With the advent of smartphones, we could record videos as far as our hands can reach. With the proliferation of consumer drones, the sky is now the limit, with privacy being a fundamental issue at the center of a hot new debate? Competing interests are at the heart of this new debate — one’s right to fly a drone, coupled with their freedom to collect public information, versus another’s right to privacy and to be free from surveillance in their private property.
The key issue faced by lawmakers is whether restrictive drone laws are justified as a means of preserving the right to privacy of individuals in their home and property. This debate has set the stage for a conflict between state-based claims of trespass to property, invasion of privacy, and trespass to chattles and long-standing exclusive federal jurisdiction over the national airspace and the protection of air safety.
Is the solution, to find a proper balance between the competing interests, one that stems from law or is relying on law for this problem akin to putting a Band-Aid on a gunshot wound? Can technology itself solve this problem and strike the proper balance, without the need for law? These are fundamental questions we must ask and answer before we proceed further.
Currently, according to the Federal Aviation Agency (“FAA”), there are 2.5 million plus drones regularly flying over the skies of the US. The number is expected to triple by 2020, to approximately 7 million drones. Uber has announced that it plans to deploy flying taxis in Dallas-Fort Worth, Texas and Dubai by 2020. Amazon expects to deliver their products with Amazon Prime Air — a delivery system designed to safely get packages to customers in 30 minutes or less using drones. Matter of fact, Amazon has already begun its Prime Air and has it first successful flight. For residents of the town of Whangaparaoa, New Zealand, Domino’s pizza is now just a short drone delivery away. It’s a brave new world.
One question possibly central to this entire debate is how high up do property rights go. In 1946, the Supreme Court of the U.S., in U.S. v. Causby et ux., acknowledged that the airspace had become a “public highway” and to recognize private claims of trespass to the airspace “would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.” The Court stated that to allow flights over a person’s property is akin to an easement, and “the owner’s right to possess and exploit the land — that is to say, his beneficial ownership of it — would be destroyed.” Further, the Court averred that the navigable airspace in the public domain begins at 83 feet. In this case, the plaintiff was a farmer that lived adjacent to a military base. The Court held that planes flying below 83 feet (67 feet above the house, and 63 feet above the barn), that caused the plaintiff’s chickens to fly into walls and kill themselves as result of the noise, were sufficient to be an invasion of the plaintiff’s property rights. Therefore, flying under 83 feet would be an invasion of property.
How high up does the principle in Causby extend? The Supreme Court refused to rule on this matter. The federal government has exclusive sovereignty of U.S. airspace. Congress delegated to the FAA to define “navigable airspace” and the authority to regulate “navigable airspace” of aircraft by regulation or order. 49 U.S.C. § 40103(b)(1). While it is clear that navigable airspace falls under the purview of the FAA, the boundaries of that airspace remain ambiguous.
According to FAA, “navigable airspace” is defined as “airspace at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing.” 14 C.F.R. § 1.1. For airplanes, the minimum flight altitude while flying over congested areas or open air assemblies of persons is 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet. 14 C.F.R. § 91.119(b). Over uncongested areas, airplanes can fly at an altitude of 500 feet above the surface. However, airplanes can operate even lower when over “open water or sparsely populated areas.” Two obvious exceptions exist for when an aircraft may operate below these altitudes: (1) when necessary for takeoff or landing; or (2) in an in-flight emergency requiring immediate action. 14 C.F.R. § 91.119(a); 14 C.F.R. § 91.3(b).
So what happens between 83 feet and 500 feet? Although it remains unclear, drones are much quieter and less obtrusive than military aircrafts flying over a commercial chicken farm, in which a family lives. The reasoning in the Causby case is due to the severity of noise emanating from military aircrafts at 83 feet, a low altitude for flight, which I cannot see being applied for the drones prevalent in the air today. Therefore, maybe I can fly 35 feet above your house, or maybe even closer, and it will not be considered an invasion of your property rights. So is all this jazz about property right and how high it extends even important when considering drones? Not really.
I believe what’s more fundamentally at issue is not property rights but about having the right to privacy in one’s private property, and to be free from outside surveillance. I have read of a great solution that involves no law at all, but pure technology, which the author, a tech expert, argues as quite feasible today. The article is written by Svilen Kostadinov and is titled, “Does The Show “Black Mirror” Hold The Answer To Drones’ Biggest Privacy Concerns?” I really think it does. The episode “White Christmas” in Black Mirror “imagines a future society where retina implants allow people to block others from their sight in real time”:
Here are two scenes displaying the technology:
Svilen then asks, “what if DJI drones could blur out faces in real-time, or even entire bodies?” Matter of fact, as mentioned in his article, Google’s Street View automatically blurs the faces of people through lines of code (computer programming) and no manual input. He also proposes for fencing off your property so it gets automatically blurred. As to his proposals and its feasibility this present day, we will need to engage with more experts. To read Svilen’s article, here is the link: https://medium.com/@SvilenK/how-the-show-black-mirror-solved-one-of-drones-biggest-privacy-issues-cbb022f4cd4e
Another problem is that the incentives are misaligned by the law. The law holds people and individuals accountable while leaving the corporations who invent these technologies, such as DJI, with minimal responsibility. What if DJI, and all other drone manufacturing companies, were required to have an integrated system, like the one Svilen advocates for, before their drones could come to market? Wouldn’t this solve many of the privacy issues we have before us today. Lets implement the “White Christmas” retina idea into all future drones, and allow people to fence off their houses, scan their faces, and upload the same onto a decentralized national system, so their face or house gets automatically blurred when a drone tries to record them or their property.
Doesn’t changing the incentives, who we hold accountable, and how we hold them accountable, fix the huge privacy concern before us and put the debate to sleep? I think it does. It’s a matter of changing our perspective on how we think of the law and technology, and who we decide to hold accountable and responsible for some of the biggest concerns facing lawmakers, policy writers, and the public.