I was picking green beans in our garden recently, carefully trying to avoid spiders and other insects hiding amongst the leaves. Suddenly, I heard a buzzing noise. It grew louder. I jumped back from the bean trellis, wondering whether there was a yellow jacket nest hidden there. After a few seconds, I realized that the noise came from a drone, not from insects. I felt relieved that I was not about to be attacked by stinging insects, but annoyed that my neighbor chose to fly his drone over my property. I don’t like my neighbor flying his drone over my property, but what are my rights to tell him to stop it?
The right to control airspace is one issue. Another issue is the spying issue. Most drones have cameras, allowing the operator to view what’s happening on the ground below. The spying issue involves my neighbor’s ability to observe me and my property and gather from air information about me, and my other neighbors, that is otherwise unavailable to him. My drone flying neighbor and I can’t see each other’s homes from the ground. I’m more concerned about the spying issue than I am the air space issue. Regardless of the right to control airspace, individuals still have privacy rights that must be protected.
The rules for commercial drones differ from the rules for hobbyist drones. This post focuses on the rules for hobbyist drones.
Who can control the airspace drones fly in?
The Federal Aviation Administration (FAA) exclusively controls navigable air space in the U.S. The FAA also regulates aircraft, including drones. The technical term for drones is small unmanned aircraft systems, (sUAS). The FAA does not require drone users to seek permission from the FAA before flying for fun or recreation, but the FAA does require registration for drones weighing more than 0.55 pounds and less than 55 pounds. Users must also label their drones with the registration number.
What is navigable air space? That’s one of the unsettled legal issues regarding drones.
In U.S. v. Causby, a 1946 case, the U.S. Supreme Court ruled that the U.S. military invaded a chicken farmer’s property by flying at an altitude of 83 feet over the farmer’s property. Under the FAA Federal Aviation Regulations, the minimum safe altitude in non-congested areas is 500 feet above the surface. 14 C.F.R. §91.119. The debate over control of the airspace between 83 feet and 500 feet became more intense with the increased popularity of drones. How do the rights of property owners, the authority of state and local governments to make laws, the authority of the FAA to create regulations and the rights of drone owners to fly their aircraft fit together?
This is what the statute says:
(1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest.
(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for—
(A) navigating, protecting, and identifying aircraft;
(B) protecting individuals and property on the ground;
(C) using the navigable airspace efficiently; and
(D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.
49 U.S.C. 40103(b)(1), (2).
The statute arguably gives the FAA the authority to regulate airspace at any altitude, including all the way to the ground, to meet the statute’s objectives. The FAA breaks airspace into Classes A through G. Class D Airspace is airspace from the surface to 2,500 feet above airport elevation.
Commercial drone operators, in particular, dispute the FAA’s authority to regulate the airspace between 83 and 500 feet. Similar to computer technology in an analog world, because of their small size and negligible noise level compared to airplanes and helicopters, drones are a disruptive technology in the 83 to 500 feet airspace regulation world.
What are the rights of those living on a piece of property to be free of drones?
Much of privacy law rests on the proposition that individuals possess the right to be let alone. The Fourth Amendment protects privacy – the right to be secure from unreasonable or warrantless searches or seizure – but applies only to government actors. Privacy statutes and the common law privacy torts protect individuals from invasions of their privacy by others.
Like the federal government, Washington state statutes take a siloed approach to privacy protection. Specific areas of privacy are protected, such as private communications, but no statute protects individual privacy across the board. Although some states do not recognize common law privacy torts or have supplanted the common law torts with statutes, Washington state courts recognize the common law tort of intrusion upon seclusion.
Washington State law has a gap in privacy protection when it comes to drones. RCW Chapter 9.73, Violating Right of Privacy, prohibits intercepting, recording or divulging private communications. The statute does not include videoing or photographing. RCW 9A.44.115, a criminal statute, prohibits voyeurism. Voyeurism requires photographing or filming for the purpose of arousing or gratifying sexual desire. That would not apply to most drone operators. RCW 63.60, Personality Rights, provides that every person has a property right in his or her name, voice, signature, photograph, or likeness. That may protect me from being photographed, but does not address drones entering the airspace above my property.
The tort of intrusion upon seclusion provides the most protection from invasive drone activity. A requirement is that the intrusion must substantially interfere with the plaintiff’s seclusion in a manner highly offensive or objectionable to a reasonable person. In 2014, a federal judge in the Eastern District of Washington ruled that a criminal defendant had a reasonable expectation of privacy in the front yard of his rural home. That is at least a start in seeking protection from unwanted drones.
Can a state pass a law protecting its citizens from being viewed by drones? That may be hard to do without violating the First Amendment.
Voluntary Best Practices for Drone Operators.
The National Telecommunications and Information Administration (NTIA) convened a multi-stakeholder process to address privacy protection issues arising out of drone operation. As a result, the NTIA produced a guide entitled Voluntary Best Practices for UAS Privacy, Transparency, and Accountability. The Voluntary Best Practices include notifying others of intended drone use, avoiding using drones for the specific purpose of data collection when the operator knows the data subject has a reasonable expectation of privacy, limiting the use and sharing of the collected data, keeping the collected data secure and monitoring and complying with federal, state and local UAS laws.
Getting back to my drone flying neighbor, it appears that the best choice is to have a friendly conversation with my neighbor to explain to him why I don’t like him flying his drone over my property. If things don’t go well, I have the dueling drone option to fall back on.
Other websites with information on operating drones: