Maybe Drone Privacy Shouldn't Be a Federal Case

The FAA's new drone rules leave an opening for state and local authorities to pursue privacy protections

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Photo: Andia/UIG/Getty Images
Who owns the sky? Or at least the space that is low to the ground? The FAA's new drone rules don't exactly say, leaving an opening for state and local authorities to pursue privacy protections.

Yesterday, the U.S. Federal Aviation Administration’s new drone rules went into effect. While many drone enthusiasts were pleased to see some long-awaited progress on this front, the folks at the Electronic Privacy Information Center (EPIC), a privacy advocacy organization in Washington, D.C., don’t count in that group. They’ve been wrangling in court with the FAA over the lack of privacy safeguards in the new regulations—an issue that has dogged drone regulation for years.

EPIC’s lawyers contend that the FAA hasn’t lived up to the mandate Congress set for it back in 2012 to create “comprehensive” regulations for the use of small drones. After all, how comprehensive can any set of drone regulations be if they ignore privacy issues?

When EPIC first petitioned the courts back in February, the judge’s response was that such objections were premature, given that the FAA had merely presented proposed regulations, not final ones. But this month, now that the final rules are not only clear but also in effect, EPIC is once again pushing its legal case against the FAA.

It’s not surprising to me the FAA really didn’t want to grapple with privacy issues while formulating its new drone regulations. But what I found startling about the new rules is that they do, in fact, address privacy, albeit obliquely, and in a way that keeps the door open to some welcome decisions about who owns the sky when that sky is low to the ground.


Before I delve into the new regulatory language that does that, let me review some history here, the relevant parts of which go back to the very beginnings of aviation. You see, once people figured out how to fly, it became pretty obvious that there was a serious legal impediment to making use of those nifty new winged contraptions. The problem was that tradition over the centuries gave landowners ownership of not just the soil but of the space above it, ad coelum or “to the heavens” in the Latin phrase associated with this legal concept.

Early aviators were thus in a pickle: Flying around would necessarily entail trespassing on countless people’s land. What were they, and society as a whole, to do?

The short answer is that we happily trashed ancient legal tradition when the part of the sky involved was high enough up. Then it became “airspace” to be regulated by nations. (Well, if you go high enough, like to orbit, national sovereignty breaks down, but that’s a different piece of history.) In the United States, the legal basis for public airspace under federal control preempting landowners’ rights has been around ever since the Air Commerce Act of 1926.

The relevant part of this history is the question of where to set the borders between private property and public airspace. How high is the boundary? This is frequently a topic of contention near airports, and that’s where the issue came to a head for a chicken farmer named Thomas Lee Causby during the Second World War, near an airport in Greensboro, N.C. Noisy military planes were flying low and very much upsetting his hens.

Causby’s legal case went all the way to the Supreme Court in 1946, where the justices found that despite need for public airspace, landowners still commanded rights to “the immediate reaches of the enveloping atmosphere.” In Causby’s case, those immediate reaches went all the way up to 365 feet above ground level. We’re talking prime drone territory here.


In recent times the FAA has seemingly preferred to ignore the results of United States vs. Causby. At least it has given that appearance, for example, in 2012 when it fined Raphael Pirker for flying a small drone over the University of Virginia campus. Could the FAA’s authority (as Jim Williams, head of the FAA’s UAS Integration Office, claimed in 2014) really extend all the way down to the grass?

I’ve been upset by the FAA’s assertion of authority at such low altitudes for some time now. I’m swayed by the argument that the air at very low altitudes, lower than manned aircraft would reasonably fly, is not public airspace and that the rights to decide what goes on there is better left to property owners and local communities. One of the reasons for doing so is that it would allow landowners and communities to protect their privacy as they see fit.

Being a cynic, I fully expected the FAA to side with Amazon, Google, and countless drone companies in turning the air directly above my house and community into a public corridor for drones. So I’m very much heartened by language in the new regulations, which states pretty clearly that the FAA is not going to assert its authority over this low-altitude resource in some blanket fashion to the exclusion of everyone else.

Let me quote the relevant portion of the new rules, which takes some digging to find in Part 107, section III (Discussion of the final rule), C (Applicability), 3 (Public Aircraft Operations) a (Confined Area of Operation Boundaries) ii (Vertical Boundary, Maximum Altitude):

Adjudicating private property rights is beyond the scope of this rule. However, the provisions of this rule are not the only set of laws that may apply to the operation of a small UAS. With regard to property rights, trespassing on property (as opposed to flying in the airspace above a piece of property) without the owner’s permission may be addressed by State and local trespassing law. As noted in section III.K.6 of this preamble, the FAA will address preemption issues on a case-by-case basis rather than doing so in a rule of general applicability.

Some commentators, in particular lawyers at Morrison and Foerster, a law firm with a special interest in drone law, see the FAA’s flexibility here as bad news, saying, “…we likely will continue to see state and local governments legislate to address drone issues, creating the potential for a ‘crazy quilt’ of regulation.”

I for one welcome such a quilt and hope one day to be able to add my own bit to its fabric.

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