From Self-Help “Skeet Shooting” to DHS Guidance for Law Enforcement: Regulation of Drones Is a Bumpy Ride

When William Merideth allegedly witnessed an Unmanned Aircraft System (a.k.a. “drone”) hovering over his property while his 16-year-old daughter sunbathed in the garden, he promptly took out his 12-gauge shotgun and blew it out of the sky. In the wake of the subsequent criminal charges against him, the self-proclaimed “Drone Slayer” proudly asserted that his act was justified, and that he’d readily do it again.

This legal battle brewing in Kentucky illustrates one of the several complex issues arising out of the rapid proliferation of drones used by hobbyists, commercial actors, and law enforcement officials. In Merideth’s case, the issue is one we have seen many times (who owns the airspace over your land?), but now it’s being applied to a brand new context: the era of smaller, cheaper, and unmanned aircraft.

The Kentucky district court dismissed all criminal charges against Merideth, concluding that he was well within his right to defend his privacy because at least two witnesses said they saw the drone “below the tree line.” In Kentucky, a landowner may resort to self-help in response to trespass (KY Rev. Stat. Ann. § 503.080). On the other hand, John David Boggs, the owner of the Phantom 3 drone, claims that the drone had been flying at around 200 feet when it was shot down, which counts as Class G navigable airspace. Now, Boggs is taking his case to federal district court in a civil case and has argued that the federal government has exclusive jurisdiction over U.S. airspace and therefore the airspace is not subject to private ownership. No private ownership, no trespass. This begs the questions: whether it’s “below the tree line” or at 200 feet, where does the FAA’s jurisdiction over airspace begin, and what are the implications of that jurisdiction?

The Federal Aviation Administration’s current position is that its sovereignty over navigable airspace extends all the way to the ground. This raises the unresolved question of whether or not states like Kentucky have any role in regulating drones at all and, therefore, whether individuals can bring state law claims against drone users. The 1946 Supreme Court decision U.S. v. Causby preserves at least some degree of landowner rights: although the Court held that the air is a “public highway,” it said landowners still own at least as much airspace as they need to make reasonable use of the land. Therefore, permitting aircraft to fly 83 feet above the Causby farm, literally frightening their chickens to death, constituted an unconstitutional taking under the 5^th Amendment.

Still, it is unclear what it takes to interfere with the “reasonable use” of land. Surely when people look out their windows they do not expect that the government can sanction that space’s use by any private actor and for whatever purpose it chooses. But if that is the case, what does that mean as more drones take to the skies? Given that more than 15,000 civilian drones are sold in the U.S. per month, and many of these drones come equipped with cameras, it is unsurprising that people like Merideth are on edge (and others have also resorted to self-help).

Of course, private usage of drones is just the tip of the iceberg. Increasingly, law enforcement officials are turning to drones when patrolling the nation’s borders and hunting down suspects. Recently, the Department of Homeland Security released a set of best practices that lay out the privacy, civil rights, and civil liberties considerations that should be made when government agencies begin building UAS programs. These guidelines are a welcome step in the right direction because they emphasize that law enforcement drone usage should, to the extent feasible, be transparent, secure, and conducted within the confines of a clearly defined purpose. Unfortunately, the DHS’s guidelines are lacking in detail and do not go nearly far enough when it comes to protecting citizens’ constitutional rights.

In particular, the guidelines do not require law enforcement to obtain a warrant prior to conducting surveillance over private property or long-term monitoring of public spaces. Although the 1989 Supreme Court case Florida v. Riley held that surveillance of a greenhouse from a publicly accessible area (in this case, a helicopter hovering at 400 feet) did not require a warrant, Justice Brennan’s dissent presciently warned of a time when a helicopter “capable of hovering just above an enclosed courtyard without generating any noise” could be used by police to discover “what books [people] were reading and who their dinner guests were.” Should that occur, Justice Brennan implied, then the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” would be infringed. The time of silent helicopters has arrived. As such, CDT believes that, with some exceptions, a warrant should be required before using a UAS for surveillance of an individual or private property.

It won’t be easy to answer questions about property and privacy rights in light of the increasing usage of drones, but if the American public is to embrace the many advantages that these new technologies bring to the table, the private and public sector alike must earn their trust first. Any solution must include transparency requirements that provide adequate information about a drone’s owner, the drone’s purpose, and means of redress. Moreover, it must preserve individuals’ fundamental right to be let alone. Buckle up.

CDT’s additional recommendations for the regulation of drone use can be found here and here.