Keep Out! the Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones
| Publication year | 2017 |
Keep Out! The Efficacy Of Trespass, Nuisance And Privacy Torts As Applied To Drones
Hillary B. Farber
University of Massachusetts School of Law
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A few years ago one might have seen a small object flying overhead without any idea what it could be. Today, it is fairly commonplace to see drones flying around our neighborhood skies. The Federal Aviation Administration (FAA) predicts there will be seven million drones populating our skies by 2020.1 In 2015 hobbyists, recreational users, and commercial businesses purchased unmanned aerial vehicles, commonly referred to as drones, in record-breaking numbers.2 Estimates reveal that over 4.3 million drones were sold worldwide in 2015.3 Trade industry experts predicted that more than 2.8 million drones would be sold in the U.S. in 2016 and 4.8 million in 2017.4 The surge in drone sales means more drones in the sky. The FAA estimates that by the end of this decade 30,000 drones will occupy our skies.5 Drones are being used for commercial and recreational purposes.6 Commercial users such as real estate
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agents, videographers, farmers, and engineers are capitalizing on this relatively inexpensive technology to take aerial photographs, monitor crops, and inspect infrastructure.7 Hobbyists and recreational drone users fly drones for the sheer fun of it—deploying out-of-the-box drones to shoot the most authentic "selfies" and building drones for competitions.8 There are endless civil applications for drones, and the possibilities will continue to grow at even higher rates as the technology develops and becomes more accessible to the public.
In response to this unprecedented growth, the FAA increased regulation and oversight of drone operation for not only commercial operators but recreational users, too. In December 2015, the FAA instituted a registration requirement for all recreational drone operators.9 The registration process is designed to make it easier for the FAA to keep track of and identify the thousands of drones populating our skies.10 On June 28, 2016, the FAA issued new rules for the operation of commercial drones weighing less than fifty-five pounds. 11 These new rules simplify the licensing process for commercial operators to fly unmanned aircraft at altitudes below four hundred feet.12 Until these new rules took effect, commercial users could not operate drones without a Certificate of Authorization (COA) from the FAA.13 On average, applicants waited four to six
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months to obtain a COA from the FAA once they submitted all documents.14 The new rules eliminate the waiting period and much of the bureaucratic process. Now that the rules have been finalized, the volume of drones in our skies will increase exponentially.
Drones are poised to bring endless commercial benefit to many industries. They are also fun recreational gadgets with more capabilities than their predecessors, remote-controlled helicopters. But along with the benefits of new technologies comes misuse. Concerns are mounting over drones snooping, spying, and crashing.15 News stories abound with reports of people observing drones buzzing by their windows, hovering over their backyards, and invading their privacy at parks, beaches, and sporting events.16 In some instances,
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residents call the police. Yet in many cities and towns, no pertinent laws exist to regulate this activity, leaving some people to resort to self-help remedies such as shooting the drone down or throwing objects at it.17
The privacy concerns relating to drones stem from their capabilities. These aerial observers enable operators to gather information about people and places via cameras, live video-streaming capability, and sensory-enhancing technologies that can be mounted to the drone.18 Once collected, information can be stored forever and broadly disseminated electronically.19 Moreover, the drones' aerial positioning makes it difficult for anyone without prior notice to avoid being caught on their cameras.20
The FAA's mandate to integrate unmanned aircraft into U.S. airspace focuses on safety, not privacy.21 The sheer volume of drones
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in our skies makes accidents inevitable. At alarming rates, pilots of passenger jets are reporting drones flying near airports, flying in restricted airspace, and interfering with the flight paths of commercial airliners, especially during take-off and landing.22 There have been reports of drones malfunctioning and falling from the sky, causing injury and damage to people and property.23 The insurance industry is beginning to respond to this new market as the number of manufacturers, commercial operators, and homeowners seeking to protect themselves from risk and liability grows. 24 Homeowner
