The Private Law of Drones

I have been writing over the last few weeks about drones and the opportunities and challenges they represent for local governments. This is the last entry in that series.

One aspect of the drone problem that is particularly ripe for local level attention, and is likely to be neglected in national regulation, is how ordinary people will use drones recreationally or invidiously.

If you’re a hobbyist, where are you going to fly these? On your own private property is probably safest from a legal standpoint. The Supreme Court held in United States v. Causby that a landowner has the right to “at least as much space above the ground as he can occupy or use in connection with the land.” While Causby abrogated the common law precept that your property extends to the heavens, relatively low altitude flight is still protected.

More realistically, people will fly these where there are things they want to see: over populated areas and natural beauty. For the appeal of images of populated areas, look only at the success of Google Street View. An animal rights group also recently tried using a drone to tape a pigeon shoot — until the hunters shot it down. It is also easy to imagine people flying these in city or state parks. Both present risks of midair collisions with manned aircraft, but beyond that each flight area presents its own challenges.

Flying drones over populated areas present two concerns. The most obvious is a safety challenge. Even though many drones weigh only a few pounds, they can easily cause damage if they crash into buildings, cars, and children. In addition, sensor equipped drones present a privacy challenge. Even though the concerns are less significant than from a state intrusion, people still do not want other private citizens watching them. What’s the difference with the paradigmatic cases of the neighbor binoculars or the predator with a telephoto lens? The drones make it possible to spy from a distance and over a wider range of conduct, revealing more details of one’s personal life to a broader group of people. And I don’t think people like the idea of being watched with binoculars, either.

Traditional tort law falls short as a way of private individuals seeking to protect their privacy, according to a recent CRS report by Alissa Dolan and Richard Thompson II. The invasion of privacy tort relevant here, intrusion upon seclusion, requires a victim to have an expectation of privacy, generally limiting violations to observation within the home or particularly egregious public spying. There is also a high bar for how offensive the invasion must be to qualify.

Flyers of drones on others’ private property at low altitudes are probably committing a trespass, because they intentionally are entering another’s property. However, as Dolan and Thompson note, there is unlikely to be much noise or dust stirred up by a 4 pound drone, so there will be only nominal damages (barring a crash). If the violation is repeated and highly intrusive, it may be sufficient to constitute a nuisance, allowing for an injunction. But a high-flying, occasional flight over the city is unlikely to trigger any of these torts.

The final potential resort is a criminal harassment, stalking, or annoying electronic communications statute, depending on how it fits in with the user’s overall pattern of conduct. The challenge for a complaint under these statutes would be that the laws target the threatening message being communicated to the victim, whereas a drone primarily serves to communicate information back to the operator.

Drones flying over public parks present a safety hazard. Rules currently prohibiting model airplanes from flying in local parks would probably also describe drones, but it would depend on the city ordinance.

Some local regulation of drone use by hobbyists is necessary to protect the privacy, property interests, and safety of residents. Cities can pass ordnances to limit unsafe or inappropriate intrusions. But it’s worth considering that the failure of tort law to provide redress against recreational use of drones perhaps suggests that the intrusion is not always so severe that it deserves legal sanction. Legislation should be tailored to those uses that are truly harmful, and it shouldn’t go so far as to limit the many amazing opportunities for exploration, art, or commerce that widely available aerial photography presents.

For more on the legal issues at stake with drones, check out the great CRS report mentioned above.

About Matthew Lipka

Matthew Lipka is a 1L at HLS. Before law school, he worked at a transit agency and as a consultant with infrastructure and industrial companies and the public sector.

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