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Integration of Drones into Domestic Airspace: Selected Legal Issues

CRS Report for Congress
Prepared for Members and Committees of Congress
Integration of Drones into Domestic Airspace:
Selected Legal Issues
Alissa M. Dolan
Legislative Attorney
Richard M. Thompson II
Legislative Attorney
January 30, 2013
Congressional Research Service
Integration of Drones into Domestic Airspace: Selected Legal Issues
Congressional Research Service
Under 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.
Integration of Drones into Domestic Airspace: Selected Legal Issues
Congressional Research Service
Introduction ...................................................................................................................................... 1
Development of Aviation Law and Regulations .............................................................................. 1
Current FAA Regulations of Navigable Airspace ...................................................................... 2
Fixed-Wing Aircraft ............................................................................................................ 2
Helicopters .......................................................................................................................... 3
Current FAA Regulation of Drones ........................................................................................... 3
Public and Commercial Operators ...................................................................................... 3
Recreational Users............................................................................................................... 4
Safe Minimum Flying Altitude ........................................................................................... 4
Airspace and Property Rights .......................................................................................................... 4
United States v. Causby ............................................................................................................. 4
Post-Causby Theories of Airspace Ownership .......................................................................... 6
Trespass and Nuisance Claims Against Private Actors ............................................................. 8
Potential Liability Arising from Civilian Drone Use ................................................................. 9
Privacy ........................................................................................................................................... 10
Early Privacy Jurisprudence .................................................................................................... 11
Privacy Torts ............................................................................................................................ 12
First Amendment and Newsgathering Activities ..................................................................... 15
Congressional Response .......................................................................................................... 17
Related Legal Issues ...................................................................................................................... 20
Conclusion ..................................................................................................................................... 22
Author Contact Information........................................................................................................... 22
Integration of Drones into Domestic Airspace: Selected Legal Issues
Congressional Research Service 1
The integration of drones into U.S. skies is expected by many to yield significant commercial and
societal benefits.1 Drones could be employed to inspect pipelines, survey crops, and monitor
weather.2 One newspaper has already used a drone to survey storm damage, 3 and real estate
agents have used them to survey property.4 In short, the extent of their potential domestic
application is bound only by human ingenuity.
In an effort to accelerate this introduction, in the FAA Modernization and Reform Act of 2012,
Congress tasked the Federal Aviation Administration (FAA) with safely integrating drones into
the national airspace system by September 2015.5 Likewise, sensing the opportunities that
unmanned flight portend, lobbying groups and drone manufacturers have joined the chorus of
those seeking a more rapid expansion of drones in the domestic market.6
Yet, the full-scale introduction of drones into U.S. skies will inevitably generate a host of legal
issues. This report will explore some of those issues. To begin, this report will describe the
regulatory framework for permitting the use of unmanned vehicles and the potential rulemaking
that will occur over the next few years. Next, it will discuss theories of takings and property torts
as they relate to drone flights over or near private property. It will then discuss the privacy
interests implicated by drone surveillance conducted by private actors and the potential
countervailing First Amendment rights to gather and receive news. Finally, this report will
explore possible congressional responses to these privacy concerns and identify additional
potential legal issues.
Development of Aviation Law and Regulations
The predominant theory of airspace rights applied before the advent of aviation derived from the
Roman Law maxim cujus est solum ejus est usque ad coelum, meaning whoever owns the land
1 A “drone” is simply an aircraft that can fly without a human operator. They are sometimes referred to as unmanned
aerial vehicles (UAV), and the whole system⎯including the aircraft, the operator on the ground, and the digital
network required to fly the aircraft⎯is referred to as an unmanned aircraft system (UAS). See generally CRS Report
R42718, Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations in
the National Airspace System, by Bart Elias.
3 It is reported that News Corp. has used a small drone to monitor storm damage in Alabama and flooding in North
Dakota. Kashmir Hill, FAA Looks Into News Corp’s Daily Drone, Raising Questions About Who Gets to Fly Drones in
the U.S., FORBES, (Aug. 2, 2011 3:52 P.M.),
4 Nick Wingfield & Somini Sengupta, Drones Set Sights on U.S. Skies, N.Y. TIMES (Feb. 17, 2012), available at
5 FAA Modernization and Reform Act of 2012, P.L. 112-95, 126 Stat. 11.
6 Groups such as the Association for Unmanned Vehicle Systems International, which boasts 7,200 members, including
defense contractors, educational institutions, and government agencies, have been formed to advance the interests of
the UAV community. Association for Unmanned Vehicle Systems International, (last
visited Jan. 7, 2012).
Integration of Drones into Domestic Airspace: Selected Legal Issues
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possesses all the space above the land extending upwards into the heavens.7 This maxim was
adopted into English common law and eventually made its way into American common law.8 At
the advent of commercial aviation, Congress enacted the Air Commerce Act of 19269 and later
the 1938 Civil Aeronautics Act.10 These laws included provisions stating that “to the exclusion of
all foreign nations, [the United States has] complete sovereignty of the airspace” over the
country.11 Additionally, Congress declared a “public right of freedom of transit in air commerce
through the navigable airspace of the United States.”12 This right to travel in navigable airspace
came into conflict with the common law idea that each landowner also owned the airspace above
the surface in perpetuity. If the common law idea was followed faithfully, there could be no right
to travel in navigable airspace without constantly trespassing in private property owners’ airspace.
This conflict was directly addressed by the Supreme Court in United States v. Causby, discussed
extensively below.
With the passage of the Federal Aviation Act in 1958,13 the administrator of the FAA was given
“full responsibility and authority for the advancement and promulgation of civil aeronautics
generally.... ”14 This centralization of responsibility and creation of a uniform set of rules
recognized that “aviation is unique among transportation industries in its relation to the federal
government—it is the only one whose operations are conducted almost wholly within federal
jurisdiction.... ”15 The FAA continues to set uniform rules for the operation of aircraft in the
national airspace. In the FAA Modernization and Reform Act of 2012, Congress instructed the
FAA to “develop a comprehensive plan to safely accelerate the integration of civil unmanned
aircraft systems into the national airspace system.”16 These regulations must provide for this
integration “as soon as practicable, but not later than September 30, 2015.”17
Current FAA Regulations of Navigable Airspace
Fixed-Wing Aircraft
FAA regulations define the minimum safe operating altitudes for different kinds of aircraft.
Generally, outside of takeoff and landing fixed-wing aircraft must be operated at an altitude that
allows the aircraft to conduct an emergency landing “without undue hazard to persons or property
on the surface.”18 In a congested area, the aircraft must operate at least “1,000 feet above the
highest obstacle within a horizontal radius of 2,000 feet of the aircraft.”19 The minimum safe
7 Colin Cahoon, Low Altitude Airspace: A Property Rights No-Man’s Land, 56 J. AIR L. & COM. 157, 161 (1990).
8 Id; see also R. WRIGHT, THE LAW OF AIRSPACE 11-65 (1968).
9 Air Commerce Act of 1926, P.L. 69-254, 44 Stat. 568, 572.
10 Civil Aeronautics Act of 1938, P.L. 75-706, 52 Stat. 973.
11 Codified as amended at 49 U.S.C. § 40103 (2012).
12 Codified as amended at 49 U.S.C. § 40101 (2012).
13 P.L. 85-726; 72 Stat. 737 (1958).
14 H.Rept. 2360, 85th Cong., 2d Sess. (1958).
15 S. Rept. 1811, 85th Cong., 2d Sess. (1958).
16 P.L. 112-95, § 332(a)(1).
17 Id. at § 332(a)(3).
18 14 C.F.R. § 91.119(a).
