“Perhaps the most contentious issue concerning the introduction of drones [also called Unmanned Aeronautical Vehicles or “UAVs”] into U.S. airspace is the threat that this technology will be used to spy on American citizens.” Alissa Dolan and Richard Thompson, CONG. RESEARCH SERV.,R42940, Integration of Drones into Domestic Airspace: Selected Legal Issues,*12 (Apr. 4, 2013). The tug of war between private airspace rights and an overly broad designation of publicly navigable airspace has created constitutional uncertainty. Search DRONE-BACKYARD-SURVEILLANCE and you will find the issue, seemingly settled for decades in case law, is remarkably one of first impression now.
Traditionally, the modern construction of air rights is founded in United States v. Causby, 328 U.S. 256, 264, 66 S. Ct. 1062, 90 L. Ed. 1206, 106 Ct. Cl. 854 (1946). There, the court stated: “The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” Id. There is no absolute, quotable ceiling to personal airspace above private property. It is as high as the owner can occupy. “We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.” Id. This means that private property rights are extended into the air, however ill-defined that space may be. This then determined the bounds of public space from which it may be legal to observe into private space.
The seminal guidance on government surveillance from the air finds its roots in a Supreme Court case challenging the California government’s assertion of right to surveil a suspected marijuana grower’s high-fenced crop from public airspace. There, the Court found a corollary to the general rule that surveillance from public space to private space is not protected. “In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet.” California v. Ciraolo, 476 U.S. 207, 215, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). Applying the existing standard, “The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.” Id.
Likewise, “in a series of cases that provide the closest analogy to UAVs, the Supreme Court addressed the use of manned aircraft to conduct domestic surveillance over residential and industrial areas. In each, the Court held that the fly-over at issue was not a search prohibited by the Fourth Amendment, as the areas surveilled were open to public view.” Richard Thompson, CONG. RESEARCH SERV., R42701, Drones in Domestic Surveillance Operations, *7(Apr. 3, 2013). That was at a point in time when any closer intrusions by noisy, manned aircraft would be a hazardous nuisance before they became a true privacy threat. Thompson posits: “The crucial question, then, is whether drones have the potential to be significantly more invasive than traditional surveillance technologies such as manned aircraft or low-powered cameras— technologies that have been upheld in previous cases.” Id. The answer to Thompson is yes. Drones can enter or transit in spaces not contemplated by light aircraft, much less manned helicopters.
In Huerta v. Haughwout, a drone case with emerging implication, the FAA seems to have asserted in an enforcement of an administrative subpoena that airspace extends from the ground up. “It appears from oral argument as well as from the FAA’s website that the FAA believes it has regulatory sovereignty over every cubic inch of outdoor air in the United States (or at least over any airborne objects therein) [referring to the airspace in the Haughwout’s back yard]. If so, that ambition may be difficult to reconcile with the terms of the FAA’s statute that refers to navigable airspace.” Huerta v. Haughwout, D.Conn. 3:16-cv-358 (JAM), 2016 U.S. Dist. LEXIS 92866 (July 18, 2016); See also FAA Unmanned Aircraft Systems, Where to Fly, https://www.faa.gov/uas/where_to_fly/. Navigable airspace is defined under 49 U.S. Code § 40102(32): “airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part [49 USCS §§ 40101 et seq., 44101 et seq.], including airspace needed to ensure safety in the takeoff and landing of aircraft.” Those standards in the related subparts are based upon manned aircraft considerations, and do not encompass the comparable drone flight conditions.
In Haughwout, the Court allowed the administrative subpoena to proceed on the FAA’s arguments. Without further case law, the designation of ground-up airspace public, regulatable or navigable, even when contained within a backyard, imparts implications to existing aerial surveillance case law. Under Ciraolo’s well-settled standard, a government drone traveling in the publicly navigable airspaces does not require a warrant in order to observe what is visible to the naked eye. Applying Haughwout’s pseudo-conclusion, publicly navigable airspace in the age of drones may extend to the ground. Absent contrary case law, the surprising conclusion appears there may be no apparent lower limit to constitutional police surveillance from the air. The lack of on-point case law may further perpetuate uncertainty and constitutional tensions.
