Alissa M. Dolan Legislative Attorney
Richard M. Thompson II Legislative Attorney
the FAA Modernization and Reform Act of 2012, P.L. 112-95, Congress has tasked
the Federal Aviation Administration (FAA) with integrating unmanned
aircraft systems (UASs), sometimes referred to as unmanned aerial vehicles
(UAVs) or drones, into the national airspace system by September 2015.
Although the text of this act places safety as a predominant concern, it
fails to establish how the FAA should resolve significant, and up to this
point, largely unanswered legal questions.
For instance, several legal interests are implicated by drone flight over or
near private property. Might such a flight constitute a trespass? A
nuisance? If conducted by the government, a constitutional taking? In the
past, the Latin maxim cujus est solum ejus est usque ad coelum (for whoever
owns the soil owns to the heavens) was sufficient to resolve many of these
types of questions, but the proliferation of air flight in the 20th century has made this proposition untenable. Instead, modern
jurisprudence concerning air travel is significantly more nuanced, and often
more confusing. Some courts have relied on the federal definition of “navigable
airspace” to determine which flights could constitute a trespass. Others
employ a nuisance theory to ask whether an overhead flight causes a
substantial impairment of the use and enjoyment of one’s property.
Additionally, courts have struggled to determine when an overhead flight
constitutes a government taking under the Fifth and Fourteenth Amendments.
With the ability to house surveillance sensors such as high-powered cameras and
thermal-imaging devices, some argue that drone surveillance poses a
significant threat to the privacy of American citizens. Because the Fourth
Amendment’s prohibition against unreasonable searches and seizures applies
only to acts by government officials, surveillance by private actors such as
the paparazzi, a commercial enterprise, or one’s neighbor is instead
regulated, if at all, by state and federal statutes and judicial
decisions. Yet, however strong this interest in privacy may be, there are instances
where the public’s First Amendment rights to gather and receive news
might outweigh an individual’s interest in being let alone.
Additionally, there are a host of related legal issues that may arise with this
introduction of drones in U.S. skies. These include whether a property
owner may protect his property from a trespassing drone; how stalking,
harassment, and other criminal laws should be applied to acts committed
with the use of drones; and to what extent federal aviation law could preempt
future state law.
Because drone use will occur largely in federal airspace, Congress has the
authority or can permit various federal agencies to set federal policy on
drone use in American skies. This may include the appropriate level of
individual privacy protection, the balancing of property interests with the economic
needs of private entities, and the appropriate safety standards required.
Date of Report: January 30, 2013
Number of Pages: 25 Order Number: R42940 Price: $29.95
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