Here Comes The Future (Again)

29 August 2018

We live in an era when the law is constantly working to keep up with new developments in science, medicine and technology.  And right now, we have a chance to watch the law surrounding drones emerge and evolve.

What do you do when a drone flies over your backyard, maybe while you’re sunbathing, or having a party?  Is it legal for a drone to hover outside your bedroom window? What if there is a camera attached to the drone?

What are the rules here?  What is the law?   What should the law be?

In July, the National Conference of Commissioners for Uniform State Laws, otherwise known as the Uniform Law Commission (ULC), began consideration of “a proposal for changing law across the United States to reflect the impact of unmanned aerial vehicles, or drones.”  Fidler, D., “The Drone Revolution Shakes Up Tort Law,” Council on Foreign Relations, August 14, 2018.  This is part of an attempt “to clarify property and privacy rights amidst proliferation of drones operated by hobbyists, companies, and government agencies.”

It’s an important issue.

Drones have proved fertile in producing legal controversies and calls for new law. Military drones used for targeted killings of terrorists and in armed conflict have generated heated debates under constitutional law, human rights law, and the laws of war. Law enforcement deployment of drones has provoked worries about expanded government surveillance. Aviation authorities around the world are crafting new laws to regulate unmanned aerial vehicles in airspace previously controlled only for manned flight. The rules on small unmanned aircraft systems adopted in 2016 by the Federal Aviation Administration (FAA) intensified legal concerns about how the integration of drones into the U.S. national airspace system would affect property and privacy rights at the local level.

Drones have caused legal and policy ferment because their combination of aviation know-how and digital control, connective, video, and sensor technologies produces capabilities beyond what traditional aircraft provide. These capabilities create new opportunities for recreational, commercial, and governmental purposes. However, taking advantage of these opportunities confronts legal regimes not designed for unmanned aircraft.

This is, in a sense, nothing new:  The law has long adapted to transformative technology, from automobiles to airplanes.  This has been done by cases which have created precedents, by regulations, and legislatively.

And now, it’s the drones turn.

At its heart, this is a dialogue about property rights, and privacy.

[A]viation policy and law never comprehensively addressed how public aviation rights and individual property and privacy rights aligned at lower levels of airspace, essentially below 500 feet above the ground. The FAA’s requirement that small unmanned aircraft fly below 400 feet has made this question acute, especially as commercial interest in exploiting drones more widely expands.

The draft proposal is not without controversy, however.  It contains two key provisions.

First, it contains a “new bright line” rule. Any intrusion—even those that cause no harm—by an unmanned aircraft into airspace above private property up to 200 feet without the owner’s consent constitutes a trespass, with exceptions, including for conduct during emergencies or pursuant to a court order.

Second, the draft act creates the tort of acquiring images, recordings, or physical or electronic impressions of private acts or trade secrets with a drone in a manner highly offensive to a reasonable person, excluding acquisitions protected by the First Amendment or that conform to the Fourth Amendment, a warrant, or court order.

Even if the proposal were to be adopted without change or challenge, there would still be enough ambiguity to keep lawyers in business:  What is acquisition of an image “in a manner highly offensive to a reasonable person?”  What does that mean?  But the proposal will be challenged, and already has generated some controversy.

The proposals provoked criticism, especially from drone companies and industry associations and alliances. Negative reactions included, among others, assertions that the draft act:

  • Interfered with the federal government’s exclusive authority to regulate the nation’s airspace and to pre-empt state and local regulations on drones;
  • Ignored that existing tort law on aerial trespass developed with manned aircraft in mind, which requires a showing of substantial interference with property rights, is very appropriate to apply to drones; and
  • Created new rules on property and privacy rights that will spawn litigation and uncertainty for drone operators and inhibit innovation and development of commercial opportunities.

Right now, this is only a draft proposal, but as the author of the article suggests, it is an important step.

Although only a discussion draft, the proposed act is a significant inflection point in policy and legal debates about drones. State lawmakers, who have been active in regulating drone use, will study this authoritative proposal. The draft act will also influence how executive branch activities, such as the Unmanned Aircraft System Integration Pilot Program, and proposed legislation in Congress, such as the Drone Federalism Act, further integrate drones into national airspace while respecting property and privacy rights.

So, readers, stay tuned.  Over the next several years, this emerging body of law will help shape the rights of drone operators, and the limits of personal privacy.