Drones, federal and Illinois law, surveillance and the Fourth Amendment –Ad coelom et ad inferos?

On December 7, 2016, Amazon delivered its first package via a fully autonomous drone delivery system. This delivery, part of an Amazon test program, is just the tip of the iceberg when it comes to practical applications of unmanned aircraft systems (“UAS”), commonly referred to as drones or unmanned aerial vehicles (“UAVs”). Beyond package delivery, and beyond use by hobbyists, drones can and will be used in the coming years for land surveillance, monitoring traffic and weather conditions, crowd control, search and rescue operations, disaster response, border patrol, law enforcement, and much more.

All of these applications, however, are contingent on drones being able to fly freely through airspace, which not only implicates Federal Aviation Administration law and regulations, but also implicates real property owners’ rights. This article examines the intersection of property owners’ rights and drone operators’ rights, and highlights some of the wide-ranging societal repercussions that may result from increased commercial and governmental drone usage in the coming years.

Before airplanes became a common mode of transportation, a property owner’s rights were said to extend ad coelom et ad inferos, or up to heaven and down to hell. When the first planes were invented and flown, therefore, any time they flew over neighboring property without permission they were technically trespassing on that property by flying in the airspace, or vertical curtilage, of that property. As the aviation industry grew and expanded, however, the government decided to regulate airspace. The government enacted legislation that effectively adjusted property owners’ airspace rights in order to accommodate airplanes. Eventually, property owners’ rights were limited to what a property owner could reasonably use, and generally, airspace 500 feet above ground level is considered navigable airspace, regulated by the FAA. Now when an airplane flies over your property, the airplane is no longer trespassing.

Drones, however, generally fly in airspace below the FAA’s navigable airspace, in the vertical curtilage that is viewed as still belonging to a property owner. This airspace has been, up until now, largely unregulated. In June of 2016, however, the FAA released its first operational rules for routine use of small UAS. See Operation and Certification of Small Unmanned Aircraft Systems, FAA Part 107 Rule (June 21, 2016). The rules offer safety regulations for UAS weighing less than 55 pounds conducting non-hobbyist operations. Among other things, the rules require drone operators to keep the drones within their visual line of sight and prohibit flights over unprotected people on the ground who are not directly participating in the UAS operation. While these prohibitions effectively limit drone operations over property that does not belong to the drone operator, the rules do not explicitly address the rights of neighboring property owners who do not wish to permit drones over their property. While several commentators have raised property owners’ rights as a concern, the rules explicitly state that “[a]djudicating private property rights is beyond the scope of this rule,” and concerned citizens are directed to review applicable state and local trespassing law. See FAA Part 107 Rule, page 228.

Many states have passed legislation addressing drones, but much of this legislation is still preliminary and/or investigatory at this point. Illinois, for example, passed the Unmanned Aerial System Oversight Task Force Act, 20 ILCS 5065 et seq. This Act’s purpose is to “establish a task force to provide oversight and input in creating comprehensive laws and rules for the operation and use of drone technology within this State, subject to federal oversight and regulation.” The Act requires the Task Force to issue a report with recommendations as to how to best address drone technology to the Governor and General Assembly no later than July of 2017 (this deadline was initially July 2016, but has since been extended). See 20 ILCS 5065/15(g).

It is clear, therefore, that the existing legislation regarding drones does not explicitly address the concerns of real property owners with regard to drone usage over one’s property. However, in the absence of federal or state regulations granting drones the right to fly over private property without the property owner’s permission, drones do not have the right to do so. Property owners may enforce their rights through tort law, and may bring trespass and invasion of privacy claims to do so. In Illinois, trespass is “an invasion of the exclusive possession and physical condition of land.” Colwell Sys., Inc. v. Henson, 117 Ill. App. 3d 113, 116, 452 N.E.2d 889, 892 (4th Dist. 1983). Thus, if a drone operator flew a drone over your property below the FAA’s navigable airspace, the operator would technically be trespassing on your land.

