Despite the implementation of the FAA’s Part 107 rules on Unmanned Aerial Vehicles, there are still certain aspects of the drone flight that are ambiguous from a legal standpoint. An oft-discussed matter relates to whether drone pilots can fly over somebody else’s private property. As you can imagine, property owners tend to have negative feelings about having a stranger’s drone fly over their land, mostly due to security and privacy concerns. In such cases, does the law side with the drone pilot or the property owner? Read on as we dissect the details of this ill-defined matter.
Why would you fly over someone else’s private property?
In an age where millions of drones have been purchased for both leisure and business, the matter of restricting where they can fly has become a relevant topic of discussion. With commercial drone services having an increasing impact on the country’s economy, the FAA has gained the unenviable role of addressing the public’s concerns over safety and privacy while maintaining an environment that promotes drone business startups.
Unfortunately, the rate at which drones are purchased and used for commercial applications appears to be much higher than what the FAA has anticipated. With such widespread commercial and personal use of drones, scenarios have come up that are beyond the scope of current legislation on drone flight. Flight over private property is one such scenario especially with huge companies like Amazon and Google exploring the possibilities of drone-based parcel delivery. Some degree of drone autonomy, as well as flying over numerous private properties, will be necessary is this drone application has any hope of becoming commercially viable.
Aside from delivering payloads, a few commercial drone applications may also end up in scenarios where drones fly over private property without the express approval of the property owners. Drone coverage of news events, search and rescue operations, real estate advertising – these are common commercial drone services that have a potential of running afoul of private property owners.
What does Part 107 say about flying over private property?
The Part 107 rules were implemented by the FAA to establish a standard level of knowledge and restrictions on drone flight. It has been criticized numerous times for being functionally suppressive to commercial drone applications due to its restrictions on common scenarios. According to the Part 1007 rules, FAA-certified drone pilots cannot fly their drones at nighttime, from a moving vehicle, over crowded areas, or beyond the line of sight, among several other restrictions. The FAA does provide waivers to some of these restrictions, but the process is somewhat tedious and takes a very long time.
One aspect of drone flight that the FAA apparently did not anticipate will be relevant is flight over private property. The Part 107 rules only restrict drone flight above 400 feet and in restricted areas, such as near airports and other critical infrastructure. If you see a drone hovering at 200 feet over your house in a neighborhood far from any airport, then sorry – the Part 107 rulebook cannot help you define what is right or wrong.
Who owns the airspace above private property?
Before the time of aircrafts, the boundary of ownership of private property was very simply defined to include “to the heavens and to hell”. Of course, this concept has since disappeared in modern society with the prevalence of commercial airlines, as well as electrical wires and utility pipes that run underground.
Technically, it has been well-established that the federal government has sovereignty over all “navigable airspace” in the United States. The task of defining what constitutes this “navigable airspace” has been delegated to the FAA, but the boundaries of this airspace remain vague up to this day.
It is easy enough to define the space above 400 feet as under the control of the FAA, as it is the altitude at which aircrafts commonly fly over private property. However, this point is moot as drones are not allowed to fly above 400 feet. The ambiguity lies in the space below this altitude – does the property owner have ownership of the airspace up to 100 feet? How about the airspace that is just above the ground? It is entirely impractical to declare the whole airspace from the ground to 400 feet as restricted, since this will leave drones with no airspace to operate.
The authority of the FAA over low-altitude airspace was even further reinforced with the signing of a new Executive Order that mandates the FAA and the Department of Transportation to come up with a pilot training course for low-altitude flight. What constitutes low altitude in this case? You guessed it – anywhere below 400 feet. This is a move that was made to promote low-altitude commercial flight, which is in direct conflict with many local governments who have enacted their own restrictions on low-altitude flight.
Precedents on private airspace issues
The issues on the ownership of airspace over private properties can be better understood by looking at some of the most relevant cases that discussed this issue. In one landmark case, United States vs. Causby (1946), the Supreme Court ended up siding with the property owner due to actual economic damage caused by low-altitude aircraft flight. In this case, the private property in question was a farm that was adjacent to US military-controlled airport. The noise from the low-flying military aircrafts startled the chickens in the farm, causing them to fly into the walls of their coop and die.
Due to the loss of livelihood and property damage, the Supreme Court decided that “the landowner owns at least as much of the space above the ground as they can occupy or use in connection with the land” and that they have “exclusive control of the immediate reaches of the enveloping atmosphere”. In a massive oversight, the Supreme Court failed to establish a limit for the airspace that a private property owner can control.
Further muddling up the matter is the decision of the court that a physical takeover of the property is not necessary to constitute a partial and unconscionable takeover. In fact, the establishment of a low-altitude highway for aircraft access qualifies as a partial takeover as it takes away the owner’s right to the full enjoyment of their property.
This decision was echoed by the case of Griggs vs. County of Allegheny (1962), in which a decision was made that declared that the directing of low-altitude flight traffic over private property without the consent of the owner constituted an unconscionable of an avigation easement. This made the property owner eligible to receive compensation according to the Fifth Amendment’s Taking Clause.
