Even a toy drone with an HD camera scrambles our sense of property and privacy rights.
My poor kitten, who my unfortunate Instagram contacts know too well, gets beat up every time he goes outside. There's a bully cat in the neighborhood who appears to relish in attacking cute, fluffy things as soon as they get out of human oversight. So, naturally, I bought a Parrot AR.Drone.2.0, a remote-controlled quadcopter with an HD camera attached, to see if I could spot where the punk bully cat hangs out.
After some training runs in which I crashed the little UAV every fifteen seconds, I started to get the hang of where to push on my iPad to get the little AR.Drone to go the way I desired. And then, dodging trees and power lines, I sent the machine flying higher in the sky and scooted towards the fence, popped over it, and -- terrified of crashing in territory I didn't control -- sped back across to the safety of my own backyard, and engaged the automatic landing sequence.
Technically, I'd gone over the fence line, and if I'd done so on foot, intentionally, I would have nominally been guilty of trespassing. But if I were flying in a helicopter, a few hundred feet up, I would *not* have been guilty of trespassing. So, what about the air in between?
There aren't many specific laws or cases on the books to address my specific situation, but we do know that the idea of airspace has changed in the decades since humans started flying around.
"Once upon a time, you had the rights to your property under the soil and to the sky. It went by the colorful, Latin label "ad coelum et ad inferos"---to the heavens and hell," Ryan Calo, a University of Washington law professor and former research director of Stanford's Center for Internet and Society, told me. "But subsequent case law recognized the limits imposed by commercial aviation and other realities of the modern world. Now you own the air and soil rights you might reasonably use and enjoy."
That original dictum -- ad coelum et ad inferos -- was never part of legislation, but rather passed to us from British common law. The process by which this notion of property was limited really began in the early twentieth century, when we began to regularly reach into the heavens and nominally closer to hell. Timothy Ravich is an aviation lawyer who contributed an article to the North Dakota Law Review (UND is a major hub of civilian aerospace training) on "the integration of unmanned aerial vehicles into the national airspace." I figured if anyone knew the legal status of my neighborhood flights, it would be him.
"If you were to take your Parrot drone over my house, I suppose at one level, it is a trespass," he said. "You were not invited there and could potentially have disrupted my quiet enjoyment of my home. I suppose I could sue."
Whoops, I thought. But it's not really that simple. Regardless of whether someone technically had the right to stop me from flying my little UAV over a house, "It's quite another thing to exercise those rights in a court of law," Ravitch said. "If someone does take a Parrot and fly it over your house every day for a year. Are you injured? What are the actual damages?"
In other words: what are you gonna do about it?
"What [property] rights you have beyond what you can physically touch has always been difficult for the law to grapple with," Ravich told me.
"Good fences make good neighbors," Ravitch said. "But we don't build fences in the air."
There are two fascinating analogous cases to look at. The first reaches all the way back to the early 1800s, when balloonists (!) were first making their uncertain journeys skyward. In 1822, the Supreme Court of New York heard the case of Guille vs. Swan. Guille was a balloonist. Swan had a vegetable garden. Guille launched himself in a balloon near Swan's patch and as he descended, hilarity/mayhem ensued. Here's the court's description of the situation:
The facts were that Guille ascended in a balloon in the vicinity of Swan's garden and descended into his garden. When he descended his body was hanging out of the car of the balloon in a very perilous situation and he called to a person at work in Swan's field to help him in a voice audible to the pursuing crowd. After the balloon descended it dragged along over potatoes and radishes about thirty feet when Guille was taken out. The balloon was carried to a barn at the further end of the premises. When the balloon descended more than two hundred persons broke into Swan's garden through the fences and came on his premises beating down his vegetables and flowers.
Guille was found liable both for the damage his own balloon caused and the damage perpetrated by the crowd following him. But in that case, the problem was not the flight over Swan's veggies, but its descent back down where property rights make more sense.