19 Id. at § 91.119(b).
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operating altitude over non-congested areas is “500 feet above the surface.”20 Over open water or
sparsely populated areas, aircraft “may not be operated closer than 500 feet to any person, vessel,
vehicle, or structure.”21 Navigable airspace is defined in statute as the airspace above the
minimum safe operating altitudes, including airspace needed for safe takeoff and landing.22
While fixed-wing aircraft are subject to specific minimum safe operating altitudes based on
where it is flying, regulation of helicopter minimum altitudes is less rigid. According to FAA
regulations, a helicopter may fly below the minimum safe altitudes prescribed for fixed-wing
aircraft if it is operated “without hazard to person or property on the surface.”23 Therefore,
arguably a helicopter may be lawfully operated outside the zone defined in statute as navigable
Current FAA Regulation of Drones
Public and Commercial Operators
Drones operated by federal, state, or local agencies must obtain a certificate of authorization or
waiver (COA) from the FAA. After receiving COA applications, the FAA conducts a
comprehensive operational and technical review of the drone and can place limits on its operation
in order to ensure its safe use in airspace.25 In response to a directive in the FAA Modernization
and Reform Act of 2012, the FAA recently streamlined the process for obtaining COAs, making it
easier to apply on their website.26 It also employs expedited procedures allowing grants for
temporary COAs if needed for time-sensitive mission.27
Private commercial operators must receive a special airworthiness certificate in the experimental
category in order to operate.28 These certificates have been issued on a limited basis for flight
tests, demonstrations, and training. Presently, there is no other method of obtaining FAA approval
to fly drones for commercial purposes. It appears these restrictions will be loosened in the coming
20 Id. at § 91.119(c).
21 Id.
22 49 U.S.C. § 40102(32).
23 14 C.F.R. § 91.119(d).
24 See People v. Sabo, 185 Cal. App. 3d 845, 852 (1986) (“While helicopters may be operated at less than minimum
altitudes so long as no hazard results, it does not follow that such operation is conducted within navigable airspace. The
plain meaning of the statutes defining navigable airspace as that airspace above specified altitudes compels the
conclusion that helicopters operated below the minimum are not in navigable airspace. The helicopter hovering above
the surface of the land in such fashion as not to constitute a hazard to persons or property is, however, lawfully
25 See generally FAA “Unmanned Aircraft Systems,” available at
26 See P.L. 112-95, § 334(a) (instructing the issuance of “guidance regarding the operation of public unmanned aircraft
systems to ... expedite the issuance of a certificate of authorization process ... ”); see also “Certificates of Authorization
or Waiver (COA),” available at
27 “FAA makes progress with UAS integration,” available at
28 See 14 C.F.R. §§ 21.191, 21.193 (experimental certificates generally); 14 C.F.R. § 91.319 (operating limitations on
experimental certificate aircraft).
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years, since the FAA has been instructed to issue a rulemaking that will lead to the phased-in
integration of civilian unmanned aircraft into national airspace.29
Recreational Users
The FAA encourages recreational users of model aircraft, which certain types of drones could fall
under, to follow a 1981 advisory circular. Under the circular, users are instructed to fly a
sufficient distance from populated areas and away from noise-sensitive areas like parks, schools,
hospitals, or churches. Additionally, users should avoid flying in the vicinity of full-scale aircraft
and not fly more than 400 feet above the surface. When flying within three miles of an airport,
users should notify the air traffic control tower, airport operator, or flight service station.
Compliance with these guidelines is voluntary. In the FAA Modernization and Reform Act of
2012, the FAA was prohibited from promulgating rules regarding certain kinds of model aircraft
flown for hobby or recreational use. This prohibition applies if the model aircraft is less than 55
pounds, does not interfere with any manned aircraft, and is flown in accordance with a
community-based set of safety guidelines. If flown within five miles of an airport, the operator of
the model aircraft must notify both the airport operator and air traffic control tower.30
Safe Minimum Flying Altitude
The FAA does not currently regulate safe minimum operating altitudes for drones as it does for
other kinds of aircraft. This may be one way that the FAA responds to Congress’s instruction to
write rules allowing for civil operation of small unmanned aircraft systems in the national
airspace.31 One possibility is for the FAA to create different classes of drones based on their size
and capabilities. Larger drones that physically resemble fixed-wing aircraft could be subject to
similar safe minimum operating altitude requirements whereas smaller drones could be regulated
similar to helicopters.
Airspace and Property Rights
Since the popularization of aviation, courts have had to balance the need for unobstructed air
travel and commerce with the rights of private property owners. The foundational case in
explaining airspace ownership rights is United States v. Causby.32
United States v. Causby
In United States v. Causby, the Supreme Court directly confronted the question of who owns the
airspace above private property.33 The plaintiffs filed suit against the U.S. government arguing a
violation of the Fifth Amendment Takings Clause, which states that private property shall not “be
taken for public use, without just compensation.” Generally, takings suits can only be filed
29 P.L. 112-95, § 332(2).
30 P.L. 112-95 § 336.
31 See id. at § 332(b).
32 United States v. Causby, 328 U.S. 256 (1946).
33 Id.
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against the government when a government actor, as opposed to a private part, causes the alleged
Causby owned a chicken farm outside of Greensboro, North Carolina that was located near an
airport regularly used by the military. The proximity of the airport and the configuration of the
farm’s structures led the military planes to pass over the property at 83 feet above the surface,
which was only 67 feet above the house, 63 feet above the barn, and 18 feet above the tallest
tree.35 While this take-off and landing pattern was conducted according to the Civil Aeronautics
Authority guidelines, the planes caused “startling” noises and bright glare at night.
As the Court explained, “as a result of the noise, respondents had to give up their chicken
business. As many as six to ten of their chickens were killed in one day by flying into the walls
from fright. The total chickens lost in this manner was about 150.... The result was the destruction
of the use of the property as a commercial chicken farm.”36 The Court had to determine whether
this loss of property constituted a taking without just compensation.
At the outset, the Court directly rejected the common law conception of airspace ownership: “It is
ancient doctrine that at common law ownership of the land extended to the periphery of the
universe—Cujus solum ejus est usque ad coelum. But that doctrine has no place in the modern
world.”37 The Court noted that Congress had previously declared a public right of transit in air
commerce in navigable airspace and national sovereignty in the airspace.38 These statutes could
not be reconciled with the common law doctrine without subjecting aircraft operators to countless
trespass suits. In the Court’s words, “common sense revolts at the idea.”39
Even though it rejected the idea that the Causbys held complete ownership of the air up to the
heavens, the Court still had to determine if they owned any portion of the space in which the
planes flew such that a takings could occur. The government argued that flights within navigable
airspace that do not physically invade the surface cannot lead to a taking. It also argued that the
landowner does not own any airspace adjacent to the surface “which he has not subjected to
possession by the erection of structures or other occupancy.”40
The Court did not adopt this reasoning, finding instead that “the landowner owns at least as much
space above the ground as he can occupy or use in connection with the land. The fact that he does
not occupy it in a physical sense—by the erection of building and the like—is not material.”41
Therefore, it found that the landowner owns the airspace in the immediate reaches of the surface
necessary to use and enjoy the land and invasions of this space “are in the same category as
invasions of the surface.”42 Above these immediate reaches, the airspace is part of the public
34 Takings claims filed against state government actors would not be filed under the Fifth Amendment. Rather, they
would arise as state constitutional claims. For more information on takings, see CRS Report RS20741, The
Constitutional Law of Property Rights “Takings”: An Introduction, by Robert Meltz.
35 Id. at 258.
36 Id. at 259.
37 Id. at 260-61.
38 Id. at 260 (citing statutes then codified at 49 U.S.C. §§ 176(a), 403).
39 Id.
40 Id.
41 Id. at 264 (citing Hinman v. Pacific Air Transport, 84 F.2d 755 (1936)).
42 Id. at 265.
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domain, but the Court declined to draw a clear line. The Court also noted that the government’s
argument regarding the impossibility of a taking based on flights in navigable airspace was
inapplicable in this case because the flights over Causby’s land were not within navigable
airspace.43 At the time, federal law defined navigable airspace as space above the minimum safe
flying altitudes for specific areas, but did not include the space needed to take off and land. Even
though these flights were not within navigable airspace, the Court seemed to suggest that if they
were, the inquiry would not immediately end. Instead, the Court would then have to determine
when the regulation itself, defining the navigable airspace, was valid.44
Ultimately, in the context of a taking claim, the Court concluded that “flights over private land are
not a taking, unless they are so low and so frequent to be a direct and immediate interference with
the enjoyment and use of the land.”45 With regard to the Causbys’ chicken farm, the Court
concluded that the military flights had imposed a servitude upon the land, similar to an easement,
based on the interference with the use and enjoyment of their property. Although the land did not
lose all its economic value, the lower court’s finding clearly established the flights led directly to
a diminution in the value of the property, since it could no longer be used for its primary purpose
as a chicken farm.
