In 1942 a chicken farmer outside of Greensboro, North Carolina, sued the U.S. government. He said the frequent, low overflight of military aircraft on the adjacent runway was scaring his birds and damaging his livelihood, and he wanted compensation. The case made it all the way to the Supreme Court in 1946. And one result of United States v. Causby was that the Court set the limits of private airspace: If you own a house, your property rights extend 83 feet up into the air.

That’s a quaint—and thankfully irrelevant—limit when it comes to manned aircraft. The Federal Aviation Administration keeps planes much higher than that, save on approach and take-off, and even then most airports require a decent buffer around them. But the 70-year-old ruling has new importance in the age of drones. It remains the only clear federal statement of law on how far above the ground your property ends. And that has raised concerns among some privacy advocates, who question whether anyone from a pesky neighbor to a police department to Amazon’s planned delivery service should be allowed to fly above private property, potentially shooting video from the level of the treetops.

Now a federal lawsuit, which was argued today in the D.C. Circuit Court of Appeals, is trying to force the Federal Aviation Administration to set rules protecting citizens from such privacy intrusions. The action was brought by the Electronic Privacy Information Center (EPIC); among other points, EPIC wants the FAA to make it easy for citizens to find out whether drones flying overhead have surveillance capabilities. The group also wants to protect the privacy rights of drone pilots, who have been required to register with the FAA since December.

This isn’t the first time that EPIC has tried to compel the FAA to focus on drones and privacy, but the agency argues that its authority is limited to making sure that drones are safe. For now, the question remains: If the FAA isn’t protecting your right to privacy from drone spying, who is?

Paparazzi Laws

Privacy concerns can lead to hot tempers. Last year, a Kentucky man use a shotgun to blast a drone out of the air above his home. A New Jersey man did the same thing in 2014, and a woman in Seattle called the police when she feared a drone was peeping into her apartment. (The drone belonged to a company conducting an architectural survey.) And in November, repeated night-time overflights by a drone prompted calls to Albuquerque police complaining of trespassing—the police concluded that the flyer wasn’t breaking any laws.

State laws already on the books offer some privacy protections, especially if a drone is shooting photos or video. Erin E. Rhinehart, an attorney in Dayton, Ohio, who studies the issue, says that existing nuisance and invasion-of-privacy statutes would apply to drone owners. If you could prove you were being harassed by a drone flying over your house, or even that one was spying on you from afar, you might have a case against the drone operator. But proof is difficult to obtain, she says, and not everyone agrees on how to define harassment.

Some states are trying to strengthen their protections. In California, nervous celebrities may benefit from a law signed by Governor Jerry Brown this past fall. The meat of the legislation reads, “A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission…in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff.” And a similar privacy law in Wisconsin makes it illegal to photograph a “nude or partially nude person” using a drone. (Dozens of states have passed or are considering drone-related laws.)

Most of these statutes are carefully worded to focus on capturing images, because the states can’t control where drones are allowed to fly—that’s up to the FAA. Robert Kirk, an attorney who advocates on the part of companies that want to use drones for surveying, thinks that privacy laws that single out drones could be challenged in court. “The FAA has taken the position that any regs that deal with air safety reside solely with the FAA,” he says. “The trouble is going to be whenever someone comes after a drone operator and we’re moving into privacy and trespass, areas that are more traditionally in the realm of state and local authority.” The upshot: Authority is split between the federal government and the states. And no one currently has the authority to broadly protect privacy by preventing drones from flying over people’s homes.
 

What's Next for Drone Privacy?

Someday soon, Amazon promises, drones will zip around neighborhoods, quickly and efficiently delivering small packages. If they do, they are very likely to have the legal right to fly over your house—and the same goes for commercial land surveyors using cameras to prepare maps. “If the drone is simply traveling over your property, but didn’t do any harm, then there are no damages and, therefore, you would not have a trespass claim under most states’ laws,” Rhinehart, the Ohio lawyer, says.

When it comes to the use of drones by law enforcement, the situation is less clear-cut. The Supreme Court has ruled that aerial surveillance by police forces is legal, whether the subject is on private or public property. This came up in two cases in the 1980s, when the Court decided that the police hadn’t needed a warrant to take aerial photos of marijuana plants growing in residential backyards. However, the advent of drone technology has made it much easier and cheaper for policy departments to conduct such surveillance. And states have been grappling with the implications. Both Nevada and Virginia have passed legislation requiring the police to obtain a warrant before using a drone for surveillance. However, Texas has gone in the opposite direction, saying that law enforcement agencies need only probable cause. This is an issue that could end up being decided in federal court.

The EPIC lawsuit is not the only effort to expand the FAA’s role into the privacy realm. A law proposed by Massachusetts Senator Ed Markey, the Drone Aircraft Privacy and Transparency Act, would require the agency to ensure baseline privacy and transparency safeguards, which would apply to both private drone operators and law enforcement. 

The ACLU, which supports the Markey bill, argued as far back as 2011 that a lack of oversight could lead to excessive surveillance by law enforcement using drones. Yet some legal analysts warn that the opposite situation also poses dangers: If regulations were poorly written, they could end up protecting government and commercial operators of drones, while restricting everyone else. For instance, some states are considering laws that would prevent journalists from using drones to photograph conditions on big industrial farms, according to Margot Kaminski, a law professor at Ohio State. Kaminski urges patience on the federal level. “Clarity comes at the cost of experimentation, and early law is likely to be over-reaching,” she says. Some restrictive laws could end up being struck down in the courts. But by letting states, counties, and towns try to get this right, Kaminski argues, we may end up with a reasonable understanding of when and how drones fit into our daily lives.

And that includes how drones can be used for good, not just as intrusions. These aircraft are already being used for everything from stunning film-making to search-and-rescue operations to water conservation work on farms. Drones can also enhance safety by taking over both such mundane applications as inspections of leaky roofs, and high-profile tasks such as monitoring natural disaster sites. The challenge is to find the right balance between the right to the skies and the right to privacy.
 

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