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policies for community associations have started including "risks from drones" as an option in underwriting.25 Eventually, insurance may become mandatory for unmanned aircraft, similar to insurance requirements for motorized vehicles in most states.26 As claims for drone related accidents become more common, so too will the number of lawsuits filed against operators and manufacturers for not only injury to persons, but also for interference with the use and enjoyment of property and intrusions into privacy.27
With the advent of drones, we have entered a new frontier of aerial observation with the unmanned aircraft.28 Enthusiasts want to know which operations are lawful and which are prohibited.29 Homeowners who are watching drones fly over their yards and peer into windows are asking what rights and remedies they have to curtail intrusive drone use.30 The question on many lawmakers' minds is whether existing laws provide adequate remedies or whether this technology falls through a legal gap.31 As is often the case with any new and prolific technology, unmanned aircraft is outpacing the law. 32 Controversies over whether a drone can hover above one's property at low altitudes, whether it is legal to capture images of those on the ground without consent, and whether one may destroy a drone intruding upon one's privacy are mounting legal issues.33 The question courts and lawmakers should be addressing is whether existing trespass, nuisance, and privacy laws provide adequate legal
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remedies.34 If laws do not provide legal redress for those negatively impacted by drone operations, then people will assuredly take matters into their own hands.35 In some instances where the law is perceived as a fairly blunt tool, people will increasingly resort to self-help remedies.36 Not only are these measures dangerous, but many will result in criminal prosecutions and civil suits over damaged property.37
This article sets out to answer these questions at a time when lawmakers are feverishly proposing drone specific legislation.38 Presently, forty-nine states have considered legislation seeking to regulate drones.39 Thirty-one states have passed laws that limit the use of drones.40 The majority of these laws provide for civil penalties and causes of action for capturing images and recordings of individuals via drone without consent.41 Before the ink dries on these newly minted bills and incidents ripen into lawsuits, we should be asking whether our long-standing common law torts offer remedies of equal or greater value than these rapidly developing new laws. To the extent that common law torts fall short of providing adequate remedies at law, understanding their shortcomings will strengthen future drone legislation.
Part I of this article explains the FAA's current and proposed rules for drone operators in the wake of the massive popularity of drones.42
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Part II describes the capabilities of unmanned aircraft to help understand the growing concern over privacy intrusions.43 Part III examines the legislative activity among states seeking to limit drone use as a means of protecting privacy. 44 Part IV explains the application of the torts of trespass, nuisance, and invasion of privacy to drones, and those claims' limitations.45 Part V suggests that state and local governments can implement regulations for low altitude airspace that are designed to safeguard privacy and not conflict with current FAA rules.46
In 2015 drone sales worldwide hit an all-time record of 4.3 million.47 This marks an increase of 167% in just two years.48 Most drones sold in the U.S. retail for between $400 and $1400.49 It is estimated that Americans bought 400,000 drones during the 2015 holiday season.50 Trade industry experts estimated that more than 2.8 million drones were sold in the U.S. in 2016 and 4.8 million will be sold in 2017.51 At the 2016 Consumer Electronic Show (CES), the world's largest annual electronics show, CES organizers said the U.S. drone market revenue reached $105 million in 2015, an increase of more than 50% from 2014.52 In 2015, the drone industry's revenue totaled $261 million, a value expected to almost double in 2016.53
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Demand for drones in the commercial arena is constantly expanding.54 The industries seeking permission from the FAA to use drones for commercial activities include businesses involved in agriculture, oil and gas, engineering, real estate, journalism, and filmmaking. 55 Several universities, such as Emory-Riddle Aeronautics University, Kansas State University, and the University of North Dakota, have begun to offer academic programs and degrees in the field of unmanned aerial vehicles.56
In response to mounting private and government pressure to permit commercial enterprises to capitalize on the benefits of this new technology, the FAA released new regulations for persons sixteen years and older wishing to operate, for commercial purposes, a drone weighing less than fifty-five pounds.57 Beginning in August 2016, the FAA no longer requires commercial...
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