I saw an article recently about a man in Kentucky who shot down a drone flying above his back yard. Things apparently got a little heated. When the drone’s owner confronted the homeowner, the homeowner trained his gun the on drone owner, and advised him if he crossed the sidewalk there would be another shooting. That is not exactly getting lucky in Kentucky.
All of this raises two questions: 1) is it legal to shoot down a drone hovering over your property; and 2) does the law say anything about whether the drone operator is breaking the law by flying the device over someone’s residence?
Let’s answer the questions in order. Police arrested the homeowner. So we can safely assume the answer to question one is no. Given that a drone can weigh up to 55 pounds, it’s probably not so safe if one falls on someone’s head or property. In the Kentucky homeowner’s case, he allegedly violated a local ordinance prohibiting the discharge of a firearm. He may also have violated FAA regulations. In short, adopting a “shoot first, ask questions later” approach is probably not a good strategy.
As far as the second question goes – can a drone legally fly over your property – the answer is a little more muddled. In Ohio, there doesn’t seem to be any law that addresses the point precisely. It is against the law in Ohio to “intercept an oral communication.” So if the drone is equipped with a high powered listening device, it’s likely breaking the law if it picks up talk around the backyard grill.
Outside of the eavesdropping though, it gets a little more complicated. Ohio has a criminal trespass statute. That statute makes it a crime to “enter or remain on the land or premises of another.” The law defines “land or premises” as “any land, building, structure, or place belonging to, controlled by, or in custody of another.” So, does a drone trespass? Well, while it’s in flight, it doesn’t enter on any “land, building or structure.” The question is whether the air space above the house is a “place” and whether the homeowner “controls” it. There don’t seem to be clear answers to those questions.
It's logical to suggest the higher the flyover, the less “control” the homeowner exercises over the space. In the Kentucky incident, the drone operator claimed to be flying the device at all times more than 190 feet above the ground. So, is it a trespass to operate a device 200 feet above ground, even if it passes over a neighbor’s yard? And if not, how low must it go to break the law?
About a dozen states have decided to eliminate the guess work and enact laws to address the issue. But the laws take different approaches. In Oregon, the law is something of a “do not fly” list. If a drone flies over a property at less than 400 feet, and the owner informs the drone operator he does not consent to the device flying there, it’s trespass if the drone later flies over at an altitude under the 400 foot mark.
By contrast, Idaho and North Carolina tend to be more protective of privacy. They simply outlaw the use of a drone to “photograph or record” for the purpose of publishing or otherwise disseminating the photograph or recording. North Carolina provides an exception for newsgathering and for recording "events or places where the public is invited.” That exception may make the North Carolina statute less vulnerable to a constitutional challenge.
Add another chapter to the book on laws struggling to keep up with technology. And I’ll stop droning on.