Zach Kurzhals, Associate Member, University of Cincinnati Law Review
Development in technology has led to a recent explosion in the private and commercial use of small unmanned aircrafts (SUAs or “drones”). These small, versatile, stealthy machines have thrust privacy concerns back into the limelight. However, almost the entire field of regulating drone flight is preempted from state and local regulation.[1] With some creativity and the existing Supreme Court precedent regarding “superadjacent airspace” above private land,[2] it might be possible for Ohio to utilize property rights to directly address the drone privacy issue.
Federal Law and “Superadjecent Airspace”
Laws and regulations that are directly applicable to drone flights are almost entirely federal. Title 49 gives the United States “exclusive sovereignty of the airspace of the United States.”[3] The FAA is the executive agency charged with setting all standards for flight safety.[4] However it is not entirely clear the FAA has the authority to regulate drones. [5] The Appellate Court for the District of Columbia (“D.C. Circuit”) recently read the FAA Modernization and Reform Act of 2012 (“the Act”) to forbid FAA regulations on drone use.[6] The portion of the Act the court referred to was §336(a) which states, “[T]he [FAA] may not promulgate any rule or regulation regarding a model aircraft.”[7] The court read “model aircraft” to include drones, thus forbidding the FAA from regulating drone use. Additionally, the Supreme Court in U.S. v. Causby decided the entire airspace above the United States, as a practical matter, cannot be the exclusive sovereignty of the United States. [8]
In Causby, the Supreme Court provided a private land owner claim to some airspace above his land.[9] Mr. Causby, a chicken farmer, sued the government because military planes would fly over his land when taking off and landing on adjacent land. These planes would pass over Mr. Causby’s land at an altitude of approximately 83 feet. These airplanes were causing the farmer’s chickens to die, thereby making his land unsuitable for farming. The Supreme Court in evaluating Causby’s claim stated the “navigable airspace which Congress has placed in the public domain is ‘airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.’”[10] At the time, the lowest minimum safe altitude for aircraft was designated to be 300 feet.[11] This put the planes flying at 83 feet over Mr. Causby’s land outside the publicly navigable airspace.[12] The Court continued, “[A]ir space is a public highway. Yet it is obvious that the landowner . . . must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected.”[13] The Court labeled this area of airspace as “superadjacent airspace” and stated that landowners have a claim to it.[14] The Court characterized invasions of this airspace as similar to invasions of the surface.[15] The Court explicitly refrained from setting a precise line between public and private airspace.[16] However, clearly U.S. sovereignty over the airspace is limited and private land owners have some claim to the airspace.[17]
State Law Focus on Ohio
Private drone use is growing rapidly[18] and state legislatures are trying to keep up despite their limited ability to directly regulate drone flight.[19] This new area of technology has led to a vociferous public outcry regarding many concerns including personal privacy, safety, and property rights.[20] This concern is not unfounded. Drones can be equipped with a variety of attachments,[21] resulting in a multitude of beneficial and nefarious uses.[22] States have responded with legislation attempting to address concerns without directly regulating drone flights while simultaneously trying to leave room for beneficial drone use.[23]
As of this article, Ohio has only one law that regulates the use of drones. [24] However, Ohio does have a Bill proposed to address and regulate the use of drones in police investigations.[25] The bill would require any use of drones in police investigations to be accompanied by a warrant. [26] Furthermore, Ohio courts have adopted the Supreme Court’s ruling in Causby.[27] Thus, under Ohio law there is the same “superadjacent airspace” regarding private land ownership.[28] Additionally, Ohio courts have mirrored the rulings of other courts regarding aerial observations, holding that if the aircraft is in public airspace there is no privacy infringement.[29]
