Drones continue to worry privacy advocates and landowners, and lawmakers are starting to take note. In the meantime, some have wondered if it’s legal to shoot a privacy-invading drone out of the sky – no one’s in it, that’s for sure.
FAA Tasked with Introducing Drones
Drones are unmanned, remote-control vehicles, some of which can fly. Their increasing use has caused many states and privacy advocates concern. Drone operators can fly the things under 400 feet under current FAA regulations without much hassle from the authorities.
But the Electronic Frontier Foundation, a privacy organization in San Francisco, thinks that’s a bad idea. “EFF is suing the FAA over who they are giving drone authorizations to and for what purpose,” notes Trevor Timm, an activist with the EFF.
“Even though the FAA is very transparent when it comes to manned aircraft, they have unfortunately been very secretive about who has applied for and received drone authorizations,” he says. The EFF filed its lawsuit in January 2012.
Why wait for the FAA, which Congress has actually tasked with introducing drones into the airspace by September 2015, to regulate drones: can’t landowners just shoot the suckers out of the sky?
“Unclear and Different” Local Regulations
While it’s true that the space above your property is also yours, that right only extends up to the space you can reasonably use. The U.S. Supreme Court set out that rule back in 1946, long before drones were ever imagined.
“You own the air rights you might reasonably use and enjoy, subject to recognizing the limits imposed by commercial aviation regulations and other modern realities,” says Rosanna Sattler, a partner with Posternak Blankstein & Lund LLP in Boston.
But within that space you can reasonable use, any action you take against a drone is subject to state laws – and it’s unlikely that target practice in your backyard will be allowed. “Most states do not allow force to stop a trespass,” observes Sattler. “The legality of the use of force by a civilian in any context is governed by each state’s law.”
And while more states and localities are stepping up to regulate the use of drones, the laws regulating them are still “unclear and different,” she adds.
For example, in late May, Texas passed a law penalizing the distribution of images or videos captured by illegally operated private drones. Violators are subject to fines of up to $10,000, but exceptions are made for law enforcement, utility companies, professional or scholarly research, and federal testing, says Sattler.
Can You Prove Damage?
So before you pull out your .22 and take aim, consider a more measured approach to that drone buzzing above your field. “Find out who owns and/or operates the drone,” advises Sattler. “Call the police and the FAA. Send a cease and desist letter. Perhaps file suit.”
If you do file suit, you could bring a number of causes of action, depending on the situation and state law: trespass, private nuisance, public nuisance, stalking, harassment, unreasonable invasion of privacy, and infliction of emotional distress.
And if the drone is operated by any government entity, you might be able to sue for violation of search and seizure constitutional prohibitions, Sattler says.
“Such suits could result in a restraining order or injunction against such flights over your property,” she explains. “But there is a real question as to whether you can prove any injury or damage flowing from the drone.”