Rusty Rumley, Senior Staff Attorney
Unmanned Aerial Vehicles (UAVs), sometimes referred to as drones, create cheaper and more efficient ways to gather agronomic data and to apply pesticides to crops. This new technology shows a great deal of promise for agriculture, but it also creates privacy concerns for neighboring landowners. Recent sightings of multiple UAVs over New Jersey have once again brought the issue of privacy concerns to the forefront. To read more about the New Jersey sightings click here. What are the legal aspects of privacy and what can a worried landowner do about strange UAVs over their property?
Privacy
Privacy concerns from aerial surveillance are nothing new. We have case law about aerial surveillance from law enforcement going back more than fifty years (click here for one example). A simplified explanation of this concept can be illustrated through examples using traditional aircraft. In the case referenced above, law enforcement was tipped off that an individual was growing marijuana on their property so they flew a helicopter twenty feet off of the ground to capture images of the plants. In this case the court held that law enforcement violated the “serenity and privacy of the backyard” and this constituted a search without a valid warrant. In another example you have an individual flying over your property in an aircraft at an altitude of 500 feet and taking pictures of your property with a powerful camera. This example likely does not constitute a violation of someone’s right to privacy. What is the takeaway from these examples? Someone can violate your right to privacy, and potentially even commit trespass, by flying too low over your property, but your rights are greatly diminished when the aerial surveillance is conducted at higher altitudes.
What about UAVs? Recreational UAVs typically operate in Class G airspace which is 400 feet and below. There are other restrictions such as flying around airports, military installations and prisons, but we will use 400 feet for the sake of simplicity. This puts UAVs in a gray area. One question that we are struggling with legally is how low is too low? This question may end up being moot because of rapidly advancing technology. The laws surrounding aerial privacy have changed in recent years (to see a compilation of state UAV laws click here), but technology is evolving even quicker. UAVs have not changed the laws surrounding privacy, but they have made it much cheaper and easier to conduct aerial surveillance. For the price of operating a helicopter for one day, an individual can buy a UAV equipped with an excellent camera and use it for weeks on end. Many early cases about aerial surveillance were against law enforcement because only the government was able to afford it. Modern UAVs and mass production have placed this technology in the hands of the general public.
Can I Shoot Down a UAV?
A common question that we have received with the proliferation of UAVs is whether a landowner can shoot down a UAV that is flying low over their property. The answer is an emphatic “No!” The Federal Aviation Administration (FAA) is in charge of regulating aircraft and the airspace where they operate. UAVs are classified as aircraft by the FAA (unmanned, but still aircraft) and under federal law, 18 U.S.C.A. § 32, it is felony to “damage, destroy, disable, or wreck any aircraft” and the potential punishment is up to twenty years in a federal prison. What can a landowner legally do about a UAV flying over their property? The answer is very little in most cases. You can report suspicious UAV activity to the FAA. UAVs are required to display their registration numbers on the outside of the aircraft (14 CFR Section 48.205(c)) and for low flying UAVs it should be possible to capture an image of this registration number to go with your complaint. This has not been helpful in the New Jersey situation due to the UAVs operation at night, but for many common examples of UAV usage this remains a viable option. Other actions, such as capturing images through windows of residences, may also open avenues for local law enforcement to become involved as well. Documenting and reporting remain the safest legal way to deal with problematic UAVs around your property.
Conclusion
The rapid proliferation of UAVs in recent years has created exciting technological advancements for agriculture but also resulted in privacy concerns for nearby landowners. While privacy concerns from aerial surveillance are not new, the law is still working to catch up with evolving technology. There has been federal legislation proposed to deal with some of the challenges presented by UAVs, but the bill is very unlikely to move forward during this Congress. We can expect to see more proposed legislation in 119th Congress and the Center will continue to track federal legislation concerning UAVs and disseminate it though The Feed. For now, the safest option for a landowner that spots a UAV flying over their property is to record the incident and report it to the property authorities.