Domestic Drones: A Hornet’s Nest of Legal Issues

One of my friends asked me the following question: “Can I shoot down a drone flying over my property?”

This is a very good question and one that will become pertinent as we begin to live with domestic drones. American property rights are unique. Here in the United States property owners own the land within their boundaries and everything below ground all the way to the center of the earth. This differs from European laws whereby property owners are limited to the surface only. Everything below that limit is owned by the government. This matters in the United States because thousands of Americans are getting rich today off royalties from the drilling for natural gas and oil below the surface of their properties. There is therefore a financial incentive for homeowners to exploit these resources for their own benefit. Not so in Europe where property owners do not receive royalties from the exploitation of resources below their properties, but who are left with the cleanup and damage caused by the exploitation on the surface. This may explain some of the reason for the tremendous rise of oil and natural gas production in the United States in contrast to Europe which enjoys similar deep gas deposits but has been slow to exploit these resources.

But when it comes to the air, American law is more in sync with European law. Americans own only as much air above their land as they can “personally use,” and these rights have been circumscribed to a great degree by those owning properties near airports or below air traffic lanes. In general the Americans can expect to own a varying portion of the air above their property up to 500ft, where the air becomes regulated as airspace by the FAA. This portion may vary from a few yards above the trees to 500ft depending on the circumstances and the opinions of courts.

As with any new  technology the Law lags technological development. Currently the legal focus is on the use of drones by law enforcement agencies, so the laws are more advanced codifying their use. The ACLU provides a state-by-state list of current legislation when it comes to law enforcement drones. We are likely to see court challenges to existing law over government use of drones in the apprehension of criminals, and my belief is that these laws will catch up to the technology fairly quickly. But the laws listed by the ACLU do not address drone usage by private citizens or corporations.

Years ago my next door neighbor’s middle-aged son used to sit outside in a chair and ogle my wife while she worked in the garden and played with our son. Complaints to the neighbor and the son went ignored, and it was one of the reasons we built a 6ft privacy fence around our property. Today my neighbor’s son could spend a few hundred bucks and buy a drone with a live video feed. He could then ogle my wife from above his father’s property, and there would be little I could do about it.

I wouldn’t be able to shoot it down with a firearm because at the time I lived on a quarter acre in the Delaware suburbs, and would have been arrested for discharging a firearm unlawfully. If it hovered over my property I could take it down using a high powered laser, or an air rifle but only if the drone fell into that zone of “personal use.” We lived under a flight path to Philadelphia International Airport, so the FAA would have regulated anything above a couple hundred feet so if he flew the drone too high I could have called the FAA about him. But if he hovered the drone on his father’s property a few feet higher than my privacy fence, I don’t think there would have been anything I legally could have done (aside from getting him arrested for something else. It turns out after the neighbor moved his son had been growing pot in a closet.)  If I had used a laser to damage the drone’s electronics while over the neighbor’s property I could be liable for damage to the drone.

Today I live in a rural area where my nearest neighbor is a quarter mile away and values his privacy as much as I value mine. Since I shoot skeet and target shoot on my property I would have significant leeway for taking down a non-law enforcement drone a hundred feet or so above my property, but anything above that would be problematic. Much would depend on the nature of the drone. For example the power company has easement rights to my property, so I would not be able to take down one of their drones (nor would I want to: the power company is my best friend out here in the sticks, with the cable and satellite companies close runner ups.) If I found an unidentified drone hovering less than a hundred feet above my chickens, I might consider shooting it down with a shotgun (never a long rifle or handgun. Shotgun pellets lose their velocity and become harmless in a few hundred yards; a rifle or pistol round can be lethal due to its ballistic spin for a mile or more. Gun owners should NEVER SHOOT A RIFLE OR HANDGUN INTO THE AIR. EVER.) Alternatively I might fire up my own RC airplane which is must faster and larger than most domestic drones and ram it into the drone. This would allow me the pleasure of examining it without much damage.

The likelihood of such an interest in my bantam hens here in the Blue Ridge Mountains is quite minuscule. Where private party domestic drones will likely be used is in California, by paparazzi desperate to cover a movie star’s wedding or to get candid saleable shots. Photographers already hire helicopters to spy on celebrities, so drones will make such intrusions cheaper and more common. I fully expect California to lead the way when it comes to laws limiting the use of these private party drones.

In the meantime talk of shooting down drones over one’s property sounds appealing, but for the most part its a solution searching for a problem. And even if you wake up one morning and find a drone hovering outside your window instead of grabbing a gun it might be more advisable to grab your cellphone and call a lawyer.

 

 

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