As a result of the technological progress made in the past few decades, an increasing number of businesses, within many different sectors, are exploring the potential use of drones. Large retail businesses like Amazon have implemented their use for delivering products by air, whereas smaller businesses such as construction companies, real estate agencies, and news agencies use drones to simply get footage from different perspectives.
However, as with many instances of new technology that people are not yet familiar with, there are many who hold the opinion that drones should not be permitted to fly except when done so by government agencies or authorized commercial institutions. Still, some take the view that drones can or should be flown only over property whose owner has granted permission – a restriction that, as relating to their use for deliveries, for example, would practically reduce their utility to zero.
Some of these skeptical views have been reflected through local and state laws, policies, and even some legal cases in the past years. In Texas, for example, a statute was passed in 2013 which read as follows:
“A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.” (Title 4, Subtitle B, Chapter 423)
The statute, part of which is stated above, attempted to place restrictions on who is able to use drones in the state of Texas, where, and for what purposes. When Billy Calzada, a journalist and commercially FAA-certified drone pilot, was arrested for violating this law, he filed suit against the state of Texas which resulted in a federal judge dismissing the law as unconstitutional on March 28, 2022:
“The court thus finds that plaintiffs have established that, as a matter of law, use of drones to document the news by journalists is protected expression… As such, the court finds that Chapter 423 violates the First Amendment.” (Case 1:19-cv-00946-RP Document 74)
Similarly, a man named Robert Harrison was flying his drone over a park in Genesee County, Michigan, in December 2018, when he was approached and arrested by a park ranger due to violating the park’s rule restricting aircraft flights above it:
“No person shall, upon the property administered by the Commission: Make any ascent or descent, operate or possess any balloon, airplane, parachute, drone, manned or unmanned aircraft on Commission properties or waters, except in designated areas, without first obtaining written permission from the Commission or except as may be necessary in the event of an emergency.’ (Section P910615-Aircraft and Drones)
After a lawsuit was filed against the county by Michigan Coalition of Drone Operators, Inc., a judge granted an injunction on February 10, 2020, that forced Genesee County to amend their park rules to allow the operation of aircraft over their parks:
“For the foregoing reasons, this Court prohibits the enforcement of any ban on possession, use, or operation of drones on Robert Harison or other members of the public by the Genesee County Parks Commission and any of its agents, representatives, Rangers, members, officers, directors, and employees that is inconsistent with the dictates of state and federal law.”
In relation to local regulations such as these, the Federal Aviation Administration has published a document in 2015 outlining the authority (and lack thereof) of state and local governments in regulating airspace, specifically relating to the operation of drones:
“Congress has vested the FAA with authority to regulate the areas of airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source. 49 U.S.C. §§ 40103, 44502, and 44701-44735…
A consistent regulatory system for aircraft and use of airspace has the broader effect of ensuring the highest level of safety for all aviation operations…
Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS [unmanned aerial vehicles/drones] in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system…”
While the FAA does have exclusive authority in regulation of airspace, however, there are still some aspects of drone operation that do rely on compliance with state and local laws and ordinances. Examples of this include laws regarding property rights, privacy rights, and criminal behavior.
In regards to property rights, some property owners hold the assumption that the airspace above their property is theirs just as the land is; however, that is incorrect. In the Case United States v. Causby in 1946, the U.S. Supreme Court reversed the common law doctrine that, until that point, had been in place:
“whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell” (Academia).
The judges’ ruling regarding that doctrine that it “has no place in the modern world” and, had it been observed, that “every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.” In that same ruling, the judges ruled that any flight having a “direct and immediate interference with the enjoyment and use of the land” could be considered a trespass, as was determined to be true during that case. Property owners also have the right to control and regulate the landing and takeoff of aircraft from their property, which is where certain city ordinances, state parks, etc, derive their authority to regulate the operation of drones in some capacity.