Post-Causby Theories of Airspace Ownership
Causby clearly abandoned the ancient idea that private landowners each owned their vertical slice
of the airspace above the surface in perpetuity as incompatible with modern life. The case set up
three factors to examine in a taking claim that courts still utilize today: (1) whether the planes
flew directly over the plaintiff’s land; (2) the altitude and frequency of the flights; and (3)
whether the flights directly and immediately interfered with the plaintiff’s use and enjoyment of
the surface land.46
However, it left many questions unanswered. Where is the dividing line between the “immediate
reaches” of the surface and public domain airspace? Can navigable airspace intersect with the
“immediate reaches” belonging to the private property? Can aircraft flying wholly within
navigable airspace, as defined by federal law, ever lead to a successful takings claim? How does
one assess claims based on lawfully operated aircraft, such as helicopters, flying below navigable
Subsequent cases have been brought using many different legal claims, including trespass and
nuisance, as discussed below, and various ways of describing the resulting injury. Claims could
include an “inverse condemnation,” another way of describing a taking, or the establishment of an
avigation, air, or flying easement. While these legal claims may have different names, it appears
that courts use Causby as the starting point for analyzing all property-based challenges to
43 Id. at 264.
44 Id. at 263.
45 Id. at 266.
46 See e.g., Andrews v. United States, 2012 U.S. Claims LEXIS 1644, *10 (explaining that the “The United States
Court of Appeals for the Federal Circuit (Federal Circuit) has derived from Causby three factors for consideration ‘in
determining whether noise and other effects from overflights ... constitute a taking.... ’”). But see Argent v. United
States, 124 F.3d 1277, 1284 (1997) (finding a taking claim may be based on “a peculiarly burdensome pattern of
activity, including both intrusive and non-intrusive flights”).
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intrusions upon airspace. Several different interpretations of Causby have emerged in the attempt
to articulate an airspace ownership standard, a few of which are described here.
Following Causby, several lower courts employed a fixed-height theory and interpreted the
decision as creating two distinct categories of airspace. On the one hand, the stratum of airspace
that was defined in federal law as “navigable airspace” was always a part of the public domain.
Therefore, flights in this navigable airspace could not lead to a successful property-right based
action like a takings or trespass claim because the property owner never owned the airspace in the
public domain. On the other hand, the airspace below what is defined as navigable airspace could
be “owned” by the surface owner and, therefore, intrusions upon it could lead to a successful
takings or property tort claim. Since this fixed-height theory of airspace ownership relies heavily
on the definition of navigable airspace, the expansion of the federal definition of “navigable
airspace” to include the airspace needed to take-off and land47 greatly impacts what airspace a
property owner could claim.
This strict separation between navigable airspace and the airspace a landowner can claim seems
to have been disavowed by the Supreme Court. First, in dicta in Braniff Airways v. Nebraska State
Bd. of Equalization & Assessment,48 a case primarily dealing with the question of federal
preemption of state airline regulations, the Court left open the possibility of a taking based on
flights occurring in navigable airspace. It summarized Causby as holding “that the owner of land
might recover for a taking by national use of navigable air space resulting in destruction in whole
or in part of the usefulness of the land property.”49 Next, in Griggs v. Allegheny County the
Supreme Court found that the low flight of planes over the plaintiff’s property, taking off from
and landing at a nearby airport’s newly constructed runway, constituted a taking that had to be
compensated under the Fifth Amendment.50 The noise and fear of a plane crash caused by the low
overhead flights made the property “‘undesirable and unbearable’” for residential use, making it
impossible for people in the house to converse or sleep.51 The Court reached this conclusion that a
taking occurred based on this injury, despite the fact that the flights were operated properly under
federal regulations and never flew outside of navigable airspace.52 Despite this holding, some
lower courts have continued to lend credence to a fixed-height ownership theory as a reasonable
interpretation of Causby.53
Another interpretation of Causby essentially creates a presumption of a non-taking when
overhead flights occur in navigable airspace. This presumption would recognize the importance
of unimpeded travel of air commerce and that Congress placed navigable airspace in the public
domain. However, the presumption could be rebutted by evidence that the flights, while in
navigable airspace, interfered with the owner’s use and enjoyment of the surface enough to justify
compensation. As one court reasoned, “as the height of the overflight increases... the
Government’s interest in maintaining sovereignty becomes weightier while the landowner’s
47 49 U.S.C. § 40102(32) (2012).
48 347 U.S. 590 (1954).
49 Id. at 596.
50 Griggs v. Allegheny County, 369 U.S. 84, 90 (1962).
51 Id. at 87.
52 Id. at 86-89.
53 See, e.g., Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963); Powell v. United States, 1 Cl. Ct. 669 (1983).
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interest diminishes, so that the damage showing required increases in a continuum toward
showing absolute destruction of all uses of the property.”54
Finally, some courts have concluded that the altitude of the overhead flight has no determinative
impact on whether a taking has occurred. One federal court noted that the government’s liability
for a taking is not impacted “merely because the flights of Government aircraft are in what
Congress has declared to be navigable airspace and subject to its regulation.”55 Under this
approach, “although the navigable airspace has been declared to be in the public domain,
‘regardless of any congressional limitations, the land owner, as an incident to his ownership, has a
claim to the superjacent airspace to the extent that a reasonable use of his land involves such
space.’”56 Under this theory, the court would only need to examine the effect of the overhead
flights on the use and enjoyment of the land, and would not need to determine if the flight
occurred in navigable airspace.
While the definition of navigable airspace impacts each theory differently, it is clear that under
the current interpretation a showing of interference with the use and enjoyment of property is
required. Cases have clearly established that overhead flights leading to impairment of the
owner’s livelihood or cause physical damage qualify as an interference with use and enjoyment of
property.57 Additionally, flights that cause the surface to become impractical for its intended use
by the current owner also satisfy the use and enjoyment requirement.58 For example, in Griggs,
the noise, vibration, and fear of damage caused by overhead flights made it impossible for the
plaintiffs to converse with others or sleep within their house, leading to their retreat from the
property, which had become “undesirable and unbearable for their residential use.”59 Some courts
have recognized a reduction in the potential resale value of the property as an interference with its
use and enjoyment, even if the property continues to be suitable for the purposes for which it is
currently used.60 One court explained: “Enjoyment of property at common law contemplated the
entire bundle of rights and privileges that attached to the ownership of land ... Owners of fee
simple estates ... clearly enjoy not only the right to put their land to a particular present use, but
also to hold the land for investment and appreciation.... ”61 However, other courts have rejected
the idea that restrictions on uses by future inhabitants, without showing loss of property value, are
relevant to a determination of the owner’s own use and enjoyment of the property.62
Trespass and Nuisance Claims Against Private Actors
Although Causby arose from a Fifth Amendment takings claim, its articulation of airspace
ownership standards is also often used in determining state law tort claims such as trespass and
nuisance. These state law tort claims could be used to establish liability for overhead flights
54 Stephens v. United States, 11 Cl. Ct. 352, 362 (1986).
55 Branning v. United States, 654 F.2d 88, 99 (1981).
56 Id. at 98-99 (citing Palisades Citizens Association, Inc. v. C.A.B, 420 F.2d 188, 192 (D.C. Cir. 1969)).
57 See, e.g., Causby, 328 U.S. 256.
58 See, e.g., Griggs, 369 U.S. 84; Pueblo of Sandia v. Smith, 497 F.2d 1043 (10th Cir. 1974) (“appellant failed to show
interference with actual, as distinguished from potential, use of its land.”).
59 Griggs, 369 U.S. at 87.
60 See, e.g., Brown v. United States, 73 F.3d 1100 (1996); Branning, 654 F.2d 88.
61 Brown, 73 F.3d 1100.
62 Stephens v. United States, 11 Cl. Ct. 352 (1986).
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operated by private actors, where a lack of government involvement precludes a takings claim.
Generally, trespass is any physical intrusion upon property owned by another. However, unlike
with surface trespass claims, simply proving that an object or person was physically present in the
airspace vertically above the landowner’s property is generally not enough to establish a trespass
in airspace. Since Causby struck down the common law idea of ad coelum, landowners generally
do not have an absolute possessory right to the airspace above the surface into perpetuity. Instead,
airspace trespass claims are often assessed using the same requirements laid out in the Causby
takings claim. Arguably, these standards are used in property tort claims because there can be no
trespass in airspace unless the property owner has some possessory right to the airspace, which
was the same question at issue in Causby.
