Media attorney thinks Florida’s new drone law is unconstitutional


Florida Gov. Rick Scott signed a drone privacy law last week that bans drone surveillance of private citizens without their consent, but a Washington, D.C.-based media attorney thinks the Sunshine State has gone too far in attempting to regulate this emerging new technology.

Chuck Tobin is a partner in Holland & Knight’s Washington, D.C., office. He chair’s the firm’s National Media Practice, which includes leading H&K’s “Drone Practice Team.” He’s intimately familiar with Florida’s media laws, having  taught media law and ethics at the University of North Florida. Before that he was a reporter for the News-Press newspaper in Fort Myers.

Florida Politics spoke with Tobin on Thursday. We began by asking him what was wrong with the Legislature ensuring a certain level of privacy for Floridians within their own homes?

Chuck Tobin: There’s nothing wrong with the general notion. Florida law, as with other states, already protects people’s privacy. And there are a series of laws — eavesdropping laws, peeping tom laws, trespassing laws on the books and they’re all technology agnostic, so that any platform would already protect the homeowner.

The problem with this law is that it restricts from a journalist’s standpoint the First Amendment rights to gather news, and the public’s First Amendment rights to receive news, by making it per se unlawful to take any kind of picture of any home, forget the person, take the person out of the equation, but to photograph any home, any property, any structure, without the property owner’s permission. You can take the same picture on your own property standing on a ladder, you can take the same picture by helicopter. It’s just that with the use of this particular technology in all situations that makes it unlawful, and that’s a problem.

Florida Politics: There are a number of other states that enacted such laws in recent years. Is Florida’s law different in any significant way?

Chuck Tobin: Florida has been a bit unusual in defining a reasonable expectation of privacy to encompass any structure, any property and any person standing on property where you can’t see it from the ground with your your eyes. Florida is much more restrictive in its drone law in terms of the rights that you have, and that makes it far more of a problem under the First Amendment than any other state statute.

Florida Politics: Florida has been lauded for its Sunshine laws, but groups like the First Amendment Foundation here in Florida say that more and more of those laws when it comes to media and public access are being eroded.

Chuck Tobin: I used to be a reporter in Fort Myers for a few years before law school, and we used to be very proud of the openness of the government in Florida. As you noted, over the last session the Legislature has really cut back in a number of significant ways in Florida’s openness, so we may be seeing the sunsetting on the Sunshine State, and that’s’ really unfortunate.

Florida Politics: Would your organization be OK with any drone legislation when it comes to photography?

Chuck Tobin: Safety is a significant government issue, and the government should regulate to keep people safe from physical harm. That’s the issue we’re dealing with at the federal level with the FAA. Our law firm represents a coalition of about two dozen news gathering agencies — The New York Times, The Washington Post, NBC News, Sinclair Broadcasting, Scripps Broadcasting, Gannett, a number of news outlets that operate in Florida and around the country. We’re working very closely with the FAA and fed government on safety issues. Safety should be the primary concern for any new drone regulation. Privacy is not an issue that requires any additional regulation; it’s just going to confuse the law. It’s going to lead to litigation, and it’s going to inhibit the public’s First Amendment right to receive news of important concern.

Florida Politics: Do you believe it’s unconstitutional?

Chuck Tobin: I do, to the extent that I can put up a drone offshore to watch an oncoming hurricane, a significant news event, but if that drone captures the property of a homeowner on the beach who is not home, and that homeowner can sue that outlet, that’s a significant constitutional problem.

Florida Politics: Any other thoughts on this new law?

Chuck Tobin: I think people should be aware that 125 years ago, when Kodak invented the Brownie camera, the first portable camera for mass use, it sent off a wave of panic in the public. Fast forward 125 years later, and everybody now has the ability to take pictures and conduct citizen journalism and keep an eye on the police and take all kinds of wonderful photographs with their iPhones. I think the government needs to allow technology to develop. It’s a wonderful new tool, with a lot of significant public benefits, and I don’t think that we need to have legislatures like Florida hitting the panic button, when we’re so early in the development of this technology.