CS for CS for SB 766                             First Engrossed
       
       
       
       
       
       
       
       
       2015766e1
       
    1                        A bill to be entitled                      
    2         An act relating to surveillance by a drone; amending
    3         s. 934.50, F.S.; defining terms; prohibiting a person,
    4         a state agency, or a political subdivision from using
    5         a drone to capture an image of privately owned real
    6         property or of the owner, tenant, occupant, invitee,
    7         or licensee of such property with the intent to
    8         conduct surveillance without his or her written
    9         consent if a reasonable expectation of privacy exists;
   10         specifying when a reasonable expectation of privacy
   11         may be presumed; authorizing the use of a drone by a
   12         person or entity engaged in a business or profession
   13         licensed by the state in certain circumstances;
   14         authorizing the use of a drone by an employee or
   15         contractor of a property appraiser for the purpose of
   16         assessing property for ad valorem taxation;
   17         authorizing the use of a drone by or on behalf of
   18         certain utilities for specified purposes; authorizing
   19         the use of a drone for aerial mapping under certain
   20         circumstances; authorizing the use of a drone for
   21         delivering cargo under certain circumstances;
   22         authorizing the use of a drone to capture certain
   23         images under certain circumstances; providing that an
   24         owner, tenant, occupant, invitee, or licensee may
   25         initiate a civil action for compensatory damages and
   26         may seek injunctive relief against a person, a state
   27         agency, or a political subdivision that violates the
   28         act; providing for construction; providing for the
   29         recovery of attorney fees and punitive damages;
   30         specifying that remedies provided by the act are
   31         cumulative to other remedies; providing an effective
   32         date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Section 934.50, Florida Statutes, is amended to
   37  read:
   38         934.50 Searches and seizure using a drone.—
   39         (1) SHORT TITLE.—This act may be cited as the “Freedom from
   40  Unwarranted Surveillance Act.”
   41         (2) DEFINITIONS.—As used in this act, the term:
   42         (a) “Drone” means a powered, aerial vehicle that:
   43         1. Does not carry a human operator;
   44         2. Uses aerodynamic forces to provide vehicle lift;
   45         3. Can fly autonomously or be piloted remotely;
   46         4. Can be expendable or recoverable; and
   47         5. Can carry a lethal or nonlethal payload.
   48         (b)“Image” means a record of thermal, infrared,
   49  ultraviolet, visible light, or other electromagnetic waves;
   50  sound waves; odors; or other physical phenomena which captures
   51  conditions existing on or about real property or an individual
   52  located on that property.
   53         (c)“Imaging device” means a mechanical, digital, or
   54  electronic viewing device; still camera; camcorder; motion
   55  picture camera; or any other instrument, equipment, or format
   56  capable of recording, storing, or transmitting an image.
   57         (d)(b) “Law enforcement agency” means a lawfully
   58  established state or local public agency that is responsible for
   59  the prevention and detection of crime, local government code
   60  enforcement, and the enforcement of penal, traffic, regulatory,
   61  game, or controlled substance laws.
   62         (e) “Surveillance” means:
   63         1. With respect to an owner, tenant, occupant, invitee, or
   64  licensee of privately owned real property, the observation of
   65  such persons with sufficient visual clarity to be able to obtain
   66  information about their identity, habits, conduct, movements, or
   67  whereabouts; or
   68         2. With respect to privately owned real property, the
   69  observation of such property’s physical improvements with
   70  sufficient visual clarity to be able to determine unique
   71  identifying features or its occupancy by one or more persons.
   72         (3) PROHIBITED USE OF DRONES.—
   73         (a) A law enforcement agency may not use a drone to gather
   74  evidence or other information.
   75         (b) A person, a state agency, or a political subdivision as
   76  defined in s. 11.45 may not use a drone equipped with an imaging
   77  device to record an image of privately owned real property or of
   78  the owner, tenant, occupant, invitee, or licensee of such
   79  property with the intent to conduct surveillance on the
   80  individual or property captured in the image in violation of
   81  such person’s reasonable expectation of privacy without his or
   82  her written consent. For purposes of this section, a person is
   83  presumed to have a reasonable expectation of privacy on his or
   84  her privately owned real property if he or she is not observable