To allege an actionable trespass to airspace, the property owner must not only prove that the
interference occurred within the immediate reaches of the land, or the airspace that the owner can
possess under Causby, but also that its presence interferes with the actual use of his land. As one
court explained, “a property owner owns only as much air space above his property as he can
practicable use. And to constitute an actionable trespass, an intrusion has to be such as to subtract
from the owner’s use of the property.”63 This standard for airspace trespass was also adopted by
the Restatement (Second) of Torts.64
Nuisance is a state law tort claim that is not based on possessory rights to property, like trespass,
but is rooted in the right to use and enjoy land.65 Trespass and nuisance claims arising from
airspace use are quite similar, since trespass to airspace claims generally require a showing that
the object in airspace interfered with use and enjoyment of land. However, unlike trespass,
nuisance claims do not require a showing that the interference actually occupied the owner’s
airspace. Instead, a nuisance claim can succeed even if the interference flew over adjoining lands
and never directly over the plaintiff’s land, as long as the flight constitutes a substantial and
unreasonable interference with the use and enjoyment of the land.
Potential Liability Arising from Civilian Drone Use
The integration of drones into domestic airspace will raise novel questions of how to apply
existing airspace ownership law to this new technology. How courts may apply the various
interpretations of Causby, discussed above, to drones will likely be greatly impacted by the FAA’s
definition of navigable airspace for drones.
The potential for successful takings, trespass, or nuisance claims from drone use will also be
impacted by the physical characteristics of the drone, especially given that current case law
heavily emphasizes the impact of the flight on use and enjoyment of the surface property. Several
characteristics of drones may make their operation in airspace less likely to lead to liability for
drone operators than for aircraft operators. First, the noise attributed to drone use may be
significantly less than noise created by helicopters or planes powered by jet engines. Second,
drones commonly used for civilian purposes could be much smaller than common aircraft used
today. This decreased size is likely to lead to fewer physical impacts upon surface land such as
63 Geller v. Brownstone Condominium, 82 Ill. App. 3d 334, 336-37 (1980).
64 RESTATEMENT (SECOND) OF TORTS § 159(2) (1965) (stating that “Flights by aircraft in the airspace above the land of
another is a trespass if, but only if, (a) it enters into the immediate reaches of the airspace next to the land, and (b) it
interferes substantially with the other’s use and enjoyment of the land.”).
65 RESTATEMENT (SECOND) OF TORTS § 821D (1979); 2 DAN B DOBBS, ET AL. THE LAW OF TORTS § 398 (2d ed. 2011).
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vibration and dust, which are common complaints arising from overhead aircraft and helicopter
flights. Finally, it is unknown at this time how most drones will be deployed into flight. Will
drone “airports” be used to launch the aircraft or will they take off and land primarily from
individual property? If drone use remains decentralized and is not organized around an “airport,”
then drones are less likely to repeatedly fly over the same piece of property, creating fewer
potential takings, trespass, or nuisance claims. Additionally, the majority of drones are more
likely to operate like helicopters, taking off and landing vertically, than like traditional fixed-wing
aircraft. This method of takeoff reduces the amount of surface the aircraft would have to fly over
before reaching its desired flying altitude, minimizing the potential number of property owners
alleging physical invasion of the immediate reaches of their surface property.
Alternatively, the potential ability for drones to fly safely at much lower altitudes than fixed-wing
aircraft or helicopters could lead to a larger number of property-based claims. Low-flying drones
are more likely to invade the immediate reaches of the surface property, thus satisfying part of the
requirement for a takings or trespass claim.
Perhaps the most contentious issue concerning the introduction of drones into U.S. airspace is the
threat that this technology will be used to spy on American citizens. With the ability to house
high-powered cameras, infrared sensors, facial recognition technology, and license plate readers,
some argue that drones present a substantial privacy risk.66 Undoubtedly, the government’s use of
drones for domestic surveillance operations implicates the Fourth Amendment and other
applicable laws.67 In like manner, privacy advocates have warned that private actors might use
drones in a way that could infringe upon fundamental privacy rights.68 This section will focus on
the privacy issues associated with the use of drones by private, non-governmental actors. It will
provide a general history of privacy law in the United States and survey the various privacy torts,
including intrusion upon seclusion, the privacy tort most applicable to drone surveillance. It will
then explore the First Amendment right to gather news. Application of these theories to drone
surveillance will be discussed in the section titled “Congressional Response.”
66 See Jennifer Lynch, Are Drones Watching You?, ELECTRONIC FRONTIER FOUNDATION (Jan. 10, 2012),; M. Ryan Calo, The Drone as Privacy Catalyst, 64
STAN. L. REV. ONLINE 29 (Dec. 12, 2011),
67 For an analysis of the Fourth Amendment implications of government drone surveillance, see CRS Report R42701,
Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, by Richard
M. Thompson II.
68 See Press Release, Rep. Ed Markey, Markey Releases Discussion Draft of Drone Privacy and Transparency
Legislation (Aug. 1, 2012), available at
Drones are already flying in U.S. airspace – with thousands more to come – but with no privacy
protections or transparency measures in place. We are entering a brave new world, and just because
a company soon will be able to register a drone license shouldn’t mean that company can turn it
into a cash register by selling consumer information. Currently, there are no privacy protections or
guidelines and no way for the public to know who is flying drones, where, and why. The time to
implement privacy protections is now.
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Early Privacy Jurisprudence
Although early Anglo-Saxon law lacked express privacy protections, property law and trespass
theories served as proxy for the protection of individual privacy. Lord Coke pronounced in 1605
that “the house of everyone is to him as his castle and fortress, as well for his defence against
injury and violence, as for his respose[.]”69 This proposition that individuals are entitled to
privacy while in their homes crossed the Atlantic with the colonists and appeared prominently in
early revolutionary thinking.70 In one early American common law decision, the court noted that
“[t]he law is clearly settled, that an officer cannot justify the breaking open an outward door or
window, in order to execute process in a civil suit; if he doth, he is a trespasser.”71 In cases
lacking physical trespass, prosecutors relied on an eavesdropping theory, which protected the
privacy of individuals’ conversations while in their home.72
These century-old theories of trespass and eavesdropping, however, failed to keep up with a
rapidly changing society fueled by advancing technologies. As with today’s celebrity-obsessed
society, late-19th century society experienced the birth and spread of “yellow journalism,” a new
media aimed at emphasizing the “curious, dramatic, and unusual, providing readers a ‘palliative
of sin, sex, and violence.’”73 Faster presses and instantaneous photography enabled journalists to
exploit and spread gossip.74 Louis D. Brandeis (then a private attorney) and Samuel Warren were
bothered with the press’s constant intrusions into the private affairs of prominent Bostonians.75 In
1890, they published a seminal law review article formulating a new legal theory⎯the right to be
let alone.76 Brandeis and Warren understood that existing tort doctrines such as trespass and libel
were insufficient to protect privacy rights, as “only a part of the pain, pleasure, and profit of life
lay in physical things.”77 They noted that this new right to privacy derived not from “the principle
of private property, but that of an inviolate personality.”78 The authors observed that
“instantaneous photographs and newspaper enterprise have invaded the sacred precincts of
private and domestic life; and numerous mechanical devices threaten to make good the prediction
that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”79 Although this
new theory had its detractors,80 it found its way into the common law of several states.81
69 Semayne’s Case, 5 Co. Rep. 91 (K. B. 1604).
70 In contesting the use of general warrants by officials of the British Crown, known then as writs of assistance, James
Otis argued that “one of the most essential branches of English liberty, is the freedom of one’s house. A man’s house is
his castle; and while he is quiet, he is as well guarded as a prince in his castle.” II LEGAL PAPERS OF JOHN ADAMS 142.
71 See State v. Armfield, 9 N.C. 246, 247 (1822).
72 Note, The Right to Privacy in Nineteenth Century America, 94 HARV. L. REV. 1892, 1896 (1981). In an early case
from Pennsylvania, in recognizing eavesdropping as an indictable offense, the court noted: “Every man’s home is his
castle, where no man has a right to intrude for any purpose whatever. No man has a right to pry into your secrecy in
your own house.” Commonwealth v. Lovett, 4 Pa. L.J. Rpts. (Clark) 226, 226 (Pa. 1831); see also State v. Williams, 2
Tenn. 108, 108 (1808) (recognizing eavesdropping as an indictable offense).