In regards to privacy, many states have passed laws that prevent the violation of a person’s “reasonable expectation of privacy”. This, however, has been determined to some extent not to include simply a distant aerial view of one’s home or backyard, since while someone may have an expectation of privacy in those places, such expectation may not be reasonable if the area is open to the sky. In California, Petitioner v. Ciraolo. in 1986, Santa Clara police had reason to suspect that a citizen was growing marijuana in their backyard, which was enclosed by a tall fence. Accordingly, members of the police department secured a private airplane and flew over the suspect’s property in order to view what was behind the fence. Upon visually confirming from the airplane that marijuana was being grown on the property, a warrant was issued for his arrest.
Upon dispute, the court held that the operation was not a violation of the 4th amendment, noting the following:
“The observations by Officers Shutz and Rodriguez in this case took place within public navigable airspace, see 49 U.S.C.App. § 1304, in a physically nonintrusive manner; from this point they were able to observe plants readily discernible to the naked eye as marijuana… Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.” (“CALIFORNIA, Petitioner v. CIRAOLO. | Supreme Court | US Law | LII / Legal Information Institute”)
While case law such as this and the aforementioned cases exist, some judges have ruled on the contrary, such as a judge in Kentucky that decided a man was not entitled to any damages after having his drone shot out of the sky by a neighbor (Matyszczyk). While many conflicting laws, cases, and opinions exist regarding the use of drones both in the commercial and personal sector, many are optomistic that as unmanned aviation becomes more prevalent and widely used, laws regarding their use will eventually become better understood and adhered to by citizens, businesses, and municipalities alike.
Academia. “cuius est solum.” cuius est solum, 2019, https://www.academia.edu/40572639/_cuius_est_solum_eius_est_usque_ad_coelum_et_ad_inferos_A_Latin_phrase_which_translates_to_whoevers_is_the_soil_it_is_theirs_all_the_way_to_Heaven_and_all_the_way_to_Hell_The_implications_of_the_influential_Latin_maxim_in_. Accessed 4 Apr 2022.
Amazon. “Amazon Prime Air Drone Delivery.” Amazon.com:, 2016, https://www.amazon.com/Amazon-Prime-Air/b?ie=UTF8&node=8037720011. Accessed 2 April 2022.
“CALIFORNIA, Petitioner v. CIRAOLO. | Supreme Court | US Law | LII / Legal Information Institute.” Legal Information Institute, Cornell Law School, 1986, https://www.law.cornell.edu/supremecourt/text/476/207. Accessed 4 April 2022.
Eaton, Emilie. “Texas drone law restricted journalists from doing jobs, judge rules.” San Antonio Express-News, 30 March 2022, https://www.expressnews.com/news/local/article/Texas-drone-law-restricted-San-Antonio-area-17040864.php. Accessed 2 April 2022.
Federal Aviation Administration. “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet Federal Aviation Administration Office of the Chief Cou.” Federal Aviation Administration, 17 December 2015, https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf. Accessed 4 April 2022.
Fonger, Ron. “Drones can take flight from public parks, Flint-area judge rules.” Ann Arbor News, 11 February 2020, https://www.mlive.com/news/flint/2020/02/drones-can-take-flight-from-public-parks-flint-area-judge-rules.html. Accessed 4 April 2022.
Matyszczyk, Chris. “Judge rules man had right to shoot down drone over his house.” CNET, 28 October 2015, https://www.cnet.com/culture/judge-rules-man-had-right-to-shoot-down-drone-over-his-house/. Accessed 4 April 2022.
Murphy, Kara. “US Judge rules against county seeking to ban drone flights in their parks.” Digital Photography Review, 17 February 2020, https://www.dpreview.com/news/1042631835/judge-rules-against-county-seeking-to-ban-drone-flights-in-their-parks. Accessed 4 April 2022.
NPPA. “Case 1:19-cv-00946-RP.” NPPA vs McCraw, 28 Mar 2022, https://nppa.org/sites/default/files/NPPA%20vs%20McCraw.pdf. Accessed 2 Apr 2022.
Oyez. “United States v. Causby.” Oyez, 1946, https://www.oyez.org/cases/1940-1955/328us256. Accessed 4 April 2022.State of Texas. “GOVERNMENT CODE CHAPTER 423. USE OF UNMANNED AIRCRAFT.” Texas Statutes, 2015, https://statutes.capitol.texas.gov/Docs/GV/htm/GV.423.htm. Accessed 2 April 2022.