Integration of Drones into Domestic Airspace
CRS Report for Congress
Prepared for Members and Committees of Congress
Integration of Drones into
Selected Legal Issues
Alissa M. Dolan -Legislative Attorney
Richard M. Thompson II -
January 30, 2013
Congressional Research Service
Integration of Drones into Domestic Airspace:
Selected Legal Issues
Congressional Research Service
Under the FAA Modernization and Reform Act of
2012, P.L. 112-95, Congress has tasked the Federal Aviation Administration (FAA) with
integrating unmanned aircraft systems (UASs), sometimes referred to as unmanned aerial
vehicles (UAV) or drones, into the national airspace system by September 2015. Although the text of
this act places safety as a predominant concern, it fails to establish how the FAA should
resolve significant, and up to this point, largely unanswered legal questions.
For instance, several legal interests are
implicated by drone flight over or near private property. Might such a flight constitute a trespass? A
nuisance? If conducted by the government, a constitutional taking? In the past, the Latin
maxim cujus est solum ejus est usque ad coelum (for whoever owns the soil owns to the heavens) was
sufficient to resolve many of these types of questions, but the proliferation of air flight
in the 20th
century has made this
proposition untenable. Instead, modern jurisprudence
concerning air travel is significantly more nuanced, and often more confusing. Some courts have relied
on the federal definition of “navigable airspace” to determine which flights could constitute a
trespass. Others employ a nuisance theory to ask whether an overhead flight causes a substantial
impairment of the use and enjoyment of one’s property. Additionally, courts have struggled
to determine when an overhead flight constitutes a government taking under the Fifth and
With the ability to house surveillance sensors
such as high-powered cameras and thermal-imaging devices, some argue that drone surveillance
poses a significant threat to the privacy of American citizens. Because the Fourth Amendment’s
prohibition against unreasonable searches and seizures applies only to acts by government officials,
surveillance by private actors such as the paparazzi, a commercial enterprise, or one’s neighbor is
instead regulated, if at all, by state and federal statutes and judicial decisions. Yet, however
strong this interest in privacy may be, there are instances where the public’s First Amendment
rights to gather and receive news might outweigh an individual’s interest in being let alone.
Additionally, there are a host of related legal
issues that may arise with this introduction of drones in U.S. skies. These include whether a property
owner may protect his property from a trespassing drone; how stalking, harassment,
and other criminal laws should be applied to acts committed with the use of drones; and to what
extent federal aviation law could preempt future state law.
Because drone use will occur largely in federal
airspace, Congress has the authority or can permit various federal agencies to set federal policy
on drone use in American skies. This may include the appropriate level of individual privacy
protection, the balancing of property interests with the economic needs of private entities, and the
appropriate safety standards required.
Integration of Drones into Domestic Airspace:
Selected Legal Issues
Congressional Research Service
The integration of drones into U.S. skies is
expected by many to yield significant commercial and societal benefits.
Drones could be
employed to inspect pipelines, survey crops, and monitor weather.
One newspaper has already used a
drone to survey storm damage,
and real estate agents have used them to survey property.
In short, the
extent of their potential domestic application is bound only by human ingenuity.
In an effort to accelerate this introduction,
in the FAA Modernization and Reform Act of 2012, Congress tasked the Federal Aviation
Administration (FAA) with safely integrating drones into the national airspace system by September 2015.5
sensing the opportunities that unmanned flight portend, lobbying groups and
drone manufacturers have joined the chorus of those seeking a more rapid expansion of drones
in the domestic market.
Yet, the full-scale introduction of drones into
U.S. skies will inevitably generate a host of legal issues. This report will explore some of those
issues. To begin, this report will describe the regulatory framework for permitting the use of
unmanned vehicles and the potential rulemaking that will occur over the next few years. Next,
it will discuss theories of takings and property torts as they relate to drone flights over or near
private property. It will then discuss the privacy interests implicated by drone surveillance
conducted by private actors and the potential countervailing First Amendment rights to gather
and receive news. Finally, this report will explore possible congressional responses to
these privacy concerns and identify additional potential legal issues.
Development of Aviation Law and Regulations
The predominant theory of airspace rights
applied before the advent of aviation derived from the Roman Law maxim cujus est solum ejus est
usque ad coelum, meaning whoever owns the land
A “drone” is simply an aircraft that can fly
without a human operator. They are sometimes referred to as unmanned aerial vehicles (UAV), and the whole
system including the aircraft, the operator on the ground, and the
digitalnetwork required to fly the aircraftis
referred to as an unmanned aircraft system (UAS). See generally
CRS Report R42718,
Pilotless Drones: Background and Considerations
for Congress Regarding Unmanned Aircraft Operations in the National Airspace System,
by Bart Elias.
See GOV’T ACCOUNTABILITY OFFICE,
UNMANNED AIRCRAFT SYSTEMS: MEASURING PROGRESS AND ADDRESSING
POTENTIAL PRIVACY CONCERNS WOULD FACILITATE
INTEGRATION INTO THE NATIONAL AIRSPACE SYSTEM (2012).
It is reported that News Corp. has used a
small drone to monitor storm damage in Alabama and flooding in NorthDakota. Kashmir Hill,
FAA Looks Into News Corp’s
Daily Drone, Raising Questions About Who Gets to Fly Drones in the U.S.,
FORBES, (Aug. 2, 2011 3:52 P.M.)
FAA Modernization and Reform Act of 2012, P.L. 112-95, 126 Stat. 11.Groups such as the Association for Unmanned
Vehicle Systems International, which boasts 7,200 members, including defense contractors, educational institutions,
and government agencies, have been formed to advance the interests of the UAV community. Association for Unmanned
Vehicle Systems International,
Integration of Drones into Domestic Airspace:
Selected Legal Issues
Congressional Research Service 2
possesses all the space above the land
extending upwards into the heavens.
This maxim was adopted into English common law and eventually
made its way into American common law.
At the advent of commercial aviation, Congress
enacted the Air Commerce Act of 19269
and later the 1938 Civil Aeronautics Act.
included provisions stating that “to the exclusion of all foreign nations, [the United States has]
complete sovereignty of the airspace” over the country.