Ohio could set property rights regarding “superadjacent airspace” without running afoul of Title 49 preemption. It is settled law that an individual can fly in public airspace and observe an individual within their home and curtilage without violating any privacy or property laws.[30] However, a drone hovering at 400 feet is unlikely to cause any concern.[31] The biggest issue regarding drones is their ability to fly between houses and hover outside windows.[32] Thus, Ohio could establish an area of private property, subject to trespass laws, in this “superadjacent airspace” that is well below the current federal minimum safe altitude for flight. By setting a limit on private airspace well below the minimum safe altitude, it is highly unlikely any federal court would find a conflict between this and FAA regulations. First, the Supreme Court has already carved out a claim for land owners to “superadjacent airspace” above private land.[33] Second, it is unlikely a different type of aircraft would be used to hover ten feet above a building for reconnaissance such as the helicopter in Riley, which flew over at 400 feet.[34] If such an incident with another type of aircraft were to occur, it is unlikely a federal court would rule the incident to be legal without a search warrant.[35] Additionally, there would still be several hundred feet of airspace for drones to operate in between the airspace subject to state trespass claims and the maximum altitude limitation of 400 feet set by the FAA.[36]
Utilizing Property Rights to Address Drones
While establishing trespass claims to a designated amount of airspace above Ohioan’s land would be a good first step, additional measures would need to be taken. For example, unless there is a presumption of damages resulting from drones trespassing into a person’s private air space, it would very difficult to prove injury or harm.[37] Perhaps a drone trespass law could include a presumed invasion of privacy that could be rebutted by the drone operator. Should a presumption of damages be deemed inappropriate, a trespass claim still provides some protection; in Ohio trespass claims can be used as a defense to premises liability and thus a trespassing law would also provide land owners some additional protection.[38]
Another aspect that needs to be addressed is the inability to identify a drone’s operator.[39] It would be impossible for an individual to protect their rights through trespass laws if they cannot name a defendant. Thus, another piece of necessary legislation is a requirement enabling remote identification that would allow others to identify a drone and its user. However, the FAA already requires drones to be equipped with an identifying sign[40] and it appears likely they will develop a more technologically advanced requirement in the near future.[41]
Conclusion
The federal government will preempt almost any state law that attempts to directly regulate drone flights.[42] However, as long as future state property laws are reasonably crafted, there should be no conflict with federal law.[43] First, these laws need to create designated private airspace within “superadjacent airspace”. Second, that designated airspace should be subject to trespassing laws. Third, a presumption of damages for when a drone is flown into this private airspace would add teeth to these new laws. Liability for damages would help insure those that fly drones are conscientious about where they fly their drones.
[1] Abdullad v. American Airlines, Inc., 181 F.3d. 363, 367 (3d Cir. 1999). See also Command Helicopters, Inc. v. City of Chicago, 691 F. Supp. 1148, 1151 (N.D. Ill. 1988).
[2] United States v. Causby, 328 U.S. 256, 265 (1946).
[3] Sovereignty and use of airspace 49 U.S.C.A. § 40103(a)(1) (LexisNexis 2017)
[4] Sovereignty and use of airspace 49 U.S.C.A. § 40103(b)(1) (LexisNexis 2017)
[5] Taylor v. Huerta, 856 F.3d 1089, 1090 (D.C. Cir. 2017) (striking down an FAA regulation requiring drone users to register with the FAA).
[6] Id. at 1092.
[8] Causby, 328 U.S. at 264.
[9] Id. at 266.
[10] Id. at 260. (citing 49 U.S.C. § 180, U.S.C.A. § 180).
[11] Id. at 264. (citing Civil Air Regulations, Pt. 60, § 60.350-60.3505).
[12] 328 U.S. 256, 264 (1946).
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 266.
[17] Id. at 268.
[18] Fed. Aviation Admin., FAA Aerospace Forecast Fiscal Year 2017-2037, at 31, (Advisory Circular 2017-2037) (stating there are over 1 million drone operators in the U.S. and a conservative prediction estimates more than 3 million operators in 2020).
[19] Mich. Comp. Laws Serv. § 259.311 (LexisNexis 2017) (acknowledging and explicitly refraining from affecting Federal Preemption).
[20] Cox Media Group National Content Desk, Need to shoot down a drone? Now you can buy ammo designed to take them down, CBS, Aug 25, 2015. Accord WKRN-TV, Father, son caught by surprise as drone shot out of sky, NBC, May 27, 2016.
[21] Huerta v. Haughwout, No. 3:16-cv-358, 2016 U.S. Dist. LEXIS 92866, at *1-2 (D. Conn. July 18, 2016) (discussing two Youtube videos showing a drone with a gun and another with a flamethrower attachment).