73 Ken Gromley, One Hundred Years of Privacy, 1992 WIS. L. REV. 1335, 1351 (1992) (quoting EDWIN EMERY &
74 Id. at 1350-51.
75 William M. Prosser, Privacy, 48 Cal. L. Rev. 383, 383 (1960).
76 Louis D. Brandeis & Samuel D. Warren, The Right to Privacy, 4 HARV. L. REV. 193, 205 (1890).
77 Id. at 195.
78 Id. at 205.
79 Id. at 195.
80 Herbert Spencer Hadley, Right to Privacy, 3 N.W. L. REV. 1, 3-4 (1894) (“The writer believes that the right to
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Privacy Torts
In 1939, the First Restatement of Torts (a set of model rules intended for adoption by the states)
created a general tort for invasion of privacy.82 By 1940, a minority of states had adopted some
right of privacy either by statute or judicial decision, and six states had expressly refused to adopt
such a right.83 Twenty years later, Dean William Prosser surveyed the case law surrounding this
right and concluded that the right to privacy entailed four distinct (yet, sometimes overlapping)
rights: (1) intrusion upon seclusion; (2) public disclosure of private facts; (3) publicity which puts
the target in a false light; and (4) appropriation of one’s likeness.84 These four categories were
incorporated into the Restatement (Second) of Torts.85
Section 652B of the Restatement (Second) of Torts creates a cause of action for intrusion upon
seclusion,86 the privacy tort most likely to apply to drone surveillance.87 It has been adopted either
by common law or statute in an overwhelming majority of the states.88 Section 652B provides:
“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person.”89 Courts have
developed a set of rules for applying § 652B. First, it requires an objective person standard,
testing whether a person of “ordinary sensibilities” would be offended by the alleged invasion.90
Thus, someone with an idiosyncratic sensitivity⎯say, an aversion to cameras⎯could not satisfy
this standard by simply having his photograph taken. Likewise, the intrusion must not only be
offensive, but “highly offensive,”91 or as one court put it, “outrageously unreasonable conduct.”92
Generally, a single incident will not suffice; instead, the intrusion must be “repeated with such
persistence and frequency as to amount to a course of hounding” and “becomes a burden to his
existence.... ”93 However, in a few cases a single intrusion was adequate.94 The invasion of
privacy does not exist; that the arguments in its favor are based on a mistaken understanding of the authorities cited in
its support[.]”).
81 Compare Roberson v. Rochester Folding Box Co., 171 N.E. 538, 542 (N.Y. 1902) (declining to adopt right of
privacy), with Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905) (recognizing a right to privacy).
83 See Louis Nizer, Right of Privacy – A Half Century’s Development, 39 MICH. L. REV. 526, 529-30 (1940).
84 Prosser, supra note 75, at 385.
85 RESTATEMENT (SECON D) OF TORTS §§ 652B (intrusion upon seclusion), 652C (appropriation of name or likeness),
652D (publicity given to private fact), 652E (publicity placing person in false light).
86 Id. at § 652B.
87 Because the use of drones for surveillance primarily concerns the collection, and not necessarily the dissemination,
of information, this section will focus on the tort of intrusion upon seclusion, which has no publication requirement for
recovery. Id. cmt. a.
88 North Dakota and Wyoming are the only states not to adopt the privacy tort of intrusion upon seclusion. See Tigran
Palyan, Common Law Privacy in a Not So Common World: Prospects for the Tort of Intrusion Upon Seclusion in
Virtual Worlds, 38 SW. L. REV. 167, 180 n.106 (2008).
89 Id.
90 Shorter v. Retail Credit Co., 251 F. Supp. 329, 322 (D.S.C. 1966).
91 RESTATEMENT (SECOND) OF TORTS § 652B (emphasis added).
92 N.O.C., Inc. v. Schaefer, 484 A.2d 729, 733 (N.J. Super. Ct. Law Div. 1984).
94 See, e.g., Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463 (Cal. Ct. App. 1986) (videotaping man in his
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privacy must been intentional, meaning the defendant must desire that the intrusion would occur,
or as with other torts, 95 knew with a substantial certainty that such an invasion would result from
his actions.96 An accidental intrusion is not actionable. Finally, in some states, the intrusion must
cause mental suffering, shame, or humiliation to permit recovery.97
A review of the case law demonstrates that the location of the target of the surveillance is, in
many cases, determinative of whether someone has a viable claim for intrusion upon seclusion.
For the most part, conducting surveillance of a person while within the confines of his home will
constitute an intrusion upon seclusion.98 The illustrations to § 652B offer an example of a private
detective who photographs an individual while in his home with a telescopic camera as a viable
claim.99 Likewise, as one court observed, “when a picture is taken of a plaintiff while he is in the
privacy of his home, ... the taking of the picture may be considered an intrusion into the plaintiff’s
privacy just as eavesdropping or looking into his upstairs windows with binoculars are considered
an invasion of his privacy.”100
The likelihood of a successful claim is diminished if the surveillance is conducted in a public
place. The comments to § 652B explain that there is generally no liability for photographing or
observing a person while in public “since he is not then in seclusion, and his appearance is public
and open to the public eye.”101 Likewise, Prosser observed:
On the public street, or in any other public place, the plaintiff has no right to be alone, and it
is no invasion of his privacy to do no more than follow him about. Neither is it such an
invasion to take a photograph in such a place, since this amounts to nothing more than
making a record, not differing essentially from a full written description, of a public sight
which anyone present would be free to see.102
The case law also supports this proposition. The Alabama Supreme Court dismissed a claim of
wrongful intrusion against operators of a race track who photographed the plaintiffs while they
were in the “winner’s circle” at the track.103 Similarly, a federal district court dismissed a claim by
a husband and wife who had been photographed by Forbes Magazine while waiting in line at the
Miami International Airport as it was taken in “a place open to the general public.”104 Likewise, a
Vietnam veteran lost a claim for invasion of privacy based on photographs that depicted him and
home while being resuscitated after having suffered a heart seizure); Nader v. General Motors Corp., 25 N.Y.2d 560,
570 (1970) (surveilling plaintiff in bank in an “overzealous” manner).
96 See DOBBS ET AL., supra note 65, at § 29.
97 DeAngelo v. Fortney, 515 A.2d 594, 596 (Pa. Sup. 1986); Burns v. Masterbrand Cabinets, Inc., 369 Ill. App. 3d
1006, 1012 (Ill. App. Ct. 2007).
98 See, e.g., Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Penn. 1996).
99 RESTATEMENT (SECOND) OF TORTS § 652B cmt. b, illus. 2.
100 Lovgren v. Citizens First Nat. Bank of Princeton, 534 N.E.2d 987 (Ill. 1989); see also Souder v. Pendleton
Detectives, 88 So.2d 716, 718 (La. Ct. App. 1956) (peeping into plaintiff’s widows); Egan v. Schmock, 93 F. Supp. 2d
1090, 1094-95 (N.D. Cal. 2000) (filming plaintiff and family while in their home).
102 Prosser, supra note 75, at 392.
103 Schifano v. Green County, 624 So. 2d 178 (Ala. 1993).
104 Fogel v. Forbes, 500 F. Supp. 1081, 1084, 1087 (E.D. Pa. 1980).
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other soldiers during a combat mission in Vietnam⎯again, a public setting.105 Other examples
include the recording of license plate numbers of cars parked in a public parking lot106 and
photographing a person while walking on a public sidewalk.107
Indeed, even plaintiffs who were videotaped or photographed while on their own property have
generally been unsuccessful in their privacy claims so long as they could be viewed from a public
vantage point. Rejecting one plaintiff’s claim for intrusion upon seclusion, the Supreme Court of
Oregon held that even though the investigators trespassed on the plaintiff’s property to film him,
the investigation did not “constitute an unreasonable surveillance ‘highly offensive to a
reasonable man[,]’”108 as the plaintiff could have been viewed from the road by his neighbors or
passersby.109 In another case, the wife of a prominent Puerto Rican politician sought damages
from a newspaper for invasion of privacy allegedly committed when an agent of the newspaper
photographed her house as part of a news story about her husband.110 The court dismissed her
claim as the photographers were not “unreasonably intrusive,” and the photographs depicted only
the outside of the home and no persons were photographed. 111 Similarly, in one case a couple
sued a cell phone company for intrusion upon seclusion when the company’s workers looked onto
their property each time they serviced a nearby cell tower.112 The court rejected their claim,
holding that ‘[t]he mere fact that maintenance workers come to an adjoining property as part of
their work and look over into the adjoining yard is legally insufficient evidence of highly
offensive conduct.”113 There are many other examples.114
However, there have been some successful claims for intrusion upon seclusion involving
surveillance conducted in public.115 The comments to § 652B explain: “Even in a public place,
however, there may be some matters about the plaintiff, such as his underwear or lack of it, that
are not exhibited to the public gaze, and there may still be invasion of privacy when there is
intrusion upon these matters.”116 One of the most famous cases concerning this “public gaze”
theory involved a suit for invasion of privacy against a newspaper when it published a picture of
105 Tellado v. Time-Life, 643 F. Supp. 904, 907 (D.N.J. 1986).
106 See International Union v. Garner, 601 F. Supp. 187, 191-92 (M.D. 1985); Tedeschi v. Reardon v. 5 F. Supp. 2d 40,
46 (D. Mass. 1998).