Congress declared a “public right of freedom of transit in air commerce through the navigable airspace of the United
This right to travel
in navigable airspace came into conflict with the common law idea
that each landowner also owned the airspace above the surface in perpetuity. If the common law
idea was followed faithfully, there could be no right to travel in navigable airspace without
constantly trespassing in private property owners’ airspace. This conflict was directly addressed by the
Supreme Court in United States v. Causby, discussed extensively below.
With the passage of the Federal Aviation Act in
the administrator of
the FAA was given “full responsibility and authority for the
advancement and promulgation of civil aeronautics generally.... ”
centralization of responsibility and creation of a uniform set of rules recognized that “aviation is unique among
transportation industries in its relation to the federal government—it is the only one whose operations
are conducted almost wholly within federal jurisdiction.... ”
continues to set uniform rules for the operation of aircraft in the national airspace. In the FAA Modernization and
Reform Act of 2012, Congress instructed the FAA to “develop a comprehensive plan to safely
accelerate the integration of civil unmanned aircraft systems into the national airspace
These regulations must
provide for this integration “as soon as practicable, but not
later than September 30, 2015.”
Current FAA Regulations of Navigable Airspace
FAA regulations define the minimum safe
operating altitudes for different kinds of aircraft. Generally, outside of takeoff and landing
fixed-wing aircraft must be operated at an altitude that allows the aircraft to conduct an emergency
landing “without undue hazard to persons or property on the surface.”
In a congested
area, the aircraft must operate at least “1,000 feet above the highest obstacle within a horizontal radius of
2,000 feet of the aircraft.”
safeoperating altitude over non-congested areas is
“500 feet above the surface.”20
Over open water
or sparsely populated areas, aircraft “may not be
operated closer than 500 feet to any person, vessel, vehicle, or structure.”21
airspace is defined in statute as the airspace above the minimum safe operating altitudes, including
airspace needed for safe takeoff and landing.
While fixed-wing aircraft are subject to
specific minimum safe operating altitudes based on where it is flying, regulation of helicopter
minimum altitudes is less rigid. According to FAA regulations, a helicopter may fly below the
minimum safe altitudes prescribed for fixed-wing aircraft if it is operated “without hazard to
person or property on the surface.”
Therefore, arguably a helicopter may be lawfully operated
outside the zone defined in statute as navigable airspace.
Current FAA Regulation of Drones
Public and Commercial Operators
Drones operated by federal, state, or local
agencies must obtain a certificate of authorization or waiver (COA) from the FAA. After receiving COA
applications, the FAA conducts a comprehensive operational and technical review
of the drone and can place limits on its operation in order to ensure its safe use in airspace.25
In response to
a directive in the FAA Modernization and Reform Act of 2012, the FAA recently
streamlined the process for obtaining COAs, making it easier to apply on their website.26
It also employs
expedited procedures allowing grants for temporary COAs if needed for time-sensitive
Private commercial operators must receive a
special airworthiness certificate in the experimental category in order to operate.
certificates have been issued on a limited basis for flight tests, demonstrations, and training. Presently,
there is no other method of obtaining FAA approval to fly drones for commercial purposes. It
appears these restrictions will be loosened in the coming
years, since the FAA has been instructed to
issue a rulemaking that will lead to the phased-in integration of civilian unmanned aircraft into
The FAA encourages recreational users of model
aircraft, which certain types of drones could fall under, to follow a 1981 advisory circular.
Under the circular, users are instructed to fly a sufficient distance from populated areas and
away from noise-sensitive areas like parks, schools, hospitals, or churches. Additionally, users
should avoid flying in the vicinity of full-scale aircraft and not fly more than 400 feet above the
surface. When flying within three miles of an airport, users should notify the air traffic control
tower, airport operator, or flight service station.
Compliance with these guidelines is voluntary.
In the FAA Modernization and Reform Act of 2012, the FAA was prohibited from promulgating
rules regarding certain kinds of model aircraft flown for hobby or recreational use. This
prohibition applies if the model aircraft is less than 55 pounds, does not interfere with any manned
aircraft, and is flown in accordance with a community-based set of safety guidelines. If
flown within five miles of an airport, the operator of the model aircraft must notify both the airport
operator and air traffic control tower.
Safe Minimum Flying Altitude
The FAA does not currently regulate safe
minimum operating altitudes for drones as it does for other kinds of aircraft. This may be one way
that the FAA responds to Congress’s instruction to write rules allowing for civil operation of
small unmanned aircraft systems in the national airspace.31
is for the FAA to create different classes of drones based on their size and capabilities. Larger drones that physically
resemble fixed-wing aircraft could be subject to similar safe minimum operating altitude
requirements whereas smaller drones could be regulated similar to helicopters.
Airspace and Property Rights
Since the popularization of aviation, courts
have had to balance the need for unobstructed air travel and commerce with the rights of private
property owners. The foundational case in explaining airspace ownership rights is
United States v. Causby.32
United States v. Causby
In United States v. Causby, the Supreme
Court directly confronted the question of who owns the airspace above private property.
filed suit against the U.S. government arguing a violation of the Fifth Amendment Takings
Clause, which states that private property shall not “be taken for public use, without just
compensation.” Generally, takings suits can only be filed
against the government when a government actor,
as opposed to a private part, causes the alleged harm.
Causby owned a chicken farm outside of
Greensboro, North Carolina that was located near an airport regularly used by the military. The
proximity of the airport and the configuration of the farm’s structures led the military planes to
pass over the property at 83 feet above the surface, which was only 67 feet above the house, 63 feet
above the barn, and 18 feet above the tallest tree.
take-off and landing pattern was conducted according to the Civil
Aeronautics Authority guidelines, the planes caused
“startling” noises and bright glare at night. As the Court explained, “as a result of the
noise, respondents had to give up their chicken business. As many as six to ten of their
chickens were killed in one day by flying into the walls from fright. The total chickens lost in this
manner was about 150.... The result was the destruction of the use of the property as a commercial
The Court had to
determine whether this loss of property constituted a taking
without just compensation. At the outset, the Court directly rejected the
common law conception of airspace ownership: “It is ancient doctrine that at common law ownership
of the land extended to the periphery of the universe—Cujus solum ejus est usque ad
coelum. But that doctrine has no place in the modern world.”
