Our Drone Law Boot Camp so far has focused primarily on the legal implications of drones for businesses, other drone users, and government units. This installment focuses on everyday people who are concerned about the sudden ubiquity of drones and what they mean for individual privacy and property rights.
While the rapid proliferation of drones comes with many potential benefits to businesses and the public, it also gives rise to legitimate privacy and property rights concerns, more so than with manned aircraft. Drones are easily equipped with recording devices and generally operate much closer to ground level than other aircraft. Historically, privacy and property rights are protected by application of common, state, and local law. In Maine, as in most other states, private citizens and property owners have a range of common law rights available to them that are potentially available to protect against abusive drone operation by other people.
For instance, the common law tort of “nuisance” refers to a substantial interference with a person’s use and enjoyment of his land. Maine also recognizes the tort of “intrusion on seclusion,” under which “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns,” may be liable for an invasion of privacy. Lastly, most people are familiar with the tort of trespass (also codified in Maine), which entails the unauthorized physical entry onto the property of another. When it comes to invasions by government actors (i.e., law enforcement), individuals are protected by the Constitution. In particular, the Fourth Amendment protects citizens from unreasonable searches and seizures when there is a reasonable expectation of privacy, and the Fifth Amendment protects against “takings” of private property.
Many state and local governments have gone further in protecting individual privacy and property rights by considering or passing legislation specifically banning or limiting the operation of drones. For instance, Maine passed a law requiring law enforcement to get a warrant before using a drone to conduct surveillance.
As noted in previous installments, the FAA is currently working on new regulations with the objective to safely “integrate” commercial UAS into the national airspace. Once the UAS regulations take effect, “navigable airspace” will likely extend to the ground (whereas “navigable airspace” in reference to planes historically refers to minimum cruising altitudes and the airspace necessary for landing and takeoff). It is too early to judge, but it could be that federal drone regulation will ultimately conflict with individual privacy and property rights to some extent. For instance, common and state trespass law will be one area of possible inconsistency, as there are legitimate arguments to be made that property owners own the airspace directly above the ground they possess.