107 Jackson v. Playboy Enterprises, Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983).
108 McClain v. Boise Cascade Corp., 271 OR 549, 556 (1975). It should be noted that the court also relied on previous
case law which held that one who seeks damages for alleged injuries “waives his right to privacy to the extent of a
reasonable investigation.” Id. at 554-555.
109 Id. at 556.
110 Mojica Escobar v. Roca, 926 F. Supp. 30, 32-33 (D.P.R. 1996).
111 Id. at 35 (citing Dopp v. Fairfax Consultants, Ltd., 771 F. Supp. 494, 497 (D.P.R. 1990)).
112 GTE Mobilnet of South Texas, LTD. Partnership v. Pascouet, 61 S.W. 3d 599, 605 (Tex. App. 2001).
113 Id. at 618.
114 See, e.g., Aisenson v. American Broadcasting Co, 220 Cal. App. 3d 146, 162-63 (1990) (holding that broadcast of
plaintiff while in his driveway and car was not an intrusion upon seclusion); Wehling v. Columbia Broadcasting
System, 721 F.2d 506, 509 (5th Cir. 1983) (holding that broadcast of the outside of plaintiff’s home taken from public
street was not an invasion of privacy); Munson v. Milwaukee Bd. of School Directors, 969 F.2d 266, 271 (7th Cir.
1992) (same).
115 See Kramer v. Downey, 684 S.W. 2d 524, 525 (Tex. Ct. App. 1984) (“[W]e now hold that the right to privacy is
broad enough to include the right to be free of those willful intrusions into one’s personal life at home and at work
which occurred in this case.”).
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the plaintiff with her dress blown up as she was leaving a fun house at a county fair.117 In
upholding the plaintiff’s claim, the court observed: “To hold that one who is involuntarily and
instantaneously enmeshed in an embarrassing pose forfeits her right of privacy merely because
she happened at the moment to be part of a public scene would be illogical, wrong, and unjust.”118
In Huskey v. National Broadcasting Co. Inc., a prisoner sued NBC, a television broadcasting
company, alleging that by filming him without consent while he was working out in the exercise
yard at the prison, NBC invaded his privacy.119 NBC countered that depictions of persons in a
“publicly visible area” could not support the claim for invasion of seclusion.120 Ultimately, the
court permitted the prisoner’s claim to go forward, observing that “[o]f course [the prisoner]
could be seen by guards, prison personnel and inmates, and obviously he was in fact seen by
NBC’s camera operator. But the mere fact a person can be seen by others does not mean that
person cannot legally be ‘secluded.’”121 Although relief is available for certain cases of public
surveillance, recovery seems to be the exception rather than the norm.122
First Amendment and Newsgathering Activities
Based on the foregoing discussion, safeguarding privacy from intrusive drone surveillance is
clearly an important societal interest. However, this interest must be weighed against the public’s
countervailing concern in securing the free flow of information that inevitably feeds the “free
trade of ideas.”123 Unmanned aircraft can improve the press and the public’s ability to gather
news: they can operate in dangerous areas without putting a human operator at risk of danger; can
carry sophisticated surveillance technology; can fly in areas not currently accessible by traditional
aircraft; and can stay in flight for long durations. However, challenges arise in attempting to find
an appropriate balance between this interest in newsgathering and the competing privacy interests
at stake.
The First Amendment to the United States Constitution provides that “Congress shall make no
law ... abridging the freedom of speech, or of the press.... ”124 The Court has construed this phrase
to cover not only traditional forms of speech, such as political speeches or polemical articles, but
also conduct that is “necessary for, or integrally tied to, acts of expression,”125 such as distribution
of political literature126 or door-to-door solicitation.127 Additionally, the Court has pulled within
117 Daily Times Democrat v. Graham, 276 Ala. 380, 381 (1964).
118 Id. at 383.
119 Huskey v. National Broadcasting Co., Inc., 632 F. Supp. 1282, 1285 (1986).
120 Id. at 1286.
121 Id. at 1287-88 (emphasis in original).
122 Jennifer R. Scharf, Shooting for the Stars: A Call for Federal Legislation to Protect Celebrities’ Privacy Rights, 3
BUFF. INTELL. PROP. L.J. 164, 183 (2006) (“Modifying intrusion to apply in public places would be necessary in order
to provide any relief.”).
123 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). Justice Stevens described this as a
“conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of
information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically,
in fostering private speech.” Bartnicki v. Vopper, 532 U.S. 514, 518 (2001).
124 U.S. CONST. amend. I.
125 Barry P. McDonald, The First Amendment and the Free Flow of Information: Towards a Realistic Right to Gather
Information in the Information Age, 65 OHIO ST. L. J. 249, 260 (2004).
126 Lovell v. City of Griffin, 3030 U.S. 444, 452 (1938).
127 Watchtower Bible and Tract Soc’y of New York , Inc. v. Vill. of Stratton 536 U.S. 150, 168-69 (2002).
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the First Amendment’s protection other conduct that is not expressive in itself, but is “necessary
to accord full meaning and substance to those guarantees.” 128 For example, the Court has said that
the public is entitled to a “right to receive news” as a correlative of the right to free expression.129
Like this right to receive news, the Court has intimated in a series of cases beginning in the 1960s
that the public and the press may be entitled to a right to gather news under the First Amendment.
Initially, in Zemel v. Rusk, the Court observed that the right “to speak and publish does not carry
with it the unrestrained right to gather information.”130 The Court’s reluctance to extend this right
may have signaled its concern that an unconditional newsgathering right could subsume almost
any government regulation that places a slight restriction on the ability to gather news.131
However, several years later the Court indicated in Branzburg v. Hayes that although laws of
general applicability apply equally to the press as to the general public, that “[n]ews gathering is
not without its First Amendment protections,”132 and that “without some protection for seeking
out the news, freedom of the press could be eviscerated.”133 The Court, however, failed to clearly
delineate the parameters of such a protection. In the Court’s most recent case, Cohen v. Cowles
Media Co., the Court adhered to the “well-established line of decisions holding that generally
applicable laws do not offend the First Amendment simply because their enforcement against the
press has incidental effects on its ability to gather and report the news.”134 The Court noted that it
is “beyond dispute ‘that the publisher of a newspaper has no special immunity from the
application of general laws. He has no special privilege to invade the rights of others.’”135
The lower federal courts have explored this right to gather news in the context of photographing
or video recording. In Dietemann v. Time, Inc. the Ninth Circuit Court of Appeals explored the
extent to which reporters could use surreptitious means to carry out their newsgathering.136 There,
defendants Time Life sent undercover reporters to a man’s house where he claimed to use
minerals and other materials to heal the sick. The reporters used a hidden camera to take pictures
of the man, and a hidden microphone to transmit the conversation to other operatives. The
defendants claimed that the First Amendment’s right to freedom of the press shielded its
newsgathering activities. In rejecting this claim, the court observed that although an individual
accepts the risk when inviting a person into his home that the visitor may repeat the conversation
to a third party, “he does not and should not be required to take the risk that what is heard and
seen will be transmitted by photograph or recording, or in our modern world, in full living color
and hi-fi to the public at large or to any segment of it that the visitor may select.”137 The court
held that “hidden mechanical contrivances” are not indispensable tools of investigative reporting,
and that the “First Amendment has never been construed to accord newsman immunity from torts
128 McDonald, supra note 68, at 260.
129 Kleindienst v. Mandel, 408 U.S. 753, 762–63 (1972).
130 Zemel v. Rusk, 381 U.S. 1, 17 (1965).
131 Id. at 16-17 (“There are few restrictions on action which could not be clothed by ingenious argument in the garb of
decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen’s
opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that
does not make entry into the White House a First Amendment right.”).
132 Branzburg v. Hayes, 408 U.S. 665, 707 (1972).
133 Id. at 681.
134 Id. at 669.
135 Cohen v. Cowles Media Co., 501 U.S. 663, 666 (1991).
136 Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).