The Court noted
that Congress had previously declared a public right of transit in air commerce in navigable airspace and national
sovereignty in the airspace.38
could not be reconciled with the common law doctrine
without subjecting aircraft operators to countless trespass suits. In the Court’s words, “common
sense revolts at the idea.”
Even though it rejected the idea that the
Causbys held complete ownership of the air up to the heavens, the Court still had to determine if
they owned any portion of the space in which the planes flew such that a takings could occur.
The government argued that flights within navigable airspace that do not physically invade the
surface cannot lead to a taking. It also argued that the landowner does not own any airspace adjacent to
the surface “which he has not subjected to possession by the erection of structures or
The Court did not adopt this reasoning, finding
instead that “the landowner owns at least as much space above the ground as he can occupy or use
in connection with the land. The fact that he does not occupy it in a physical sense—by the
erection of building and the like—is not material.”
Therefore, it found that the landowner owns the
airspace in the immediate reaches of the surface necessary to use and enjoy the land and
invasions of this space “are in the same category as invasions of the surface.”
immediate reaches, the airspace is part of the public domain, but the Court declined to draw a clear
line. The Court also noted that the government’s argument regarding the impossibility of a
taking based on flights in navigable airspace was inapplicable in this case because the flights
over Causby’s land were not within navigable airspace.
At the time,
federal law defined navigable airspace as space above the minimum safe flying altitudes for specific areas, but did
not include the space needed to take off and land. Even though these flights were not within navigable
airspace, the Court seemed to suggest that if they were, the inquiry would not immediately end.
Instead, the Court would then have to determine when the regulation itself, defining the
navigable airspace, was valid.
Ultimately, in the context of a taking claim,
the Court concluded that “flights over private land are not a taking, unless they are so low and so
frequent to be a direct and immediate interference with the enjoyment and use of the land.”
With regard to
the Causbys’ chicken farm, the Court concluded that the military flights had imposed
a servitude upon the land, similar to an easement, based on the interference with the use and
enjoyment of their property. Although the land did not lose all its economic value, the lower court’s
finding clearly established the flights led directly to a diminution in the value of the property,
since it could no longer be used for its primary purpose as a chicken farm.
Post-Causby Theories of Airspace Ownership
abandoned the ancient idea that private landowners each owned their
vertical slice of the airspace above the surface in perpetuity
as incompatible with modern life. The case set up three factors to examine in a taking claim that
courts still utilize today: (1) whether the planes flew directly over the plaintiff’s land; (2)
the altitude and frequency of the flights; and (3) whether the flights directly and immediately
interfered with the plaintiff’s use and enjoyment of the surface land.
However, it left many questions unanswered.
Where is the dividing line between the “immediate reaches” of the surface and public domain
airspace? Can navigable airspace intersect with the “immediate reaches” belonging to the private
property? Can aircraft flying wholly within navigable airspace, as defined by federal law,
ever lead to a successful takings claim? How does one assess claims based on lawfully operated
aircraft, such as helicopters, flying below navigable airspace?
Subsequent cases have been brought using many
different legal claims, including trespass and nuisance, as discussed below, and various ways
of describing the resulting injury. Claims could include an “inverse condemnation,” another way
of describing a taking, or the establishment of an avigation, air, or flying easement. While these
legal claims may have different names, it appears that courts use Causby as the starting
point for analyzing all property-based challenges to intrusions upon airspace. Several different
interpretations of Causby have emerged in the attempt to articulate an airspace ownership standard, a
few of which are described here.
Following Causby, several lower courts
employed a fixed-height theory and interpreted the decision as creating two distinct categories of
airspace. On the one hand, the stratum of airspace that was defined in federal law as “navigable
airspace” was always a part of the public domain. Therefore, flights in this navigable airspace
could not lead to a successful property-right based action like a takings or trespass claim because
the property owner never owned the airspace in the public domain. On the other hand, the airspace
below what is defined as navigable airspace could be “owned” by the surface owner and, therefore,
intrusions upon it could lead to a successful takings or property tort claim. Since this
fixed-height theory of airspace ownership relies heavily on the definition of navigable airspace, the
expansion of the federal definition of “navigable airspace” to include the airspace needed to
take-off and land
what airspace a property owner could claim.
This strict separation between navigable
airspace and the airspace a landowner can claim seems to have been disavowed by the Supreme Court.
First, in dicta in
Braniff Airways v. Nebraska State Bd. of Equalization & Assessment,48
primarily dealing with the question of federal preemption of state airline regulations, the
Court left open the possibility of a taking based on flights occurring in navigable airspace. It
summarized Causby as holding “that the owner of land might recover for a taking by national use of
navigable air space resulting in destruction in whole or in part of the usefulness of the land
Next, in Griggs v.
Allegheny County the Supreme Court found that the low flight of
planes over the plaintiff’s property, taking off from and landing at a nearby airport’s newly
constructed runway, constituted a taking that had to be compensated under the Fifth Amendment.50
The noise and
fear of a plane crash caused by the low overhead flights made the property
“‘undesirable and unbearable’” for residential use, making it impossible for people in the house to converse
The Court reached this
conclusion that a taking occurred based on this injury, despite
the fact that the flights were operated properly under federal regulations and never flew outside of
holding, some lower courts have continued to lend credence to
a fixed-height ownership theory as a reasonable interpretation of Causby.53
Another interpretation of Causby
essentially creates a presumption of a non-taking when overhead flights occur in navigable airspace.
This presumption would recognize the importance of unimpeded travel of air commerce and that
Congress placed navigable airspace in the public domain. However, the presumption could be
rebutted by evidence that the flights, while in navigable airspace, interfered with the owner’s
use and enjoyment of the surface enough to justify compensation. As one court reasoned, “as the
height of the overflight increases... the Government’s interest in maintaining
sovereignty becomes weightier while the landowner’s
interest diminishes, so that the damage showing
required increases in a continuum toward showing absolute destruction of all uses of the
Finally, some courts have concluded that the
altitude of the overhead flight has no determinative impact on whether a taking has occurred. One
federal court noted that the government’s liability for a taking is not impacted “merely because
the flights of Government aircraft are in what Congress has declared to be navigable airspace
and subject to its regulation.”
