Whoever Owns The Soil, It Is Theirs to Heaven – Privacy and Air Rights

Show of hands.  Who has been drooling over the fun that a drone could provide?  Launch it from your backyard and cruise the streets, check in on your kids when they are playing without leaving the comfort of your recliner, or other things.  For one resident, the realities of neighbors flying drones has come to roost.  Click here for the blog post and here for the commentary at The Atlantic.

Very interesting areas of the law.  So, who is right, who is in the wrong, and what does it matter?  There are two areas of the law that address this situation.  The first is privacy and the second are the rights that you obtain when you purchase a property.

Invasion of Privacy?

Without going into too much detail, if something is in plain sight you have no expectation of privacy over it.  So, if you are laying out for a tan in your backyard which has no fence, you probably don’t have an expectation of privacy.  Putting up a 12 foot high fence is probably an indication that you have some expectation of privacy.

If you are on the third floor of your home, you do not expect someone to come up to your house, get on a ladder and snap pictures of you studying the latest news on People.  Well, what about the drone in Seattle.  Was it an invasion of privacy?  I actually think so.  I do not think it is reasonable for you to expect someone to have a drone, fly it over your property, up to your window and stream video to their controller.  John Villasenor recently penned a law journal article analyzing the laws governing drones and privacy.  In his quotes in The Atlantic article, I think he gets to the heart of this, but dodges the issue.  Flying a drone over someone’s property and then up to the third floor window (as the residents allege) is the modern equivalent of the ladder.  If the drone was over a public thoroughfare looking into the house as part of a roof survey maybe the homeowner has less of a concern.

The Carrot of Rights

The privacy aspect of this is the one that gathers the most attention as it is salacious and provocative.  I think the more interesting aspect of this, legally, are your air rights to your property.

In the early, early days of property rights, you owned everything from the center of the earth up through your property and into the heavens (the Infinite Carrot).  As air travel and mineral deposits became valuable, easements and mineral leases reduced your rights.  As to the air, the FAA controls everything over 500 feet above your property.  And if you live near an airport and they build a new runway or change flight patterns, just get over it, because you will lose.

However, what about private citizens?  If someone walks on my property, they are trespassing.  If they are controlling a drone which flies five feet off the ground into my backyard, what changes the analysis.  It is still trespassing.

In the seminal case on Air Rights, cited wrongly by The Atlantic, the Supreme Court stated that “[f]lights of aircraft over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it.”  This was in the context of a public taking, and the landowners were entitled to compensation.  The Atlantic uses the sound-byte of “the air is a public highway,” but neglects to mention what prefaces that byte – “[t]he air above the minimum safe altitude …”  So if you fly over my property below that safe altitude, in a helicopter or a TARDIS, you are trespassing.

Maybe this issue of air rights isn’t so interesting, then.  I think it will be interesting as we see more civilian drones and overflights of property.  While proving an invasion of privacy gets into intent of the operator may be problematic, proving that they were over your property will be so much easier.

Have you seen a drone in your neighborhood?  Worried that your party in your backyard might be videotaped to be shown at the next homeowner’s association meeting?  I think we should all be worried.  Never forget that new technology and it’s uses have to comply with existing laws and rights.  The law will never be ready for new technology, it will always lag.  So, if you think your rights are being trampled on, look to the old to protect yourself from the new.


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