Requires Law Enforcement To Obtain A Warrant In Most Cases

The West Virginia Senate has passed and sent on the House of Delegates legislation that will regulate how drones can be used in the state.

Under the provisions of the law, it would be illegal for anyone to use a drone to:

• Intentionally take photographs or other types of images or publish such photographs or images of another person without the other person’s permission where the person being photographed or whose image is being captured has a reasonable expectation of privacy.
• Physically harass another person or surveille another person without the express permission of the person surveilled unless the surveillance is for a lawful commercial or law-enforcement purpose;
• Intentionally operate an unmanned aircraft system so as to interfere with the provision of law enforcement or emergency services; or
• Except as exempted by regulations of the Federal Aviation Administration and other provisions of this article, to operate an unmanned aircraft system within one hundred feet of a dwelling or structure without the consent of the owner or occupant thereof: Provided, That the provisions of this subdivision do not apply to a person operating an unmanned aircraft system in the airspace above the person’s real property, real property upon which the person has the consent of the owner to operate the unmanned aircraft system or public property.

Any person violating subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than one year, fined not less than $100 nor more than $1,000, or both confined and fined.

Any person who operates an unmanned aircraft system under the influence of alcohol, controlled substances or drugs is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than twenty-four hours nor more than one year, fined not less than $100 nor more than $5,000, or both confined and fined.

Any person who equips an unmanned aircraft system with any lethal weapon, operates any unmanned aircraft system equipped with any lethal weapon or operates an unmanned aircraft system with the intent to damage, cause harm to or disrupt flight of a manned aircraft, or the flight thereof, is guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years, fined not less than $1,000 nor more than $5,000, or both imprisoned and fined.

The law also places restrictions on when law enforcement may use an unmanned aircraft. Law enforcement personnel operating a drone would be required to obtain a drone operator's certificate from the FAA, and maintain records of each flight. The bill also specifies that absent a warrant, except for an emergency response for public safety purposes or search and rescue purposes, no law-enforcement agency shall use an unmanned aircraft system to intentionally conduct surveillance of, gather evidence or collect information about, or photographically or electronically record specifically targeted persons or specifically targeted private property including, but not limited to, an individual or dwelling owned by an individual and such dwelling’s curtilage, without such individual’s written consent.

The person with supervisory authority over a flight shall verify that the documentation is accurate and complete. The law-enforcement agency shall retain all documentation required by this section for a period of five years. The law-enforcement agency shall not retain any imagery or other data obtained during a flight which does not contain evidence of a crime or is otherwise reasonably related to an agency criminal investigation for purposes other than training for more than ninety days: Provided, That images retained and maintained pursuant to this section are not subject to the state’s Freedom of Information Act.

Drones cannot be used to enforce traffic laws, according to the bill.

SB9 would also make it illegal for drones to capture video or still images of any industrial building or site without the express consent of the property owner.

The bill still has hurdles to clear. It will be debated next in the State House of Delegates. No schedule for that debate has been announced.

FMI: Bill Text