Under this approach, “although the navigable airspace has
been declared to be in the public domain, ‘regardless of any congressional limitations,
the land owner, as an incident to his ownership, has a claim to the superjacent airspace to the extent
that a reasonable use of his land involves such space.’”
theory, the court would only need to examine the effect of the overhead flights on the use and enjoyment of the land,
and would not need to determine if the flight occurred in navigable airspace.
While the definition of navigable airspace
impacts each theory differently, it is clear that under the current interpretation a showing of
interference with the use and enjoyment of property is required. Cases have clearly established that
overhead flights leading to impairment of the owner’s livelihood or cause physical damage
qualify as an interference with use and enjoyment of property.
flights that cause the surface to become impractical for its intended
use by the current owner also satisfy the use and
For example, in
Griggs, the noise, vibration, and fear of damage caused
by overhead flights made it impossible for the plaintiffs to converse with others or sleep
within their house, leading to their retreat from the property, which had become “undesirable and
unbearable for their residential use.”
Some courts have recognized a reduction in the potential
resale value of the property as an interference with its use and enjoyment, even if the property
continues to be suitable for the purposes for which it is currently used.
explained: “Enjoyment of property at common law contemplated the entire bundle of rights and privileges that
attached to the ownership of land ... Owners of fee simple estates ... clearly enjoy not only the
right to put their land to a particular present use, but also to hold the land for investment and
courts have rejected the idea that restrictions on uses by future
inhabitants, without showing loss of property value, are relevant to a determination of the owner’s own
use and enjoyment of the property.
Trespass and Nuisance Claims Against Private
Although Causby arose from a Fifth
Amendment takings claim, its articulation of airspace ownership standards is also often used in
determining state law tort claims such as trespass and nuisance. These state law tort claims could be
used to establish liability for overhead flights operated by private actors, where a lack of
government involvement precludes a takings claim.
Generally, trespass is any physical intrusion
upon property owned by another. However, unlike with surface trespass claims, simply proving
that an object or person was physically present in the airspace vertically above the landowner’s
property is generally not enough to establish a trespass in airspace. Since Causby struck down
the common law idea of ad coelum, landowners generally do not have an absolute possessory right to the
airspace above the surface into perpetuity. Instead, airspace trespass claims are often assessed
using the same requirements laid out in the
takings claim. Arguably, these standards are
used in property tort claims because there can be no trespass in airspace unless the property owner
has some possessory right to the airspace, which was the same question at issue in Causby.
To allege an actionable trespass to airspace,
the property owner must not only prove that the interference occurred within the immediate
reaches of the land, or the airspace that the owner can possess under Causby, but also that its
presence interferes with the actual use of his land. As one court explained, “a property owner owns only as
much air space above his property as he can practicable use. And to constitute an
actionable trespass, an intrusion has to be such as to subtract from the owner’s use of the property.”
for airspace trespass was also adopted by the Restatement (Second) of Torts
Nuisance is a state law tort claim that is not
based on possessory rights to property, like trespass, but is rooted in the right to use and enjoy
Trespass and nuisance
claims arising from airspace use are quite similar, since trespass
to airspace claims generally require a showing that the object in airspace interfered with use and
enjoyment of land. However, unlike trespass, nuisance claims do not require a showing that
the interference actually occupied the owner’s airspace. Instead, a nuisance claim can succeed
even if the interference flew over adjoining lands and never directly over the plaintiff’s land,
as long as the flight constitutes a substantial and unreasonable interference with the use and
enjoyment of the land.
Potential Liability Arising from Civilian Drone Use
The integration of drones into domestic
airspace will raise novel questions of how to apply existing airspace ownership law to this new
technology. How courts may apply the various interpretations of Causby, discussed
above, to drones will likely be greatly impacted by the FAA’s definition of navigable airspace for drones.
The potential for successful takings, trespass,
or nuisance claims from drone use will also be impacted by the physical characteristics of the
drone, especially given that current case law heavily emphasizes the impact of the flight on
use and enjoyment of the surface property. Several characteristics of drones may make their
operation in airspace less likely to lead to liability for drone operators than for aircraft operators.
First, the noise attributed to drone use may be significantly less than noise created by
helicopters or planes powered by jet engines. Second, drones commonly used for civilian purposes
could be much smaller than common aircraft used today. This decreased size is likely to lead to
fewer physical impacts upon surface land such as vibration and dust, which are common complaints
arising from overhead aircraft and helicopter flights. Finally, it is unknown at this time
how most drones will be deployed into flight. Will drone “airports” be used to launch the aircraft
or will they take off and land primarily from individual property? If drone use remains
decentralized and is not organized around an “airport,” then drones are less likely to repeatedly fly
over the same piece of property, creating fewer potential takings, trespass, or nuisance
claims. Additionally, the majority of drones are more likely to operate like helicopters, taking off
and landing vertically, than like traditional fixed-wing aircraft. This method of takeoff reduces the
amount of surface the aircraft would have to fly over before reaching its desired flying altitude,
minimizing the potential number of property owners alleging physical invasion of the immediate
reaches of their surface property.
Alternatively, the potential ability for drones
to fly safely at much lower altitudes than fixed-wing aircraft or helicopters could lead to a larger
number of property-based claims. Low-flying drones are more likely to invade the immediate reaches
of the surface property, thus satisfying part of the requirement for a takings or trespass claim.
Perhaps the most contentious issue concerning
the introduction of drones into U.S. airspace is the threat that this technology will be used to spy
on American citizens. With the ability to house high-powered cameras, infrared sensors, facial
recognition technology, and license plate readers, some argue that drones present a substantial
government’s use of drones for domestic surveillance operations
implicates the Fourth Amendment and other applicable laws.67
In like manner,
privacy advocates have warned that private actors might use drones in a way that could infringe upon
fundamental privacy rights.68
will focus on the privacy issues associated with the use of
drones by private, non-governmental actors. It will provide a general history of privacy law in the
United States and survey the various privacy torts, including intrusion upon seclusion, the privacy
tort most applicable to drone surveillance. It will then explore the First Amendment right to
gather news. Application of these theories to drone surveillance will be discussed in the section
titled “Congressional Response.”
