The Drone Wars Begin

Drones are no longer just for the military.

As technology improves and costs drop, unmanned flying machines have become an increasingly attractive tool for a variety of users, from police departments to utility companies to photographers and hobbyists.

But the proliferation is raising concerns about Big Brother privacy issues, safety, and intrusive government regulation. Drone use in some cases is outstripping laws that never contemplated the devices.

Private property rights when it comes to drones are surprisingly murky. David Opderbeck, faculty director of the Gibbons Institute of Law, Science & Technology at Seton Hall University in New Jersey, said a few states have laws specifically restricting where owners can fly drones. But most do not.

“It’s pretty ill-defined, and you probably don’t have as much privacy rights as you might think,” he said.

Opderbeck said the mediating of disputes among neighbors probably is best left to informal negotiations and nuisance laws.

“I personally would hate to see a lot of restrictions (on drones),” he said. “It’s a fun hobby, and it has a lot of useful purposes.”

However, property owners’ rights to the airspace above their homes have narrowed over the years. “Originally, it was your house to heaven,” said Chad Marlow, advocacy and privacy counsel for the American Civil Liberties Union. “Then they invented the airplane.” A 1946 Supreme Court ruling held that the airspace above a chicken farmer’s property was a “public highway.”

A few recent neighbor-vs.-neighbor drone disputes have illustrated the growing tension:

• Law enforcement authorities in the Louisville, Kentucky, suburb of Hillview charged William Merideth with criminal mischief and wanton endangerment after he shot down a $1,800 drone with a 12-gauge-shotgun last month. Merideth claims the drone was trespassing over his property while his daughter was sunbathing; in this factual dispute, drone pilot David Boggs has told local media outlets the drone never left his property.
• In September, Cape May, N.J., resident Russell J. Percenti used a shotgun to blast a remote control helicopter that was hovering over his house. Police charged him with criminal mischief and possession of a weapon for an unlawful purpose.
• In 2013, a Colorado man proposed that his town pass an ordinance encouraging people to shoot down drones that encroached on private property. That brought a rebuke from the Federal Aviation Administration. The town of Deer Trail ultimately rejected the idea of a “drone hunting license.”

Marlow, the ACLU lawyer, acknowledged that laws targeting drones, specifically, can be problematic. He said if the government were to prohibit drones from flying within 400 feet of someone’s house, that drone owner might simply fly at 425 feet and still be able to record a neighbor with high-zoom cameras.

It is better to target invasive activity generally without specifying drones, Marlow said.

Safety Concerns 
For years, the military has used drones to strike terrorists in key places around the globe. In the U.S., however, the government has struggled to set rules promoting safety and privacy.

Pilot reports of unmanned aircraft have increased dramatically, from a total of 238 sightings in all of 2014 to more than 650 by Aug. 9 of this year.

The FAA reported last week that near-misses in the sky between airplanes and unmanned aircraft have spiked dramatically in the past year. Pilot reports of unmanned aircraft have risen from a total of 238 sightings in 2014 to more than 650 by Aug. 9 of this year. Pilots are also seeing the devices at much higher altitudes. According to the FAA, 275 commercial airline pilots saw drones at 10,000 feet or higher in June and July, up from just 52 in the same two months last year.

In western states, unmanned aircrafts have forced firefighters to ground aerial forest fire operations.

“The FAA wants to send a clear message that operating drones around airplanes and helicopters is dangerous and illegal,” the agency said in a statement. “Unauthorized operators may be subject to stiff fines and criminal charges, including possible jail time.”

The FAA has no binding rules for hobbyists, but strongly recommends they follow a series of guidelines, including flying below 400 feet and steering clear of obstacles, people and stadiums.

The agency grants certificates to government agencies to operate drones and separately gives out exemptions to commercial operators. The FAA has no binding rules for hobbyists, but strongly recommends they follow a series of guidelines, including flying below 400 feet and steering clear of obstacles, people and stadiums.

The courts ruled in the 1980s that law enforcement authorities do not need to get a warrant to search for criminal activity from the air.

Gerry Morris, an Austin, Texas, lawyer and president of the National Association of Criminal Defense Attorneys, argued that drones should be an exception. They can circle for hours and maneuver in tight spaces. “This is sort of a hybrid we’re talking about,” he said. “They can go places where traditional aircraft can’t go.”

The Supreme Court has not directly ruled on drone use without search warrants. But civil liberties advocates are taking comfort from a March decision in which the justices ruled that police could not attach a global positioning satellite device to a suspect’s car without a warrant.

Logic, they argue, dictates the same restrictions would apply to drones.

Morris, however, said states should remove any ambiguity. His organization, which maintains the Drone Information Center, has model legislation that would limit the use of drones without warrants to a few exceptions, including border patrols and emergencies. He said many states have adopted those rules and there has been surprisingly little resistance.

“Drones have sort of captured the public consciousness,” he said. “There’s something about drones that really scares people about losing their privacy rights.”

Industry Defended
To industry supporters, much of the reaction against drones is borne of a lack of understanding about an unfamiliar technology.

“The public perception now is unsure because of the negative headlines they’ve been reading,” said Bob Gonsalves, founder of the U.S. Association of Unmanned Aerial Videographers.

Gonsalves estimated the FAA has granted more than 1,000 exemptions that allow commercial drone operation. He said uses include real estate photography, construction surveys, precision agriculture, emergency response and utility inspection. Using drones can save lives. “Any time you don’t have to put someone up in a ladder or on a roof, it’s much safer,” he said.

Gonsalves attributed negative outcomes to “low-information users who just don’t know the rules.”

While drones have been around for years, only recently have they come into widespread commercial use, Gonsalves said. “It’s not new, but in the last few years, they’ve become affordable,” he said. “That really has been expanding in popularity. And the technology has made them easier to fly.”