Drones, Airspace, & Private Property Rights

Jimmy Montelongo | March 7, 2018
Image by Peter Linehan, CC-BY 2.0 License.

When it comes to flying drones, the issue of property rights to low-altitude airspace above privately owned property is murky. Some claim that a property owners’ rights generally extend up about 500 feet, which gives them the right to prevent drones from flying or hovering over their land.  Others argue that drones represent an important technological innovation, and decisions about where and when they can fly should be made collectively, not by landowners through tort law.

The courts have taken very few stabs at clarifying this issue, at least for altitudes below 500 feet. However, the uncertainties surrounding the property rights to this airspace (above privately owned property) have not deterred the FAA or state and local officials from sprinting to regulate the burgeoning drone industry. This blog post argues that any current and future drone regulation must preserve the sanctity of private property rights.

Some commentators have argued that since drones represent the next frontier in aviation, regulations should open the airspace above private property up to drone flight, in the name of technological advancement. They argue that if the FAA had prohibited airplanes from flying over personal property, society would have lost out on a major mode of transportation. But airplanes and drones fly at very different altitudes, with drones possessing the ability to hover as low as the blades of grass on one’s lawn. This begs the question of where a property owner’s rights to be secure in her property fit into the equation.

Others argue that drones do not have, and should not be given, a legal right to fly over private property in defiance of the wishes of the landowner. This argument is more persuasive because drone flight in low-altitude airspace above private property implicates the same policy considerations for excluding other forms of trespass; chiefly among those is that a property owner has the right to the private enjoyment of her land without unreasonable interference. Drones arguably obstruct a property owner’s visual enjoyment of her property and take up physical space, which could interfere with the ways in which the property owner desires to use her land.

Additionally, people have the right to be secure in their homes; as the often-quoted phrase goes: a person’s home is her castle. Drone flight above private property could potentially undermine this value. Drones are equipped with cameras and other surveillance devices, which easily enable a drone operator to peer through windows on buildings and spy on intimate events. For example, in 2014 a drone operator was arrested for video recording through the outside windows of exam rooms in a hospital.

Furthermore, a property owner’s desire to preserve her privacy can also provoke her to make rash decisions in the name of self-defense, which presents safety risks to herself and others. This is precisely what happened in 2015 when William Meredith, a Kentucky man, shot down a drone hovering over his property. Although there are conflicting accounts of how the event transpired, Meredith claims the drone operator was spying on his family. He alleged that the drone operator hovered the device over Meredith’s property and below the tree line three separate times in a single day. Upon the drone’s third flyover, Meredith felt harassed and feared for his family’s privacy interest. Meredith then used a gun to shoot the drone out of the sky. The police were called, and Meredith was charged with wanton endangerment for firing a gun within city limits.  The county district court judge ultimately dismissed these charges, however, agreeing with Meredith that he had the right to defend his property. Even though no serious damage resulted from these events (well, besides the bullet-riddled drone), this case highlights the potential risk we would create if the FAA were to allow drones to fly over personal property.

Ultimately, drone regulation must protect private property rights to ensure the privacy and safety of property owners.