Drones are already flying in U.S. airspace –
with thousands more to come – but with no privacy protections or transparency measures in place.
We are entering a brave new world, and just because a company soon will be able to register a drone
license shouldn’t mean that company can turn it into a cash register by selling consumer
information. Currently, there are no privacy protections or guidelines and no way for the public to know
who is flying drones, where, and why. The time to implement privacy protections is now.
Early Privacy Jurisprudence
Although early Anglo-Saxon law lacked express
privacy protections, property law and trespass theories served as proxy for the protection of
individual privacy. Lord Coke pronounced in 1605 that “the house of everyone is to him as his
castle and fortress, as well for his defence against injury and violence, as for his respose[.]”69
proposition that individuals are entitled to privacy while in their homes crossed the
Atlantic with the colonists and appeared prominently in early revolutionary thinking.
In one early
American common law decision, the court noted that “[t]he law is clearly settled, that an officer
cannot justify the breaking open an outward door or window, in order to execute process in a civil
suit; if he doth, he is a trespasser.”
In cases lacking physical trespass, prosecutors relied
on an eavesdropping theory, which protected the privacy of individuals’ conversations while in
These century-old theories of trespass and
eavesdropping, however, failed to keep up with a rapidly changing society fueled by advancing
technologies. As with today’s celebrity-obsessed society, late-19th
experienced the birth and spread of “yellow journalism,” a new media aimed at emphasizing the “curious,
dramatic, and unusual, providing readers a ‘palliative of sin, sex, and violence.’”
and instantaneous photography enabled journalists to exploit and spread gossip.
Brandeis (then a private attorney) and Samuel Warren were bothered with the press’s constant intrusions
into the private affairs of prominent Bostonians.
In 1890, they published a seminal law review
article formulating a new legal theory the right to be let alone.
Warren understood that existing tort doctrines such as trespass and
libel were insufficient to protect privacy rights, as
“only a part of the pain, pleasure, and profit of life lay in physical things.”
They noted that
this new right to privacy derived not from “the principle of private property, but that of an inviolate
The authors observed
that “instantaneous photographs and newspaper
enterprise have invaded the sacred precincts of private and domestic life; and numerous
mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be
proclaimed from the house-tops.’”
Although this new theory had its detractors,80
it found its way into the common law
of several states.
In 1939, the First Restatement of Torts (a set
of model rules intended for adoption by the states) created a general tort for invasion of privacy.82
By 1940, a
minority of states had adopted some right of privacy either by statute or judicial
decision, and six states had expressly refused to adopt such a right.
later, Dean William Prosser surveyed the case law surrounding this right and concluded that the right to privacy
entailed four distinct (yet, sometimes overlapping) rights: (1) intrusion upon seclusion; (2)
public disclosure of private facts; (3) publicity which puts the target in a false light; and (4)
appropriation of one’s likeness.84
categories were incorporated into the Restatement (Second) of
Section 652B of the Restatement (Second) of
Torts creates a cause of action for intrusion upon seclusion,86
the privacy tort most likely to apply
to drone surveillance.
It has been adopted
either by common law or statute in an overwhelming
majority of the states.
provides: “One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.”
Courts have developed a set of rules for applying § 652B.
First, it requires an objective person standard, testing whether a person of “ordinary
sensibilities” would be offended by the alleged invasion.
Thus, someone with an idiosyncratic
sensitivity say, an aversion to cameras could not satisfy this standard by simply having his photograph
taken. Likewise, the intrusion must not only be offensive, but “highly offensive,”
or as one court put it, “outrageously
Generally, a single incident will not suffice;
instead, the intrusion must be “repeated with such persistence and frequency as to amount to a
course of hounding” and “becomes a burden to his existence.... ”
However, in a few cases a single
intrusion was adequate.94
The invasion of
privacy does not exist; that the arguments in
its favor are based on a mistaken understanding of the authorities cited
in its support
privacy must been intentional, meaning the
defendant must desire that the intrusion would occur, or as with other torts,
knew with a
substantial certainty that such an invasion would result from his actions.
intrusion is not actionable. Finally, in some states, the intrusion must cause mental suffering, shame, or humiliation
to permit recovery.
A review of the case law demonstrates that the
location of the target of the surveillance is, in many cases, determinative of whether someone
has a viable claim for intrusion upon seclusion.
For the most part, conducting surveillance of a
person while within the confines of his home will constitute an intrusion upon seclusion.98
illustrations to § 652B offer an example of a private detective who photographs an individual while
in his home with a telescopic camera as a viable claim.
one court observed, “when a picture is taken of a plaintiff while he is
in the privacy of his home, ... the taking of the
picture may be considered an intrusion into the plaintiff’s privacy just as eavesdropping or looking into
his upstairs windows with binoculars are considered an invasion of his privacy.”
The likelihood of a successful claim is
diminished if the surveillance is conducted in a public place. The comments to § 652B explain that
there is generally no liability for photographing or observing a person while in public “since he is
not then in seclusion, and his appearance is public and open to the public eye.”
On the public street, or in any other public
place, the plaintiff has no right to be alone, and it is no invasion of his privacy to do no more
than follow him about. Neither is it such an invasion to take a photograph in such a place,
since this amounts to nothing more than making a record, not differing essentially from
a full written description, of a public sight which anyone present would be free to see.
The case law also supports this proposition.
The Alabama Supreme Court dismissed a claim of wrongful intrusion against operators of a race
track who photographed the plaintiffs while they were in the “winner’s circle” at the track.103
federal district court dismissed a claim by a husband and wife who had been photographed by
Forbes Magazine while waiting in line at the Miami International Airport as it was taken in
“a place open to the general public.”
Likewise, a Vietnam veteran lost a claim for invasion of
privacy based on photographs that depicted him and other soldiers during a combat mission in
Vietnam again, a public setting.
