The First Big Battle Looms

Yesterday, both houses of the California legislature approved a new UAS law  aimed at protecting privacy.  While many other states have drone privacy laws, the California bill is a game-changer because of the way it accomplishes this purpose.

Most state drone privacy laws make it an offense to use a UAS to capture images of other people on their property and then publish those pictures.  The California law however, seizes control of the air space below 350′ and gives it to individual property owners.  Specifically, the law states:

A person wrongfully occupies real property and is liable for damages pursuant to Section 3334 if, without express permission of the person or entity with the legal authority to grant access or without legal authority, he or she operates an unmanned aircraft or unmanned aircraft system less than 350 feet above ground level within the airspace overlaying the real property.

So, if you fly your UAS from point A to point B, and in doing so you fly over someone’s property at 300′, you have wrongfully occupied their property and have to pay damages.  This is the same statute that would be used if, for example, you fraudulently posed as a building inspector to get access to someone’s house so you could live in it while they were away on vacation.

This law is on a collision course with federal preemption, and could easily end up before the United States Supreme Court before it is done.  In light of that, we will provide a preview of the likely arguments to be made by both sides.

Those defending the law will almost certainly base their defense on the United States Supreme Court’s decision in United States v. Causby, 328 U.S. 256 (1946).  In Causby, the Army built an airbase that required aircraft to fly at 83 feet over the plaintiff’s property when taking off and landing.  The owner had a chicken farm, and the noise and vibrations were so great that it was actually killing the chickens.  The Court ruled that the property owner could not stop the use of the airspace over his land, but that where the use substantially impaired the owner’s ability to use his land, it constituted a taking and the government had to compensate him.  Essentially, the Supreme Court recognized that all property owners have a right to the quiet enjoyment of the “immediate reaches” of the airspace over their land.  California is taking the position that it is acting to protect this recognized interest of land owners in the state, and that the sole purpose of the law is to prevent harassment and invasion of privacy.

The counter-argument to what is being done in California would be based on the fact that this is a broad attempt to control the national airspace and goes far beyond what is necessary to protect privacy.  As a starting point, the federal government has asserted exclusive sovereignty over the airspace of the United States.  See 49 USC § 40103.  In addition, the Federal Aviation Act grants the FAA broad authority to regulate air safety, the operation of aircraft, and the use of navigable airspace.  As a result, the Federal Aviation Act has consistently been held to preempt the entire field of aviation safety, as well as aircraft operation and airspace management.  In addition, both the ruling in the Pirker decision as well as the plain language of the FAA Modernization and Reform Act of 2012, make it beyond dispute that UAS are aircraft.  As a result it would be argued that Congress intends to occupy the fields of drone safety, operation, and airspace management.  Finally, it might be possible to argue that the California law is an undue burden on the “public right of transit through the navigable airspace.”  49 U.S.C. § 40103(a)(2).

There are a number of very large and powerful entities that have already set out bold plans for the use of the airspace below 500′.  These entities have the time, will, and resources to fight for their vision.  No doubt we will be following this issue for years to come.

(Originally posted August 28, 2015)

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