The continuing proliferation of drones raises federalism issues as the lawful authority of state governments, through the exercise of their police powers, to adjudicate and protect important privacy and private property rights implicated by low-altitude drone operations. Many in the drone industry vigorously contend state governments lack authority to protect the privacy and private property rights of their residents. I disagree.

Ever since the 1946 decision in United States v. Causby, the law of the U.S. unambiguously gives private landowners “exclusive control of the immediate reaches of the enveloping atmosphere.” While the “immediate reaches” has not been defined either by statute or case law, Causby clearly establishes “a landowner owns at least as much of the space above the ground as he can occupy or use” even if he “does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense.”

As a result, it is beyond peradventure that a landowner controls an undefined amount of airspace that runs with each parcel of land. Causby remains good law until the U.S. Supreme Court decides otherwise.

The drone industry contends that the FAA adjudicated and abrogated every private owner’s right to control any of the “immediate reaches” of airspace above their land when it promulgated Part 107, confining line-of-sight drone operations to altitudes below 400 feet. That contention is without merit for three reasons.

First, the FAA’s eminently reasonable decision to confine line-of-sight drone operations to altitudes below 400 feet is predicated on its safety authority, not its adjudication of the property rights of every private landowner in America. A myriad of variables, including those pertaining to airframe design, weight, battery life, flight performance, control links, equipage and operator training, just to name a few, informed the FAA’s judgment that it currently is unsafe to operate drones above 400 feet.

However, the FAA’s determination that drones can safely operate only below 400 feet surely cannot be conflated into the FAA’s having affirmatively authorized every drone operator to hover or crisscross at 5, 25, 50, 75 or 125 feet above our backyards, thereby stripping every landowner in America of their Causby right to control the “immediate reaches” of airspace above their property.

Second, in the event the drone industry correctly contends that the FAA’s promulgation of Part 107 negates our Causby right to control and limit drones from hovering or flying in the airspace immediately above my backyard, then by promulgating its Part 107 regulation, the FAA snuffed out the property rights of every private landowner in America and may have accomplished a nationwide “taking” of private property without just compensation – which surely raises substantial questions about the scope of the federal government’s authority under the Commerce Clause of the U.S. Constitution. Surely, that did not happen.

Third, even though I served as the FAA’s chief counsel when the agency promulgated
the Part 107 regulation, you needn’t take my word for it. Notably, the FAA’s official comments accompanying the regulation make it clear that Part 107 did not negate the property and privacy rights of private landowners. For example, the FAA noted the following in the Federal Register notice accompanying the final rule:

Regarding Trespass and Property Rights

  • “Adjudicating private property rights is beyond the scope of this rule. However,
    the provisions of this rule are not the only set of laws that may apply to the
    operation of a small UAS; the FAA will address preemption issues on a case-by-
    case basis rather than doing so in a rule of general applicability.”
  • “Property rights are beyond the scope of this rule. However, the FAA notes that,
    depending on the specific nature of the small UAS operation, the remote pilot in
    command may need to comply with state and local trespassing laws.”
  • “The FAA also notes that hobbyists or other third parties who do not have the
    facility owner’s permission to operate UAS near or over the perimeter or interior
    of amusement parks and attractions may be violating state or local trespassing
    laws.”

Regarding Privacy

  • “State law and other legal protections may already provide recourse for a person
    whose individual privacy, data privacy, private property rights or intellectual
    property rights may be impacted by a remote pilot’s civil or public use of a UAS;
    in light of the FAA’s long-standing mission and authority as a safety agency, it
    would be overreaching for the FAA to enact regulations concerning privacy
    rights.”

Against that backdrop, the FAA’s role of determining the safe altitude for flight
operations clearly is distinct from the task of defining the altitude constituting the
“immediate reaches” of airspace above private property, and this latter task fits
comfortably within a state’s historic police power to determine and adjudicate private
property and privacy rights.

Recently, a committee of the Uniform Law Commission, an organization dedicated to
promoting the enactment of uniform laws among states, proposed states give private property owners the right as a matter of law to exclude drone operations below 200 feet in altitude. Were I a member of the committee, which I am not, I would counsel against adopting an exclusion zone of 200 feet and counsel in favor of adopting a more modest definition of the “immediate reaches” of airspace above private property.

Nevertheless, the committee’s initial proposal merits serious debate and consideration by every state legislature to make clear, once and for all, to powerful drone companies, both foreign and domestic, that private landowners – not industry’s specious arguments about the FAA’s drone safety regulations – control whether and when drone operators may hover or crisscross at 5, 25, 50, 75 or 125 feet above our backyards.

Reggie Govan is the former chief counsel of the FAA under the Obama administration,
during which he played key roles in establishing the regulatory framework for the
commercial operation of drones and performance-based rulemaking. He is currently a
member of the advisory board of AirMap, an airspace management platform for drones, and Vorpal, a provider of advanced counter-drone technology. The views herein are his own and not those of either company.

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JONATHAN HAYDEN

This is an excellent explanation of the relevant issues, thank you for writing it.

With how the current FAA and drone industry are pushing for the FAA to have exclusive regulatory authority, one has to wonder when we will see the drone and air rights version of the 1982 Supreme Court case Loretto v. Teleprompter Manhatten CATV Corp.