Other examples include the recording of license plate numbers
of cars parked in a public parking lot
and photographing a person while walking on a
Indeed, even plaintiffs who were videotaped or
photographed while on their own property have generally been unsuccessful in their privacy
claims so long as they could be viewed from a public vantage point. Rejecting one plaintiff’s claim
for intrusion upon seclusion, the Supreme Court of Oregon held that even though the investigators
trespassed on the plaintiff’s property to film him, the investigation did not “constitute an
unreasonable surveillance ‘highly offensive to a reasonable man[,]’”
plaintiff could have been viewed from the road by his neighbors or passersby.
case, the wife of a prominent Puerto Rican politician sought damages from a newspaper for invasion of privacy
allegedly committed when an agent of the newspaper photographed her house as part of a news story
about her husband.
dismissed her claim as the photographers were not
“unreasonably intrusive,” and the photographs depicted only the outside of the home and no persons were
photographed. Similarly, in
one case a couple sued a cell phone company for intrusion upon
seclusion when the company’s workers looked onto their property each time they serviced a nearby
The court rejected
their claim, holding that ‘[t]he mere fact that maintenance
workers come to an adjoining property as part of their work and look over into the adjoining
yard is legally insufficient evidence of highly offensive conduct.”
There are many other examples.
However, there have been some successful claims
for intrusion upon seclusion involving surveillance conducted in public.115
The comments to
§ 652B explain: “Even in a public place, however, there may be some matters about the
plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze, and there
may still be invasion of privacy when there is intrusion upon these matters.”
One of the most
famous cases concerning this “public gaze” theory involved a suit for invasion of privacy
against a newspaper when it published a picture of the plaintiff with her dress blown up as she
was leaving a fun house at a county fair.
In upholding the plaintiff’s claim, the court
observed: “To hold that one who is involuntarily and instantaneously enmeshed in an embarrassing
pose forfeits her right of privacy merely because she happened at the moment to be part of a
public scene would be illogical, wrong, and unjust.”
In Huskey v. National Broadcasting Co. Inc.,
a prisoner sued NBC, a television broadcasting company, alleging that by filming him without
consent while he was working out in the exercise yard at the prison, NBC invaded his privacy.
that depictions of persons in a “publicly visible area” could not support the
claim for invasion of seclusion.
Ultimately, the court permitted the prisoner’s claim to go
forward, observing that “[o]f course [the prisoner] could be seen by guards, prison personnel and
inmates, and obviously he was in fact seen by NBC’s camera operator. But the mere fact a
person can be seen by others does not mean that person cannot legally be ‘secluded.’”
is available for certain cases of public surveillance, recovery seems to be the
exception rather than the norm.
First Amendment and Newsgathering Activities
Based on the foregoing discussion, safeguarding
privacy from intrusive drone surveillance is clearly an important societal interest.
However, this interest must be weighed against the public’s countervailing concern in securing the free
flow of information that inevitably feeds the “free trade of ideas.”
aircraft can improve the press and the public’s ability to gather news: they can operate in dangerous areas
without putting a human operator at risk of danger; can carry sophisticated surveillance technology;
can fly in areas not currently accessible by traditional aircraft; and can stay in flight for long
durations. However, challenges arise in attempting to find an appropriate balance between this interest in
newsgathering and the competing privacy interests at stake.
The First Amendment to the United States
Constitution provides that “Congress shall make no law ... abridging the freedom of speech, or of
the press.... ”
The Court has
construed this phrase to cover not only traditional forms of speech,
such as political speeches or polemical articles, but also conduct that is “necessary for, or
integrally tied to, acts of expression,”
distribution of political literature
or door-to-door solicitation.
Additionally, the Court has pulled within the First Amendment’s protection other conduct
that is not expressive in itself, but is “necessary to accord full meaning and substance to those
guarantees.” For example, the Court
has said that the public is entitled to a “right to receive
news” as a correlative of the right to free expression.
Like this right to receive news, the Court has
intimated in a series of cases beginning in the 1960s that the public and the press may be entitled
to a right to gather news under the First Amendment.
Initially, in Zemel v. Rusk, the Court
observed that the right “to speak and publish does not carry with it the unrestrained right to gather
The Court’s reluctance
to extend this right may have signaled its concern that an
unconditional newsgathering right could subsume almost any government regulation that places a slight
restriction on the ability to gather news.
However, several years later the Court
indicated in Branzburg v. Hayes that although laws of general applicability apply equally to the
press as to the general public, that “[n]ews gathering is not without its First Amendment protections,”
“without some protection for seeking out the news, freedom of the press could be
The Court, however,
failed to clearly delineate the parameters of such a protection.
In the Court’s most recent case,
Cohen v. Cowles
the Court adhered to the “well-established line of decisions holding
that generally applicable laws do not offend the First
Amendment simply because their enforcement against the press has incidental effects on its ability to
gather and report the news.”The Court noted
that it is “beyond dispute ‘that the publisher of a
newspaper has no special immunity from the application of general laws. He has no special
privilege to invade the rights of others.’”
The lower federal courts have explored this
right to gather news in the context of photographing or video recording. In Dietemann v. Time,
Inc. the Ninth Circuit Court of Appeals explored the extent to which reporters could use
surreptitious means to carry out their newsgathering.
There, defendants Time Life sent undercover reporters
to a man’s house where he claimed to use minerals and other materials to heal the sick.
The reporters used a hidden camera to take pictures of the man, and a hidden microphone to transmit
the conversation to other operatives. The defendants claimed that the First Amendment’s
right to freedom of the press shielded its newsgathering activities. In rejecting this
claim, the court observed that although an individual accepts the risk when inviting a person into
his home that the visitor may repeat the conversation to a third party, “he does not and should not
be required to take the risk that what is heard and seen will be transmitted by photograph or
recording, or in our modern world, in full living color and hi-fi to the public at large or to any
segment of it that the visitor may select.”
The court held that “hidden mechanical contrivances” are
not indispensable tools of investigative reporting, and that the “First Amendment has never been
construed to accord newsman immunity from torts or crimes committed during the course of
v. Onassis, Galella, a selfproclaimed “paparazzo,” constantly followed around,
harassed, and photographed Jacqueline Kennedy Onassis and her children.
