Can you shoot down a drone over your own yard? Maybe not

The Washington Post has an interesting interview this week with William Merideth, the Kentucky businessman who famously took a shotgun and introduced a terminal malfunction to a camera equipped drone hovering over his property last year. The case, while providing some amusement to the public initially, has raised vexing questions about property rights, privacy, and the limits of the government (under the auspices of the Federal Aviation Administration) to control the airspace over your property. It’s been mostly settled law for quite some time that property owners control the mineral rights and other resources under their land, but how much of the air do you control over it?

“There is gray area in terms of how far your property rights extend,” said Jeramie Scott, national security counsel at the Electronic Privacy Information Center. “It’s going to need to be addressed sooner rather than later as drones are integrated into the national airspace.”

The issue is becoming more urgent as drones are crowding America’s skies: The Consumer Technology Association estimated 700,000 were sold last year.

According to the Federal Aviation Administration, every inch above the tip of your grass blades is the government’s jurisdiction. “The FAA is responsible for the safety and management of U.S. airspace from the ground up,” said an agency spokesman, echoing rules laid out on its website.

But common law long held that landowners’ rights went “all the way to Heaven.” And today, it’s clear that they have some rights.

What we have here is yet another case of technology rapidly outstripping existing laws which didn’t take the pace of such advances into account. There was never a question as to whether or not you could forbid Delta from flying a jet 30,000 feet over your house. By the same token, nobody can just walk across your property without your permission. (Or a court order in the case of law enforcement.) But what about the spaces closer to the ground? If you’re not allowed to come onto your neighbor’s property and peer into their bedroom window, is it somehow different if you send a camera mounted on a drone to do the job? That seems like it should be a no brainer to me. After all, as the author notes, if a neighbor’s tree has a branch hanging in the air over your fence you can cut it off.

The only court case referenced in this debate is that of United States v. Causby, but that doesn’t really seem to address the key questions in play here. Causby was a chicken rancher who lived near a military air strip and government planes were regularly flying over his property at altitudes of less than 100 feet causing havoc among his birds and putting him out of business. (He was awarded compensation in the judgement.) The Causby case would seem to at least imply that the planes had violated his property rights, but it’s more of an issue of a noise nuisance.

It sounds to me as if the courts will need to either take a huge smack at personal privacy and agree that the FAA controls every inch above the tip of your grass blades or set some sort of arbitrary limit. If that limit is too low then anyone with a drone camera can still act as a peeping Tom, but how high would be high enough? Google Earth has pictures of your house and yard in fairly amazing detail (taken from space!) though not close enough to peer in your windows. (Yet, anyway.) And what about all of those new drone delivery systems under discussion, such as the scheme Amazon has been developing? Will they be forced to fly at 500 or 1,000 feet until they reach their destination and then drop straight down? Or will the operators be forced to follow the public roadways below them until the drone reaches your house?

Personally, I’m with William Merideth on this one, at least on an emotional level. Nobody should be able to send a camera into your yard to spy on you without your permission, and if they do you should be able to shoot the perpetrator’s craft down. Somehow I don’t think the courts are going to agree, though.