[22] Scott Mayerowitz, Drones’ future still up in the air U.S. REGULATORS SAY THEY WANT TO SLOWLY EASE DRONES INTO AIRSPACE – DRONES: Potential includes checking power lines, pinpointing water needs of farms, Free Lance Star, Jan. 10, 2015. But see Laura Bischoff, Drone used to drop drugs to Ohio inmates part of worldwide problem, Dayton Daily News, Aug. 6, 2015, at A1.
[23] Utah Code Ann. § 76-9-308 (LexisNexis 2017) (making it illegal to harass livestock with drones but leaving exempt livestock owners and employees of the state).
[24] Ohio Admin. Code 1501:31-15-02 (2017) (Making it illegal to “hunt, shoot, shoot at, kill, take or attempt to take any wild bird or wild quadruped with the use of aerial drones.”).
[25] Ohio S.B. No. 60, 132nd Gen. Assemb., 2017-2018 Sess. (Ohio 2017)
[26] Id. Legislators included an emergency exception, stating “[I]f a warrant could not be obtained with due diligence in time to prevent the immediate danger of death or serious physical injury.”
[27] Vill. of Willoughby Hills v. Corrigan, 29 Ohio St. 2d 39, 49, 278 N.E.2d 658, 664 (1972).
[28] Id.
[29] See State v. Littell, 2014-Ohio-4654, ¶ 17, 21 N.E.3d 675, 680 (Ohio Ct. App.); California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 1813, 90 L. Ed. 2d 210 (1986).
[30] Florida v. Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989). See also California v. Ciraolo, 476 U.S. 207, 209, 106 S. Ct. 1809, 1810 (1986).
[31]Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989) (finding lawful a helicopter observation of marijuana plants on private property from altitude of 400 feet without a warrant).
[32] Miss. Code Ann. § 97-29-61 (2017) (including the use of drones in voyeurism statute). Accord LA. STAT. ANN. § 14:283 (2017).
[33] Abdullah, 181 F.3d 363, 371 (3d Cir. 1999). See also City of Cleveland v. City of Brook Park, 893 F. Supp. 742, 750-751 (N.D. Ohio 1995) (“If local ordinance has the effect of directly regulating flight operations, federal law will preempt it.”). But cf. Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996) (“If the FAA does not issue uniform regulations regarding particular types of flights, local communities can enact ordinances regarding them.”).
[34] Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989).
[35] Riley, 488 U.S. 445, 447, 109 S. Ct. 693, 695 (1989) (finding that unless interfering with the owners use of the land, considering factors such as undue noise, wind, dust, or threat of injury, an aerial observation from a helicopter at 400 feet is permissible).
[36] 14 C.F.R. § 91.119 (“[T]he aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.”).
[37] Novy v. Ferrera, 2014-Ohio-1776, ¶ 47 (“in an action for trespass, if trespass is shown, the plaintiff is always entitled to some damages, even though they may be nominal.”). But see Apel v. Katz, 1998-Ohio-420, 83 Ohio St. 3d 11, 23, 697 N.E.2d 600, 609 (“The long-standing rule in Ohio is that “[e]xemplary or punitive damages may not be awarded in the absence of proof of actual damages.”).
[38] Ohio Rev. Code Ann. § 2305.402 (“No duty of care owed to trespasser except to refrain from willful, wanton, or reckless conduct.”).
[39] Taylor v. Huerta, 856 F.3d 1089, 1090 (D.C. Cir. 2017) (striking down an FAA regulation requiring drone users to register with the FAA).
[40] 14 C.F.R. § 45.11 (requiring fireproof identification plate, referenced in Federal Aviation Administration, Advisory Circular AC 45-2E (2015)).
[41] Fed. Aviation Admin., Overview of RTCA & Federal Advisory Committees DAC Meeting (2016) (discussing remote identification of drones during Drone Advisory Committee meeting).
[42]Abdullad, 181 F.3d. 363, 367. See also Command Helicopters, 691 F. Supp. 1148, 1151.
[43] Arizona v. United States, 567 U.S. 387, 427, 132 S. Ct. 2492, 2516–17, 183 L. Ed. 2d 351 (2012) (stating Arizona can have its own immigration policy so long as it does not conflict with federal law).
