Drone Revolution Shakes Up Tort Law

At its annual meeting in July, the National Conference of Commissioners for Uniform State Laws, otherwise known as the Uniform Law Commission (ULC), considered a proposal for changing law across the United States to reflect the impact of unmanned aerial vehicles, or drones.

A ULC committee tabled for discussion a new act for adoption by state governments that attempts to clarify property and privacy rights amidst proliferation of drones operated by hobbyists, companies, and government agencies. The proposed “Tort Law Relating to Drones Act” [PDF] has provoked controversy across many levels and areas of law implicated by growing use of drones.

Drones have proved fertile in producing legal controversies and calls for new law. Military drones used for targeted killings of terrorists and in armed conflict have generated heated debates under constitutional law, human rights law, and the laws of war. Law enforcement deployment of drones has provoked worries about expanded government surveillance. Aviation authorities around the world are crafting new laws to regulate unmanned aerial vehicles in airspace previously controlled only for manned flight. The rules on small unmanned aircraft systems adopted in 2016 by the Federal Aviation Administration (FAA) intensified legal concerns about how the integration of drones into the U.S. national airspace system would affect property and privacy rights at the local level.

Drones have caused legal and policy ferment because their combination of aviation know-how and digital control, connective, video, and sensor technologies produces capabilities beyond what traditional aircraft provide. These capabilities create new opportunities for recreational, commercial, and governmental purposes. However, taking advantage of these opportunities confronts legal regimes not designed for unmanned aircraft. Transformative technologies have long forced the re-thinking of legal rules. Indeed, the advent of manned aviation in the first half of the twentieth century necessitated scrutiny of how far skywards a property owner’s legal rights extended.

The emergence of small unmanned aircraft is forcing another review of rules protecting property ownership and its associated benefits, such as privacy. The ULC committee that drafted the Tort Law Relating to Drones Act argued that existing law on the relationship between property rights and airspace fails to protect both property owners and drone operators. According to the committee, aviation policy and law never comprehensively addressed how public aviation rights and individual property and privacy rights aligned at lower levels of airspace, essentially below 500 feet above the ground. The FAA’s requirement that small unmanned aircraft fly below 400 feet has made this question acute, especially as commercial interest in exploiting drones more widely expands.

The draft act contains two fundamental proposals. First, it contains a “new bright line” rule. Any intrusion—even those that cause no harm—by an unmanned aircraft into airspace above private property up to 200 feet without the owner’s consent constitutes a trespass, with exceptions, including for conduct during emergencies or pursuant to a court order. Second, the draft act creates the tort of acquiring images, recordings, or physical or electronic impressions of private acts or trade secrets with a drone in a manner highly offensive to a reasonable person, excluding acquisitions protected by the First Amendment or that conform to the Fourth Amendment, a warrant, or court order.

The proposals provoked criticism, especially from drone companies and industry associations [PDF] and alliances [PDF]. Negative reactions included, among others, assertations that the draft act:

• Interfered with the federal government’s exclusive authority to regulate the nation’s airspace and to pre-empt state and local regulations on drones;
• Ignored that existing tort law on aerial trespass developed with manned aircraft in mind, which requires a showing of substantial interference with property rights, is very appropriate to apply to drones; and
• Created new rules on property and privacy rights that will spawn litigation and uncertainty for drone operators and inhibit innovation and development of commercial opportunities.

The draft act has defenders too. Jason Snead of the Heritage Foundation argued that the act’s “bright line aerial trespass standard balances the interests of the nascent [unmanned aerial systems] sector with the traditional rights of property owners to exclude unwanted intruders from their property.” Reginald Govan, former FAA chief counsel, dismissed the notion that the FAA’s rules had pre-empted state and local governments from regulating how drones affect property rights. Govan also argued that, absent federal legislation, state governments have the authority “to protect privacy through trespassory tort doctrines,” as proposed by the draft act.

Although only a discussion draft, the proposed act is a significant inflection point in policy and legal debates about drones. State lawmakers, who have been active in regulating drone use, will study this authoritative proposal. The draft act will also influence how executive branch activities, such as the Unmanned Aircraft System Integration Pilot Program, and proposed legislation in Congress, such as the Drone Federalism Act, further integrate drones into national airspace while respecting property and privacy rights.