[co-author: David Wright]
Have you ever been startled by the buzzing sound of a passing swarm of angry mechanical bees as you work from home? Have you ever looked out your window and noticed an agile device zipping through your property? If so, drones might be aversely affecting your lifestyle. These little devices once only lived in the imaginations of science fiction writers, but nowadays, they are popular gadgets that many parents routinely buy for their kids during Christmas. The popularity of drones has exploded due to cheaper production costs, advancements in camera and wireless technologies, and the appeal of high-quality bird’s-eye view footage popularized by aspiring vloggers looking to create impressive visual content. Recently, the COVID-19 pandemic has further fueled drone popularity due to their potential in the context of robotic delivery services. However, despite its advantages, drone technology poses a significant threat to property and privacy rights; luckily, the law offers several grounds to obtain legal remedies if such rights are infringed.
Drone operators must follow established guidelines that regulate drone activity. Under the FAA Reauthorization Act of 2018 ( FAA Act) § 349, recreational drone operators must fly their drones at or below 400 feet above ground, register them with the Federal Aviation Administration (FAA), mark them with an FAA-issued registration number, and only fly their drones for recreational purposes, among other requirements. Commercial drone operators must follow 14 C.F.R. § 107, which also imposes a 400-feet height limit and imposes the same registration and marking requirements, but the regulation further requires a commercial drone operator to obtain an FAA-certified remote pilot certificate. Additionally, all drone operators must comply with § 357 of the FAA Act, which requires operators to conduct drone operations in a manner that respects and protects personal privacy consistent with existing laws.
Given the paucity of caselaw further defining the contours and applications of relevant sections of the FAA Act, those facing a drone issue might wish to bring additional claims utilizing established property law concepts.
First, if a drone flies over (or through) your property, you might wish to establish a trespass claim, but how high do your property rights extend above the ground? Long ago, when a levitating eye in the sky would have been an act of sorcery, the antiquated English law concept of ad coelum et ad inferos (which literally translates to “from heaven to hell”) established that every inch of space above and below your land belonged to you. However, with advancements in aviation and space technologies, ad coelum et ad inferos has lost its legal potency and new laws and cases have failed to provide a definite answer regarding your air rights. Some cases have only provided loose legal rules. For example, in United States v. Causby, 328 U.S. 256 (1946), a chicken farmer sued the federal government for flying military aircraft at low altitudes above his property. The aircrafts’ noise and bright lights would cause his chickens to die from flying into the barn walls out of fright. In its ruling, the Supreme Court confirmed that the federal government took an easement under the meaning of the Fifth Amendment, and stated that “the landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” Id. at 264. This ruling has served as the backbone for future cases discussing air rights, but the ruling is nonetheless nebulous. Does a property owner who planted tall trees in their yard own more air space than a property owner who owns an open plot? Both caselaw and federal regulations do not provide a definite answer.
Second, another remedy might be achieved by establishing a private nuisance claim. The nuisance would most likely be the loud, and difficult to ignore, whizzing sound created by a drone’s propellers. Such a sound arguably interferes with your enjoyment and use of property and the interference could be viewed as substantial and unreasonable. A court would apply an ordinary person test to determine whether the noise is a substantial and unreasonable interference—so repeated (or sustained) drone whizzing during the workday would lead to a much stronger claim than an occasional interference over the weekend.
Privacy law might prove better recourse in the face of camera-equipped drones (a common feature of most drones). In fact, some states have already enacted legislation specifically addressing privacy issues arising from drone technology. In California, Civil Code § 1708.08 prevents the use of drones to collect visual imagery, sound recordings, or other physical impressions of persons without consent. Florida adopted Criminal Code § 934.50, which forbids a person or state agency from equipping drones with imaging devices to record privately owned real property to conduct surveillance in violation of a person’s reasonable expectation of privacy.
Some people might be tempted to take the law into their own hands and shoot down an “invading” drone, but such an approach carries a high level of risk for the property owner and may lead to civil and criminal liability. Under federal law, willfully shooting down an aircraft (including drones) is a felony that may lead to imprisonment (18 U.S.C. § 32)—not to mention other potential liability tied to discharging a firearm into the sky. Furthermore, the drone operator could sue the property owner under state tort law and claim damages for the value of the drone and its payload. In response, a property owner would likely have to utilize legal theories like the “Castle Doctrine,” to the extent such defenses are available, to argue that they acted to protect themselves or their property and their response was proportional to the threat.
Of course, the best way to deal with your neighbor’s kid flying his new toy around without restraint is to knock on your neighbor’s door and ask the adults to step in. (One hopes this strategy works when the drone operator is an adult.) However, if you otherwise suspect malicious intent behind drones that routinely visit your house or use your yard as a thoroughfare, a call to the police can help identify the drone’s owner so that you can potentially utilize the above legal remedies to obtain civil relief.