Private Drones and Private Property Rights

The recent incident in which pigeon hunters shot down a surveillance drone launched by animal rights activists has generated a great deal of commentary. Although this incident may have occurred over publicly owned land (at least according to the animal rights activists), co-blogger Ken Anderson asks what would happen if similar private drones took pictures over private property.

One can easily imagine such a thing happening, as drone technology spreads. Paparazzi could use them to try to take pictures of celebrities, businesses to spy on competitors, private investigators to collect evidence, and so on. However, property law does impose at least some constraints, especially with respect to low-flying drones.

Under the traditional common law, a landowner’s property rights extended infinitely up into the sky. This doctrine was largely abandoned after the invention of the airplane. However, as the Supreme Court recognized in the famous 1946 case of United States v. Causby, owners still retain the right to “exclusive control of the immediate reaches of the enveloping atmosphere,” which includes “at least as much of the space above the ground as he can occupy or use in connection with the land.” Neither the Supreme Court nor most state courts have ever explained precisely how far this “exclusive control” extends. But in most cases it surely covers at least 100 or so feet up, and sometimes more (in Causby, the Court ruled there was a taking of private property when government-owned planes regularly flew some 80 feet above the owner’s land).

Therefore, owners of low-flying surveillance drones that fly over private property could be liable for trespass. On the other hand, higher-flying drones are likely immune, unless they somehow “unreasonably” interfere with the owners’ use of the land below.

Of course property law is not the only constraint on private surveillance drones. Some states have invasion of privacy laws that restrict photography of unwilling subjects, such as California’s very broadly worded recent anti-paparazzi law. The California statute forbids “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.” Presumably, this covers photos taken by drones as well as by human photographers. A surveillance drone surely qualifies as a “visual or auditory enhancing device.” If drone surveillance of private land becomes common, we may well see more such laws.