137 Id. at 249.
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or crimes committed during the course of newsgathering.”138 In Galella v. Onassis, Galella, a selfproclaimed
“paparazzo,” constantly followed around, harassed, and photographed Jacqueline
Kennedy Onassis and her children.139 As part of an ongoing lawsuit, Onassis sued Galella for,
inter alia, invasion of her and her family’s privacy. Galella argued that he was entitled to the
absolute “wall of immunity” that protects newsmen under the First Amendment. The Second
Circuit Court of Appeals quickly rejected this absolutist position: “There is no such scope to the
First Amendment right. Crimes and torts committed in news gathering are not protected. There is
no threat to a free press in requiring its agents to act within the law.”140 By contrast, the Seventh
Circuit in Desnick v. American Broadcast Companies, Inc. held that surreptitious recording was
not a privacy invasion because the target of the surveillance was a party to the conversation,
thereby vitiating any claim to privacy in those conversations.141
Congressional Response
If Congress chooses to act, it could create privacy protections to protect individuals from
intrusive drone surveillance conducted by private actors. Such proposals would be considered in
the context of the First Amendment rights to gather and receive news. Several bills were
introduced in the 112th Congress that would regulate the private use of drones. Additionally, there
are other measures Congress could adopt.
In the 112th Congress, Representative Ed Markey introduced the Drone Aircraft Privacy and
Transparency Act of 2012 (H.R. 6676).142 This bill would amend the FAA Modernization and
Reform Act of 2012 to create a comprehensive scheme to regulate the private use of drones,
including data collection requirements and enforcement mechanisms. First, this bill would require
the Secretary of Transportation, with input from the Secretary of Commerce, the Chairman of the
Federal Trade Commission, and the Chief Privacy Officer of the Department of Homeland
Security, to study any potential threats to privacy protections posed by the introduction of drones
in the national airspace. Next, the bill would prohibit the FAA from issuing a license to operate a
drone unless the application for such use included a “data collection statement.” This statement
would require the following items: a list of individuals who would have the authority to operate
the drone; the location in which the drone will be used; the maximum period it will be used; and
whether the drone would be collecting information about individuals. If the drone will be used to
collect personal information, the statement must include the circumstances in which such
information will be used; the kinds of information collected and the conclusions drawn from it;
the type of data minimization procedures to be employed; whether the information will be sold,
and if so, under what circumstances; how long the information would be stored; and procedures
for destroying irrelevant data. The statement must also include information about the possible
impact on privacy protections posed by the operation under that license and steps to be taken to
mitigate this impact. Additionally, the statement must include the contact information of the drone
operator; a process for determining what information has been collected about an individual; and
a process for challenging the accuracy of such data. Finally, the FAA would be required to post
the data collection statement on the Internet.
138 Id.
139 Galella v. Onassis, 487 F.2d 986, 991-92 (2d Cir. 1973).
140 Id. at 996-97 (internal citations omitted).
141 Desnick v. American Broadcast Corporation, 44 F.3d 1345, 1353 (7th Cir. 1995).
142 H.R. 6676, 112th Cong. 2d Sess. (2012).
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H.R. 6676 includes several enforcement mechanisms. First, the FAA may revoke any license of a
user that does not comply with these requirements. The Federal Trade Commission would have
the primary authority to enforce the data collection requirements just stated. Additionally, the
Attorney General of each state, or an official or agency of a state, is empowered to file a civil suit
if there is reason to believe that the privacy interests of residents of that state have been
threatened or adversely affected. H.R. 6676 would also create a private right of action for a
person injured by a violation of this legislation.
Representative Ted Poe introduced the Preserving American Privacy Act of 2012 (H.R. 6199).143
This bill would prevent any private actor from using a drone to conduct surveillance on any other
private person without the consent of that other person. This ban on the private use of drones to
record other private persons could present First Amendment concerns. First, a reviewing court
would, in all likelihood, test whether this ban constituted a rule of general applicability under the
Cohen and Branzburg line of cases.144 In Bartnicki v. Vopper, the Supreme Court held that the
wiretapping laws in question were of general applicability.145 The Court observed that the statutes
were designed to protect privacy and did not distinguish based on the content of the intercepted
conversation. Instead, the communications were “singled out by virtue of the fact that they were
illegally intercepted—by virtue of the source, rather than the subject matter.”146 This same
argument could shield H.R. 6199 from a First Amendment challenge. Its purpose is to protect
privacy,147 and it does not distinguish between the subject matter of the drone surveillance, but
instead bans any instance of private surveillance when the target has not consented to such
monitoring. Additionally, this bill does not curtail the freedom to publish information,148 but
instead restricts the methods of collection. The public or media would have other avenues for
obtaining the information sought. On the other hand, this measure could hinder the free flow of
information, including coverage of newsworthy events, in contradiction to public’s right to
receive news and the Supreme Court’s dicta in Branzburg that “[n]ews gathering is not without its
First Amendment protections,”149 and that “without some protection for seeking out the news,
freedom of the press could be eviscerated.”150
Additionally, Congress could create a cause of action for surveillance conducted by drones
similar to the intrusion upon seclusion tort provided under Restatement § 652B.151 How would a
143 H.R. 6199, 112th Cong. 2d Sess. (2012).
144 See “First Amendment and Newsgathering Activities,” supra.
145 Bartnicki v. Hopper, 532 U.S. 514, 526 (2001).
146 Id.
147 See Poe: Congress must Preserve American Privacy,
article&id=8758:poe-congress-must-preserve-american-privacy-&catid=104:press-releases (“The bill seeks to ensure
the privacy of American citizens by establishing specific guidelines about when and for what purposes law enforcement
agencies and private individuals can use drones.”)
148 See Associated Press v. National Labor Relations Board, 301 U.S. 103, 133 (1937) (applying the National Labor
Relations Act to the Associated press, the Court noted that the regulation in no way “circumscribes the full freedom and
liberty of the [A.P.] to publish the news as it desires it published”).
149 Branzburg v. Hayes, 408 U.S. 665, 707 (1972).
150 See id. at 707.
151 As with the enactment of any federal statute, Congress must act within one of its constitutionally delegated powers
when creating a federal privacy tort or a crime based on intrusion of privacy. It would appear that Congress could
regulate this area under its Commerce Clause power, U.S. Const. art. I, § 8, cl. 3, which it acts under when regulating
similar federal airspace issues. See Braniff Airways v. Nebraska Bd. of Equalization and Assessment, 347 U.S. 590
(1954); United States v. Helsley, 615 F.2d 784 (9th Cir. 1979).
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court assess whether drone surveillance violated this type of tort? First, generally speaking, the
location of the search would be determinative of whether a person is entitled to an expectation of
privacy. Although courts have posited that the common law, like the Fourth Amendment, is
intended to “protect people, not places[,]”152 the location of an alleged intrusion factors heavily in
a privacy analysis. The greatest chance for liability occurs when a person photographs or
videotapes another while in the seclusion of his home. While technology has increasingly shrunk
other spheres of privacy in the digital age, the home is still accorded significant legal protection.
Using a drone to peer inside the home of another⎯whether looking through a window or utilizing
extra-sensory technology such as thermal imaging⎯would likely constitute an intrusion upon
seclusion. Moving from the home to a public space, or even a space on private property where
one can be seen from a public vantage point, significantly reduces the chance of tort liability.
However, certain instances of highly offensive surveillance in public may be actionable.
This leads to the second factor that will inform a reviewing court’s analysis: the degree of
offensiveness of the surveillance. The Ninth Circuit Court of Appeals, applying California law,
observed that, in determining offensiveness, “common law courts consider, among other things:
‘the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well
as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations
of those whose privacy is invaded.’” Several of these factors⎯especially, the context of the
intrusion and the motive of the intruder⎯are fact intensive and require application in a particular
case to fully understand. However, some generalizations can be made. The cases discussed above
that did find an intrusion upon seclusion in a public place required highly offensive activity, such
as closely following another person for an extended period or photographing another in a highly
embarrassing shot. Likewise, a court might recognize liability if one were to use a drone to follow
another for an extended period of time, particularly at a close distance. It is not clear, however,
whether knowledge of being surveilled makes the monitoring more or less offensive. For
example, one court seemed to rely on the fact that the defendant was unaware that her house was
being photographed to hold that she did not have a viable privacy claim.153 A drone flying at
several thousand feet may not significantly disturb the target of the surveillance and could fall
within this rationale. Nevertheless, filming someone in a compromising or embarrassing situation
without his knowledge can be equally offensive. Here, the facts of the particular case would
determine liability.