Additionally, to establish a claim for invasion of privacy based on intrusion upon seclusion in Illinois, a plaintiff is required to show that (1) the defendant committed an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) the intrusion would be highly offensive or objectionable to a reasonable person; (3) the matter intruded on was private; and (4) the intrusion caused the plaintiff anguish and suffering. See Busse v. Motorola Inc., 351 Ill.App.3d 67, 71 (1st Dist., 2004). Therefore, if a drone was equipped with a camera or other recording device that objectionably recorded the private activities of the property owner, the drone operator would also be committing an invasion of privacy.

However, filing a lawsuit seeking damages for trespass or invasion of privacy after the fact is a longer term solution than some would like. In June 2015, William Merideth shot down an unmanned aircraft with a shotgun as it flew over his Kentucky home. Mr. Merideth stated that he believed the drone was recording his teenage daughter as she sunbathed, and that he was entitled to shoot down the drone pursuant to Kentucky’s stand-your-ground law, which allows a landowner to use physical force “upon another person when the person believes that such force is immediately necessary to prevent the commission of criminal trespass.” Ky. Rev. Stat. Ann. § 503.080. Mr. Merideth was initially charged and prosecuted in Bullitt County, Kentucky for criminal mischief and wanton endangerment, but the judge concluded that the drone flight had constituted an invasion of privacy and dismissed all charges against Mr. Merideth.

Subsequently, the drone owner filed a federal claim in the Western District of Kentucky seeking money damages for the damaged drone and asking for a declaratory judgment resolving the tension between the rights of drone operators and the rights of property owners. See Boggs v. Merideth, 16-cv-6-DJH (W.D. Ky). The complaint asked the district court judge to issue a judgment declaring that drones are “aircraft” subject to federal law and thus when they are operating in navigable airspace they cannot be committing trespass or an invasion of privacy. The court has yet to resolve the issue, as there is currently a pending motion to dismiss based on lack of subject matter jurisdiction.

The question the drone operator asked the court to resolve in Boggs v. Merideth will have wide ranging implications no matter which way it is eventually decided. That is, whether the law eventually settles on viewing drones as airplanes and effectively lowering the navigable airspace (thus reducing property owners’ rights), or the law decides to favor property owners’ rights and views unauthorized drone flight over private property as akin to any other unauthorized entry onto private property, the outcome will implicate larger questions that will affect all of us on a daily basis.

If, for example, the vertical curtilage of property is lowered to allow effectively unconstrained drone operations over private property, there will likely be serious Fourth Amendment implications. Generally, the government is required to obtain a warrant to perform a search on private property, but it is not required to obtain a warrant to perform public surveillance. That is because, pursuant to Fourth Amendment doctrine, a person has a reasonable expectation of privacy in her home, whereas she does not generally have a reasonable expectation of privacy when in public. If, however, people become accustomed to private drones constantly flying over their homes, whether or not those drones are equipped with surveillance cameras, then it will be much more difficult for the average person to object to governmental drones doing the same thing. So, by allowing Amazon to fly over our property to deliver packages, we are opening the door to allowing the government to do away with the warrant it would otherwise be required to obtain in order to do the same thing.

On the other hand, forbidding drones to fly over private property in deference to property owners’ rights may stifle innovation and greatly reduce many of the benefits potentially offered by drone technology. While drones could theoretically only fly over public roadways, requiring drones to do so to make deliveries or perform other functions that we see as a net good would reduce the efficiency of the drones. And, while a company like Amazon could theoretically obtain the permission of many property owners to routinely fly over their property (either by requiring consent as a term and condition of accepting Amazon deliveries, or alternatively by instituting a micropayment process through which property owners would be compensated each time a drone flew over their property), less ubiquitous companies would be unable to obtain consent of enough property owners and would either be forced out of or prevented from entering the marketplace.

In the end, it is inevitable that drones will become a much larger part of our daily life. Drone technology represents the next frontier in aviation, and drone usage will certainly result in tangible benefits to society at large. However, when making decisions regarding how drones our viewed in the legal system, we need to be cognizant of and sensitive to the significant tradeoffs to property and privacy rights that will result, regardless of how the law is eventually settled. 