WEST virginia legislature

2017 regular session

Introduced

Senate Bill 9

By Senators Trump and Jeffries

[Introduced February 8, 2017; referred
to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-2B-1, §29-2B-2, §29-2B-3, §29-2B-4, §29-2B-5, §29-2B-6 and §29-2B-7, all relating to regulation of unmanned aircraft systems; requiring compliance with federal laws and regulations relating to such vehicles; defining terms; creating criminal offenses for certain conduct using an unmanned aircraft system and setting penalties therefor; regulating law-enforcement use of unmanned aircraft systems; limiting uses by law enforcement of unmanned aircraft systems; requiring search warrants to be obtained before unmanned aircraft systems may be used in criminal investigations and creating exemptions thereto; requiring documentation of law-enforcement flights of unmanned aircraft systems and maintenance of records; precluding admissibility in civil, criminal and administrative proceedings of images or the evidence obtained in violation of the provisions of this article; and requiring the West Virginia Aeronautics Commission, the West Virginia Department of Military Affairs and Public Safety, the West Virginia Sheriffs’ Bureau for Professional Standards and the West Virginia State Police to propose legislative rules and promulgate emergency rules.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §29-2B-1, §29-2B-2, §29-2B-3, §29-2B-4, §29-2B-5, §29-2B-6 and §29-2B-7, all to read as follows:

Article 2B.  use of unmanned aircraft systems.

§29-2B-1.  Definitions.

As used in this article:

“Aircraft” means any contrivance now known or subsequently invented, used or designed for navigation or for flight in the air, including, but not limited to, unmanned aircraft vehicles or systems;

“Chief executive officer” has the same meaning as the definition for “chief executive” in section one, article twenty-nine, chapter thirty of this code;

“Commission” means the West Virginia State Aeronautics Commission;

“Director” means the Director of Aeronautics for the State of West Virginia or his or her designee;

“Law-enforcement agency” means any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state, the United States, county or municipality. However, neither the Public Service Commission nor any state institution of higher education nor any resort area district is a law-enforcement agency;

“Targeted facility” means a coal mine, coal preparation plant, petroleum and aluminum refineries, chemical and rubber manufacturing facilities, electric generation facilities and public utilities and any entity regulated by the Public Service Commission;

“Unmanned aircraft system” or “system” means an aircraft that is operated without direct human intervention from inside or on the aircraft and includes the crewmember, the associated support equipment, the control station, data links, telemetry, communications and navigation equipment necessary to operate the unmanned aircraft;

“Unmanned aircraft system crew member” or “crew member” means a person other than an unmanned aircraft system pilot who is assigned to duties related to an unmanned aircraft system during flight; and

“Unmanned aircraft system pilot” or “pilot” means a person exercising control over an unmanned aircraft system during flight.

§29-2B-2. Applicability of federal laws and Federal Aviation Administration regulations.

Notwithstanding any provision of this article to the contrary, any person or entity operating an unmanned aircraft system may only do so in compliance with applicable federal law and applicable regulations of the Federal Aviation Administration.

§29-2B-3. Prohibited use of an unmanned aircraft system; criminal penalties.

(a) Except as authorized by the provisions of this article, a person may not operate an unmanned aircraft system:

(1) To take photographs or other types of 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; or

(2) To physically harass another person or surveille another person without the express permission of the person surveilled.

(b) Any person violating subsection (a) of this section is guilty of a misdemeanor and, upon conviction, 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.

(c) 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, shall be confined in jail for not less than twenty-four hours nor more than one year, fined not less than $100 or more than $5,000, or both fined and confined.

(d) 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 cause damage to or disrupt in any way the flight of a manned aircraft is guilty of a felony and, upon conviction, 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 fined and confined.

§29-2B-4. Law enforcement use of unmanned aircraft systems.

(a) A law-enforcement agency employing unmanned aircraft shall:

(1) Obtain any authorization, permit or certificate required by the Federal Aviation Administration to operate the unmanned aircraft system;

(2) Allow the unmanned aircraft system to be operated only by unmanned aircraft system pilots and unmanned aircraft systems crew members who have been trained and certified in the operation of the unmanned aircraft system and only under the supervision of officials trained in the policies, laws, rules and procedures governing the use of the unmanned aircraft system;

(3) Ensure that the flight of an unmanned aircraft system be approved by the Director of the Commission or his or her designee or the chief executive officer of the law-enforcement agency or the officer’s designee;

(4) Operate the unmanned aircraft system for a lawful public purpose;

(5) Maintain a record of each flight, including the time, date and purpose of the flight, and the identity of the authorizing official;

(6) Establish an auditable flight record system, including the documentation of any change in a flight time record;

(7) Establish a method for notifying the public that an unmanned aircraft system is in operation, unless notifying the public would endanger the safety of any person or jeopardize the efficacy of a criminal investigation; and

(8) Provide for community involvement in the development of the policies required in this section, including the consideration of public comment.

(b) 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 a dwelling owned by an individual and such dwelling’s curtilage, without such individual’s written consent.

(c) Any law-enforcement agency operating an unmanned aircraft system for criminal investigative purposes shall document such use, including flight durations, flight path, flight objectives and authorization for the flight. The person with supervisory authority over the flight shall verify that the documentation is accurate and complete. The law-enforcement agency shall retain all documentation required by this subsection for 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 more than ninety days.

(d) No law-enforcement agency may use an unmanned aircraft system for purposes of traffic enforcement.

(e) Nothing in this section may be construed to prohibit the use by a law-enforcement agency of an unmanned aircraft system under circumstances when there is reasonable cause to believe that the use and operation of an unmanned aircraft system would safely avert imminent threats to human life and safety, property damage or environmental damage.

§29-2B-5. Unauthorized operation of an unmanned aircraft system over certain industrial facilities; penalties.

(a) The operation of an unmanned aircraft system over the property of a targeted facility to intentionally deploy any substance, material, projectile or object, or to conduct surveillance of, gather evidence and information about, or photographically or electronically record a targeted facility without the prior consent of the owner of the targeted facility is unlawful: Provided, That nothing in this section prohibits a person from operating an unmanned aircraft system to conduct surveillance of, gather evidence and information about, or photographically or electronically record the person’s own property or immovable property owned by another person under a valid lease, servitude, right-of-way, right of use, permit, license or other right: Provided, however, That nothing in this section prohibits third persons retained by the owner of immovable property from operating an unmanned aircraft system over, or to otherwise conduct surveillance of, gather evidence and information about, or photographically or electronically record the property: Provided further, That nothing in this section prohibits a person from operating an unmanned aircraft system in connection with production of a motion picture, television program or similar production if the operation is authorized by the property owner. This subsection does not apply to a law-enforcement agency acting in compliance with the other provisions of this article.

(b) Any person who violates subsection (a) of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, or confined in a state correctional facility for not more than six months, or both fined and confined.

(c) Upon conviction for a second or subsequent offense, any person who violates subsection (a) of this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than $500 nor more than $1,000, or confined in a state correctional facility for not less than six months nor more than one year, or both fined and confined.

§29-2B-6. Rulemaking.

The commission, the West Virginia Department of Military Affairs and Public Safety, the West Virginia Sheriffs’ Bureau for Professional Standards and the West Virginia State Police shall jointly propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code. They may promulgate any necessary emergency rules to implement this article pursuant to section fifteen, article three, chapter twenty-nine-a of this code.

§29-2B-7. Admissibility of images or evidence obtained in violation of the provisions of this article.

Evidence obtained in violation of the provisions of this article is not admissible in any civil, criminal or administrative proceeding.

NOTE: The purpose of this bill is to regulate unmanned aircraft systems.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.