More recently, a resident in Kentucky shot down a Phantom drone that flew over his property as he argued that the drone violated his and his family’s right to privacy. There was some dispute as to how low the drone flew – the property owner estimated that it was at 100 feet or less, while the drone pilot had data to support that it was at above 200 feet. Although the property owner was initially arrested by the police, he was eventually cleared of all charges, with the judge stating that he had “the right to shoot the drone.”
Discord between local laws and the FAA
Several local governments, spurred by concerned residents, have drafted and passed their own restrictions on low-altitude flight. In 2015, California lawmakers passed a bill that established drone no-fly zones from the ground up to 350 feet over all private properties (this law has since been vetoed). Oregon also has an existing law that will allow property owners to sue a pilot that flies drone below 400 feet over their property more than once without their permission. In Florida, Section 934.50 of the Criminal Code prohibits the use of drones for surveillance when it violates a person’s reasonable expectation of privacy, including within their own property.
The FAA argues that the safest way to regulate aircrafts – manned or otherwise – is to establish a nationwide, uniform system. The FAA further reiterates its authority by stating that it controls all airspace down to the ground surface, and that its federal mandate trumps all other state and local laws. It’s hard to argue with this decision, as having different set of laws in each local government can be perceived to be very restrictive of a commercial drone service industry that has only started to thrive.
This means that the laws passed by local government on low altitude flight run the risk of being in contradiction with the FAA’s mandate, and that these laws can be pre-empted by federal law should they be challenged. In fact, the recent case of Singer vs. the City of Newton manifested this conflict. In this case, the United States District for Massachusetts ruled that local laws prohibiting the flight of drones below 400 feet over any private property were pre-empted by federal law. According to the decision, the local provision against drone flight below 400 feet “thwarts not only the FAA’s objectives, but also the those of the Congress for the FAA to integrate drones into the national airspace”.
So far, the FAA and the local governments have not run into any major conflict regarding airspace rules. However, we expect local governments to push back should the FAA decide to fully assert its ownership over the airspace. After all, it is state laws and not federal laws that determine property rights. Local government are likely aware that they have a say on this matter, and that the FAA’s authority cannot override the rights of every single local government.
To avoid conflict with FAA rules, some local government have come up with creative restrictions on drone use. Instead of regulating where drones can fly, they have taken to restricting where drones can land or take off. Concerns over privacy have also been addressed by only allowing drones with no cameras to fly over private property. However, these measures fail to address the concern of property owners who perceive drones as a nuisance or as a cause of accidental property damage.
The matter seems very vague. What should I do?
The opinion that the matter of drone flight over private property is very vague echoes that of a lot of commercial drone service providers, drone pilots, and lawmakers. If you’re a commercial drone pilot who is concerned with potential issues on flying over private property as part of a job that you have taken, then there are several preventive measures you can take:
1. Check with local laws
As we have discussed above, many local governments have come up with their own restrictions regarding drone flight over private property. It is in your best interest to be familiar with these local laws and try to follow them as much as possible. Although courts tend to side with FAA-mandated federal laws, you still would not want to waste your time and resources in settling a potential lawsuit.
2. Seek the permission of property owners
If you simply must fly over private property, then you can try negotiating the terms with the property owner. For the protection of both parties, it would be better if you can secure this agreement in writing. More than protecting yourself from potential lawsuits, this is an act of courtesy that could help uplift the image of the drone community and put to rest any of the common prevailing concerns over security and privacy.
3. Seek FAA and local law enforcement guidance
As a drone pilot, it is your responsibility to practice due diligence and plan for all circumstances when you fly your drone. It is not unreasonable to ask the FAA or the local law authority if you will be violating any relevant laws should you carry out your drone flight plan.
4. Get drone insurance
Although law enforcement discourages any harmful action towards drones that property owners perceive to be trespassing in their domain, it is an outcome that has happened several times over. There is also no assurance that the courts will side the drone pilot. If you’re a commercial drone pilot, then it is just prudent that you get insurance for your drone, especially if it is your means of livelihood.
The matter of drone flight over private property is an issue that has yet to come to a definitive resolution. For now, drone service providers and property owners are stuck waiting for the decision on who owns the airspace below 400 feet, and what kind of rights this ownership grants.
For now, it is in the best interest of drone pilots and commercial drone operators to avoid any incidents that may lead to a lawsuit due to the perceived trespassing over private property. Relevant precedents seem to indicate that courts tend to take the side of property owners.
Although the FAA has consistently taken the stance that federal laws pre-empt any local laws regarding ownership of airspace, there has been no firm enforcement of this affirmation. Right now, local governments have taken steps to regulate the airspace in their own states or cities, creating more confusion for everyone. This confusion has been very counter-productive to the FAA’s objective of integrating drones into national airspace. Along with many other drone pilots, we are eager to see a final resolution to this matter.
Obviously, this article is not legal advice. It’s for informational purposes only.