As part of an
ongoing lawsuit, Onassis sued Galella for,
invasion of her and her family’s privacy. Galella argued that he was
entitled to the absolute “wall of immunity” that protects
newsmen under the First Amendment. The Second Circuit Court of Appeals quickly rejected this
absolutist position: “There is no such scope to the First Amendment right. Crimes and torts
committed in news gathering are not protected. There is no threat to a free press in requiring its
agents to act within the law.”
the Seventh Circuit in Desnick v. American Broadcast
Companies, Inc. held that surreptitious recording was not a privacy invasion because the target of
the surveillance was a party to the conversation, thereby vitiating any claim to privacy in those
If Congress chooses to act, it could create
privacy protections to protect individuals from intrusive drone surveillance conducted by
private actors. Such proposals would be considered in the context of the First Amendment rights to
gather and receive news. Several bills were introduced in the 112th
would regulate the private use of drones. Additionally, there are other measures Congress could adopt.
In the 112th
Representative Ed Markey introduced the Drone Aircraft Privacy and Transparency Act of 2012 (H.R. 6676).
This bill would
amend the FAA Modernization and Reform Act of 2012 to create a comprehensive
scheme to regulate the private use of drones, including data collection requirements and
enforcement mechanisms. First, this bill would require the Secretary of Transportation, with input
from the Secretary of Commerce, the Chairman of the Federal Trade Commission, and the Chief Privacy
Officer of the Department of Homeland Security, to study any potential threats to
privacy protections posed by the introduction of drones in the national airspace. Next, the bill would
prohibit the FAA from issuing a license to operate a drone unless the application for such use
included a “data collection statement.” This statement would require the following items: a list of
individuals who would have the authority to operate the drone; the location in which the drone will
be used; the maximum period it will be used; and whether the drone would be collecting
information about individuals. If the drone will be used to collect personal information, the statement
must include the circumstances in which such information will be used; the kinds of
information collected and the conclusions drawn from it; the type of data minimization procedures to be
employed; whether the information will be sold, and if so, under what circumstances; how long
the information would be stored; and procedures for destroying irrelevant data. The statement
must also include information about the possible impact on privacy protections posed by the
operation under that license and steps to be taken to mitigate this impact. Additionally, the
statement must include the contact information of the drone operator; a process for determining what
information has been collected about an individual; and a process for challenging the accuracy of such
data. Finally, the FAA would be required to post the data collection statement on the Internet.
H.R. 6676 includes several enforcement
mechanisms. First, the FAA may revoke any license of a user that does not comply with these
requirements. The Federal Trade Commission would have the primary authority to enforce the data
collection requirements just stated. Additionally, the Attorney General of each state, or an official
or agency of a state, is empowered to file a civil suit if there is reason to believe that the privacy
interests of residents of that state have been threatened or adversely affected. H.R. 6676
would also create a private right of action for a person injured by a violation of this
legislation. Representative Ted Poe introduced the
Preserving American Privacy Act of 2012 (H.R. 6199).
This bill would prevent any private actor from
using a drone to conduct surveillance on any other private person without the consent of that
other person. This ban on the private use of drones to record other private persons could present
First Amendment concerns. First, a reviewing court would, in all likelihood, test whether this ban
constituted a rule of general applicability under the
Branzburg line of cases.
v. Vopper, the Supreme Court held that the wiretapping laws in question were of general
observed that the statutes were designed to protect privacy and did not
distinguish based on the content of the intercepted conversation. Instead, the communications were
“singled out by virtue of the fact that they were illegally intercepted—by virtue of the source,
rather than the subject matter.”
This same argument could shield H.R. 6199 from a First
Amendment challenge. Its purpose is to protect privacy,
and it does not
distinguish between the subject matter of the drone surveillance, but instead bans any instance of private
surveillance when the target has not consented to such monitoring.
Additionally, this bill does not
curtail the freedom to publish information,
but instead restricts the methods of collection.
The public or media would have other avenues for obtaining the information sought. On the other
hand, this measure could hinder the free flow of information, including coverage of newsworthy
events, in contradiction to public’s right to receive news and the Supreme Court’s dicta in
Branzburg that “[n]ews gathering is not without its First Amendment protections,”
“without some protection for seeking out the news, freedom of the press could be eviscerated.”
Additionally, Congress could create a cause of
action for surveillance conducted by drones similar to the intrusion upon seclusion tort
provided under Restatement § 652B.
How would a court assess whether drone surveillance
violated this type of tort? First, generally speaking, the location of the search would be determinative
of whether a person is entitled to an expectation of privacy. Although courts have posited that the
common law, like the Fourth Amendment, is intended to “protect people, not places[,]”152
of an alleged intrusion factors heavily in a privacy analysis. The greatest chance for
liability occurs when a person photographs or videotapes another while in the seclusion of
his home. While technology has increasingly shrunk other spheres of privacy in the digital age,
the home is still accorded significant legal protection.
Using a drone to peer inside the home of
another whether looking through a window or utilizing extra-sensory technology such as thermal
imaging would likely constitute an intrusion upon seclusion. Moving from the home to a public
space, or even a space on private property where one can be seen from a public vantage point,
significantly reduces the chance of tort liability.
However, certain instances of highly offensive
surveillance in public may be actionable. This leads to the second factor that will
inform a reviewing court’s analysis: the degree of offensiveness of the surveillance. The Ninth
Circuit Court of Appeals, applying California law, observed that, in determining offensiveness,
“common law courts consider, among other things: ‘the degree of intrusion, the context, conduct
and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the
setting into which he intrudes, and the expectations of those whose privacy is invaded.’” Several of
these factors especially, the context of the intrusion and the motive of the intruder are
fact intensive and require application in a particular case to fully understand. However, some
generalizations can be made. The cases discussed above that did find an intrusion upon seclusion in a
public place required highly offensive activity, such as closely following another person for an
extended period or photographing another in a highly embarrassing shot. Likewise, a court might
recognize liability if one were to use a drone to follow another for an extended period of time,
particularly at a close distance. It is not clear, however, whether knowledge of being surveilled makes the
monitoring more or less offensive. For example, one court seemed to rely on the fact
that the defendant was unaware that her house was being photographed to hold that she did not
have a viable privacy claim.
