WCT ESSAY

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years, since the FAA has been instructed to issue a rulemaking that will lead to the phased-in integration of civilian unmanned aircraft into national airspace.29

Recreational Users

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.30

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 One possibility 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.33 The plaintiffs 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 29 P.L. 112-95, § 332(2). 30 P.L. 112-95 § 336. 31 See id. at § 332(b). 32 United States v. Causby, 328 U.S. 256 (1946). 33 Id.

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against the government when a government actor, as opposed to a private part, causes the alleged harm.34

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.35 While this 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 chicken farm.”36 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.”37 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 These statutes 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.”39

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 other occupancy.”40

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.”41 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.”42 Above these immediate reaches, the airspace is part of the public

34 Takings claims filed against state government actors would not be filed under the Fifth Amendment. Rather, they would arise as state constitutional claims. For more information on takings, see CRS Report RS20741, The Constitutional Law of Property Rights “Takings”: An Introduction, by Robert Meltz. 35 Id. at 258. 36 Id. at 259. 37 Id. at 260-61. 38 Id. at 260 (citing statutes then codified at 49 U.S.C. §§ 176(a), 403). 39 Id. 40 Id. 41 Id. at 264 (citing Hinman v. Pacific Air Transport, 84 F.2d 755 (1936)). 42 Id. at 265.

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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.43 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.44

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.”45 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 Causby clearly 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.46

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

43 Id. at 264. 44 Id. at 263. 45 Id. at 266. 46 See e.g., Andrews v. United States, 2012 U.S. Claims LEXIS 1644, *10 (explaining that the “The United States Court of Appeals for the Federal Circuit (Federal Circuit) has derived from Causby three factors for consideration ‘in determining whether noise and other effects from overflights ... constitute a taking.... ’”). But see Argent v. United States, 124 F.3d 1277, 1284 (1997) (finding a taking claim may be based on “a peculiarly burdensome pattern of activity, including both intrusive and non-intrusive flights”).

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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 land47 greatly impacts 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 a case 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 property.”49 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 or sleep.51 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 navigable airspace.52 Despite this 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

47 49 U.S.C. § 40102(32) (2012). 48 347 U.S. 590 (1954). 49 Id. at 596. 50 Griggs v. Allegheny County, 369 U.S. 84, 90 (1962). 51 Id. at 87. 52 Id. at 86-89. 53 See, e.g., Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963); Powell v. United States, 1 Cl. Ct. 669 (1983).

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interest diminishes, so that the damage showing required increases in a continuum toward showing absolute destruction of all uses of the property.”54

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.”55 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.’”56 Under this 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.57 Additionally, flights that cause the surface to become impractical for its intended use by the current owner also satisfy the use and enjoyment requirement.58 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.”59 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.60 One court 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 appreciation.... ”61 However, other 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.62

Trespass and Nuisance Claims Against Private Actors 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

54 Stephens v. United States, 11 Cl. Ct. 352, 362 (1986). 55 Branning v. United States, 654 F.2d 88, 99 (1981). 56 Id. at 98-99 (citing Palisades Citizens Association, Inc. v. C.A.B, 420 F.2d 188, 192 (D.C. Cir. 1969)). 57 See, e.g., Causby, 328 U.S. 256. 58 See, e.g., Griggs, 369 U.S. 84; Pueblo of Sandia v. Smith, 497 F.2d 1043 (10th Cir. 1974) (“appellant failed to show interference with actual, as distinguished from potential, use of its land.”). 59 Griggs, 369 U.S. at 87. 60 See, e.g., Brown v. United States, 73 F.3d 1100 (1996); Branning, 654 F.2d 88. 61 Brown, 73 F.3d 1100. 62 Stephens v. United States, 11 Cl. Ct. 352 (1986).

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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 Causby 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.”63 This standard for airspace trespass was also adopted by the Restatement (Second) of Torts.64

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 land.65 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 63 Geller v. Brownstone Condominium, 82 Ill. App. 3d 334, 336-37 (1980). 64 RESTATEMENT (SECOND) OF TORTS § 159(2) (1965) (stating that “Flights by aircraft in the airspace above the land of another is a trespass if, but only if, (a) it enters into the immediate reaches of the airspace next to the land, and (b) it interferes substantially with the other’s use and enjoyment of the land.”). 65 RESTATEMENT (SECOND) OF TORTS § 821D (1979); 2 DAN B DOBBS, ET AL. THE LAW OF TORTS § 398 (2d ed. 2011).

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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.

Privacy 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 privacy risk.66 Undoubtedly, the 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 This section 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.”

66 See Jennifer Lynch, Are Drones Watching You?, ELECTRONIC FRONTIER FOUNDATION (Jan. 10, 2012), https://www.eff.org/deeplinks/2012/01/drones-are-watching-you; M. Ryan Calo, The Drone as Privacy Catalyst, 64 STAN. L. REV. ONLINE 29 (Dec. 12, 2011), http://www.stanfordlawreview.org/sites/default/files/online/articles/64- SLRO-29_1.pdf. 67 For an analysis of the Fourth Amendment implications of government drone surveillance, see CRS Report R42701, Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, by Richard M. Thompson II. 68 See Press Release, Rep. Ed Markey, Markey Releases Discussion Draft of Drone Privacy and Transparency Legislation (Aug. 1, 2012), available at http://markey.house.gov/press-release/markey-releases-discussion-draft-drone- privacy-and-transparency-legislation.

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.

Id.

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