicle, excluding a geosynchronous satellite, that:
(a) Does not carry a human operator;
(b) Uses aerodynamic forces to provide vehicle lift;
(c) Can fly autonomously or be piloted remotely; and
(d) May be expendable or recoverable.
V. “Government” means the federal government, the state government and any political subdivisions thereof, and state and municipal agencies and departments, including employees and agents.
VI. “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.
VII. “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.
VIII. “Individual” means a living human being.
IX. “Information” means any evidence, images, sounds, or data gathered by a drone.
X. “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.
XI. “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.
XII. “Person” means individuals, partnerships, limited liability companies, corporations, and any other organizations, including for-profit and not-for-profit entities, but excluding government.
XIII. “Surveillance” means the willful act of tracking or following, while photographing, taking images of, listening to, or making a recording of: (a) a recognizable individual or a group of individuals, including their movements, activities, or communications, or (b) motor vehicles identifiable by their license plates. The term does not include such activities by a person on real estate in which such person has a legal interest.
422-D:2 Government Use of Drones Limited; Exceptions.
I. Except as provided in paragraph II or III:
(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; and
(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 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.
II.(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:
(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.
(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.
(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 or hunters or hikers, or to rescue persons in natural disasters, injured persons, or persons in need of medical assistance.
(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.
(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.
(6) To support the tactical deployment of law enforcement personnel and equipment in emergency situations.
(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.
(8) For purposes of training law enforcement officers or others in the proper, safe, and legal use of drones.
(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 (1) specifically authorized by the chief law enforcement officer of a law enforcement agency, or a supervisor designated by the chief law enforcement officer, (2) the drone is not operated in an unsafe manner, and (3) the drone is not operated in violation of United States Federal Aviation Administration regulations.
(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.
(d) Within 5 business days of the initiation of the use of a drone under subparagraph 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.
III. 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 non-law enforcement purposes if, in an emergency, a government determines that, under particular circumstances, swift action is needed to prevent imminent harm to life or serious damage to property, or to assist in locating missing, abducted, or lost individuals or hunters or hikers, or to rescue persons in natural disasters, injured persons, or persons in need of medical assistance.
IV. 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.
V. 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.
VI. No government shall own, use, or exercise control over a drone that is equipped with any kind of lethal or nonlethal weapon.
VII. 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.
VIII. 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.
422-D:3 Nongovernment Use of Drones Limited; Exceptions.
I. No person shall use a drone to engage in automated surveillance.
II. No person shall:
(a) Operate a drone over critical infrastructure without the written consent of the owner of the critical infrastructure;
(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
(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.
III. No person shall own, use, or exercise control over a drone that is equipped with any kind of lethal or nonlethal 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 nonlethal weapon and which is flying over real property in which the person has a legal interest.
IV. 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.
422-D:4 Federal Preemption. If federal law preempts any provision of this chapter, that provision shall not apply.
422-D:5 Applicability. The provisions of this chapter shall not apply to the New Hampshire national guard in the conduct of its official duties.
422-D:6 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.
I. A government employee or agent who knowingly violates RSA 422-D:2, except for the reporting requirements in 422-D:2, II(d) and 422-D:2, VIII, shall be guilty of a misdemeanor. A government employee or agent who violates the reporting requirements in RSA 422-D:2, II(d) or 422-D:2, VIII shall be guilty of a violation for a first offense and a misdemeanor for any subsequent offense.
II. 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.
III. A person who suffers damages or injury caused by a government’s 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 nonpecuniary losses shall be compensable under this chapter. This paragraph shall not be construed as a waiver of the sovereign immunity of the state.
IV. A person who violates RSA 422-D:3, I-III shall be guilty of a misdemeanor.
V. 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's fees.
VI. 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's fees.
HB 1759-FN- FISCAL NOTE
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ X ] Highway [ ] Other
The Department of Transportation, Bureau of Aeronautics is currently responding to all Unmanned Aircraft System (UAS), or drone questions, concerns, complaints and potential violations. Since UAS is considered an aircraft under federal and state law, the Department is required to enforce the laws jointly with Federal agencies. This bill requires that the Department apply to the Federal Aviation Administration to request critical infrastructure designation for all facilities in the State. Over the last 14 months, the response and involvement with UAS issues has resulted in $30,000 in personnel time and costs to the Department. It is expected that as the UAS industry expands, and if this bill becomes law, Department time and cost of personnel will increase, however the increase is indeterminable at this time. In addition to enforcement costs of the Department, other state, county, and local law enforcement agencies may have an increase in enforcement costs relative to this bill.
This bill contains civil and criminal penalties that may have an impact on the New Hampshire judicial and correctional systems. There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the entities impacted have provided the potential costs associated with these penalties below.
Violation Level Offense
Class B Misdemeanor
Class A Misdemeanor
Complex Civil Case
It should be noted that average case cost estimates for FY 2019 and FY 2020 are based on data that is more than ten 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. An unspecified misdemeanor can be either class A or class B, with the presumption being a class B misdemeanor.
Public Defender Program
Has contract with State to provide services.
Has contract with State to provide services.
Contract Attorney – Misdemeanor
Assigned Counsel – Misdemeanor
$60/Hour up to $1,400
$60/Hour up to $1,400
It should be noted that a person needs to be found indigent and have the potential of being incarcerated to be eligible for indigent defense services. The majority of indigent cases (approximately 85%) are handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%).
NH Association of Counties
County Prosecution Costs
Estimated Average Daily Cost of Incarcerating an Individual
$85 to $110
$85 to $110
Many offenses are prosecuted by local and county prosecutors. When the Department of Justice has investigative and prosecutorial responsibility or is involved in an appeal, the Department would likely absorb the cost within its existing budget. If the Department needs to prosecute significantly more cases or handle more appeals, then costs may increase by an indeterminable amount.
Department of Transportation, Department of Safety, Department of Justice, Judicial Branch, Judicial Council, and New Hampshire Association of Counties
|Feb. 6, 2018||House||Hearing|
|Feb. 27, 2018||House||Exec Session|
|March 6, 2018||House||Floor Vote|
|March 15, 2018||House||Floor Vote|
|Jan. 3, 2018||Introduced 01/03/2018 and referred to Executive Departments and Administration HJ 1 P. 22|
|Feb. 6, 2018||Public Hearing: 02/06/2018 01:30 PM LOB 306|
|Feb. 26, 2018||Subcommittee Work Session: 02/26/2018 09:30 AM LOB 308|
|Feb. 27, 2018||Executive Session: 02/27/2018 LOB 306|
|Committee Report: Inexpedient to Legislate (Vote 17-0; CC)|
|March 6, 2018||Committee Report: Inexpedient to Legislate for 03/06/2018 (Vote 17-0; CC) HC 9 P. 23|
|March 6, 2018||Removed from Consent (Rep. Kurk) 03/06/2018 HJ 6 P. 4|
|March 6, 2018||Suspend House Rule 65 (Reps. Hinch, Shurtleff): MA VV by necessary two-thirds vote 03/06/2018 HJ 6 P. 125|
|Special Order to 3/15/2018 Without Objection HJ 7 P. 49|
|March 15, 2018||Suspend House Rule 65; extending deadline for action to 3/22/2018 (Reps. Hinch, Shurtleff): MA VV by necessary two-thirds vote 03/15/2018 HJ 8 P. 69|
|March 22, 2018||Inexpedient to Legislate: MA VV 03/22/2018 HJ 10 P. 18|