A drone flying
at several thousand feet may not significantly
disturb the target of the surveillance and could fall within this rationale. Nevertheless, filming
someone in a compromising or embarrassing situation without his knowledge can be equally offensive.
Here, the facts of the particular case woulddetermine liability.
Congress could also create a privacy statute
tailored to drone use similar to the anti-voyeurism statutes, or “Peeping Tom” laws, enacted in
These laws prohibit
persons from surreptitiously filming others in various
circumstances and places.155
prohibit surreptitious surveillance of a person while on
private property, usually a private residence.
Federal law does prohibit certain acts of
voyeurism on federal property. Section 1801, Title 18 provides:
“Whoever, in the special maritime and territorial
jurisdiction of the United States, has the intent to capture an image of
a private area of an individual without their consent,
and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be
fined under this title or imprisoned not more than one year, or both.”
Nevada employs this model, prohibiting a person
from entering the property of another with the intent to peep through a window of the
Likewise, New Jersey
prohibits a person from peering into the window of the dwelling of
another “under circumstances in which a reasonable person in the dwelling would not expect to be
Other states require a
prurient intent when conducting the surveillance. Under
Washington State’s statute, a person commits the crime of voyeurism if, for the purpose of arousing or
gratifying his sexual desire, he films or photographs (1) a person in a place where he or
she would expect privacy; or (2) the intimate areas of another person, whether he or she is
in a public or private place.
Similarly, Congress could adopt an
“anti-paparazzi” statute, like that enacted in California, to prevent intrusive drone surveillance.160
In fact, Congress considered a
similar measure in the 105th
Congress. The Privacy Protection Act of 1998
and the Personal Intrusion Act of 1998 would have made it unlawful to persistently follow or
chase another person for the purpose of obtaining a visual image of that person if the plaintiff
met the following elements: (1) the image was transferred in interstate commerce or the
person taking the photograph traveled in interstate commerce; (2) the person had a reasonable
expectation of privacy from such intrusion; (3) the person feared death or bodily injury from being
chased; and (4) the taking of the image was for commercial purposes.
bills would have created a civil remedy for an individual whose privacy was intruded upon. Congress could
use this model to make it unlawful to persistently monitor another person using drone
In addition to the legal issues described
above, there are a host of other issues that may arise when introducing drones into United States
national airspace system.
Right to Protect Property from Trespassing
Drones. There may be instances where a landowner is entitled to protect his property
from intrusion by a drone. Under Restatement (Second) of Torts § 260, “one is privileged to
commit an act which would otherwise be a trespass to a chattel or a conversion if the act is, or
is reasonably believed to be, necessary to protect the actor’s land or chattels or his possession of
them, and the harm inflicted is not unreasonable as compared with the harm threatened.”
What this means
is, in certain instances, a landowner would not be liable to the owner of a drone for
damage necessarily or accidentally resulting from removing it from his property. However, there
appear to be no cases where a landowner was permitted to use force to prevent or remove an
aircraft from his property. Additionally, as discussed above, determining whether a drone in
flight is trespassing upon one’s property may be unusually challenging.
Stalking, Harassment, and Other Crimes.
Traditional crimes such as stalking,
harassment, voyeurism, and wiretapping may all be committed
through the operation of a drone. As drones are further introduced into the national airspace,
courts will have to work this new form of technology into their jurisprudence, and
legislatures might amend these various statutes to expressly include crimes committed with a
Under the federal wiretap statute, it is unlawful to intentionally
intercept an “oral communication”
by a person
“exhibiting an expectation that such communication is not subject to interception under circumstances justifying
such expectation.... ”
commercial microphones can record sounds upwards of 300
Use of such a
microphone on a drone to record private conversations could implicate
the federal wiretap statute.
Preemption of State Aviation Regulations.
The increased presence of drones in domestic airspace raises the question of which aspects
of drone use states may be able to individually regulate. The Supreme Court has stated that
federal preemption of state laws and regulations occurs where “the pervasiveness of the federal
regulation precludes supplementation by the States, where the federal interest in the field
is sufficiently dominant, or where the object sought to be obtained by the federal law and the
character of obligations imposed by it reveal the same purpose.”
sole responsibility for the aviation industry and domestic airspace with the federal government in the Federal
Aviation Act of 1958.
the legislative history, the FAA was to have “full
responsibility and authority for the advancement and promulgation of civil aeronautics generally,
including promulgation and enforcement of safety regulations.”
Generally, state regulations of aviation
safety, airspace management, and aviation noise are preempted by federal laws and regulations.169
In City of
Burbank v. Lockheed Air Terminal, Inc., the Supreme Court struck down a local city
ordinance that prohibited planes from taking off during certain hours of the day as preempted by
the federal regulatory scheme.170
Expressing its fear regarding local control of airspace, the
Court stated, “If we were to uphold the Burbank ordinance and a significant number of
municipalities followed suit, it is obvious that fractionalized control of the timing of
takeoffs and landings would severely limit the flexibility of the FAA in controlling air traffic flow.”
Court has, however, upheld state regulations imposing taxes on aircraft
equipment located within the state.
The legal issues discussed in this report will
likely remain unresolved until the civilian use of drones becomes more widespread. To that end,
the FAA has been tasked with developing “a comprehensive plan to safely accelerate the
integration” of drones into the national airspace, which focuses on the safety of the drone
technology and operator certification. While the deadline for development of the plan has already
elapsed, the FAA has until the end of FY2015 to implement such a plan.
the FAA must identify six test ranges where it will integrate drones into the national airspace.
This deadline, days after enactment of the act, has also elapsed without FAA compliance. Once these
regulations are tested and promulgated, the unique legal challenges that could arise based
on the operational differences between drones and already ubiquitous fixed-wing aircraft and
helicopters may come into sharper focus.
Author Contact Information
Alissa M. Dolan - Legislative Attorney
Richard M. Thompson II - Legislative Attorney
Note: Homeland Surveillance & Electronics LLC
Mission is also to protect the privacy rights of the individuals and to work
with government agencies, organizations and businesses to help insure that those rights are not infringed.
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