   85  by persons located at ground level in a place where they have a
   86  legal right to be, regardless of whether he or she is observable
   87  from the air with the use of a drone.
   88         (4) EXCEPTIONS.—This section act does not prohibit the use
   89  of a drone:
   90         (a) To counter a high risk of a terrorist attack by a
   91  specific individual or organization if the United States
   92  Secretary of Homeland Security determines that credible
   93  intelligence indicates that there is such a risk.
   94         (b) If the law enforcement agency first obtains a search
   95  warrant signed by a judge authorizing the use of a drone.
   96         (c) If the law enforcement agency possesses reasonable
   97  suspicion that, under particular circumstances, swift action is
   98  needed to prevent imminent danger to life or serious damage to
   99  property, to forestall the imminent escape of a suspect or the
  100  destruction of evidence, or to achieve purposes including, but
  101  not limited to, facilitating the search for a missing person.
  102         (d) By a person or an entity engaged in a business or
  103  profession licensed by the state, or by an agent, employee, or
  104  contractor thereof, if the drone is used only to perform
  105  reasonable tasks within the scope of practice or activities
  106  permitted under such person’s or entity’s license. However, this
  107  exception does not apply to a profession in which the licensee’s
  108  authorized scope of practice includes obtaining information
  109  about the identity, habits, conduct, movements, whereabouts,
  110  affiliations, associations, transactions, reputation, or
  111  character of any society, person, or group of persons.
  112         (e) By an employee or a contractor of a property appraiser
  113  who uses a drone solely for the purpose of assessing property
  114  for ad valorem taxation.
  115         (f) To capture images by or for an electric, water, or
  116  natural gas utility:
  117         1. For operations and maintenance of utility facilities,
  118  including facilities used in the generation, transmission, or
  119  distribution of electricity, gas, or water, for the purpose of
  120  maintaining utility system reliability and integrity;
  121         2. For inspecting utility facilities, including pipelines,
  122  to determine construction, repair, maintenance, or replacement
  123  needs before, during, and after construction of such facilities;
  124         3. For assessing vegetation growth for the purpose of
  125  maintaining clearances on utility rights-of­way;
  126         4. For utility routing, siting, and permitting for the
  127  purpose of constructing utility facilities or providing utility
  128  service; or
  129         5. For conducting environmental monitoring, as provided by
  130  federal, state, or local law, rule, or permit.
  131         (g) For aerial mapping, if the person or entity using a
  132  drone for this purpose is operating in compliance with Federal
  133  Aviation Administration regulations.
  134         (h) To deliver cargo, if the person or entity using a drone
  135  for this purpose is operating in compliance with Federal
  136  Aviation Administration regulations.
  137         (i) To capture images necessary for the safe operation or
  138  navigation of a drone that is being used for a purpose allowed
  139  under federal or Florida law.
  140         (5) REMEDIES FOR VIOLATION.—
  141         (a) An aggrieved party may initiate a civil action against
  142  a law enforcement agency to obtain all appropriate relief in
  143  order to prevent or remedy a violation of this section act.
  144         (b) The owner, tenant, occupant, invitee, or licensee of
  145  privately owned real property may initiate a civil action for
  146  compensatory damages for violations of this section and may seek
  147  injunctive relief to prevent future violations of this section
  148  against a person, state agency, or political subdivision that
  149  violates paragraph (3)(b). In such action, the prevailing party
  150  is entitled to recover reasonable attorney fees from the
  151  nonprevailing party based on the actual and reasonable time
  152  expended by his or her attorney billed at an appropriate hourly
  153  rate and, in cases in which the payment of such a fee is
  154  contingent on the outcome, without a multiplier, unless the
  155  action is tried to verdict, in which case a multiplier of up to
  156  twice the actual value of the time expended may be awarded in
  157  the discretion of the trial court.
  158         (c) Punitive damages for a violation of paragraph (3)(b)
  159  may be sought against a person subject to other requirements and
  160  limitations of law, including, but not limited to, part II of
  161  chapter 768 and case law.
  162         (d) The remedies provided for a violation of paragraph
  163  (3)(b) are cumulative to other existing remedies.
  164         (6) PROHIBITION ON USE OF EVIDENCE.—Evidence obtained or
  165  collected in violation of this act is not admissible as evidence
  166  in a criminal prosecution in any court of law in this state.
  167         Section 2. This act shall take effect July 1, 2015.