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Sunday, November 16, 2014

Who owns your airspace?

As new technologies often do, drones are raising one question after another. It began with the proper rules of engagement for drones in military or quasi-military contexts. Now that municipal police departments, Amazon, and private individuals can purchase and operate drones, a new question arises: who owns the airspace above my house? Given that the U.S. Supreme Court has ruled that you and I have no expectation of privacy when our activities are observed from aircraft or satellites, this is an interesting question.

The Federal Aviation Administration asserts that it controls all the airspace in the U.S. down to the grass in my yard. On that basis the FAA is attempting to apply a regulatory regime to drones — but the attempt has led to controversy among hobbyists who fly radio-controlled model aircraft, which the FAA has always tolerated so long as the models are operated within reasonable limits.

State legislatures have jumped into the issue, too. A few months ago the North Carolina General Assembly adopted Session Law 2014-100, also known as Senate Bill 744, that provides:

  • no one may use a drone to conduct surveillance of a person, home, or property without consent;
  • no one may use a drone to photograph an individual without consent for the purpose of publishing the photograph;
  • persons committing either of the above may be charged with a misdemeanor;
  • someone whose privacy is violated by a drone can sue to recover $5,000 of damages for each occurrence;
  • a drone may not be launched or recovered from state property such as a park, and local governments may establish similar ordinances;
  • a drone may not be launched or recovered from private property without consent;
  • it is a felony for a drone to interfere with a manned aircraft or to carry a weapon;
  • it is a misdemeanor to hunt or fish (?) with a drone;
  • it is a misdemeanor to use a drone to interfere with lawful activities on private property;
  • operating a drone requires a specific license from NCDOT, with training requirements (this takes effect in 2015);
There are, of course, exceptions for law enforcement and in some cases for bona fide journalists. Models, as the statute defines them narrowly, are not drones.

The North Carolina law has not yet been tested in either state or federal court. If someone is prosecuted or sued under the law, I expect that a federal case will be raised on the basis of FAA preemption or constitutional rights. However, the North Carolina law seems sensible to me. If you live in North Carolina and are planning to get a drone for Christmas, consider whether you can operate the drone in compliance with the law. If you live elsewhere, see what laws apply to you.