Congress could also create a privacy statute tailored to drone use similar to the anti-voyeurism
statutes, or “Peeping Tom” laws, enacted in many states.154 These laws prohibit persons from
surreptitiously filming others in various circumstances and places.155 Some states prohibit
surreptitious surveillance of a person while on private property, usually a private residence.156
152 Pearson v. Dodd, 410 F.2d 701, 704 (D.C. Cir. 1969) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)).
153 Mojica Escobar v. Roca, 926 F. Supp. 30, 35 (D.P.R. 1996).
154 Federal law does prohibit certain acts of voyeurism on federal property. Section 1801, Title 18 provides: “Whoever,
in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private
area of an individual without their consent, and knowingly does so under circumstances in which the individual has a
reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.” 18
U.S.C. § 1801(a). As discussed in note 151, supra, it appears Congress would have the authority to extend this section
to voyeurism committed not only on federal property but that committed from federal airspace.
155 Timothy J. Hortstmann, Protecting Traditional Privacy Rights in Brave New Digital World: The Threat Posed by
Cellular Phone-Cameras and What States Should Do to Stop It, 111 PENN. ST. L. REV. 739, 742 (2007).
156 See, e.g, GA. CODE ANN. § 16-11-61; MONT. CODE ANN. § 45-5-223.
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Nevada employs this model, prohibiting a person from entering the property of another with the
intent to peep through a window of the building.157 Likewise, New Jersey prohibits a person from
peering into the window of the dwelling of another “under circumstances in which a reasonable
person in the dwelling would not expect to be observed.”158 Other states require a prurient intent
when conducting the surveillance. Under Washington State’s statute, a person commits the crime
of voyeurism if, for the purpose of arousing or gratifying his sexual desire, he films or
photographs (1) a person in a place where he or she would expect privacy; or (2) the intimate
areas of another person, whether he or she is in a public or private place.159
Similarly, Congress could adopt an “anti-paparazzi” statute, like that enacted in California, to
prevent intrusive drone surveillance.160 In fact, Congress considered a similar measure in the 105th
Congress. The Privacy Protection Act of 1998 and the Personal Intrusion Act of 1998 would have
made it unlawful to persistently follow or chase another person for the purpose of obtaining a
visual image of that person if the plaintiff met the following elements: (1) the image was
transferred in interstate commerce or the person taking the photograph traveled in interstate
commerce; (2) the person had a reasonable expectation of privacy from such intrusion; (3) the
person feared death or bodily injury from being chased; and (4) the taking of the image was for
commercial purposes.161 Also, these bills would have created a civil remedy for an individual
whose privacy was intruded upon. Congress could use this model to make it unlawful to
persistently monitor another person using drone surveillance.
Related Legal Issues
In addition to the legal issues described above, there are a host of other issues that may arise
when introducing drones into United States national airspace system.
Right to Protect Property from Trespassing Drones. There may be instances where a
landowner is entitled to protect his property from intrusion by a drone. Under Restatement
(Second) of Torts § 260, “one is privileged to commit an act which would otherwise be a trespass
to a chattel or a conversion if the act is, or is reasonably believed to be, necessary to protect the
actor’s land or chattels or his possession of them, and the harm inflicted is not unreasonable as
compared with the harm threatened.”162 What this means is, in certain instances, a landowner
would not be liable to the owner of a drone for damage necessarily or accidentally resulting from
removing it from his property. However, there appear to be no cases where a landowner was
157 NEV. REV. STAT. § 200.603.
158 N.J. STAT. ANN. § 2C:18-3c.
159 WASH. REV. CODE § 9A.44.115; see also CAL. PENAL CODE § 647; R.I. GEN. LAWS § 11-64-2.
160 California Civil Code § 1708.8 provides:
A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a
manner that is offensive to a reasonable person, any type of visual image, sound recording, or other
physical impression of the plaintiff engaging in a personal or familial activity under circumstances
in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound
recording, or other physical impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.
161 H.R. 3224, H.R. 2448, 105th Cong., 2d sess. (1998).
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permitted to use force to prevent or remove an aircraft from his property. Additionally, as
discussed above, determining whether a drone in flight is trespassing upon one’s property may be
unusually challenging.
Stalking, Harassment, and Other Crimes. Traditional crimes such as stalking, harassment,
voyeurism, and wiretapping may all be committed through the operation of a drone. As drones are
further introduced into the national airspace, courts will have to work this new form of
technology into their jurisprudence, and legislatures might amend these various statutes to
expressly include crimes committed with a drone.
Wiretap Laws. Under the federal wiretap statute, it is unlawful to intentionally intercept an “oral
communication”163 by a person “exhibiting an expectation that such communication is not subject
to interception under circumstances justifying such expectation.... ”164 Currently, commercial
microphones can record sounds upwards of 300 feet.165 Use of such a microphone on a drone to
record private conversations could implicate the federal wiretap statute.
Preemption of State Aviation Regulations. The increased presence of drones in domestic
airspace raises the question of which aspects of drone use states may be able to individually
regulate. The Supreme Court has stated that federal preemption of state laws and regulations
occurs where “the pervasiveness of the federal regulation precludes supplementation by the
States, where the federal interest in the field is sufficiently dominant, or where the object sought
to be obtained by the federal law and the character of obligations imposed by it reveal the same
purpose.”166 Congress vested sole responsibility for the aviation industry and domestic airspace
with the federal government in the Federal Aviation Act of 1958.167 According to the legislative
history, the FAA was to have “full responsibility and authority for the advancement and
promulgation of civil aeronautics generally, including promulgation and enforcement of safety
Generally, state regulations of aviation safety, airspace management, and aviation noise are
preempted by federal laws and regulations.169 In City of Burbank v. Lockheed Air Terminal, Inc.,
the Supreme Court struck down a local city ordinance that prohibited planes from taking off
during certain hours of the day as preempted by the federal regulatory scheme.170 Expressing its
fear regarding local control of airspace, the Court stated, “If we were to uphold the Burbank
ordinance and a significant number of municipalities followed suit, it is obvious that
fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of
163 18 U.S.C. § 2511(1)(a).
164 18 U.S.C. § 2510(2).
165 See, e.g., Electromax International, Inc., (last visited Jan. 22, 2013).
166 Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988).
167 P.L. 85-726; 72 Stat. 737 (1958).
168 H.R. Rept. No. 2360, 85th Cong. (1958).
169 See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973); Abdullah v. American Airlines,
Inc., 181 F.3d 363 (3d Cir. 1999); San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1316 (9th Cir. 1981); Price
v. Charter Township, 909 F. Supp. 498 (E.D. Mich. 1995).
170 City of Burbank, 411 U.S. at 639.
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the FAA in controlling air traffic flow.”171 The Supreme Court has, however, upheld state
regulations imposing taxes on aircraft equipment located within the state.172
The legal issues discussed in this report will likely remain unresolved until the civilian use of
drones becomes more widespread. To that end, the FAA has been tasked with developing “a
comprehensive plan to safely accelerate the integration” of drones into the national airspace,
which focuses on the safety of the drone technology and operator certification. While the deadline
for development of the plan has already elapsed, the FAA has until the end of FY2015 to
implement such a plan.173 Additionally, the FAA must identify six test ranges where it will
integrate drones into the national airspace. This deadline, 180 days after enactment of the act, has
also elapsed without FAA compliance. Once these regulations are tested and promulgated, the
unique legal challenges that could arise based on the operational differences between drones and
already ubiquitous fixed-wing aircraft and helicopters may come into sharper focus.

171 Id.
172 Braniff Airways v. Nebraska Board, 347 U.S. 590 (1954). Additionally, several courts have determined that state
law tort claims based on injuries caused by aircraft are not federally preempted. See, e.g., Bieneman v. City of Chicago,
864 F.2d 463 (7th Cir. 1988) (overturning Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975), which ruled
that City of Burbank preempted application of state tort laws, such as negligence and nuisance, to flights that complied
with federal laws and regulations); Greater Westchester Homeowners Association v. City of Los Angeles, 603 P.2d
1329 (Sup. Ct. Cali. 1979).
173 See P.L. 112-95, § 332(a) (requiring development of a plan within 270 days of enactment of the act, falling in
November 2012).

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